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2023 Supreme(Online)(MP) 4086
HIGH COURT OF MADHYA PRADESH
SUBODH ABHYANKAR, J
SMAIL S/O MOHAMMAD HANIF – Appellant
Versus
THE STATE OF MADHYA PRADESH – Respondent
MISC. CRIMINAL CASE No. 11407 of 2023
For the Appellants/Petitioners: AJAY BAGADIYA, ASHISH TIWARI
For the Respondents: VISHAL SANOTHIYA, SACHIN PARMAR
Court ruled that custodial interrogation was unnecessary due to doubts about the validity of evidence obtained from alleged coercion; anticipatory bail granted.
Headnote:(A) Criminal Procedure Code, 1973 - Section 438 - Anticipatory bail - Applicant apprehending arrest for offences under IPC including forgery - Court considered parity with co-accused and police treatment - Custodial interrogation not necessary. (Paras 8, 9)
Facts of the case:
The applicant sought anticipatory bail due to apprehension of arrest for alleged forgery related to the execution of a Hibanama, with claims from other purchasers asserting financial transactions with him.
Findings of Court:
The custodial interrogation is deemed unnecessary as the applicant was not a beneficiary, and the allegation is based primarily on a memo from a possibly coerced confession.
Issues: The main issue addressed is the necessity of custodial interrogation in light of allegations of police misconduct and prior closure of the case.
Ratio Decidendi: The court emphasized the doubts regarding the memo's validity due to previously established victimization of a co-accused by police, leading to the conclusion that custodial interrogation was not warranted under the circumstances.
Result: Application for anticipatory bail is allowed with conditions.
ORDER
They are heard. Perused the documents / challan papers.
This is applicant's first application under Section 438 of Criminal Procedure Code, 1973 for grant of anticipatory bail, as he is apprehending his arrest in connection with Crime No.35/2023 registered at Police Station Chimanganj Mandi, District Ujjain (MP) for offence punishable under Sections 420 , 419, 467, 468, 471, 120 of the Indian Penal Code, 1860 .
Shri Ajay Bagadiya, learned counsel appearing for the applicant, at the outset has drawn the attention of this Court to the order passed by this Court in M.Cr.C. No.5994/2023 dated 22/02/2023, in respect of the other co-accused persons Javed and Mohammad Tahir and it is submitted that the case of the present applicant is identical to that of other co-accused persons, and the applicant also deserves to be released on anticipatory bail on the ground of parity. Counsel has also drawn the attention of this Court to para No.8 of the aforesaid decision wherein this Court has also taken note of the memo prepared under Section 27 of the Evidence Act at the instance of co-accused Irfan and his ill treatment by the police. Thus, it is submitted that the application be allowed and the applicant be released on anticipatory bail.
Counsel for the respondent / State as also the objector, on the other hand, have vehemently opposed the prayer and it is submitted that it is the present applicant who is the main accused in the case as he is the person who has forged the sign of Yusuf on Hibanama and thus, the applicant’s custodial interrogation would be necessary. It is also submitted that various purchasers of the plots have also alleged that they had given various amounts to the present applicant only.
Thus, it is submitted that no case for anticipatory bail is made out.
On due consideration of the rival submissions and perusal of the case diary as also the order dated 22/02/2023 passed by this Court in M.Cr.C. No.5994/2023 which reads as under:-
“They are heard. Perused the case diary.
2] This is the first application filed by the applicants under Section 438 of Criminal Procedure Code, 1973 for grant of anticipatory bail as they are apprehending their arrest in connection with Crime No.35/2023 regis- tered at Police Station – Chimanganj Mandi, District - Ujjain (MP) for of- fence punishable under Section 420 , 419, 467, 468, 471, 120 of the Indian Penal Code, 1860 .
3] The allegations against the applicants are that they are the attesting witness to a Hibanama executed by one Yusuf Khan in favour of Irfan Hus- sain on 03.08.2015. The story of the prosecution is that the aforesaid Hi- banama has been forged by the applicants and Irfan, the person in whose favour the property has been transferred.
4] Counsel for the applicants has submitted that the applicants have been falsely implicated in the case as prior to the present FIR, a complaint was also lodged in the Police Station Jiwajiganj and C.M. Helpline and sub- sequently, it was found that the Hibanama has been rightly executed and a closure was also filed. It is also submitted that the handwriting expert’s re- port is also obtained in which it has been found that the Hibanama has been signed by Yusuf. However, subsequently the complainant was able to get the FIR registered and the main accused Irfan was arrested and has been re- leased on bail by the trial court itself.
5] It is further submitted that the applicants have been falsely impli- cated only on the basis of a memo prepared under Section 27 of the Evi- dence Act at the instance of Irfan, who was subjected to third degree mea- sures by the police station Chimanganj Mandi, the proceedings regarding which have also been placed on record to demonstrate that Irfan was badly beaten by the Officers posted at the said police station and the District Court has also allowed Irfan to file a private complaint against the doctor and the Investigating Officer. Thus, it is submitted that in the present case, the cus- todial interrogation of t
