2023 (1) TMI 1344 - HC - Indian Laws

Seeking grant of pre-arrest bail - forgery - proceedings under Section 82 of CrPC have already been initiated - applicant had not been cooperating with the investigation - HELD THAT - In the present case, the accused persons are not only found to have committed the offence of cheating but also committed the offence of forgery. The applicant, at this stage, cannot be said to be only an accomplice. The allegations and the investigation carried out till this stage points out towards the active role of the applicant in the commission of the offence - The applicant has not cooperated at all in the investigation, which led to the issuance of non-bailable warrants by the concerned Trial Court. The proceedings under Section 82 of CrPC have already been initiated. Pre-arrest bail is to be granted only when the court is convinced that circumstances exist to resort to that extraordinary remedy and cannot be a matter of routine. Custodial interrogation is a recognized mode of investigation which is not only permitted but is held to be more effective - Even though the accused Bhuvan Chand is in custody, the forged documents as well as the cheated amount is yet to be recovered. The offence cannot be held to be of minor nature. The applicant has been named by not only the complainant but also other public witnesses to be actively involved with the accused Bhuvan Chand . It cannot be said that the custodial interrogation of the Applicant is not required at this stage. The order of bail in anticipation of arrest cannot be granted for it to be used as a shield. In the facts of the present case, it cannot be said, at this stage, that the allegations made against the applicant are frivolous or have been made to falsely implicate the applicant - Keeping in mind the nature of allegations, and the fact that the applicant has not joined and cooperated in investigation which has also led to initiation of proceedings under Section 82 of CrPC, this Court feels that it is not a fit case for exercise of discretion under Section 438 of CrPC. Application dismissed.

Summary

Issues:
Application for pre-arrest bail under Section 438 of CrPC in a case involving allegations of cheating, forgery, and conspiracy.

Detailed Analysis:
1. The applicant sought pre-arrest bail in FIR No.365/2022, alleging fraud under IPC sections 420/467/468/471/506/120B. The complainant was defrauded in a property deal by the applicant and others, leading to the FIR registration.

2. Allegations include the accused showing forged property documents to induce the complainant into an agreement, receiving advance money, and later revealing the transaction as bogus, with threats and no actual ownership transfer.

3. The accused, including the applicant, faced serious charges of cheating and forgery. The applicant's role was not merely as an accomplice but actively involved in the offense, as per the investigation and evidence presented.

4. The applicant's lack of cooperation in the investigation, issuance of non-bailable warrants, and initiation of proceedings under Section 82 of CrPC indicated non-compliance, justifying denial of pre-arrest bail.

5. The court emphasized the significance of custodial interrogation for effective investigation, highlighting the qualitative difference in obtaining evidence between custodial and non-custodial questioning, as per legal precedents.

6. Despite one accused being in custody, recovery of forged documents and cheated amount remained pending, with multiple witnesses implicating the applicant in the fraud, making custodial interrogation necessary.

7. The court dismissed the bail application, considering the seriousness of the allegations, lack of cooperation in the investigation, and the need for custodial interrogation to ensure a fair and thorough investigation.

8. The judgment clarified that observations made were specific to the bail application and should not influence the trial's outcome, maintaining the separation between bail proceedings and trial proceedings.