'Hardly The Picture Of A Welfare State', MPHC Reprimands EOW For TheArrest Of A 76 Yr Old Retired Colonel And Court For Denying Bail [Read Order]

The bench of Justice Atul Sreedharan was hearing an application filed under section 439 of the Cr.P.C. for offences under sections 420, 467, 468, 471, 472, 474 read with section 120B of IPC and, registered vide Crime No.95/2020, at P.S. E.O.W Bhopal, District Bhopal.

The applicant was in judicial custody since 24/07/2020 in the above-said case. The investigating agency was the Economic Offences Wing, Bhopal (hereinafter referred to as the "EOW"). The applicant is 78 years of age and is a retired Colonel of the Indian Army. He is President of the Tilak Grah Nirman Society, Bhopal.

The background of the Case

One Rabiya Bi was the complainant, along with others who registered the FIR against the applicant and other co-accused persons. The property in question was a land ad-measuring 93.37 acres situated in Village Singarcholi, Bhopal. The owner of the said property was one Faiz Mohammad who died leaving behind seven legal heirs.

All the seven legal heirs, through the execution of power of attorney, transferred all the rights with regard to the aforesaid property to the power of attorney holder Mohammad Sharif (the then President of Tilak Grah Nirman Society).

Notably, Mohammad Sharif (the then President of Tilak Grah Nirman Society) became the power of attorney holder for six of the legal heirs by way of the power of attorney dated 17/01/1989 and also the power of attorney holder for Mohammad Yakub (7^th legal heir) vide power of attorney dated 05/08/1989.

On the basis of the combined power of attorney given by the 6+1 legal heirs, Mohammad Sharif (the then President of Tilak Grah Nirman Society) sold the land in question to various people and to the Tilak Grah Nirman Samity.

In the FIR dated 07/02/2020, it was alleged by the complainants that Mohammad Sharif had executed the power of attorney dated 17/01/1989 without the knowledge of the 6 legal heirs, the ancestors of the complainant and altered the remaining paragraphs of the power of attorney and thereby committed forgery.

In the FIR, it was also alleged that Mohammad Sharif, in connivance with other accused persons executed various sale deeds in favour of his family members and friends in the year 1989.

The applicant (Colonel Bhupendra Singh Kharayat) was arrested in this case only because he happened to be on the post of President Tilak Grah Nirman Samiti, which had purchased lands from Mohammad Sharif who sold the same on the strength of the power of attorneys executed in his favour by the legal heirs of Faiz Mohammad, more than twenty-five years ago.

Arguments put forth by the counsels

The counsel for the applicant submitted medical documents pertaining to the applicant which were as recent as 29/05/2020, which reflected that the applicant who is aged about 78 years is suffering from a heart ailment.

The counsel for the applicant also stated that the cell in which the applicant had been housed, one inmate was detected suffering from coronavirus.

The allegation (put forth by the EOW) was that the applicant Colonel Bhupendra Singh (Retd.), is the President of the Tilak Grah Nirman Samiti and in that capacity he sold 34 acres of agricultural land from the 39 acres and the remaining 5 acres and 64 decimal were purchased in the name of the Grih Nirman Society, it was not the case of the EOW that any property had been purchased in the name of the applicant.

The Counsel for the State had opposed the application for grant of bail on the ground that investigation was still in progress.

The observations of the Court

The Court felt it essential to refer to the judgement of the Supreme Court in Joginder Kumar v. State of U.P., (1994) 4 SCC 260 case, wherein the Supreme Court has extensively discussed the power of the police to effect an arrest.

The court was distressed at the alacrity and absolute insensitivity with which the EOW had considered it fit to arrest the applicant.

In this context, the court said,

"It just didn't matter to the EOW that the applicant is a senior citizen aged seventy-two. It mattered little to them that the applicant was suffering from a heart ailment. The EOW couldn't care less that the applicant, with his co-morbidities came under the high-risk category of persons for whom the corona affliction could prove fatal."

The court further remarked,

"Not for a moment, did the EOW pause to think whether it was necessary to arrest the applicant in a case where the alleged offence was committed more than twenty-five years ago. In the facts of this case, the arrest of the applicant by the EOW betrays a sadistic pleasure on the part of the EOW to decimate the dignity and self-respect of the applicant by arresting him in a case where an arrest was simply not warranted." (emphasis supplied)

Apart from that, the Court was of the opinion that the judiciary too, could not cover itself with glory in the manner in which it dealt with the applicant.

In this context, the bench said,

"The rejection order of the Ld. Court below is routine and completely devoid of human empathy to the plight of the applicant, unmoved either by the age of the applicant, his health condition or his peripheral involvement in the case or that his arrest has been affected in an alleged offence which has taken place more than twenty-five years ago. The Ld. Court below does not even momentarily reflect on the need for the continued incarceration of the applicant but for observing that the investigation is still in progress." (emphasis supplied)

The court further remarked,

"The rejection of the applicant's bail application by the Ld. Court below is not unique to the present case but reflects a deeper malaise afflicting the District Judiciary which displays a subliminal fear in allowing bail applications under the perceived notion that explanation may be called for by the High Court if, in the opinion of the High Court, the discretion in granting bail by the Ld. Court below is erroneously exercised. Resultantly, for the District Judiciary, Jail is the norm and Bail the exception." (emphasis supplied)

Lastly, regarding the present case, the court said

"An application which ought to have been allowed by the Ld. Court below has trudged its way up to this court and nothing can indict the insensitivity of the judicial process more than this case where the applicant, a retired Colonel of the Indian Army, a senior citizen aged 78 years, ailing from heart disease has been in judicial custody since 24/07/2020 for an alleged non-heinous offence committed over twenty-five years ago. Hardly the picture of a welfare state." (emphasis supplied)

Consequently, the application was allowed and it was directed that the applicant shall be forthwith enlarged on bail upon his furnishing a personal bond in the sum of Rs.10,000/- (Rupees Ten Thousand only) with one solvent surety in the like amount to the satisfaction of the Trial Court.

Case Details:

Case Title: Colonel Bhupendra Singh Kharayat v. The State Of Madhya Pradesh

Case No.: MCRC 26706/2020

Quorum: Justice Atul Sreedharan

Appearance: Advocate Sankalp Kochar (for the Applicant); Government Advocate A. Rajeshwar Rao (for the respondent-state)

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