Delhi High Court
Rakesh Mathur vs State Of Nct Of Delhi on 28 September, 2015
Author: Suresh Kait
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 28th September, 2015
+ BAIL APPLN. 1783/2015
RAKESH MATHUR ..... Petitioner
Represented by: Mr.P.K.Sharma and
Ms.Richa Diwan, Advs.
versus
STATE OF NCT OF DELHI ..... Respondent
Represented by: Mr.Mukesh Kumar, APP for
the State with SI Rizwan
Khan, PS Seelampur, Delhi
in person.
Mr.Javed Khan, Adv for
complainant.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the present petition, petitioner seeks direction thereby release
him on bail in the event of arrest in case FIR No.538/2015 registered at
police station Seelampur, Delhi for the offences punishable under
Sections 406/420/468/471/506/34 of the IPC.
2. Mr.Sharma, learned counsel appearing on behalf of petitioner
submits that petitioner is not involved in the alleged transaction, neither
he sold the property nor he signed as a witness. Moreover, no amount
received by petitioner. However, when his brother Mukesh Kumar, co-
accused was in illegal detention, the petitioner issued cheques of Rs.4.00
Lac each in the name of Bhoora, i.e. brother of complainant. He is not
involved in the case and the police has wrongly implicated him with the
connivance of complainant, who is a gangster of the area and under threat
they want to extort money from the petitioner as well as his brother and
under their constant pressure, he issued the abovesaid cheques.
3. Learned counsel has relied upon the decision of this Court in
Samrat Singh Nirula & Ors vs State of NCT of Delhi : 2015 (220) DLT
"27. In the following judgments, the law of anticipatory
bail has been discussed:-
i) In the case of Ravindra Saxena v. State of
Rajasthan, reported in (2009) 1 SCC 684, it is held that
anticipatory bail cannot be denied merely because
allegations of cheating and forgery have been made.
Further held that High Court could not ignore
appellant's plea that dispute between him and
complainant regarding sale of specific flats, was purely
of civil nature and complainant had already filed suit for
specific performance.
ii) In the case of Muraleedharan v. State of Kerala,
AIR 2001 SC 1699, it was held that if pre-arrest bail is
granted to appellant merely on grounds that
investigating agency would not be able to collect any
material to connect appellant with crime except
confessional statement of co- accused then there is
misuse of discretion by Sessions Judge under Section
438 Cr.P.C.
iii) In the case of Siddharam Satlingappa Mhetre v.
State of Maharashtra and Ors., reported in (2011) 1 SCC
694, it was held:
"109. A good deal of misunderstanding with regard to
the ambit and scope of Section 438 CrPC could have
been avoided in case the Constitution Bench decision of
this Court in Sibbia case [(1980) 2 SCC 565 : 1980 SCC
(Cri) 465] was correctly understood, appreciated and
applied. This Court in Sibbia case [(1980) 2 SCC 565:
1980 SCC (Cri) 465] laid down the following principles
with regard to anticipatory bail:
(a) Section 438(1) is to be interpreted in the light
of Article 21 of the Constitution of India.
(b) Filing of FIR is not a condition precedent to
exercise of power under Section 438.
(c) Order under Section 438 would not affect the right
of police to conduct investigation.
(d) Conditions mentioned in Section 437 cannot be
read into Section 438.
(e) Although the power to release on anticipatory bail
can be described as of an "extraordinary" character this
would "not justify the conclusion that the power must be
exercised in exceptional cases only". Powers are
discretionary to be exercised in the light of the
circumstances of each case.
(f) Initial order can be passed without notice to the
Public Prosecutor. Thereafter, notice must be issued
forthwith and question ought to be re-examined after
hearing. Such ad interim order must conform to
requirements of the section and suitable conditions
should be imposed on the applicant.
110. The Law Commission in July 2002 has severely
criticised the police of our country for the arbitrary use
of power of arrest which, the Commission said, is the
result of the vast discretionary powers conferred upon
them by this Code. The Commission expressed concern
that there is no internal mechanism within the Police
Department to prevent misuse of law in this manner and
the stark reality that complaint lodged in this regard
does not bring any result. The Commission intends to
suggest amendments in the Criminal Procedure Code
and has invited suggestions from various quarters.
Reference is made in this article to the 41st Report of the
Law Commission wherein the Commission saw "no
justification" to require a person to submit to custody,
remain in prison for some days and then apply for bail
even when there are reasonable grounds for holding that
the person accused of an offence is not likely to abscond
or otherwise misuse his liberty. Discretionary power to
order anticipatory bail is required to be exercised
keeping in mind these sentiments and spirit of the
judgments of this Court in Sibbia case [(1980) 2 SCC
565 : 1980 SCC (Cri) 465] and Joginder Kumar v. State
of U.P. [(1994) 4 SCC 260 : 1994 SCC (Cri) 1172]
Relevant consideration for exercise of the power "
111. No inflexible guidelines or straitjacket formula
can be provided for grant or refusal of anticipatory bail.
We are clearly of the view that no attempt should be
made to provide rigid and inflexible guidelines in this
respect because all circumstances and situations of
future cannot be clearly visualised for the grant or
refusal of anticipatory bail. In consonance with the
legislative intention the grant or refusal of anticipatory
bail should necessarily depend on the facts and
circumstances of each case. As aptly observed in the
Constitution Bench decision in Sibbia case [(1980) 2
SCC 565 : 1980 SCC (Cri) 465] that the High Court or
the Court of Session has to exercise their jurisdiction
under Section 438 CrPC by a wise and careful use of
their discretion which by their long training and
experience they are ideally suited to do. In any event, this
is the legislative mandate which we are bound to respect
and honour.
112. The following factors and parameters can be
taken into consideration while dealing with the
anticipatory bail:
(i) The nature and gravity of the accusation and the
exact role of the accused must be properly
comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact
as to whether the accused has previously undergone
imprisonment on conviction by a court in respect of any
cognizable offence;
(iii) The possibility of the applicant to flee from
justice;
(iv) The possibility of the accused's likelihood to
repeat similar or other offences;
(v) Where the accusations have been made only with
the object of injuring or humiliating the applicant by
arresting him or her;
(vi) Impact of grant of anticipatory bail particularly
in cases of large magnitude affecting a very large
number of people;
(vii) The courts must evaluate the entire available
material against the accused very carefully. The court
must also clearly comprehend the exact role of the
accused in the case. The cases in which the accused is
implicated with the help of Sections 34 and 149of the
Penal Code, 1860 the court should consider with even
greater care and caution because over implication in the
cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck between two
factors, namely, no prejudice should be caused to the
free, fair and full investigation and there should be
prevention of harassment, humiliation and unjustified
detention of the accused;
(ix) The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant;
(x) Frivolity in prosecution should always be
considered and it is only the element of genuineness that
shall have to be considered in the matter of grant of bail
and in the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of
events, the accused is entitled to an order of bail.
113. Arrest should be the last option and it should be
restricted to those exceptional cases where arresting the
accused is imperative in the facts and circumstances of
that case. The court must carefully examine the entire
available record and particularly the allegations which
have been directly attributed to the accused and these
allegations are corroborated by other material and
circumstances on record."
4. Learned counsel further submitted that none of the circumstances as
observed by the Apex Court in the aforesaid case, are attracted to
petitioner, hence he is entitled for anticipatory bail in this case.
5. While summing up, learned counsel has also relied upon the
decision of this Court rendered on 06.08.2007 in Daya Rani Sharma vs
State Bail Application No.414/2007 wherein it has been held as under:--
"8. Having considered the rival submissions, the
following facts stand out:-
(a) Petitioner litigated with S.Chakravorty in the year
1989 in her own name and obtained a decree against
S.Chakravorty pertaining to 35 sq.yds. of land comprised
in plot No.6.
(b) Petitioner and the complainant are involved in civil
litigation in respect of plot No.6.
(c) One Dayawanti died on 2.7.1974. Her particulars are
recorded as Dayawanti Sharma w/o Bail Appln.
No.414/2007 Pg.No.3 of 5 B.K.Sharma.
(d) According to the petitioner, Dayawanti was her elder
sister and was married to B.K.Sharma.
(e) Vide sale deed dated 3.5.1972 registered on
10.5.1972 as document No.9400, additional book No.1,
volume No.1744, pages 119 to 123, two plots each
admeasuring 200 sq.yds. comprised in part of land
constituting khasra No.303 and 304 Village Nasirpur
have been sold to the petitioner. Seller being late Tek
Chand, father of the complainant.
9. Prima facie, dispute between the complainant and the
petitioner is a civil dispute. Whether by and under the
disputed sale deed one plot was sold or two were sold
can easily be determined with reference to the original
sale deed and the registration particulars thereof
available in the office of the Sub-Registrar where the
sale deed has been registered."
6. The aforesaid case FIR was registered on the complaint of one
Mobin that on 26.11.2013 co-accused Mukesh Kumar, who is real brother
of petitioner executed the documents of one property No.A-34, New
Zafrabad, Delhi in the name of complainant. Thereafter, complainant
made enquiry and found that the said property is in the name of DDA.
Thereafter, complainant demanded his money back. However, on
23.01.2014, co-accused Mukesh Kumar, Jai Kumar had executed
agreement to sell of property bearing No.C-1/47, Yamuna Vihar, Delhi in
favour of complainant - Mobin. But, later on he came to know that co-
accused Jai Kumar is not the owner of the property. Thereafter, he asked
to the accused persons to return the money. Accordingly, the co-accused
Mukesh Kumar and petitioner had issued cheques in favour of brother of
complainant Bhoora, but the cheques were dishonoured on their
presentation due to non-availability of sufficient funds in the bank
account. Thereafter, both the aforesaid accused persons were asked to
return the amount, then the petitioner and his brother Mukesh Kumar
refused to return the money and threatened to keep slince, otherwise to
face the dire consequences.
7. The allegations against the petitioner and co-accused Mukesh
Kumar are that they prepared the forged document in the name of one
lady Guddo w/o Sh Yameen with other co-accused namely Kapil and
others. Thereafter, brother of Smt.Guddo namely Shabuddin @ Kaluwa
was interrogated. During interrogation, he stated that co-accused Mukesh
and others prepared the forged document in the name of his sister
Smt.Guddo and they have further sold out the property bearing No.C-
1/47, Yamuna Vihar, Delhi to one Hazi Saleem on 10.10.2014.
Thereafter, raids were conducted to arrest the petitioner and his brother,
however they could not be nabbed.
8. It is pertinent to mention here that the anticipatory bail application
of co-accused Mukesh Kumar, brother of petitioner herein was rejected by
this Court vide order dated 02.09.2015 in Bail Application No.1829/2015.
Admittedly, the petitioner had issued two cheques of Rs.4.00 Lac each in
the name of Bhoora, i.e. brother of the complainant, which were
dishonoured. Thus, the petitioner has direct link in the present offence.
Therefore, his custodial interrogation is warranted.
9. Therefore, I am not inclined to grant him the anticipatory bail at
this stage of investigation.
10. In view of above, bail application stands rejected.
11. Order dasti.
SURESH KAIT
(JUDGE)
SEPTEMBER 28, 2015
M
