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Sujeet Bhati vs. The State - (High Court of Delhi) (27 Jan 2023)

Pre-arrest bail is to be granted only when the court is convinced that circumstances exist to resort to extraordinary remedy



The present application is filed by the Applicant under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) praying for grant of pre-arrest bail in FIR registered at Police Station under Section 420, 467, 468, 471, 506 and 120B Indian Penal Code, 1860(IPC). The application filed by the applicant under Section 438 of the CrPC was dismissed by the learned Additional Sessions Judge by order.

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.

Arrest is a part of procedure of the investigation to secure not only the presence of the accused but also to complete investigation. The grant of pre-arrest bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such extra ordinary power. 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.

The Hon'ble Apex Court, in the case of CBI vs Anil Sharma held that investigating a person appearing before the Investigating Officer under the protection of the Court order under 438 of the CrPC is qualitatively different from the custodial interrogation which would lead to better collection of evidence, thereby ensuring a proper investigation. Custodial interrogation is more elicitation - oriented than questioning an individual/suspect ensconced with a protection of Court Order.

Even though the accused 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. It cannot be said that the custodial interrogation of the Applicant is not required at this stage. 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.

In 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.


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