Anticipatory bail granted when pre-trial incarceration is not justified, emphasizing that such incarceration should not replicate post-conviction sentencing.

JUDGMENT :

Anoop Chitkara, J.

1. The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 438 CrPC, seeking anticipatory bail.

2. Vide order dated 30.11.2023, a Co-ordinate Bench of this Court had granted interim protection to the petitioner and the said order is continuing till date.

3. The facts and allegations are being taken from the status report dated 11.12.2024 filed by the State, which reads as follows:

"4. That the brief facts of the case are that on 17.05.2023, an agreement to sell with respect to some land took place between complainant Mahipal and present petitioner. Umed son of Hira Lal was middleman in the said agreement to sell. The date of registration of sell deed was fixed for 17.07.2023. The complainant i.e. respondent no.2 arranged the money for registration of the sell deed by selling out his land and plot. Due to strike of the clerks, the time for registration of the sell deed was extended from 17.07.2023 to 27.07.2023, from 27.07.2023 to 04.08.2023 and from 04.08.2023 to 14.08.2023 due to strike of the clerks of the revenue department. However, the petitioner could not get the agreement to sell registered on one pretext or the other. Lastly, the complainant contacted the real owner of the property in question who disclosed that at present there is no agreement between him and Narender and all the documents which were given to complainant were forged. It was further alleged that Narender and Umed cheated the complainant by preparing a false agreement to sell on the basis of forged documents. On the basis of above complaint, the present case vide FIR No 162 dated 27.10.2023 (Annexure P-1) u/s 406 and 420 of IPC was registered at Police Station, Satnali against the petitioner and others and the investigation was launched."

4. The petitioner's counsel prays for bail by imposing any stringent conditions and contends that pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.

5. The State's counsel as well as counsel for the complainant oppose bail and refers to the status report.

6. I have heard counsel for the parties and have gone through the record and its analysis would lead to the following outcome. During pendency of present petition, as observed in order dated 04.03.2024, parties had brought to the notice of Co-ordinate Bench about amicable settlement. In agreement to sell dated 17.05.2023, it is allegedly mentioned that petitioner had entered into an agreement to sell with the original owner and now since possession was granted to respondent No.2, petitioner would bring the actual owner at the time of registration of sale deed. Petitioner claims to be present before Sub Registrar on 04.08.2023.

7. Although petitioner has argued that the dispute is civil in nature and not criminal but prima facie criminal intent is also apparent, however this Court is not adjudicating the matter for the purpose of framing of charges but is only adjudicating the anticipatory bail and considering the offences are under Section 406 and 420 IPC, this Court has to consider about the necessity of custodial interrogation and pre-trial incarceration. In the given facts and circumstances of the case, given the mention of the agreement with the actual owner, it cannot be said that the complainant purchaser was unaware about the said fact. On this ground alone, it is not a case for custodial interrogation or pre-trial incarceration.

8. Pre-trial incarceration should not be a replica of post-conviction sentencing. The evidence might be prima facie sufficient to launch prosecution or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of anticipatory bail. An analysis of the above does not justify custodial interrogation or pre-trial incarceration.

9. Given the above, the penal provisions invoked coupled w