Sharvan Jha v. State (Govt. of NCT of Delhi) & Anr.

1. This petition has been filed under Section 482 and 439 (2) of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) seeking cancellation of the purported anticipatory bail granted to the respondent no. 2 in FIR No.943/2021 registered at Police Station: Burari, North, Delhi under Section 420 of the Indian Penal Code, 1860 (in short, ‘IPC’) by the Order dated 05.03.2022 passed by the learned Additional Sessions Judge-04, Central District, Delhi (hereinafter referred to as ‘Additional Sessions Judge’) in Bail No. 358/2022 (hereinafter referred to as ‘Impugned Order’).

2. In spite of service of notice on the respondent no. 2, none is appearing for the respondent no. 2.

3. The Impugned Order reads as under: “It is submitted by the counsel for accused that as now he has joined the investigation and even cooperated with the investigation. On the other hand, it is submitted by the IO that earlier the seller did not properly sell the property in question to such applicant Amit Bhardwaj as per investigation carried out so far. But at the same time, IO states that he does not need custodial interrogation of present accused and he does not feel to arrest of such accused at present. Heard. On the other hand, it is claimed by the counsel for the complainant that his hard earned money of Rs. 37,50,000/- is taken away by cheating and misrepresentation by such accused and the same is not recovered so far. Having regard to the nature of offence and the maximum punishment for the same, the provision of section 41A Cr.PC and the directions of the Hon'ble High Court in the case of 'Arnesh Kumar' coupled with the statement of IO that he does not need custodial interrogation of the present applicant, as there is no reasonable apprehension to arrest at present, this present application is disposed off with liberty to move afresh, if need so arises in future. IO is directed to give 07 days notice to the applicant / accused in case in future he feels that there is necessity to arrest of present applicant / accused. With these observations, the present bail application stands disposed off. Copy of this order be given dasti to both the parties. Further, copy of this order be also given dast to IO / SHO concerned.” (Emphasis supplied)

4. The learned counsel for the petitioner submits that, in spite of grave allegations, the Investigating Officer (IO) for reasons unknown has not sought the custodial interrogation of the accused. He submits that, even otherwise, the direction of the learned Additional Sessions Judge that the IO shall give notice of seven days to the respondent no.2 in case in future if he feels that there is necessity to arrest the respondent no.2, cannot be sustained.

5. The learned APP for the State, on the other hand, submits that the Impugned Order cannot be read as the one granting anticipatory bail to the respondent no.2. He submits that IO is within his right to seek custodial interrogation, if at any future date it is felt necessary.

6. I have considered the submissions made by the learned counsels for the parties.

7. The Impugned Order cannot be read as the one granting anticipatory bail to the respondent no.2. It merely records the statement of the IO stating that he does not feel it necessary to seek custodial interrogation of the respondent no.2 and on this statement, grants liberty to the respondent no.2 to move a fresh application in case the IO at any future date requires his custodial interrogation.

8. As far as the direction of the learned Additional Sessions Judge that the IO shall give seven days notice to respondent no.2 herein in case in future he feels that there is necessity to arrest him, reference may be made to the judgment of the Supreme Court in Union of India v. Padam Narain Aggarwal and Others, (2008) 13 SCC 305, wherein the Supreme Court held as under:-

9. In Nathu Singh v. State of Uttar Pradesh and Others, (2021) 6 SCC 64, the Supreme Court held as under:-