Supreme Court: In an appeal against the judgment and order of Punjab & Haryana High Court, wherein the High Court has allowed the application filed under Section 438 of the Code of Criminal Procedure, 1973 (‘CrPC’) and granted anticipatory bail to the accused for offences under Sections 406, 420, 467, 468, 471 and 120-B of the Penal Code, 1860 (‘IPC’), the division bench of Surya Kant* and CT Ravikumar JJ. has set aside the impugned order of the High Court granting anticipatory bail to the accused. Further, directed the Commissioner of Police, Gurugram, to constitute a Special Investigation Team (‘SIT’) to be headed by an officer not below the rank of Deputy Superintendent of Police along with two Inspectors as its members.
The appellants are senior citizens who were owners and had possession of the land situated within the revenue estate of a village for over a period of 30 years. The appellants claim that they never sold the subject land to anyone, nor have they ever executed any power of attorney in favor of any third party. The area has always been unequivocally under their possession and has never been ceded in any form to people outside the family. However, when the appellant went to obtain revenue papers for the subject land. He discovered that someone had approached the patwari to sanction mutation of the land, which was based on a forged and fabricated sale deed. Thereafter, the appellants registered an FIR, and an investigation was initiated. Fearing arrest, the accused filed an application for anticipatory bail before the Additional Sessions Judge, which was dismissed. Aggrieved, the accused filed an application for anticipatory bail before the High Court. The High Court, vide impugned order allowed the application and granted him anticipatory bail. Thus, the appellants filed the present appeal.
The Court referred to Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, wherein the Constitution Bench reaffirmed that when considering applications for anticipatory bail, courts should consider factors such as the nature and gravity of the offences, the role attributed to the accused, and the specific facts of the case. The Court said that the relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation.
The Bench said that the power of attorney has not yet seen the light of the day. After reviewing the alleged power of attorney, the Court said that the appellants relinquished all crucial rights pertaining to the subject land. These rights include possession of the land, handling water, sewer electricity, power connections, and other services related to the property, making additions or modifications to the existing structure, renting and managing tenant related matters etc. Further, the appellants had granted authority for selling, disposing, or transferring the land, entering into agreements, and receiving consideration on behalf of the principal. However, regardless of obtaining all the rights over the Subject Land, the accused does not appear to have ever informed the Revenue/local authorities that he had purportedly ‘purchased’ the subject land through a power of attorney. The ownership of the land always remained in the name of the appellants in the revenue record and no application for change of mutation, etc. was moved by the accused.
The Court was informed that for the execution of the alleged power of attorney, a portion of the subject land was acquired by the Government and compensation in this regard was paid to the appellants. The Court noted that the accused neither objected to the payment of such compensation nor asserted his title over the land, which he normally would have done had he possessed any rights over it. Further, it said that it would be inappropriate to accept transfer of ownership rights in an immovable property merely on execution of a power of attorney.
The Court could not be able to understand that how a bona fide purchaser could pay crores of rupees as sale consideration to a person who neither possesses documents showing ownership and title nor has original power of attorney of the true owner of the property. The fact that the sale deed was allegedly executed without mentioning the PAN Number or without deducting Tax Deducted at Source, underlines the dubious nature of this transaction.
The Court was intrigued at the behavior of the Registering Authorities and their acceptance of the conveyance deed in the absence of these formalities being completed. The Sub-Registrar and his officials were obligated to verify the ownership rights before registration of the sale deed.
The Court said that there is clear cut prima facie evidence to indicate that the version of events provided by the accused, the buyers of the property, and the Sub Registrar, should be viewed with scepticism, as these parties, prima facie, appear to be acting in concert with each other with the ulterior motive of duping the absentee landowners. This angle requires thorough consideration by the investigating authorities. The appellants have seemingly fallen prey to a well-orchestrated conspiracy hatched to rob them of their highly valuable property. In such cases where the victims of a crime, on account of their old age and geographical distance, are unable to secure justice on their own, it falls upon Courts and the State to carry out their solemn duty to ward off injustice and restore the faith of one and all in the rule of law.
The Court said that land scams in India have been a persistent issue, involving fraudulent practices and illegal activities related to land acquisition, ownership, and transactions. Scammers often create fake land titles, forge sale deeds, or manipulate land records to show false ownership or an encumbrance free status. These land scams not only result in financial losses for individuals and investors but also disrupt development projects, erode public trust, and hinder socio-economic progress.
The Court did not intend to interfere with the judicial discretion exercised by the High Court in granting bail to an accused. However, the Bench said that it is essential to ensure that all the material facts are brought on record and thereafter only the discretionary jurisdiction is exercised in accordance with the fundamental principles of anticipatory bail laid down in various decisions over time by Supreme Court.
Further, the Court said that the facts of the case speak for themselves, and an element of criminality cannot be ruled out at this stage. Whether or not the alleged offences were committed by the accused and his co-accused in active collusion with each other can be effectively determined by a free, fair, unhampered and dispassionate investigation. Thus, custodial interrogation of not only the accused, but all other suspects is imperative to unearth the truth.
The Court was skeptical, suspicious and incredulous about the verification process of the power of attorney carried out by the Sub Registrar. Hence, the Court said that the conduct of the officials of Sub Registrar is also required to be examined to take the investigation to its logical conclusion.
Thu, the Court while setting aside the anticipatory bail order, gave the following directions:
The SIT shall be at liberty to seek suitable modifications to Sessions Court/High Court anticipatory bail orders so that no impediment is caused in carrying out a fair and free investigation.
The Civil Court shall not pass any such order in pending civil suits which may hamper the ongoing investigation.
The SIT shall conclude the investigation as early as possible and not later than two months from the date of this order.
The Commissioner of Police shall be personally responsible for monitoring the day-to-day investigation.
The authorities of NCT of Delhi shall extend full cooperation in the matter of verification of the genuineness of the power of attorney.
[Pratibha Manchanda v. State of Haryana, 2023 SCC OnLine SC 785, decided on 07-07-2023]
*Judgment Authored by: Justice Surya Kant