Arun Kumar Mishra vs State (Govt. Of Nct Of Delhi)
2017 Latest Caselaw 2214 Del

$ 41
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Decided on : 4th May, 2017
+       BAIL APPL. 1784/2015 & Crl.M.A. 13268-69/2016

        ARUN KUMAR MISHRA                             ..... Petitioner
                    Through:           Dr. H.B. Mishra & Mr. Y.R.
                                       Sharma, Advs.
                           versus

        STATE (GOVT. OF NCT OF DELHI)          ..... Respondent
                      Through: Mr. Tarang Srivastava, APP for
                                the State with SI Rajender
                                Singh, PS Paschim Vihar &
                                SI Dharmendra Kr. PS Tilak
                                Marg.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                              ORDER (ORAL)

1. On the complaint of Ms. Savita Vashist, Legal Head of GTM Builders and Promoters Pvt. Ltd., first information report (FIR) No. 506/2015 was registered in police station Paschim Vihar for investigation into offences punishable under Sections 384/506/34 Indian Penal Code, 1860 (IPC) on allegations levelled, inter alia, against the applicant herein. By the application at hand, he seeks release on anticipatory bail under Section 438 Code of Criminal Procedure, 1973 (Cr.P.C).

2. By order dated 28.8.2015, while calling for status report of the investigation, interim protection was granted to the applicant till 1 st

October, 2015 to the effect that no coercive steps were to be taken but this was conditional upon he joining and cooperating with the investigation. On joint request, the matter was adjourned thereafter twice till it reached 3.11.2015. By the said date, two other similar bail applications (Nos. 1559/2015 and 1606/2015) had also come to be submitted by two other persons namely MC Goyal and Narender Singh Malik. All the three applications were taken up together and were adjourned on joint request to 30.11.2015 against the backdrop of submission on behalf of the counsel for the complainant that Mr. Tushar Kumar, Managing Director of the complainant company would appear on the next date. The matters were adjourned on similar submissions on 30.11.2015 and taken up on 28.1.2016 when a joint request was made by the parties i.e. the applicants and complainant, that the hearing be adjourned in order to enable them to arrive at amicable resolution of their outstanding disputes in relation to property transaction. The matter was referred to a mediator and the applications were adjourned awaiting the result. Thereafter, on joint requests the hearing on the three bail applications was adjourned from time to time.

3. On 18.7.2016, however, the court was informed that the mediation process had failed. The learned counsel for the applicant herein alleged misbehaviour on the part of Mr. Tushar Kumar, Chairman-cum-Managing Director of the complainant company while similar allegations were made against the learned counsel for the applicant himself by the counsel for the complainant. The Court observed in the proceedings recorded on 18.7.2016 that it was not

concerned with what had transpired in the mediation process on the merits of the dispute. But having regard to the allegations about misbehavior by both sides, a report was called for, in sealed cover, from the mediator.

4. The report of the mediator was submitted by the mediator and was perused on 25.1.2017. The gist was recorded in the proceedings of the said date, it having been indicated that on 9.2.2016 Dr. H.B. Mishra, Advocate, the counsel for the applicant had raised his voice in reaction, upon he being provoked by Mr. Tushar Kumar using abusive language and that on 23.2.2016 Dr. H.B. Mishra had statedly made some uncharitable remarks against Ms. Savita Vashist, the legal officer representing the complainant company which incident, the mediator explained, had not taken place in his presence.

5. During the course of these proceedings arising out of the application for anticipatory bail, the applicant also filed two miscellaneous applications they being Crl.M.A. 13268/2016 and Crl.M.A. 13269/2016. While the second mentioned application is only for exemption from filing certified copies in support of the first said application, the former prayed for directions to the respondent State (Govt. of NCT of Delhi) to restrain it from taking coercive steps primarily in the context of another FIR, it being FIR No. 60/2016 registered on 10.02.2016 in police station Tilak Marg for offences punishable under Sections 354A(1), 506, 509,34 IPC on the complaint of Ms. Savita Vashist, Legal Head of the above mentioned company concerning an incident that had allegedly occurred at 4.30 p.m. on 10.2.2016 statedly in mediation room, at 4 th floor in the administrative

block within the high court premises, the applicant herein, and his counsel Dr. H.B. Mishra, having been accused in the said FIR of having indulged in certain acts of commission or omission and making certain oral assertions which, as per the said case, constitute the above mentioned offences. It may be added here that in the said FIR, it is revealed that Dr. H.B.Mishra, counsel for the applicant is also his father.

6. It appears that on the request in writing dated 28.8.2016 of station house officer of police station Tilak Marg, with reference to FIR No. 60/2016 addressed to Bar Council of Delhi, New Delhi, the Secretary Bar Counsel of Delhi by communication dated 28.8.2016, had called upon the counsel for the applicant to "cooperate in the investigation of the said case". It further appears that on 13.7.2016, the investigating officer of said case FIR No. 60/2016 of police station Tilak Marg had made application in the court of Metropolitan Magistrate, inter alia, stating that the applicant and his father (counsel for the applicant herein), inspite of notice, were not joining investigation and were making some excuses. By order dated 13.7.2016 on the said application, the Metropolitan Magistrate issued non-bailable warrant (NBW) against the applicant herein, returnable on 20.8.2016.

7. By the criminal miscellaneous application 13268/2016, the applicant prayed for restraint order against the respondent/State for pursuing the coercive steps in the nature of insistence through the Bar Council of Delhi, and by way of non-bailable warrant obtained from the court of Metropolitan Magistrate as mentioned above, stating that

these steps are in breach of interim protection granted to the applicant in these proceedings.

8. The status report and the police file which was submitted for perusal by the station house officer of police station Paschim Vihar revealed that the applicant herein and two other persons namely M.C. Goyal and Gita Malik (wife of Narender Singh Malik) had booked flats in a building project undertaken by the complainant company, after completion of the said project, possession was offered in 2014 subject to certain formalities including payment of outstanding dues. Some dispute arose between the parties which was taken initially to State Consumer Disputes Redressal Commission , it later reaching National Consumer Disputes Redressal Commission (NCDRC) where it is stated to be still pending.

9. It is alleged by the first informant of FIR No. 506/2015 of police station Paschim Vihar that the applicant herein and the two other persons mentioned earlier (M C Goyal and Narender Singh Malik) had started extending threats in order to extort money on the pretext of they being acquainted with judges and being in position to secure favourable orders from the court. Duress is stated to have been exerted, with threats demanding money and asking for the matter to be settled. It is stated that in the course of one of the meetings (held on 29.6.2015) on the subject with the accused persons Mr. Paramjeet Walia, a director of the complainant company had subjected the conversation to audio-video recording. It is alleged that in the course of said conversation, the applicant herein, out of his desire to display his power and connection with senior members of the judiciary

(presiding over benches of NCDRC), as also with high authorities including the Prime Minister of India, made certain claims, also with reference to certain judicial decisions in certain high profile cases eventually with the objective to extort money, the threat extended allegedly going to the extent that if the desired money was not paid, the complainant would incur huge liability to the tune of Rs. 3 to 4 crores.

10. The status report indicates that the DVD statedly containing the audio and video recording of the conversation referred to above, as submitted the complainant at the time of registration of the FIR, has been seized and has been deposited with Forensic Science Laboratory (FSL) at Rohini. It also reveals that the applicant has not been cooperating with the investigation as he did not come forward to give sample of his voice for purposes of comparison.

11. The learned counsel for the applicant submitted that other two persons namely MC Goyal and Narender Singh Malik were granted anticipatory bail on their respective applications and, on parity, the applicant also deserves similar relief. It was, however, clarified by the Additional Public Prosecutor that the prayer for anticipatory bail on the application of MC Goyal was granted against the backdrop of amicable settlement of the dispute between him and the complainant company, while the application of Narender Singh Malik for similar relief was allowed noting that he had joined investigation, inter alia, giving sample of his voice for purposes of comparison.

12. Having heard the arguments at length, this Court is satisfied that in the facts and circumstances it cannot be said at this stage of the

investigative process that the allegations against the applicant are unfounded. The audio/video recording, of which transcript was shown during the hearing, if confirmed on the basis of forensic examination, would make out a duly corroborated case about commission of offences alleged in the FIR. The interim protection was granted to the applicant on the condition that he would join and cooperate with the investigative process. The applicant has failed to abide by the said conditions. His refusal to give sample of his voice may eventually give rise to adverse inference against him. His conduct during these proceedings has not been above board. It may be that the provocation during the mediation process first came from the other side but then there was no reason why in the later stages of such process, the applicant, or anyone else on his behalf, would indulge in acts of commission or omission which are subject matter of the subsequent FIR (FIR No. 60/2016) under Sections 354A(1)/506/509/34 IPC, Tilak Marg. The steps taken for investigation of said other case cannot be construed, by any stretch of reasoning, to be in breach of orders passed in these proceedings.

13. For the foregoing reasons, the application for anticipatory bail Bail Application No. 1784/2015, and criminal miscellaneous applications being Crl.M.A. Nos. 13268/2016 & 13269/2016, are dismissed.

14. The interim orders stand vacated.

R.K.GAUBA, J.

MAY04, 2017/nk