Read Order: MUKESH KHURANA Vs. STATE OF NCT DELHI 

Mansimran Kaur 

New Delhi, April 18, 2022: Allowing the application for grant of anticipatory bail in an alleged case of cheating and misappropriation, the Delhi High Court has observed that custodial interrogation is more effective to question a suspect. The cocoon of protection, afforded by a bail order insulates the suspect and he could thwart interrogation, reducing it to futile rituals.

However, the Bench of Justice Asha Menon added, “But, it must be also kept in mind, that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.”

The High Court was dealing with an application seeking anticipatory bail instituted under Section 483 Cr.P.C. for seeking anticipatory bail pertaining to an FIR registered under Sections 420, 406 and 34 of the Indian Penal Code. 

Brief facts of the case were that the FIR was lodged by Mr. Karan Sachar, authorised representative of M/s Vaishali Infratech (Pvt.) Ltd., alleging the applicant of cheating and misappropriation. The applicant’s  company  M/s Rudra Buildwell Pvt. Ltd., was running a  project, namely, ‘Rudra Palace Heights’, in which, the complainant’s company booked 11 flats. Large sums of money were  paid for the flats amounting to Rs 1,33,87,500 towards 75% of the consideration. The applicant was the promoter and Director of M/s Rudra Buildwell Pvt. Ltd. Basically, the complaint was that these investments were made in the year 2015. However, despite the fact that the flats were to be fully constructed and handed over in 2018, till date, no flat had been handed over to the complainant. Moreover  it was alleged that the complainant had come across a charge intimation to the Registrar of Companies filed by the applicant, informing of the sale of the very same 11 flats to 11 other persons which lead to the present allegations against the applicant in the complaint filed by the complainant. 

The Counsel for the petitioner submitted that there was no dispute on the fact that there existed a Builder Buyers Agreement with the complainant in respect to the 11 flats and 75% of the consideration amount had already been paid and the remaining 25 % was to be paid at the time of possession. The Counsel submitted that it was an unintentional mistake when the names of the 11 others were shown as buyers of the 11 flats allocated to the complainant. It was further stated that there was no duplicate sale and what had taken place was mere allocation. It was further submitted that the applicant was ready to resolve the dispute.  It was submitted that in compliance with the orders of the Additional Sessions Judge dated November 8, and March 5,2022, Rs 1,00,00,000  had also been deposited in the form of three demand drafts in the Sessions Court. Apart from making the repayment of Rs 1,33,87,500 , the applicant was ready to pay the penalty in terms of the Builder Buyers Agreement. In the alternative, 11 flats would be allocated in another Tower though the initial allocation was made in Tower B, since both the Towers had the same type of construction and floor area. It was further submitted that the details available at the  RERA website along with the photos and the site inspection report of the RERA stated that 75% of the work has been completed.

On the contrary, the Counsel for the complainant submitted that the applicant was a habitual offender and always tried to settle the complaints by way of monetary recompose. It was further submitted that the present dispute was not pertaining to deferring the delivery of flats but it was a case involving resale of flats to third parties by creating objectionable documents in order to divert the money collected for the project. It was further added that the offer of settlement from the side of the applicant couldnot absolve him from the legal liability that arose from the violation of law in the present case. Thus, the Counsel for the complainant submitted that there were serious allegations against the complainant and for the same he should not be given anticipatory bail.

The Court  after considering the submissions of both the parties, observed that  the case arising out of contracts would have civil and criminal contours, but it is not that if no civil case was filed it would detract from the complaint made to the police nor would the opposite hold true. The facts of each case will decide the entitlement of an applicant to anticipatory bail.

This Court, while assessing the charges framed in the FIR, cited the judgment of the Supreme Court in Shri Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab,wherein it was held that though the power to release on anticipatory bail is extraordinary in character, it would “not justify the conclusion that the power must be exercised in exceptional cases only”. The powers are discretionary, to be exercised in the light of the circumstances in each case. 

The same observation was made in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, where it was held that there is no straight jacket formula to determine the grant or refusal of anticipatory bail, certain  factors were discussed to determine the same. 

Noting that it has been repeatedly held by the superior courts that personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. Referring to Section 41A CrPC, the  Bench asserted, “…even for arresting any person in connection with an offence punishable with imprisonment of upto 7 years, the police have to first issue a notice and arrest only when there is no cooperation from the noticee/suspect. There are, of course, other conditions in which the police officer may arrest, as provided for under Section 41(1)(a) & (b) Cr.P.C.”

Thus, the Court after taking into consideration the above stated rulings and findings, observed that in the present case it could be  deduced that the investigation would not be vitiated without custodial interrogation. It was further observed that the allegations made against the complainant with respect to uploading of objectionable documents and  information on the 11 flats on ROC website was intentional or not could be assessed at the time of the Trial. 

It was further opined that  the same was not within the jurisdiction of this Court,  as while granting anticipatory bail the only aspect that was entertained was whether or not the liberty of the applicant ought to be curtailed by refusal of anticipatory bail or whether the interest of justice would still be served if he is granted the benefit. Thus, this Court noted that the grant of anticipatory bail does not involve trial. Keeping in view the allegations made in the present case, this Court held that the application of the applicant shall be allowed.  Accordingly, in the event of his arrest, the applicant has been ordered to be released on bail along with certain conditions on furnishing a personal bond and a surety bond in the sum of Rs1,00,000 each, to the satisfaction of SHO, Police Station Safdarjung Enclave.

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