Blog

The power exercisable under Section 438 Cr.P.C is somewhat extraordinary in character and it is only in exceptional cases where an anticipatory bail maybe granted. The power of High Court or the Court of Session in case of granting anticipatory bail u/s 438 of CRPC was analysed by the Delhi High Court, consisting Justice Subramonium Prasad in the matter of Sunil vs. State of NCT Delhi [BAIL APPLN. 2115/2021] on 04.01.2022.

Facts of the case are that the Complaint was given by one Parv Mittal and one Mool Chand Mittal stating that they are the owners of property bearing No. R-5/2, Model Town, Delhi. It was stated that they purchased the abovementioned property on 07.12.2019 from one Kamal Kishore Jain and that he could not give the possession of property stating that 5-6 persons are staying in the said property and they will vacate the premises by 13.04.2020. When Kamal Kishor Jain asked the occupants of the property to vacate it, they threatened him with dire consequences. It was stated that the occupants told Kamal Kishor Jain that they are the owners of the said property and they have valid documents of the same. It was stated that the occupants of the property in question also threatened the complainants herein. The complainants, thereafter, approached the Police and gave a complaint stating that Sunil (the petitioner herein) was trying to take the property on the basis of forged documents. The petitioner approached the Trial Court by filing an application for anticipatory bail. The learned ASJ directed the petitioner to place on record the documents of ownership of the property in question. When the petitioner was not able to produce any document of ownership, the learned ASJ vide order dated 05.04.2021 dismissed the anticipatory bail of the petitioner. The petitioner then approached the Trial Court by filing another application, stating that the father of the petitioner had purchased the property in question from one Mrs. Chander Kala Jain in the year 1971, but the documents of ownership were misplaced in the floods. The learned ASJ dismissed the said application.

The Counsel for petitioner contended that the father of the petitioner purchased the property bearing No. R-5/3, Model Town, Delhi from one Chandra Kala Jain. He stated that the family of the petitioner is in possession of the property from the past 25 years and that electricity connection, Aadhaar Cards, ration cards and Voter ID cards of the family members of the petitioner are issued on the same address i.e. R-5/3, Model Town, Delhi which shows that the aforementioned property was in continuous possession of the petitioner’s family. He, therefore, stated that the present FIR is only a ruse to evict the petitioner and his family members from the premises by putting pressure.

The Counsel for respondent contended that the property in question belonged to one Narayan Singh Nambardar, who sold the property in question to late Chandra Kala Jain through a registered sale deed. She further submited that late Chandar Kala Jain sold the property in question to Kamal Kishor Jain vide a registered sale deed dated 28.08.2001 and Kamal Kishor Jain sold the property in question to the complainants herein through a registered sale deed dated 28.08.2001. She further stated that the electricity connection of the property in question was obtained by the petitioner herein on the basis of a GPA executed between one Neeraj Khandelwal and the petitioner herein. She stated that during investigation Neeraj Khandelwal was not found at the given address and statement of neighbours stated that they don’t know any Neeraj Khandelwal. She stated that Police has not been able to find the said Neeraj Khandelwal who purportedly executed the GPA in favour of the petitioner herein. She further stated that the GPA has only been signed by the petitioner herein and there is no signature of Neeraj Khandelwal on it. She, therefore, states that the said GPA is a forged document.

The High Court of Delhi held that the power exercisable under Section 438 Cr.P.C is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. It is also well settled that ordinarily, arrest is a part of the process of investigation intended to secure several purposes and it may be necessary to curtail the freedom of an accused in order to enable the investigation to proceed without hindrance and prevent the disappearance of the accused. The GPA which has been placed on record is only signed by the petitioner herein and not by the alleged executant i.e. Neeraj Khandelwal. The petitioner is accused of the offence of forgery and if convicted, the petitioner can be punished with life imprisonment. In view of the fact that the petitioner has been evading/avoiding to join investigation since March 2021. Proceedings under Section 82 Cr.P.C have been initiated against the petitioner and that there is all likelihood of the petitioner fleeing from justice and not being available during trial. This Court is, therefore, not inclined to grant protection to the petitioner under Section 438 Cr.P.C. Accordingly, the petition is dismissed along with all the pending application(s), if any.

Judgment reviewed by Shristi Suman.SMP04012022BA21152021_181259