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IN
THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.A.
NO. _______OF 20__.
IN
BAIL
APPLICATION NO. ______OF 20___.
IN
THE MATTER OF :-
XXXXXXXX : APPLICANT
VERSUS
STATE OF NCT OF
DELHI & ANR. : RESPONDENTS
N.D.O.H.: __________
REPLY
TO THE APPLICATION UNDER SECTION 438(2) CR.P.C. FILED BY APPLICANT /
COMPLAINANT SH.XXXXXX FOR CANCELLATION
OF THE ORDER OF BAIL DATED 26.05.20XX PASSED BY THIS HONâBLE COURT.
MOST
RESPECTFULLY SHOWETH:-
PRELIMINARY
SUBMISSIONS / OBJECTIONS:-
1.
That the complainant
approached to the Accused to purchase the property bearing no. XXXXXXXXXXXXXXXXX,
Delhi and the deal was finalized with the amount of Rs.58,32,750/- and a token
amount of Rs. 1 lakh was handed over by the complainant to the Accused and the
same was acknowledged by the Accused and a Bayana receipt was executed on the
same day on 27.03.20XX, in which the entire description of the deal was
mentioned and thereafter, a part payment of Rs.4 lakhs was handed over by the
complainant to the Accused since approx. 10% bayana was finalized for the total
deal and the stipulated time to make the final payment was finalized for three
months i.e. 27.06.20XX and during the execution of Bayana receipt the Accused
conveyed that the sale deed would be executed by one Mr. R and since Mr. R executed Bayana receipt with the Accused that
is why, the Accused taking Bayana as token amount form the complainant and the
Bayana receipt executed between Mr.R and Accused.
2.
That the complainant was
not able to arrange the entire consideration amount on or before 27,06.20XX and
in spite of several reminders to the complainant by the accused, the
complainant denial all the requests of the accused and when the stipulated time
till 27.06.20XX was over and the accused asked the complainant to his money
back since the complainant was a retired police official and the accused did
not want to do injustice to the complainant therefore, several requests were
made to him but he denied all the request and asked for the double the amount
of the Bayana i.e. 10 lakhs.
3.
That the complainant
threatened the accused to lodge the complaint against him in Police Station and
accused conveyed that he was ready to return the amount and never denied for
the same but complainant was adamant for the same. Status report was also filed in the Court of Ld. Sessions Judge.
4.
That the accused lodged
the false and frivolous complaint against the accused and during the complaint
pending in Police station, the SHO concerned asked him several times that the
same was civil dispute and when the accused ready to return the amount then why
complainant so adamant for not taking the same but complainant did not listen
to SHO or any other police officials and accused was asked to appear several
times to the police station and he was present all the time.
5.
That during the
investigation pending before Ld. M.M, the accused was regularly appeared at
Police Station. The accused has no concerned with the above said alleged
criminal offences but a civil nature of matter coloured the criminal case.
6.
That the FIR was
registered thorough an application U/s. 156(3) Cr.P.C along with 200 Cr.P.C
lodged by the complainant before Ld. MM, XXXX Courts, Delhi.
7.
That the accused took Bayana
of a plot Bearing no. XXXXXXXXXXX, Delhi and it was made clear to the
complainant, about the earlier Bayana receipt of Mr. R and it was also
communicated that all the files were notarized by Notary public. It was made clear
several times to the complainant about the file and he readily agreed to
purchase the same. He gave the bayana amount of Rs.l,00,000/-and part payment
of Rs. 4,00,000/- on March 2019, the receipt was given to him.
8.
That the complainant is
retired police officer, he extorted pressure to take double of the Bayana
amount to settle the matter. The accused was ready to settled the matter and
pay the said amount of Rs.5,00,000/-, this fact was reiterated every time by
the accused, but he wanted double of the amount.
9.
That the applicant has no
locus-standi to file the present application for cancellation of bail order
dated 26.05.20XX as he cannot be treated on par with the Public Prosecutor. It
is for the prosecution to satisfy itself whether by granting bail, the accused /
Respondent no.2 will be interfering with the trial or the evidence and if it
finds that the accused is conducting himself prejudicial to the interest of the
prosecution, it is open for the prosecution to file an application or bring to
the notice of the Court for cancellation of bail. But, it would not authorize the
private person to step in the shoe of Public Prosecutor and file the
application for cancellation of bail under Cr.P.C.
10.
That the present
application is absolutely baseless and without any merit and does not disclosed
any ground whatsoever for cancelling the bail granted by this Honâble Court
vide order dated 26.05.20XX.
11.
That the present
application moved by the applicant / Complainant is not maintainable and is
liable to be dismissed on the ground that the Respondent no.2 / accused has not
violated any of the conditions imposed by this Honâble Court in its bail order
dated 26.05.20XX.
12.
That the Applicant has
roped in the Respondent no.2 into the present case which is totally false and in
order to take revenge as he declined to give the double consideration amount to
the Applicant and Respondent no.2 ready and willing to execute transfer
documents but it is the Applicant who did not come forward with the balance
sale consideration within the stipulated period and wanted double the amount.
13.
That it is submitted
after granting bail to the Respondent no.2 / accused, he is following all the
terms and conditions and has not misused the liberty of the bail granted to him
by this Honâble Court.
14.
It is submitted that the
present application is moved on the basis that the Respondent no.2 / accused violated
the undertaking given before this Honâble Court on 26.05.20XX on this basis
Applicant seeks cancellation / set aside of bail order dated 26.05.20XX. For
kind perusal of this Honâble Court answering Respondent no.2 / accused
reproduce the relevant para of said order ;-
â13.
The learned counsel for the applicant states that in case the Complainant is
ready and willing to accept Rs.5 Lakhs, the same shall be repaid by the
applicant within 2 weeks of the demand.â
It is clearly mentioned that âin case the Complainant is read and
wiling to acceptâ and âshall be repaid by the applicant within 2 weeks of the demandâ, but the Applicant / Complainant
herein never raised any demand of
aforesaid amount of Rs.5 Lakhs to the answering Respondent till. Hence, in the
absence of word demand raised from
the Applicant, answering respondent unable to fulfill the same and/or comply
the undertaking the order, so there is no violation of order / undertaking on
the part of answering Respondent in any manner. It is the Applicant who have
wrongful / malafide intention to get double of the consideration amount.
15.
It is submitted that the
all the aforesaid allegations levied by the Complainant in the application
under reply are totally false, bald and vague and there is not even iota of
truth in the application as the same has been moved only to further humiliate
and harass the answering Respondent.
16.
It is submitted that by
invoking Section 438(2) of the CrPC, the application, notwithstanding the
nomenclature given thereto of under Section 438(2) of CrPC, was in fact under Section
439(2) of CrPC. It was felt that once the CrPC expressly provides the remedy to
cancel any bail that has been granted by it to another criminal court in
accordance with Chapter XXXIII, to apply therefore under Section 439(2) of CrPC,
the law with respect to order 438(2) of CrPC apply the conditions in directions
in the light of facts of the particular case and not the law under Order 438(2)
of the CrPC.
17.
It is submitted that the
provision for cancellation of bail is provided in Section 439(2) which
contemplates that the Court of Session or the High Court can cancel the bail
granted to an accused. The said section is reproduced hereunder for ready
reference:
â439(2) - A High
Court or Court of Sessions may direct that any person who has been released on
bail under this Chapter be arrested and commit him to custody.â
18.
It is submitted that the
Bail is a vital and crucial right of an accused enshrined under the right to
freedom, once the person is released on bail, it is in exceptional
circumstances that the courts cancel his bail. The pre-conditions as defined by
various courts for cancellation of bail can be summarized as under:
a.
The interference or
attempt to interfere with the due course of administration of justice by the
accused.
b.
The evasion or attempt to
evade the course of justice by the accused.
c.
The accused has abused to
the liberty granted to him by the court.
d.
The accused misuses the
liberty by indulging in similar criminal activity.
e.
The accused interferes
with the course of the investigation.
f.
The accused attempts to
tamper with the evidence or the witnesses.
g.
The accused threatens
witnesses or indulges in similar activities.
19.
In the case title Dolat Ram vs State of Haryana; 1995 (1)
SCC 349; the Honâble Supreme Court of India held as under:-
âRejection
of bail in a non-bailable case at the initial stage and the cancellation of
bail so granted, have to be considered and dealt with on different basis. Very
cogent and overwhelming circumstances are necessary for an order directing the
cancellation of the bail, already granted. Generally speaking, the grounds for
cancellation of bail, broadly (illustrative and not exhaustive) are:
interference or attempt to interfere with the due course of administration of
Justice or evasion or attempt to evade the due course of justice or abuse of
the concession granted to the accused in any manner. The satisfaction of the
court, on the basis of material placed on the record of the possibility of the
accused absconding is yet another reason justifying the cancellation of bail.
However, bail once granted should not be cancelled in a mechanical manner
without considering whether any supervening circumstances have rendered it no
longer conducive to a fair trial to allow the accused to retain his freedom by
enjoying the concession of bail during the trial. These principles, it appears,
were lost sight of by the High Court when it decided to cancel the bail,
already granted. The High Court it appears to us overlooked the distinction of
the factors relevant for rejecting bail in a non bailable case in the first
instance and the cancellation of bail already granted.â
20.
It is submitted that none
of the precondition mentioned in para above exist in the present case and hence
there is absolutely no basis for this Honâble Court to cancel the bail of the
accused. In fact the applicant is actuated with malice and the application is
per se devoid of any merit.
21.
In the case of State Through Delhi ... vs Sanjay Gandhi; AIR
1978 SC 961; it is held as under:-
âRejection of bail when bail is applied for is one
thing; cancellation of bail already granted is quite another. It is easier to
reject a bail application in a non-bailable case than to cancel a bail granted
in such a case. Cancellation of bail necessarily involves the review of a
decision already made and can by and large be permitted only if, by reason of
supervening circumstances, it would be no longer conducive to a fair trial to
allow the accused to retain his freedom during the trial. The fact that
prosecution witnesses have turned hostile cannot by itself justify the
inference that the accused has won them over brother, a sister or a parent who
has seen the commission of crime, may resile in the Court from a statement
recorded during the course of investigation. That happens instinctively, out of
natural love and affection, not out of persuasion by the accused. The witness has
a stake in the innocence of the accused and tries therefore to save him from
the guilt. Likewise, an employee may, out of a sense of gratitude-, oblige the
employer by uttering an untruth without pressure or persuasion. In other words,
the objective fact that witnesses have turned hostile must be shown to bear a
causal connection with the subjective involvement therein of the respondent.
Without such proof, a bail once granted cannot be cancelled on the off chance
or on the supposition that witnesses have been won over by the accused. â
22.
In the case Bhagirath Sinha S/o Mahipat Singh ... vs
State Of Gujarat; AIR 1984 SC 372; it is held as under:-
âVery
cogent and overwhelming circumstances all necessary for an order seeking
cancellation of the bail. And the trend today is towards granting bail because
it is now well-settled by a catena of decisions of this Court that the power to
grant bail is not to be exercised as if the punishment before trial is being
imposed. The only material considerations in such a situation are whether the
accused would be readily available for his trial and whether he is likely to
abuse the discretion granted ill his favour by tampering with evidence.â
23.
That by way of payment it was in the nature of buying
freedom which is against public policy and the rule of law. That the law
regarding bail neither permits buying of bail nor permits such conditions to be
laid down so as to fulfil the object and intent of the conditions mentioned in
Section 438 Cr.P.C.
24.
That
there is absolutely no basis for this
Honâble Court to cancel the bail of the Respondent no. 2 due to the reasons
mentioned above.
REPLY
ON MERIT:-
1. That
the contents of para 1 of the application are wrong and denied. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
2. That
the contents of para 2 of the application are wrong and denied. It is denied
that the respondent No.2 also claimed that purchase of above plot shall be
beneficial to the applicant as the rates of above plot shall shoot up in near
future. The aforesaid submissions made in the preliminary objections may kindly
be read as part and parcel of the para under reply as the contents of the same
are not being repeated herein for the sake of brevity.
3. That
the contents of para 3 of the application are wrong and denied. It is denied
that the respondent No.2 also claimed that the above plot was free from all encumbrances
and the applicant should purchase the same immediately. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
4. That
the contents of para 4 of the application are wrong and denied to the extent
that believing upon the tall claims of the respondent No.2, the applicant
became ready to purchase above plot from the respondent No.2. It is further denied
that at that time, while executing a Bayana Receipt, the respondent No.2 herein
specifically claimed in the bayana receipt the he was absolute owner of the
above plot. The aforesaid submissions made in the preliminary objections may
kindly be read as part and parcel of the para under reply as the contents of
the same are not being repeated herein for the sake of brevity.
5. That
the contents of para 5 of the application are wrong and denied. It is denied
that despite repeated requests, the respondent No.2 herein did not give a copy
of his ownership documents/ sale deed on that day saying that he was not having
extra copy of same available and will send a photocopy of the said documents
later on. The aforesaid submissions made in the preliminary objections may
kindly be read as part and parcel of the para under reply as the contents of
the same are not being repeated herein for the sake of brevity.
6. That
the contents of para 6 of the application are wrong and denied. It is denied
that thereafter, the applicant repeatedly requested to the respondent No.2
herein to provide copy of his ownership documents/sale deed so that the
applicant may purchase stamp papers for getting a sale deed executed in his
name on the due date. The aforesaid submissions made in the preliminary
objections may kindly be read as part and parcel of the para under reply as the
contents of the same are not being repeated herein for the sake of brevity.
7. That
the contents of para 7 of the application are wrong and denied. It is denied
that ultimately, the applicant told the respondent No.2 herein that in case he
did not provide copy of his ownership documents/sale deed or return the money
of the applicant then the complainant was going to report the matter to the
police against him but still, the respondent No.2 herein did not provide any
copy of his ownership documents/sale deed. The aforesaid submissions made in
the preliminary objections may kindly be read as part and parcel of the para
under reply as the contents of the same are not being repeated herein for the
sake of brevity.
8. That
the contents of para 8 of the application are wrong and denied. It is denied
that on repeated pressures, the respondent No.2 herein provided to the
applicant a photocopy of an unregistered sale agreement wherein it was shown
that the respondent No.2 herein had entered into an agreement to purchase the
above plot from its erstwhile owner. The aforesaid submissions made in the
preliminary objections may kindly be read as part and parcel of the para under
reply as the contents of the same are not being repeated herein for the sake of
brevity.
9. That
the contents of para 9 of the application are wrong and denied. It is denied
that when the applicant told the respondent No.2 herein that this was not that
document/registered sale deed which he had shown on 27.03.20XX as his ownership
document in respect of the above plot then the respondent No.2 herein
threateningly told that this agreement to sell was the only document with him
as proof of ownership document in respect of the above plot. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
10. That
the contents of para 10 of the application are wrong and denied. It is denied
that at this stage, the applicant made further enquiries and found that the
respondent No.2 herein was not the owner of any such plot and had played a
fraud with the applicant by misrepresentation and the document i.e. alleged
agreement to sell so provided by the respondent No.2 was forged and fabricated.
The aforesaid submissions made in the preliminary objections may kindly be read
as part and parcel of the para under reply as the contents of the same are not
being repeated herein for the sake of brevity.
11. That
the contents of para 11 of the application are wrong and denied. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
12. That
the contents of para 12 of the application are wrong and denied. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
13. That
the contents of para 13 of the application are wrong and denied. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
14. That
the contents of para 14 of the application are wrong and denied. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
15. That
the contents of para 15 of the application are wrong and denied. The aforesaid submissions
made in the preliminary objections may kindly be read as part and parcel of the
para under reply as the contents of the same are not being repeated herein for
the sake of brevity.
16. That
the contents of para 16 of the application are matter of record, need no reply.
The aforesaid submissions made in the preliminary objections may kindly be read
as part and parcel of the para under reply as the contents of the same are not
being repeated herein for the sake of brevity.
17. That
the contents of para 17 of the application are matter of record, need no reply.
The aforesaid submissions made in the preliminary objections may kindly be read
as part and parcel of the para under reply as the contents of the same are not
being repeated herein for the sake of brevity.
18. That
the contents of para 18 of the application are matter of record, need no reply.
The aforesaid submissions made in the preliminary objections may kindly be read
as part and parcel of the para under reply as the contents of the same are not
being repeated herein for the sake of brevity.
19. That
the contents of para 19 of the application are wrong and denied to the extent
that the applicant herein has come to know that since this Hon'ble Court was of
the view that when the respondent No.2 was not the owner of the property
involved/ agreed to be sold by him then why he claimed himself to be owner of
the same and accepted earnest money then the Ld. counsel for the respondent
No.2 submitted before this Hon'ble Court. The aforesaid submissions made in the
preliminary objections may kindly be read as part and parcel of the para under
reply as the contents of the same are not being repeated herein for the sake of
brevity.
20. That
the contents of para 20 of the application are wrong and denied. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
21. That
the contents of para 21 of the application are wrong and denied. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
22. That
the contents of para 22 of the application are wrong and denied. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
23. That
the contents of para 23 of the application are wrong and denied. It is denied
that sensing that S.I. Mr. M the IO of
the ease was having some hidden motive and on any day he may claim that the
applicant herein has not demanded his money so, he did not call the respondent
No.2 herein to pay the aforesaid amount to the applicant herein, the applicant
herein submitted his written application, requesting the SHO to call the
respondent No.2 herein and ask him to pay the aforesaid amount to the applicant
herein and the said application was again marked to S.I. Mr .M, the
Investigating Officer (IO) of the case and after getting the aforesaid
application, the Investigating Officer (IO) of the case became angry and called
the applicant herein (who is a senior citizen of about 70 years), with bad
names and S.I. Mr.R, the Investigating Officer (IO) of the case threatened the
applicant that he was not bound by any such order of the court and he further
commented that the applicant had reported the matter to the SHO but even if the
applicant reports the same to DCP then also, ho (S.I. Mr. M) was not worried.
It is further denied that surprisingly, S.I. Mr. M, the Investigating Officer
(10) of the case offered to the applicant herein that in case the applicant
herein give in writing that he has compromised the matter with the respondent
No.2 herein and will get the FIR in question quashed then only he will ask the
respondent No.2 herein to pay the aforesaid amount to the applicant herein. The
aforesaid submissions made in the preliminary objections may kindly be read as
part and parcel of the para under reply as the contents of the same are not
being repeated herein for the sake of brevity.
24. That
the contents of para 24 of the application are wrong and denied. It is denied
that after listening the aforesaid comments from the Investigating Officer (10)
of the case, it became crystal clear that S.I. Mr. M, the Investigating Officer
(IO) of the case has malafidely and criminally colluded with the respondent
No.2 herein and he was hell bent to compel the applicant herein to compromise
the matter with the respondent No.2 herein. The aforesaid submissions made in
the preliminary objections may kindly be read as part and parcel of the para
under reply as the contents of the same are not being repeated herein for the
sake of brevity.
25. That
the contents of para 25 of the application are wrong and denied. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
26. That
the contents of para 26 of the application are wrong and denied. It is denied
that there is a clear violation of the undertaking given on behalf of the
respondent No.2 herein, hence, the aforesaid order dated 26.05.2023 is liable
to be set aside and the concession of ball given by this Hon'ble Court to the
respondent No.2 herein is liable to be withdrawn. The aforesaid submissions
made in the preliminary objections may kindly be read as part and parcel of the
para under reply as the contents of the same are not being repeated herein for
the sake of brevity.
27. That
the contents of para 27 of the application are legal para, need no reply. The
aforesaid submissions made in the preliminary objections may kindly be read as
part and parcel of the para under reply as the contents of the same are not
being repeated herein for the sake of brevity.
28. That
the contents of para 28 of the application are wrong and denied. It is denied
that the poor old man i.e. the applicant herein was firstly cheated by the
respondent no.2 herein and now the IO of the case and the respondent no.2
herein, in collusion with each other, are harassing the poor applicant and are
compelling the poor applicant to compromise the matter. The aforesaid
submissions made in the preliminary objections may kindly be read as part and
parcel of the para under reply as the contents of the same are not being
repeated herein for the sake of brevity.
29. That
the contents of para 29 of the application are wrong and denied. It is denied
that there is a clear violation of the undertaking given by the respondent no.2
herein before this Hon'ble Court on 26.05.2023 and in this manner, it is
apparent that the respondent no.2 herein procured the order in his favour by
misrepresentation, fraud and manipulation. The aforesaid submissions made in
the preliminary objections may kindly be read as part and parcel of the para
under reply as the contents of the same are not being repeated herein for the
sake of brevity.
The prayer clause is without any basis
and hence be dismissed.
PRAYER:-
In the facts
and circumstances of the case, it is respectfully prayed that this Honâble
Court may be pleased to dismiss the aforesaid application under reply being
ânon-maintainableâ, false, frivolous and baseless filed by the
applicant/complainant with costs in the interest of justice.
Pass
such other order or orders as this Honâble Court may deem fit and proper
interest he interest of justice.
DELHI RESPONDENT NO.2/ACCUSED
THROUGH
DATED:
ADVOCATE
IN
THE HIGH COURT OF DELHI AT NEW DELHI
CRL.
M.A. NO. _______OF 20__.
IN
BAIL
APPLICATION NO. ____OF 20__.
IN
THE MATTER OF :-
XXXXXXXXXXXXXX :
APPLICANT
VERSUS
AFFIDAVIT
Affidavit
of Sh. ___________S/o Sh.______________, aged about __ years, R/o_______________________________,
do affirm and declare as under:-
1. That I am the Respondent no.2 in the
above noted matter and am well conversant with the facts and circumstances of
the case and also competent to file the present affidavit.
2. That the contents of the accompanying the
Reply to Application have been drafted by my counsel as per my instructions and
the contents of the same have been duly read over and understood by my
vernacular language and after fully understanding the contents of the therein
are all true and correct to my knowledge.
DEPONENT
VERIFICATION :-
Verified at Delhi on this _____, day of September, 20__,
that the contents of my above affidavit are true and correct to my knowledge,
no part of it is false and nothing material has been concealed therefrom.
DEPONENT
