Delhi High Court
Prakash Gupta vs State Of Delhi on 24 July, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 24th July, 2017
+ BAIL APPLN. 1230/2017
PRAKASH GUPTA ..... Petitioner
Through: Mr. Ramesh Gupta, Sr. Advocate with
Ms.M. Begum, Mr. Bharat Sharma and Mr. Ajay P.
Tushir, Advocates.
versus
STATE OF DELHI ..... Respondent
Through: Mr. Amit Chadha, APP for the State with
SI R.P. Yadav, PS Vasant Kunj South, New Delhi.
Mr. Vijay Kumar Aggarwal, Advocate with
Mr.Neeraj Kumar Jha and Ms.Barkha Rastogi,
Advocate for Complainant.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J.
1. Apprehending his arrest, the petitioner has invoked the jurisdiction of
this court under Section 438 of the Code of Criminal Procedure, 1973
(in short „Cr.PC‟) praying for grant him anticipatory bail in a case
registered vide FIR No. 62/2017, under Section 409 of Indian Penal
Code, 1860 (in short „IPC‟) with Police Station Vasant Kunj (South),
New Delhi.
2. This bail application was considered by the learned Vacation Judge on
30.06.2017 when it was contended by the petitioner that he had paid an
amount of Rs.54,04,400/- to the complainant‟s firm. This was disputed
by the learned counsel for the Complainant.
3. Status report has been filed.
4. As per the case of the prosecution, the complainant Rajiv Kumar Gupta,
a Cost Accountant by profession, had 06 Kgs. of gold bars i.e. 03 pieces
of 01 Kg. each and 30 pieces of 100 grams each as his ancestral
property. He had good relationship with accused Nikesh Gupta, a gold
merchant, dealing in sale and purchase of raw gold with whom he had
met through a close acquaintance. On 07.12.2016, the complainant
expressed his intention to Nikesh Gupta to sell his 06 Kgs. gold bars to
some good buyers. Nikesh Gupta assured him that he would
arrange/facilitate the same within a span of one or two hours with the
assistance of his partner/business associate Prakash Gupta (the
accused/petitioner herein). Pursuant to this discussion, he received a
telephonic call from the petitioner at about 02.30 PM, who claimed to
have a buyer for gold bars and told him that he would sell the said gold
bars at the rate of Rs.3,140/- per gram. Believing the assurance of the
petitioner, the complainant called him at his office to collect the gold
bars and at about 04.00 PM, after due confirmation with Nikesh Gupta,
the complainant entrusted the said 30 gold bars of 100 gram each i.e. 03
Kgs. to the petitioner at his office at Laxmi Nagar, Delhi. He also
entrusted remaining 03 gold bars of 1 Kg. each to the petitioner in front
of the gate of Santushti Apartment, Vasant Kunj, New Delhi. The
petitioner assured the complainant that he would deliver the gold
consignment to his and Mr. Nikesh Gupta‟s associate at Vasant Kunj
and would make total payment of Rs.1,88,60,000/- by cheque. The
complainant specifically asked the petitioner not to sell the gold in cash
and receive the payment only through cheque and only on his positive
response, he entrusted 06 Kgs. of gold bars to the petitioner. The
petitioner confirmed to the complainant that he would deliver the
cheque of Rs.1,88,60,000/- at about 07.00 PM. However, at about
06.00 PM, the complainant received a call from Nikesh Gupta and the
complainant informed him about the delivery of 06 Kgs. gold bars to
the petitioner and requested him to take care of the transaction, which
was in his knowledge as he was the person, who was facilitating the
entire deal.
5. The complainant was waiting for his cheque at his office and when the
petitioner did not turn up till 07.00 PM, the complainant made several
calls to the petitioner, who informed the complainant at about 09.00 PM
that the party, who had purchased the gold bars paid him cash instead of
cheque and he would deliver him the same in his office within one
hour‟s time. At about 09.30 PM, the petitioner again called the
complainant and put up a concocted story that he had been robbed by
2/3 persons near Mehrauli-Vasant Kunj Road, New Delhi. The
complainant called up Nikesh Gupta about the incident, who told him
that the petitioner was also carrying his cash and that too was robbed
which amounted to Rs.3,00,00,000/-. Later on, the complainant met
Nikesh Gupta at Hotel Shangrila, Ashok Road, New Delhi, who assured
the complainant that he will go in depth of the story of the petitioner
and solve his problem. The complainant made some inquiries and
found that they have made false and frivolous story of robbery and in
fact they have misappropriated his 06 Kgs. of gold bars amounting to
Rs.1,88,60,000/- and converted the same to their personal use. The
complainant had expressed his apprehension that both these accused
have hatched a conspiracy and with common knowledge cheated him
and misappropriated his gold worth Rs.1,88,60,000/-. The complainant
further claimed that the accused persons had deliberately with ulterior
motive have caused wrongful loss to him and wrongful gain to
themselves.
6. This complaint was lodged in the Police Station Vasant Kunj (South),
New Delhi on 07.01.2017 and a DD No. 46B was entered into. The
said FIR was registered under Section 409 of IPC on 10.02.2017.
7. It is submitted that before registration of the FIR, the petitioner filed an
application for grant of bail before the learned Additional Sessions
Judge (in short „ASJ‟), which was dismissed as withdrawn being
premature. His second application is also stated to have been
dismissed. Mr. Gupta, learned senior counsel for the petitioner,
submitted that the petitioner had filed another application for grant of
anticipatory bail before the court of learned ASJ and the petitioner was
granted interim protection subject to his joining investigation. He
further submitted that the petitioner has joined the investigation thrice,
however his bail application and that of the co-accused Nikesh Gupta
were dismissed by the learned ASJ on 30.05.2017 by a common order.
8. Mr. Gupta submitted that in the bail application before the learned ASJ,
a reply dated 24.01.2017 was filed by the Investigating Officer (in short
„IO‟) in which it was stated that the complainant delivered 06 Kgs. gold
to the petitioner at his office. He submitted that as per the allegations in
the FIR gold bars weighing 03 Kgs. were delivered at Laxmi Nagar
Office Delhi to the petitioner and remaining gold bars weighing 03 Kgs.
were delivered in front of Santushti Apartment, Vasant Kunj, New
Delhi. He submitted that there are contradictory versions and the
complainant is not truthful. He further submitted that the alleged gold
bars were given without any receipt. He also submitted that the
complainant has claimed that the gold bars were his ancestral property
but the complainant has not submitted any evidence as to his title. He
also submitted that the petitioner has joined the investigation thrice
pursuant to the interim protection granted to him by the learned ASJ in
his bail application, which is not reflected in the present status report.
9. Mr. Gupta further submitted that no case under Section 409 of IPC is
made out against the petitioner since the Section 409 of IPC applies
only to the public servants. He has relied upon a judgment of the Apex
Court in the case of "R. Venkatakrishnan v. Central Bureau Of
Investigation, (2009) 11 SCC 737. He submitted that since the
petitioner is not a public servant, the provisions of Section 409 of IPC
are not attracted.
10. Based on this arguments, Mr. Gupta submitted that at the most offence
under Section 406 of IPC is attracted to which the imprisonment is only
up to three years and under Section 41A of Cr.PC, the IO is required to
issue a notice to the petitioner and since the petitioner has joined the
investigation thrice pursuant to the directions of the learned ASJ, the
petitioner cannot be put to arrest under the guise of custodial
interrogation. He also submitted that under Section 41 (1) (b) of Cr.PC,
a police officer may without an order from a Magistrate or without a
warrant arrest any person against whom reasonable complaint has been
made or a credible information has been received that he has committed
a cognizable offence punishable with imprisonment for a term which
may be less than seven years or which may extend to seven years and
with or without fine unless such arrest is necessary to prevent such
person from committing any further offence; or for proper investigation
of the offence; or to prevent the accused from causing the evidence of
the offence to disappear or tampering with such evidence in any
manner; or to prevent any such person from making any inducement,
threat or promise to a witness so as to dissuade him from disclosing
such facts to the court or the police officer or to ensure his presence in
the Court. Mr. Gupta submitted that the law further requires that the
police officer to record the reasons in writing which led him to arrest
the accused. In this regard, Mr.Gupta has relied upon a judgment of the
Hon‟ble Supreme Court in "Arnesh Kumar v. State of Bihar & Anr.,
(2014) 8 SCC 273.
11. Mr.Gupta submitted that in one version the complainant had allegedly
entrusted 6 Kgs of the gold bars at his Laxmi Nagar Office to the
petitioner whereas in the other version, the complainant has alleged that
he entrusted 3 Kgs of gold bars at his Laxmi Nagar Office and 3 Kgs in
front of the gate of Santushti Apartment, Vasant Kunj, New Delhi. The
police jurisdiction of both the places are different and it is only the
Police Station Laxmi Nagar who has the jurisdiction for investigation
whereas the FIR is registered at Police Station Vasant Kunj. He further
submitted that neither the FIR could have been registered at Police
Station Vasant Kunj nor the IO of the said Police Station Vasant Kunj
has jurisdiction to investigate.
12. Mr. Gupta further relied upon the judgment of the Apex Court titled as
Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors.
(2011) 1 SCC 694. The Apex Court delineated the following factors
and parameters that need to be taken into consideration while dealing
with the anticipatory bail: -
"(a) The nature and gravity of the accusation and the exact
role of the accused must be properly comprehended before
arrest is made;
(b) 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;
(c) The possibility of the application to flee from justice;
(d) The possibility of the accused‟s likelihood to repeat
similar or other offences;
(e) Where the accusations have been made only with the
object of injuring or humiliating the applicant by arresting
him or her;
(f) Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large number of
people;
(g) 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 149 of the Penal Code, 1860 the court should
consider with even greater care and caution, because
overimplication in the cases is a matter of common knowledge
and concern;
(h) 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 free, fair and full
investigation, and there should be prevention of harassment,
humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant;
(j) 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."
13. Mr. Gupta submitted that Siddharam Satlingappa Mhetre (supra)
was reiterated in Bhadresh Bipinbhai Seth Vs. State of Gujarat &
Anr., AIR 2015 SC 3090 . He relied upon para 96 of Siddharam
Satlingappa Mhetre (supra) which reads as under:-
"96. It is imperative for the courts to carefully and with
meticulous precision evaluate the facts of the case. The
discretion must be exercised on the basis of the available
material and the facts of the particular case. In cases
where the court is of the considered view that the accused
has joined investigation and he is fully cooperating with
the investigating agency and is not likely to abscond, in
that event, custodial interrogation should be avoided."
14. Mr. Gupta has also relied upon the judgment of this court in "Jagdish
Nautiyal v. State, 2013 (1) AD (Delhi) 475, wherein the incident was
purported to have taken place on 17.09.2010 while the FIR was
registered on 15.09.2011 i.e. after more than one year and the
contention of the learned APP that the "telephone instruments" were
required to be recovered did not convince as being special ground to
deny grant of anticipatory bail as recovery of „telephone instrument‟
was not an important matter and the conversation between the parties
using certain telephone numbers were never denied by either of the
parties.
15. Mr. Gupta has further relied upon the judgment of Hon‟ble Supreme
Court in "Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254,
wherein it was held that investigation into criminal offences must be
free from objectionable features or infirmities which may legitimately
lead to a grievance on the part of the accused when the investigation
was unfair and carried out with an ulterior motive. It is also the duty of
the IO to conduct the investigation avoiding any kind of mischief and
harassment to any of the accused. The IO should be fair and his
impartial conduct must dispel any suspicion as to its genuineness. The
IO is not to bolster up a prosecution case with such evidence as may
enable the court to record conviction but to bring out the real
unvarnished truth.
16. Mr.Gupta has also relied upon a judgment of the Supreme Court in the
case of Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab,
(1980) 2 SCC 565, and a judgment of the coordinate Bench of this
Court in Bail Application No.53/2017, titled as Keshav Sharma v.
State, decided on 20th January, 2017.
17. On these submissions, learned senior counsel for the petitioner prayed
for grant of anticipatory bail to the petitioner in the event of his arrest
by the IO.
18. Per contra, learned APP Sh.Amit Chadha for the State submitted that
there was only one complaint by the complainant which was reduced
into writing on the basis of which DD 46B was recorded and there is
only one version of the complainant to the effect that the 30 gold bars of
100 gms each i.e. 3 Kgs were entrusted to the petitioner at his office at
Laxmi Nagar, Delhi and remaining 3 gold bars of 1 Kg each i.e. 3 Kgs
was entrusted to the petitioner in front of the gate of Santushti
Apartment, Vasant Kunj, New Delhi on 07th December, 2016.
19. He further submitted that even the notice under Section 41A was issued
to the petitioner and despite notice he failed to respond. He further
submitted that under sub-section (4) of Section 41A of the Code, it is
provided that where such person (accused), at any time, fails to comply
with the terms of the notice or is unwilling to identify himself, the
police officer may, subject to such orders as may be passed by a
competent Court in this behalf, arrest him for the offence mentioned in
the notice."
20. Learned APP for the State further submitted that the petitioner has been
on the run and proceedings under Section 82 of the Cr.P.C. have
already been initiated against the petitioner. He submitted that the
complainant had entrusted 6 Kgs of the gold bars to the petitioner who
is a gold merchant. The petitioner has dishonestly misappropriated or
converted to his own use that property or disposed of the same and
committed criminal breach of trust punishable under Section 409 of the
IPC. He submitted that simple joining of the investigation by the
petitioner will not at all be fruitful to recover the gold bars or the sale
proceeds thereof. He further submitted that custodial interrogation of
the petitioner is required to unearth the conspiracy and since the
investigation of the case is at very initial stage, the petitioner is not
entitled to the discretionary relief of anticipatory bail. He also pointed
out that the petitioner has wrongly alleged in his application and also on
the first date of hearing of this application, misrepresented to the
learned Vacation Judge that a sum of Rs.54,04,400/- has been paid to
the firm of the complainant in November, 2016. He further submitted
that in fact this amount has been credited in the account of a firm
M/s.Disha Enterprises which is owned by Atul Tyagi and the
complainant has no concern with the said firm or Atul Tyagi. This
contention of the learned APP for the State is not disputed by the
learned Senior counsel for the petitioner in his submissions in rebuttal.
21. It is submitted by Mr.Aggarwal, learned counsel for the complainant,
that although there is only one version of the complainant regarding
entrustment of the gold bars i.e. 3 Kgs of gold bars at his Laxmi Nagar
office and remaining 50% i.e. 3 Kgs of gold bars in front of the gate of
Santushti Apartment, Vasant Kunj, New Delhi, yet the Apex Court in
Kamal Kapoor v. Sachin Kartar Singh, 2001 (5) Supreme 225, has
held:
"We do not think that it is proper for us to consider at this
stage when pre-arrest order is sought for, by making a
comparison between those two statements. Of course that
aspect can also be considered by the Court when the accused
apply for regular bail after surrendering."
22. Mr.Aggarwal has further relied upon the judgment of the Hon‟ble
Supreme Court in Vilas Pandurang Pawar and Anr. v. State of
Maharashtra and Ors., (2012) 8 SCC 795. Relevant extract of para
10 of the said judgment reads as under:
"10. ....Moreover, while considering the application for
bail, scope for appreciation of evidence and other
material on record is limited. The court is not expected
to indulge in critical analysis of the evidence on
record....."
23. He submitted that the court cannot decide the merits of the case while
dealing with the application for grant of anticipatory bail. He relies
upon the judgment of the Apex Court in the case of Alchemist
Holdings Ltd. v. Ram Kumar Garg & Anr., Crl.Appeal
No.2527/2014, decided on 01.12.2014. Relevant extract of the
judgment reads as under:
"Having heard the learned counsel for the parties, we are
of the view that the High Court was not supposed to
decide the merits of the case while dealing with
application for anticipatory bail. It was not open to the
High Court to observe that no criminal offence is made
out, in a petition filed under Section 438 of Cr.P.C."
24. Mr.Aggarwal further submitted that a co-ordinate Bench of this Court
has considered the judgment of the Hon‟ble Supreme Court in
Siddharam Satlingappa Mhetre (supra) in Abhishek Verma & Anr.
v. State, 2016 (3) JCC 2131. He referred paras 13, 18 and 20 of the
said judgment which read as under:
"13. Mr. Mittal has placed reliance on Siddharam Satlingappa
Mhetre v. State of Maharashtra & Ors., (2011) 1 SCC 694 in
support of his submissions. He submits that the petitioners are
ready and willing to join the investigation and cooperation in
every way. He submits that the petitioners have deep roots in
the society and there is no likelihood of them absconding.
Arrest of the petitioners, and in particular petitioner no.1,
would lead to abnormally, humiliation and disgrace. He
submits that arrest cannot be exploited as a measure of
recovery from the accused.
18. The Supreme Court clarified that the aforesaid are only
some of the factors, and by no means they are exhaustive.
They are only illustrative in nature because it is difficult to
visualize the facts and circumstances in which a person may
pray for anticipator bail. Arrest has to be last option, and it
has to be restricted to those exceptional cases where arresting
an accused is imperative in the facts and circumstances of the
case.
20. The investigation is at the preliminary stage and the
jewellery of the complainant delivered to the petitioners is
yet to be recovered. Thus, their custodial interrogation, in
my view, is necessary. The allegations against the petitioners
are that they have threatened the complainant with dire
consequences if he demands the jewellery and money. Thus,
the possibility of the complainant and other witnesses being
threatened and the investigation being scuttled cannot be ruled
out."
25. To meet the argument of the learned Senior counsel for the petitioner on
the point of lack of jurisdiction, Mr.Aggarwal has relied upon the
judgment of the Hon‟ble Supreme Court in Satvinder Kaur v. State
(Govt. of N.C.T. of Delhi) and Anr., AIR 1999 SCC 3596. Relevant
extract of para 15 of the said judgment reads as under:
"15. ...At the stage of investigation, the material collected by
an investigating officer cannot be judicially scrutinized for
arriving at a conclusion that police station officer of particular
police station would not have territorial jurisdiction. In any
case, it has to be stated that in view of Section 178(c) of the
Criminal Procedure Code, when it is uncertain in which of the
several local areas an offence was committed, or where it
consists of several acts done in different local areas, the said
offence can be inquired into or tried by a Court having
jurisdiction over any of such local areas. Therefore, to say at
the stage of investigation that S.H.O., Police Station Paschim
Vihar, New Delhi was not having territorial jurisdiction, is on
the face of it, illegal and erroneous. That apart, Section 156
(2) contains an embargo that no proceeding of a police officer
shall be challenged on the ground that he has no territorial
power to investigate...."
26. Learned counsel submitted that the judgment of the Hon‟ble Supreme
Court in R. Venkatkrishnan (supra), is misread and in fact in para 146
after adverting to Section 409 of IPC, the Hon‟ble Supreme Court held
that this section classes together public servants, bankers, merchants,
factors, brokers, attorneys and agents.
27. Mr. Aggarwal has also relied upon the judgment of the Supreme Court
in R.K. Dalmia and Ors. v. The Delhi Administration, AIR 1962 SC
1821. He submitted that in this case the accused R.K. Dalmia was not a
"public servant" but an "agent", in his capacity as chairman of Board of
Directors of a limited company and was charged under Section 409 of
IPC. Para 96 of the judgment read reads as under:
"What S. 409 I.P.C. requires is that the person alleged to
have committed criminal breach of trust with respect to
any property be entrusted with that property or with
dominion over that property in the way of his business as
an agent. The expression in the way of his business'
means that the property is entrusted to him in the
ordinary course of his duty or habitual occupation or
profession or trade'. He should get the entrustment or
dominion in his capacity as agent. In other words, the
requirements of this section would be satisfied if the
person be an agent of another and that other person
entrusts him with property or with any dominion over
that property in the course of his duties as an agent."
28. R.K. Dalimia (supra) was followed by Hon‟ble Supreme Court in
Shivanarayan Laxminarayan Joshi and Ors. v. State of
Maharashtra and Ors., (1980) 2 SCC 465. Para 5 of the said
judgment reads as under:
"5. ............................... In R. K. Dalmia v. Delhi
Administration Court while relying on authorities of the
Lahore Court and other courts has clearly found that a
director is not only an agent but is in the position of
trustee. This has been held in People Bank v. Harlkishan
Lal AIR 1936 Lah. 408 at p. 409 which was approved by
this Court."
29. Mr.Aggarwal further relied upon a judgment of the Hon‟ble Supreme
Court in Raj Kumar Maheshwari v. Jyoti Gupta & Anr., SLP (Crl.)
No.6139/2006, decided on 7th May, 2007, in which the amount involved
was Rs.1,00,00,000/- and the Hon‟ble Supreme Court has held that
while granting bail in non-bailable offence the primary consideration is
the gravity and the nature of the offence and the order of this Court
granting bail to the accused was set aside.
30. Mr.Aggarwal submitted that in the present case, the value of the gold
bars in question is worth Rs.1,88,60,000/- and as such the petitioner is
not entitled for anticipatory bail.
31. Learned counsel has also relied upon a judgment of a co-ordinate Bench
of this Court in Del Agha v. Directorate of Revenue Intelligence,
2001 (2) JCC (Delhi) 110. Relevant para 10 of the said judgment reads
as under:
"10. The judgments of the Apex Court, referred to above,
clearly lay down that for invoking the powers of the Courts
under Section 438 of the Code for grant of anticipatory bail,
an accused has to show something more than what he is
required to show for exercising discretion under Section
439 of the Code. The reason is that a pre-arrest bail order
puts the Investigating Agency into a disadvantageous
position by reducing the efficacy of custodial
interrogation. It also emboldens the accused and
demoralises the complainant and general public, who feel
that inspite of serious allegations, the accused remains
beyond the reach of law. Such orders sometimes have the
tendency of eroding public faith in the administration of
justice. The seriousness of the offence and gravity of the
allegations is always on important factor for an order
under Section 439 of the Code if something more is
required to be shown for exercise of discretion
under Section 438 of the Code, it is obvious that
seriousness of offence and the gravity of the allegations
remains a relevant factor for orders under Section 438 of
the Code also."
32. Mr.Aggarwal has also relied upon a judgment of a single Bench of this
Court in K.C. Chibber v. State, 51 (1993) DLT 581, wherein it was
held that the petitioner must make out a special case for getting
anticipatory bail. An indirect use of the power to grant bail would be an
abuse of the judicial process and would shake the confidence of the
general public in judiciary. While granting anticipatory bail the Court
must strike a balance so that individuals may be protected from
unnecessary humiliation and the faith of the public in the administration
of justice is not shaken.
33. I have heard the learned Senior counsel for the petitioner, learned APP
for the State and learned counsel for the complainant.
34. As per the allegations the complainant had entrusted 6 Kgs of gold bars
worth Rs.1,88,60,000/- with the petitioner on asking of co-accused
Nikesh Gupta in order to sell the same. The petitioner was to pay the
sale consideration of Rs.1,88,60,000/- of the gold bars by way of the
cheque to the complainant on the same day.
35. Mr.Gupta argued that there is contradictory version of the complainant
with regard to entrustment of the gold bars and initially it is alleged that
all 6 Kgs gold was handed over at Laxmi Nagar Office and later on
stand has been taken that 3 Kgs gold was delivered in Laxmi Nagar
Office and 3 Kgs gold in front of the gate of Santushti Apartment,
Vasant Kunj, New Delhi. As per the complainant and prosecution,
there has been only one version of the complaint that 3 Kg gold was
entrusted at Laxmi Nagar Office and 3 Kg gold at Vasant Kunj. On this
ground, Mr.Gupta has submitted two arguments; one that complainant
is not truthful and another limb of argument is lack of jurisdiction with
Police Station Vasant Kunj where FIR was registered.
36. Though as per the prosecution and the complainant 3 Kg gold was
entrusted to petitioner at Laxmi Nagar Office of the complainant and 3
Kg gold at Vasant Kunj, yet this cannot be evaluated and appreciated at
this stage of investigation. Reference can be made to three judgments
of the Apex Court in Kamal Kapoor (supra), Vilas Pandurang
Pawar (supra) and Alchemist Holdings Ltd. (supra). So far as the
jurisdiction is concerned, Section 156 (2) of Cr.P.C. puts an embargo
and the power of IO to investigate cannot be challenged. Section
156(2) Cr.P.C. reads as under:
"156 (2) No proceeding of a police officer in any such case
shall at any stage be called in question on the ground that the
case was one which such officer was not empowered under
this section to investigate."
37. Moreover, Apex Court has held in Satvinder Kaur (supra) that at the
stage of investigation, territorial jurisdiction of Police Officer cannot be
judicially scrutinized.
38. The position of law with regard to applicability of Section 409 to the
accused, who is a merchant and not being a public servant, is explained
by the Hon‟ble Supreme Court. In a judgment Kailash Kumar
Sanwatia v. State of Bihar and Anr., (2003) 7 SCC 399. Para 7 of the
said judgment reads as under:
"Section 409 IPC deals with criminal breach of trust by
public servant, or by banker, merchant or agent. In order
to bring in application of said provision, entrustment has
to be proved. In order to sustain conviction under Section
409, two ingredients are to be proved. They are:
(1) the accused, a public servant, or banker or agent was
entrusted with property of which he is duty bond to
account for; and
(2) the accused has committed criminal breach of trust."
39. In fact Section 409 applies to (i) public servants, (ii) banker, (iii)
merchant, (iv) factor, (v) broker, (vi) attorney and (vii) agent whenever
any such class of accused is entrusted with the property to which he is
duty bound to account for and accused commits criminal breach of
trust. Even R. Venkatakrishnan (supra) used the words "classes
together" and held that this section classes together public servants,
bankers, merchants, factors, brokers, attorneys and agents. The duties
of such persons are of a highly confidential character, involving great
powers of control, over the property entrusted to them and a breach of
trust by such persons may often induce serious public and private
calamity. High morality is expected of these persons. They are to
discharge their duties honestly. Section 409 reads as under:
"409. Criminal breach of trust by public servant, or by banker,
merchant or agent.--Whoever, being in any manner entrusted
with property, or with any dominion over property in his
capacity of a public servant or in the way of his business as a
banker, merchant, factor, broker, attorney or agent, commits
criminal breach of trust in respect of that property, shall be
punished with 1[imprisonment for life], or with imprisonment
of either description for a term which may extend to ten years,
and shall also be liable to fine."
40. The title of Section 409 of IPC, categorizes the persons as public
servant, banker, merchant or agent. As per the body/contents of Section
409 of IPC, it includes public servant whenever property is entrusted to
him in his capacity as public servant and commits criminal breach of
trust. Similarly it applies to banker, merchant, agent, factor, broker or
attorney as the case may be, whenever the property is entrusted to either
of them and he commits criminal breach of trust.
41. In view of this, there is no force in the argument of the learned senior
counsel for the petitioner that to attract Section 409 of IPC accused
should have been a „public servant‟.
42. The requirement of the offender for custodial interrogation in serious
and grave offences should be assessed from a practical approach. The
conduct, demeanour, tone and tenor, body language of the accused on
anticipatory bail is entirely different. The accused on such liberty
always shrugs off his shoulders to the commission of crime or being
privy to it in any manner. Law treats him as innocent unless he is
convicted. Knowing it well the accused even in grave offences travel
beyond truth. He is not expected to reveal the truth. It is only the
custodial interrogation which leads to vital clues in recovering the case
property, involvement of other persons, criminal conspiracy, place of
concealment of case property etc. Persons accused of grave offences
cannot be permitted to take the administration of justice for a ride. No
doubt, arrest of a person, accused of an offence, may tarnish his image
and that of his family members, relatives, friends, nears and dears.
Because of this, sometimes some harsh steps are taken by the accused
as such accusation brings bad name to him and his family. However,
court must not be oblivious to the fact as to trauma, pain, sufferings of
the victims and their family members. Sometimes, harsh steps are also
taken by the victims out of frustration or due to loss of life or on
account of loss of valuables or properties. The court has to strike a
balance and to examine meticulously in the facts and circumstances of
each case as to whether custodial interrogation of the accused is
required or not. Allowing a person who is accused of such a grave
offence out on bail even before he is arrested would not only interfere
with investigation process but also may erode the faith of the citizens in
the justice delivery system. Offences where such a large quantity of
gold/amount of money is involved, it should be investigated in a
thorough and fair manner.
43. Here it will not be out of place to mention the concern shown by
Hon‟ble Supreme Court in its various judgments while considering
request for bail. Hon‟ble Supreme court in Parvinderjit Singh & Anr.
v. State (U.T. Chandigarh) & Anr., 2008 (4) SCC 2873, held in para
17 as under:
"17. Ordinarily, arrest is a part of the process of
investigation intended to secure several purposes. The
accused may have to be questioned in detail regarding
various facets of motive, preparation, commission and
aftermath of the crime and the connection of other
persons, if any, in the crime. There may be circumstances in
which the accused may provide information leading to
discovery of material facts. It may be necessary to curtail
his freedom in order to enable the investigation to proceed
without hindrance and to protect witnesses and persons
connected with the victim of the crime, to prevent his
disappearance to maintain law and order in the locality.
For these or other reasons, arrest may become inevitable
part of the process of investigation. The legality of the
proposed arrest cannot be gone into in an application under
Section 438 of the Code. The role of the investigator is well-
defined and the jurisdictional scope of interference by the
Court in the process of investigation is limited. The Court
ordinarily will not interfere with the investigation of a
crime or with the arrest of accused in a cognizable offence.
An interim order restraining arrest, if passed while dealing
with an application under Section 438 of the Code will
amount to interference in the investigation, which cannot, at
any rate, be done under Section 438 of the Code. The above
position was highlighted in Adri Dharan Das v. State of West
Bengal (2005 (4) SCC 303).
44. On the similar points there is another judgment of the Apex Court in
State Rep. by the CBI v. Anil Sharma, (1997) 7 SCC 187, on the
requirement of the accused for custodial interrogation. Para 6 of the
said judgment reads as under:
"6. We find force in the submission of the CBI that custodial
interrogation is qualitatively more elicitation oriented
than questioning a suspect who is well ensconded with a
favorable order under Section 438 of the code. In a case
like this effective interrogation of suspected person is of
tremendous advantage in disinterring many useful
informations and also materials which would have been
concealed. Success in such interrogation would elude if the
suspected person knows that he is well protected and
insulted by a pre-arrest bail during the time he is
interrogated. Very often interrogation in such a condition
would reduce to a mere ritual. The argument that the custodial
interrogation is fraught with the danger of the person being
subjected to third degree methods need not be countenanced,
for, such an argument can be advanced by all accused in all
criminal cases. The court has to presume that responsible
Police Officers would conduct themselves in task of
disinterring offences would not conduct themselves as
offenders."
45. Just see how the petitioner had taken a false defence to mislead in this
petition and in his first submission before the learned Vacation Judge to
the effect that he deposited Rs.54,04,400/- in the firm of the petitioner
M/s. Disha Enterprises, which admittedly belongs to Atul Tyagi and the
complainant has no concern with it. Such person who is accused of
dishonestly misappropriating 6 Kgs. of gold bars valuing
Rs.1,88,60,000/- who had already taken a false plea of deposit of
Rs.54,04,400/- with M/s.Disha Enterprises, with which the complainant
has no concern, is not at all expected to reveal the truth or co-operate
during investigation, if given discretion of pre-arrest bail under Section
438 of Cr.PC.
46. The petitioner being the gold merchant has committed criminal breach
of trust by dishonestly misappropriating the valuable property of the
complainant. The prime consideration is gravity and serious nature of
the offence. The custodial interrogation of the petitioner is required to
unearth the conspiracy and to recover the gold bars or the sale proceeds
thereof and to find out to whom the said gold bars were sold out by the
petitioner and sharing of gold bars or proceeds thereof by his co-
accused Nikesh Gupta.
47. Keeping in view the serious nature of the offence committed and
gravity of the accusation and the possibility of the petitioner to tamper
with the evidence or flee from the justice, the petitioner has no ground
with him for his entitlement to grant of anticipatory bail.
48. The application is dismissed.
VINOD GOEL, J.
JULY 24, 2017
"sk/ "jitender
