Delhi High Court: Asha Menon, J., expressed that, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

Instant application had been filed under Section 438 CrPC for grant of anticipatory bail in respect of FIR under Sections 420, 406 and 34 Penal Code, 1860.

Factual Background

An FIR was lodged by an authorized representative of M/s Vaishali Infratech (P) Ltd. on the allegations of cheating and misappropriation. The applicant, through his company, is a builder and has a project, namely ‘Rudra Palace Heights’, in which the complainant/Company booked 11 flats.

Large sums of money had also been paid for the flats amounting to Rs 1,33,87,500 towards 75% of the consideration. Applicant was the promoter and director of M/s Rudra Buildwell (P) Limited. There were others also named as accused in the FIR.

It was stated that despite the fact that the flats were to be fully constructed and handed over in 2018, till date, no flat had been handed over to the complainant, rather the complainant came across a Charge intimation to the Registrar of Companies filed by the applicant, informing of the sale of the very same 11 flats to 11 other persons.

Hence, the allegation that the applicant had cheated the complainant.

Analysis, Law and Decision

“While it is no doubt true that the case arising out of contracts would have civil and criminal contours, but it is not that if no civil case was filed it would detract from the complaint made to the police nor would the opposite hold true.”

High Court expressed that, custodial interrogation is more effective to question a suspect.

The cocoon of protection, afforded by a bail order insulates the suspect and he could thwart interrogation reducing it to futile rituals.

Further, the Bench stated while interrogation of a suspect of one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.

High Court noted that the views of the Supreme Court explained in numerous judgments have been incorporated in the amended Criminal Procedure Code, particularly with the introduction of Section 41A CrPC and amendments to Section 41A CrPC.

Thus, even for arresting any person in connection with an offence punishable with imprisonment of upto 7 years, the police have to first issue a notice and arrest only when there is no cooperation from the noticee/suspect. There are, of course, other conditions in which the police officer may arrest, as provided for under Section 41(1)(a) & (b) CrPC.

It had been held in Shri Gurbaksh Singh Sibbia v.  State of Punjab, (1980) 2 SCC 565, as well as reiterated in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 that the power to release on anticipatory bail is extraordinary in character, it would “not justify the conclusion that the power must be exercised in exceptional cases only”.

High Court opined that, the present matter is the one wherein investigations would be hampered without custodial interrogation.

The Bench observed that, the powers of the police for conducting a holistic and complete investigation in the matter, including into alleged resale and backdating/uploading of documents on the ROC website, are wide, assuming that the applicant has not revealed to them the true details.

The disposal of an anticipatory bail application does not require a trial, even a mini trial, on the allegations and defence.

fundamental question would only be whether or not the liberty of the applicant ought to be curtailed by refusal of anticipatory bail or whether the interest of justice would still be served if he is granted the benefit.  

High Court held that the applicant be released on bail and shall be bound by the following conditions:

  • Applicant shall join the investigation as and when required to do so by the investigating officer and shall cooperate with the investigating agencies and make a disclosure of complete details of the 11 persons relating to whom the resale had allegedly occurred.
  • The applicant shall not leave NCR without orders of the Trial Court;
  • Applicant shall furnish his mobile phone/landline number and residential address as well as that of his surety to the I.O./SHO concerned and both shall keep their mobile/landline phones operational at all times during this period and in the event of any change of the same, will immediately inform the same to the I.O./SHO;
  • Applicant shall drop a pin location on Google Maps so that the location of the applicant is available to the Investigating Officer;
  • Applicant shall not directly or indirectly contact the complainant or any other witnesses and any attempt shall be deemed to be an attempt to influence them;
  • SHO is directed to accept the bail bond only after verifying the address of the applicant.

In view of the above, the bail application stood disposed of. [Mukesh Khurana v. State of NCT Delhi, 2022 SCC OnLine Del 1032, decided on 13-4-2022]

Advocates before the Court:

For the applicant:

Ms. Rebecca John, Senior Advocate with Mr. Vishal Gosain, Ms. Adya, Ms Megha Bahl, Ms. Sahiba Singh and Mr. Yash Chaturvedi, Advocates

For the Respondent:

Mr. G.M. Farooqui, APP for respondent/State with SI Yashpal

Mr. Aman Lekhi, Senior Advocate, Mr. Mohit Mathur, Senior Advocate with Mr. Mudit Jain, Advocates for complainant

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