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IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajnish Bhatnagar, J.
Diwakar Mishra - Appellant
Versus
State NCT Of Delhi - Respondent
Bail Application No. 3094 of 2020
Decided On : 27-07-2021
Bail Application - Anticipatory Bail - Section 438 Cr.P.C. - FIR No. 496/2018 under Section 381 IPC - [Section 438 Cr.P.C., Section 381 IPC] - The court discussed the provisions of Section 438 of the Criminal Procedure Code (Cr.P.C.) regarding anticipatory bail and Section 381 of the Indian Penal Code (IPC) which deals with theft. The court analyzed the evidence and arguments presented by both parties to determine the necessity of custodial interrogation and the seriousness of the offense in relation to the bail application.
Fact of the Case:
The case involves a complaint of theft and misappropriation of funds by an employee of the complainant's company. The accused employee allegedly absconded with a significant amount of cash and other items, leading to the registration of a case under Section 381 IPC.
Finding of the Court:
The court found that the application for anticipatory bail lacked merits and dismissed the same, emphasizing the necessity of custodial interrogation to unearth the trail of money involved in the case.
Issues: The issues revolved around the alleged involvement of the petitioner in the misappropriation of funds, the purchase of property, unaccounted transactions, and lack of cooperation in the investigation.
Ratio Decidendi: The court's decision was based on the seriousness of the offense, discrepancies in income and expenditure, unexplained transactions, and the necessity of custodial interrogation to uncover the trail of money.
Final Decision: The application for anticipatory bail was dismissed, and the court clarified that the decision did not express any opinion on the merits of the case.
Key Points: - The judgment concerns a bail application filed under Section 438 Cr.P.C. for anticipatory bail in FIR No. 496/2018 under Section 381 IPC (!) . - The case involves allegations of theft and misappropriation of funds by an employee who allegedly absconded with cash and other items [11000704530002]. - The main accused was declared a proclaimed offender and later arrested, disclosing that he gave a significant amount of money to the present petitioner and his sister-in-law [11000704530003]. - Arguments were made regarding the lack of CDR records, alleged incorrect allegations of property purchase, and the property being a donation [11000704530005]. - The petitioner claimed to have joined the investigation and provided passbooks, and alleged harassment due to being the brother of the accused [11000704530005]. - The state argued that the main accused met the petitioner after the incident and again later, and that there were unaccounted transactions in the petitioner's wife's account [11000704530006]. - The state also submitted that the petitioner purchased property by undervaluing it and that custodial interrogation is required to examine the broker and bank statements [11000704530006]. - The status report indicated the petitioner had not been forthcoming about conversations with his brother, discrepancies in income and expenditure, and the angle of property purchase needed examination [11000704530007]. - A cash deposit of One Lakh in the wife's account lacked explanation, and custodial interrogation was deemed necessary to unearth the trail of money [11000704530008]. - The application for anticipatory bail was dismissed due to the seriousness of the offense and the necessity of custodial interrogation [11000704530008].
JUDGMENT
Rajnish Bhatnagar, J. - The present bail application has been filed under Section 438 Cr.P.C. on behalf of the petitioner seeking anticipatory bail in case FIR No. 496/2018 under Section 381 IPC registered at P.S. Shalimar Bagh.
2. Briefly stated, the present case was registered on the basis of statement of one Devi Dayal Mittal S/o Sh. Ram Sharan Dass Mittal R/o BL- 106, West Shalimar Bagh, Delhi. According to the complainant, he runs an office of company at the above noted address and another office of his company is situated in Chawri Bazar. He runs his company under the name and style of Ram Sharan Dass & Company which deals in trading of papers. According to the complainant, the employee of company namely Rajiv Lochan Mishra R/o E-81, Bhagwati Garden Extn. Dwarka More, Delhi, permanent resident of Village-Malachka, Munger, Bihar, was looking after the cash transaction and transport work of his company for the last 15 years.
3. According to the complainant, on 11.09.2018 at about 01:30 PM, he went to passport office from his office. Thereafter his brother Sat Prakash Mittal gave a sum of Rs 11 Lakhs to Rajiv Loachan Mishra to be given to a party at Peeragarhi, Delhi. All the currency notes were in the denomination of 2000. Thereafter his brother Sat Prakash went to Model Town for lunch. After some time the brother of the complainant received a phone call from the party that their employee Rajiv Lochan Mishra has not reached them. The brother of the complainant tried to call on both the phone numbers of Rajiv Loachan Mishra, but the same were found switched off. Thereafter Sat Prakash (Brother of complainant) reached at BL-106, Shalimar Bagh, Delhi at about 04:00 PM and checked the balance cash, which was kept in the bad box, but the cash kept in bad box was not found. There were total 38 Lakhs rupees in Bad Box in which Twenty Nine Lakh rupees were in the denomination of 2000 currency notes and rest Nine Lakh rupees were in the denomination of 500 and 100 currency notes. The employee of the company of complainant namely Rajiv Lochan Mishra had taken Rs 49 Lakhs along with Company's owned Red colour Motorcycle bearing No. DL 8S AW 8316 Hero Splender. He has also stolen some documents and IDs alongwith cash. Accordingly, a case vide case FIR No. 496/18 U/S 381 IPC was registered at PS. Shalimar Bagh, Delhi, and investigation went underway.
4. Raids were conducted by the police in Delhi, Bihar and Jharkhand, however, the main accused could not be arrested. During investigation, one of the co accused namely, Varun Pathak, who happened to be the relative of the main accused, was arrested on 16.09.2018 and an amount of Rs. 4,40,000/- is stated to have been recovered from the co-accused. Nevertheless, the main accused could not be arrested. In the meanwhile, the investigating agency got the main accused declared as proclaimed offender. An award of Rs. 50,000/ was announced on the main accused. On 26.08.2020, the main accused was arrested and he disclosed that he gave Rs. 36,00,000/- to his brother i.e. the present petitioner/applicant and sister-in-law Sulochana both residents of Deoghar, Jharkhand.
5. I have heard Ld. counsel for the petitioner/applicant, Ld. APP for the state, Ld. counsel for the complainant who assisted the Ld. APP for the state, perused the Status Report filed by the state and also perused the records of this case.
6. It is submitted by the Ld. counsel for the petitioner that no CDR records have been obtained by the investigating agency showing that co-accused Rajiv Lochan Mishra and Varun Pathak came in contact with each other. It is further submitted by the Ld. counsel for the petitioner that the investigating agency has wrongly alleged that the petitioner has purchased property worth Rs. 12 to 13 lakh and undervalued the same for Rs. 6,00,000/- to 7,00,000/- Lakh and a sum of Rs. 2,50,000/- has been paid by way of cheque. It is further submitted by him that there is no investigation or evidence against
The main legal point established in the judgment is the necessity of custodial interrogation in cases involving serious offenses and the court's discretion in granting anticipatory bail based on the ....
In cases of serious allegations, lack of cooperation with investigation can justify denial of anticipatory bail.
Anticipatory bail is a discretionary remedy that may be denied when there is an inordinate, unexplained delay in seeking relief, as such delay suggests an evasion of the investigative process. Additi....
Criminal Proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior Courts while exercising this power should also strive to se....
Anticipatory bail can be granted in domestic violence cases if allegations are vague and no necessitating grounds for custodial interrogation exist.
Granting anticipatory bail based on the nature of allegations, the accused's cooperation in the investigation, and the interim protection granted to other co-accused family members.
The court held that a prima facie case must be established for anticipatory bail, emphasizing the seriousness of the allegations and the need for custodial interrogation.
Anticipatory bail is not granted where substantial evidence suggests active participation in fraud and multiple offenses, warranting custodial interrogation.
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