Punjab-Haryana High Court
Arohan Kapur vs State Of Haryana on 18 March, 2024
Neutral Citation No:=2024:PHHC:047324
CRM M-46210 of 2023 (O&M) 2024:PHHC:047324 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
101
CRM M-46210 of 2023 (O&M)
Date of Decision: 18.03.2024
Arohan Kapur ...Petitioner
Vs.
State of Haryana ...Respondents
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Arnav Ghai, Advocate, for the petitioner.
Mr. Rajinder Kumar Banku, DAG, Haryana.
Mr. Shrey Ashat, Advocate and
Ms. Preetika Mishra, Advocate and
Mr. Vicky Kumar, Advocate, for the
respondent/complainant.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioner has filed the present petition under Section
438 Cr.P.C. for grant of anticipatory bail to him in case FIR No. 177
dated 25.04.2021 under Sections 420, 406, 467, 468 and 120-B of IPC
(Sections 406, 467, 468 and 120-B IPC added later on) registered at
Police Station Sector 40 Gurugram, District Gurugram.
2. Learned counsel for the petitioner contends that the FIR
in the present case was ordered to be registered on 25.04.2021, after a
delay of several years, on the basis of the complaint filed by
Harvinder Singh, complainant, who had alleged that Virender Kapur
and Anita Kapur, parents of the petitioner had entered into an
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agreement to sell dated 23.06.2016 regarding an immovebale
property, by concealing the fact that the same was allegedly
encumbered and had received a sum of Rs. 3,35,00,000/-. The
agreement to sell was executed by the parents of the petitioner and the
amount was received by them and initially the FIR registered against
them under Section 420 IPC. Learned counsel further contends that
after the registration of the FIR, the petitioner applied for grant of
relief of anticipatory bail before the Court of Sessions Judge,
Gurugram and the bail petition filed by the petitioner was allowed
vide order dated 21.06.2021 with the following observations:-
"8. At this juncture, the police is only investigating the
alleged offence punishable u/s 420 IPC which prescribes
the punishment of imprisonment upto 7 years. As per the
allegations, the applicant-accused had participated in
the negotiations which led to the agreement to sell and
had also communicated by way of e-mail in the year
2018.
9.Withal, the applicant is neither the party to the
agreement to sell nor the witness. Apparently, he is also
not the beneficiary of the alleged agreement. Even if he
had communicated on behalf of his parents by sending
some e-mail, his custodial interrogation will not serve
any purpose as such communication by way of electronic
media is a matter of record which can be retrieved from
either end. No amount is to be recovered from the
applicant-accused. In fact, no ground to justify custodial
interrogation has been mentioned in the reply filed by the
investigating officer. No previous criminal record has
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been mentioned in the reply. The cause of investigation
can very well be furthered if the applicant-accused joins
the investigation. No ground is made out for justifying
the custodial interrogation.
10. For the aforesaid reasons, the present application for
anticipatory bail filed on behalf of the applicant-accused
Arohan Kapur is hereby allowed and it is ordered that in
the event of the arrest of the applicant-accused, he shall
be released on bail subject to furnishing of personal
bonds and surety bonds in the sum of Rs. 1,00,000/- with
one surety in the like amount to the satisfaction of the
arresting officer/investigating officer. The accused shall
join the investigation as and when called by the
investigating officer and would abide by the conditions
enshrined u/s 438 (2) Cr.P.C. No expression of this order
shall be construed to be an opinion on the merits of the
case. File be consigned to record room after due
compliance".
3. Learned counsel further contends that after the grant of
anticipatory bail to the petitioner, the police colluded with the
complainant of the present case and tried to array the petitioner as an
accused for additional offences under Sections 406, 467, 468 and
120-B IPC, which were added on 14.10.2021. He further contends
that the petitioner had already joined the investigation repeatedly, but
the local police was bent upon to arrest the petitioner, at the instance
of the complainant of the present case. Consequently, a notice under
Section 41 of Cr.P.C. dated 24.10.21021 was issued to the petitioner.
The petitioner again filed an anticipatory bail petition before this
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Court and this Court held that there was no apprehension of arrest as
on that day, no case is made out for interference and the petition was
ordered to be dismissed. Learned counsel further submits that from
the above referred submissions, it was proved that the police wanted
to arrest the petitioner, without following the due process of law.
Ultimately, in compliance of the notices under Section 41 Cr.P.C., the
petitioner went to the police station for joining the investigation, but
he was not allowed to join by the Investigating Officer. Thereafter, an
application dated 30.05.2023 was moved before the trial Court for
obtaining warrants of arrest against the present petitioner and vide
order dated 30.05.2023 (Annexure P-6), the trial Court had issued
warrants of arrest against the present petitioner. Learned counsel
further submits that in fact Verinder Kapur, father of the petitioner and
the complainant were having close relations for the last about 20/25
years. The complainant had borrowed money from Virender Kapur on
several occasions between 2013 to 2015 and a total sum of
Rs. 96,24,728/- had been transferred to the account of the
complainant from the account of the firm of the co-accused, which is
evident from the account statement (Annexure P-9). At the time of
certain transactions, the complainant in good faith had obtained the
signatures of Virender Kapur on certain blank papers and with the
help of the blank signed papers, the false agreement to sell dated
23.06.2016 was forged and fabricated. Even, from a bare perusal of
the agreement to sell (Annexure P-7), it is clear that the signatures
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were overlapping on the contents of the agreement on various pages
and there were double signatures on some of the pages, while on other
pages, there were only single signature. Even, the said manipulation
was apparent on record. Apart from that, the complainant has filed a
Civil Suit No. 1585 dated 19.04.2021 and the same is pending in the
Court of Civil Judge (Junior Division), Gurugram and the
complainant had intentionally concealed the factum of pendency of
the civil suit between the parties before the competent Court. He
further contends that the documentary evidence is already part of the
evidence/record before the Civil Court and nothing was required to be
recovered from the present petitioner. Since, the petitioner had
already joined the investigation repeatedly, his custodial interrogation
was not imperative in the facts of the present case.
4. On the other hand, learned State counsel assisted by the
learned counsel for the complainant had vehemently opposed the
submissions made by the learned counsel for the petitioner. Even, it
has been stated that the petitioner was initially named in the
complaint/FIR itself and had actively participated in the commission
of the crime with his parents. Still further, Aditiya Birla Finance
Limited had already filed a writ petition against the complainant and
others before the Hon'ble High Court of Delhi and various other
litigations/complaints were pending before the different forums.
5. I have heard learned counsel for the parties and perused
the record.
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6. It has been held by the Hon'ble Supreme Court of India
in the matter of Bhadresh Bipinbhai Sheth Vs. State of Gujarat
and another, 2015(1) SCC (Criminal) 240 as follows:
"20.Though the Court observed that the principles
which govern the grant of ordinary bail may not furnish
an exact parallel to the right to anticipatory bail, still
such principles have to be kept in mind, namely, the
object of bail which is to secure the attendance of the
accused at the trial, and the proper test to be applied in
the solution of the question whether bail should be
granted or refused is whether it is probable that the
party will appear to take his trial. Otherwise, bail is not
to be withheld as a punishment. The Court has also to
consider whether there is any possibility of the accused
tampering with evidence or influencing witnesses etc.
Once these tests are satisfied, bail should be granted to
an undertrial which is also important as viewed from
another angle, namely, an accused person who enjoys
freedom is in a much better position to look after his
case and to properly defend himself than if he were in
custody. Thus, grant or non-grant of ball depends upon a
variety of circumstances and the cumulative effect
thereof enters into judicial verdict. The Court stresses
that any single circumstance cannot be treated as of
universal validity or as necessarily justifying the grant
or refusal of bail. After clarifying this position, the Court
discussed the inferences of anticipatory bail in the
following manner:
"31. In regard to anticipatory bail, if the proposed
accusation appears to stem not from motives of
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furthering the ends of justice but from some ulterior
motive, the object being to injure and humiliate the
applicant by having him arrested, a direction for the
release of the applicant on bail in the event of his arrest
would generally be made. On the other hand, if it
appears likely, considering the antecedents of the
applicant, that taking advantage of the order of
anticipatory bail he will flee from justice, such an order
would not be made. But the converse of these
propositions is not necessarily true. That is to say, it
cannot be laid down as an inexorable rule that
anticipatory bail cannot be granted unless the proposed
accusation appears to be actuated by mala fides; and,
equally, that anticipatory bail must be granted if there is
no fear that the applicant will abscond. There are
several other considerations, too numerous to
enumerate, the combined effect of which must weigh with
the court while granting or rejecting anticipatory bail.
The nature and seriousness of the proposed charges, the
context of the events likely to lead to the making of the
charges, a reasonable possibility of the applicant's
presence not being secured at the trial, a reasonable
apprehension that witnesses will be tampered with and
"the larger interests of the public or the State" are some
of the considerations which the court has to keep in mind
while deciding an application for anticipatory bail. The
relevance of these considerations was pointed out in The
State v. Captain Jagjit Singh, AIR 1962 Supreme Court
253: (1962) 3 SCR 622: (1962) 1 Cri LJ 216, which,
though, was a case under the old Section 498 which
corresponds to the present Section 439 of the Code. It is
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of paramount consideration to remember that the
freedom of the individual is as necessary for the survival
of the society as it is for the egoistic purposes of the
individual. A person seeking anticipatory bail is still a
free man entitled to the presumption of innocence. He is
willing to submit to restraints on his freedom, by the
acceptance of conditions which the court may think fit to
impose, in consideration of the assurance that if
arrested, he shall be enlarged on bail."
21. It is pertinent to note that while interpreting the
expression "may, if it thinks fit" occurring in Section
438(1) of the Code, the Court pointed out that it gives
discretion to the Court to exercise the power in a
particular case or not, and once such a discretion is
there merely because the accused is charged with a
serious offence may not by itself be the reason to refuse
the grant of anticipatory bail if the circumstances are
otherwise justified. At the same time, it is also the
obligation of the applicant to make out a case for grant
of anticipatory bail. But that would not mean that he has
to make out a "special case". The Court also remarked
that a wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow out
of its intemperate use.
22. Another case to which we would like to refer is the
judgment of a Division Bench of this Court in the case of
Siddharam Satlingappa Mhetre v. State of
Maharashtra and Others, 2011(1) RCR (Criminal) 126:
2010(6) Recent Apex Judgments (R.A.J.) 581: (2011) 1
SCC 694. This case lays down an exhaustive
commentary of Section 438 of the Code covering, in an
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erudite fashion, almost all the aspects and in the process
relies upon the aforesaid Constitution Bench judgment in
Gurbaksh Singh's case. In the very first para, the Court
highlighted the conflicting interests which are to be
balanced while taking a decision as to whether bail is to
be granted or not, as is clear from the following
observations:
"1. Leave granted. This appeal involves issues of great
public importance pertaining to the importance of
individual's personal liberty and the society's interest.
Society has a vital interest in grant or refusal of bail
because every criminal offence is the offence against the
State. The order granting or refusing bail must reflect
perfect balance between the conflicting interests, namely,
sanctity of individual liberty and the interest of the
society. The law of bails dovetails two conflicting
interests, namely, on the one hand, the requirements of
shielding society from the hazards of those committing
crimes and potentiality of repeating the same crime
while on bail and on the other hand, absolute adherence
to the fundamental principle of criminal jurisprudence
regarding presumption of innocence of an accused until
he is found guilty and the sanctity of individual liberty."
7. In the present case, the main dispute pertains to the
execution of agreement to sell dated 23.06.2016 by the parents of the
present petitioner. The present petitioner is admittedly neither a party
to the agreement to sell and had not even signed the said agreement in
his capacity as a witness. Apart from that, he could never be termed as
beneficiary of the agreement to sell in any manner. Apart from that, he
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was ordered to be released on anticipatory bail on 21.06.2021
(Annexure P-2) by the Court of Additional Sessions Judge, Gurugram
by observing that there was no ground to justify the custodial
interrogation of the petitioner. Apart from that, the petitioner is first
offender and a civil suit with regard to the same controversy was
pending for adjudication before the Civil Judge (Junior Division),
Gurugram. Even during the course of arguments, no argument has
been advanced by learned counsel for the State, which could justify
the need for custodial interrogation of the petitioner.
8. In view of the above discussion, the present petition is
allowed and the interim order dated 06.10.2023 is made absolute. The
petitioner shall continue to join investigation, as and when called by
the Investigating Officer and shall also abide by the conditions as
provided under Section 438(2) of the Cr.P.C.
18.03.2024 ( N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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