The possession of original forged documents determines the duty of the Investigating Officer to arrest the accused, and mere mentioning of Section 467 IPC in the absence of documents is not sufficient to arrest the accused under Section 41A Cr.P.C.

P.S.TEJI, J.

1. The present application has been filed for the grant of anticipatory bail in FIR No.324/2016, under Sections 420/467/468/471/120B/34 IPC, Police Station Kashmere Gate.

2. As per the FIR, the allegations leveled are that the complainant Ram Krishan Dua made a complaint to the police that he is the son of late Sh.Balak Ram Dua in whose name property no.111/1053 at Gali Hinga Beg, Tilak Bazar, Delhi was allotted vide Deed of Conveyance dated 20.05.1981. Co-accused Anil Dua in collusion with his father Megh Raj forged and fabricated a false will dated 19.10.1982 regarding the said property claiming that Anil Dua will be the sole owner of the said property after the demise of Sh.Balak Ram Dua. Sh.Balak Ram Dua had made a complaint dated 24.11.1982 that his two sons, namely, Megh Raj Dua and Jaman Dass Dua wanted to get the will in their favour. On the basis of the forged will, accused Anil Dua got the said property mutated in MCD record in his favour. It was further alleged that accused no.1 to 4 hatched a criminal conspiracy and in furtherance thereto executed a forged sale deed dated 28.07.2014 in favour of accused Pawan Kumar Sharma for a total consideration of Rs.90 lacs.

3. Arguments advanced by the learned Senior Counsel for the petitioner as well as learned Standing Counsel for the State were heard.

Bail in the Forgery of Documents under Section 467 IPC

4. During the hearing of the present matter, it was informed by the Deputy Commissioner of Police (North District), namely, Mr. Jatin Narwal that, the moment Section 467 IPC comes into play, Section 41A of the Cr.P.C. does not operate in the matter of arrest of the accused.

5. In the present case, the petitioner/accused has been booked for commission of offence punishable under sections 420/467/468/471/120B/34 IPC. It was submitted by the learned counsel for the petitioner that he had already joined the investigation on 19.10.2016 and on 10.01.2017 when his statement was recorded and thereafter he again joined the investigation on 10.01.2017 and 07.04.2017. It is apparent from the record that the accused was available to the Investigating Officer during the pending investigation but he was never arrested. The offences complained of in the present case involves non-bailable offences and the prosecution has failed to show under which provision the accused was let off when he was available before the Investigating Officer in a non-bailable offence.

6. Section 41A of the Cr.P.C. puts certain restrictions upon the police to arrest an accused where the offence complained of attracts punishment for less than seven years. Section 41A reads :

“41A.Notice of appearance before police officer –

(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

7. Section 467 of the IPC provides for punishment of imprisonment for life, or imprisonment of either description for a term which may extend to ten years and also to fine.

8. Apparently, there is a practice that while makin