Point of Law: It is necessary to arrest accused for proper investigation of offence or preventing accused from causing evidence to disappear or even to prevent person from committing further offences, including of similar nature, police officer can make an arrest.

JUDGMENT :

ASHA MENON, J.

1. This is the second bail application filed by the applicant under Section 438 Cr.P.C. for bail in the event of arrest in FIR No. 0011/2022, P.S. New Delhi Railways Station for offences under Sections 379/411 IPC and Sections 2, 33 and 42 of the Indian Forest Act, 1927.

2. Mr. Ravi Kapoor, learned counsel for the applicant submitted that one Arif had been arrested by the police with a log of red sandalwood/red sanders who named the applicant as having booked his train tickets. According to the learned counsel, this was the only incriminating circumstance against the applicant which could be easily explained. According to him, Arif was a freelancer who used to take leather and other goods from the applicant to sell in various parts of the country to earn a living and it is due to this connection that the tickets were booked on the mobile phone of the wife of the applicant. It is further submitted that the FIR had been registered for an offence under Sections 379/411 IPC but what was stated in the Status Report filed by the prosecution was that the log of red sandalwood/red sanders had been smuggled and that Arif has been found without a transit permit to move the wood from Vishakhapatnam to Delhi. There was no reference to theft. The learned counsel submitted that under Sections 2, 33 and 42 of the Indian Forest Act, 1927, no case would be made out against the applicant and in any case, the punishment prescribed was only imprisonment for six months or fine. Thus the applicant could not be arrested.

3. The learned counsel further pointed out that the incident is stated to have taken place on 3rd February, 2022 at 2.00 PM but there was a delay in registration of the FIR which occurred only at 6.00 PM. The delay raises further suspicion, inasmuch as the Railway Time Table shows the train to have arrived at Delhi at 8.30 AM whereas the FIR records that Arif was found at 2.00 PM in suspicious circumstances with the log of red sandalwood/red sanders. Thereafter, no notice had been issued to the applicant asking him to join investigation, till the time he moved an application for anticipatory bail before the learned Sessions Court. According to him, the mala-fide is writ large on the action of the police, which is evident from the fact that when notice was issued on the said application filed on 8th February, 2022 for a response on 9th February, 2022, the Investigating Officer (“IO” for short) sent a notice under Section 41A IPC demanding the appearance of the applicant before him at 11.00 AM on 9th February, 2022. It was further argued that a notice under Section 41A IPC is issued only when the IO is satisfied that no arrest was required and yet a contradictory stand has been taken in the Status Report where the IO has sought custodial interrogation. It was submitted that the applicant had clean antecedents and there was no accusation or record of his having indulged in any similar activities. Thus, he may be granted anticipatory bail.

4. Mr. Amit Gupta, the learned APP for the respondent/State has opposed the grant of bail on the ground that the applicant has not participated in investigations, though a month has gone by and even after his first application for anticipatory bail was dismissed by the learned Sessions Court on 10th February, 2022. The learned APP for the respondent/State further submitted that non-bailable warrants have been sought for by the IO and issued by the learned Trial Court and that an application for cancellation of non-bailable warrants had also been moved in the interregnum. The learned APP further submitted that the judgment of the Supreme Court in Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273 does not lay down the law that in all offences punishable with imprisonment for less than seven years, no custodial interrogation was possible. It was submitted that the requirements of fair investigation were also to be considered. It was further submitted that Arif, during his interrogati