Delhi High Court: An application under Section 439 read with Section 482 of the Criminal Procedure Code, 1973 (‘CrPC’) was filed on behalf of petitioner for bail in FIR under Sections 454, 380, 420, 468, 471, and 120-B of the Penal Code, 1860. Anoop Kumar Mendiratta, J.*, dismissed the application and opined that the charge sheet was filed against petitioner within the prescribed limit and cognizance was taken by the concerned Court, thus petitioner could not claim the statutory right of default bail under Section 167(2) of CrPC merely because some investigation under Section 173(8) of CrPC might be required.
The complainant, Rashmi Gulati, a practicing Advocate, alleged that while she along with her family was abroad, someone trespassed in her flat in Delhi and the said flat had been purchased by her based on registered Power of Attorney in 1989 from Narinder Kumar Minocha. On the other hand, the said property was claimed by Naresh Kumar Jindal and Subhash Kumar Bansal, having purchased the same from Rakesh Kumar, who in the present case, was petitioner, Oma Ram, and was known by different names, including Ram Marwari as per Aadhaar Card found in his possession.
Further, Naresh Kumar Jindal and Subhash Kumar Bansal had identified petitioner as Rakesh Kumar, who had executed documents in their favour for transfer of the said flat. The ownership of the flat was claimed by them based on a chain of documents handed over to them by petitioner. Accordingly, the original allottee Narinder Kumar Minocha executed documents in favour of Harikishan Dua, who in turn conveyed the property in favour of Sushil Kumar Garg. Finally, the same was purchased by petitioner for consideration of Rs 3,25,000. The transfer of property in favour of Rakesh Kumar was claimed based on notarized Power of Attorney while the complainant, Rashmi Gulati purchased the property based on registered GPA supported by part payment by way of pay order.
Analysis, Law, and Decision
The Court opined that no Test-Identification-Parade (‘TIP’) proceedings for identification of petitioner were required to be conducted and the execution of the documents by petitioner impersonating as Rakesh Kumar in favour of Naresh Kumar Jindal and Subhash Kumar Bansal must have been carried over several meetings and as such his identification by Naresh Kumar Jindal and Subhash Kumar Bansal could not be disputed.
The Court also opined that merely because the signatures of Narinder Kumar Minocha could not be collected during investigation, did not cast any doubt on the authenticity of registered GPA executed in favour of the complainant, who had been in possession of the property since 1989. The Court further opined that petitioner’s contention that default bail was to be granted under Section 167(2) of CrPC being a statutory right, since incomplete charge-sheet was filed, was without any merit.
The Court noted that in the present case, the charge sheet was filed within the stipulated period of 90 days and cognizance of the offences was taken. The statutory requirement of the report under Section 173(2) of CrPC was complied with, if various details prescribed therein were included in the report. The Court stated that the report was an intimation to the Magistrate that upon investigation into a cognizable offence, the Investigating Officer (‘IO’) was able to procure sufficient evidence for the Court to inquire into the offence and necessary information was being sent to the Court.
The Court relied on K. Veeraswami v. Union of India, (1991) 3 SCC 655 wherein it was held that the report was complete, if it was accompanied with all the documents and statement of witnesses as required by Section 175(5) of CrPC.
The Court noted that the right of IO for further investigation in terms of Section 173(8) of CrPC was not taken away only because the charge sheet was filed under Section 173(2) of CrPC against the accused. The Court opined that though, all the documents relied upon by the prosecution should accompany the charge-sheet, nonetheless, if for some plausible reasons, all the documents were not filed along with the charge-sheet, this itself, would not invalidate or vitiate the charge-sheet.
The Court relied on CBI v. Kapil Wadhawan, 2024 SCC OnLine SC 66, wherein it was held that if upon the material produced along with the charge-sheet, the Court was satisfied about commission of an offence and thereupon took cognizance of the offence allegedly committed by the accused, it was immaterial whether the further investigation in terms of Section 173(8) of CrPC was pending or not, qua other accused or for production of some documents not available at the time of filing of the charge-sheet. The Court opined that the same would not entitle the accused to claim the right to get default bail on the ground that the charge-sheet was an incomplete charge-sheet or that the charge-sheet was not filed in terms of Section 173(2) of CrPC.
The Court dismissed the application and opined that the charge sheet was filed against petitioner within the prescribed limit and cognizance was taken by the concerned Court, thus petitioner could not claim the statutory right of default bail under Section 167(2) of CrPC merely because some investigation under Section 173(8) of CrPC might be required.
[Oma Ram v. State (NCT of Delhi), 2024 SCC OnLine Del 812, decided on 8-2-2024]
*Judgment authored by: Justice Anoop Kumar Mendiratta
Advocates who appeared in this case :
For the Petitioner: Varun Bhati, Advocate
For the Respondent: Ajay Vikram Singh, APP; Hemant Gulati, Advocate