Amit Seth vs State Of Uttarakhand
2022 Latest Caselaw 2356 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL

         First Bail Application No. 1727 of 2022

Amit Seth                                         ........Applicant

                             Versus

State of Uttarakhand                            ........Respondent
Present:-
      Mr. Aditya Singh, Advocate for the applicant.
      Mr. G.S. Sandhu, Government Advocate for the State.
      Mr. Ramji Shrivastava, Advocate for the complainant.



Hon'ble Ravindra Maithani, J. (Oral)

Applicant Amit Seth is in judicial custody in

FIR No.0482 of 2022, under Sections 420, 467, 468, 471,

120-B, 504, 506 IPC, Police Station Patel Nagar, District-

Dehradun. He has sought his release on bail.

2. Heard learned counsel for the parties through

video conferencing and perused the record.

3. This matter was taken up earlier today, when

the Court passed the following order:-

"According to the FIR, based on some power of attorney, one agreement was executed and the informant paid huge amount to the applicant and others but, the sale deed was not executed. Heard learned counsel for the parties through video conferencing.

The informant is also being represented. The Court wanted to know:-

(i) As to whether, the applicant is the owner of the property? If not, how did he execute the agreement?

(ii) Whether the agreement was duly stamped and registered? It is answered that it is not. Does it mean that the stamps duty were evaded?

(iii) Whether any civil suit has been filed?

(iv) The FIR records that co-accused Suman Wason denied her signature on the agreement. If it is so, has the police got forensic report about the signature of Suman Wason? The bail rejection order dated 22.07.2022 recorded by 5th Additional Sessions Judge, Dehradun does not reveal it also. There is no answer from learned State counsel on this point.

During the course of hearing, on the request of the Court, learned Government Advocate also joins the court proceedings.

Arrest is not a routine and mechanical exercise to be done by a police officer. Not once but, on multiple occasions Hon'ble Supreme Court has held that the power to arrest is one thing and justification to arrest is quite distinct.

There has been umpteen case laws which makes distinction between civil law and criminal law remedy. Undoubtedly, a civil wrong may also have an element of criminality.

Here in the case, the FIR records that the payment was made from 2016 to 2021. Admittedly, the applicant is not the owner of the property, which was allegedly agreed to be sold to the informant. The question is as to how the applicant was arrested? Has the police officer recorded a finding that some offence has been committed and; has the police officer recorded a finding that arrest of the applicant is must, as required to be recorded by him in view of the judgment in the case of Joginder vs. State of U.P., (1994)4 SCC 260? Also in the case of Satender Kumar Antil vs Central Bureau Of Investigation & Another, 2022 SCC OnLine SC 825, the Hon'ble Supreme

Court has laid emphasis on the procedure to be followed in the matter of arrest.

List this case at 02:00 PM."

4. According to the FIR, a property of co-accused

was agreed to be sold to the informant and an agreement

was also executed but the sale deed was not executed.

Thereby, the informant was cheated. The FIR records

that, in fact, when the informant approached the office of

the Sub-Registrar for execution of the sale deed, a notice

was issued to the mother-in-law of the applicant, i.e. the

co-accused Smt. Suman Wasan. She appeared in the

office of the Sub-Registrar and denied her signature on

any agreement. According to her, the alleged agreement is

forged.

5. The Court, in fact, wanted to know from

learned Government Advocate, as to whether the

applicant is the owner of the property, which was

allegedly agreed to be sold to the informant?

6. In fact, Mr. Kunwar Singh, Senior

Superintendent of Police ("SSP"), Dehradun and Mr. Saloj

Kumar, Inspector, Police Station-Patel Nagar, Dehradun,

who is the Investigating Officer ("the IO") in this case,

joined the proceedings of this case.

7. According to the IO, the applicant is not the

owner of the property, which was allegedly agreed to be

sold to the informant. The IO also tells that, in fact, the

applicant did not execute the sale deed, instead, he was

instrumental in giving the agreement to the informant,

which was signed by his wife and mother.

8. In such eventuality, the Court wanted to know,

as to whether the IO got forensic expert report, with

regard to any signature on the alleged agreement?

9. The reply is evasive. The IO tells the Court that

the procedure for that purpose is underway.

10. The IO also tells that he has recorded in the

case diary that the arrest of the applicant is must.

11. Repeatedly, the Hon'ble Supreme Court has

been directing that arrest is not a routine and mechanical

exercise. It infringes one of the basic Fundamental Rights,

i.e., Right to Personal Liberty.

12. Here is the case, where, according to the FIR

and according to the IO also, the informant is neither

owner nor the executant of any agreement to sale.

13. It is stated that the applicant was a witness to

the agreement; signatures have not yet been verified;

ownership is not with the applicant. The Court leaves this

question open for further deliberation, once State files its

objection.

14. List this bail application for disposal on

26.08.2022.

15. In the meanwhile, the State may file a detailed

counter affidavit, giving response to every question, which

have been posed by this Court as above.

16. In the meanwhile, the applicant shall be

released on interim bail, on his executing a personal bond

and furnishing two reliable sureties, each of the like

amount, to the satisfaction of the Court concerned.

17. The Court also requests the Director General of

Police, Uttarakhand, Dehradun, to examine such matters

and consider sensitizing the police officers about the law

on arrest, particularly, the directions of Hon'ble Supreme

Court and the provisions as contained in the statute.

Perhaps, if approached, the Uttarakhand Judicial and

Legal Academy (UJALA) may also consider to help

designing such programme with case studies and reading

material (also do and don't and check list).

18. Let a copy of this order be forwarded to the

Director General of Police, Uttarakhand, Dehradun, for

information and necessary action.

(Ravindra Maithani, J.) 29.07.2022 Ravi Bisht