JUDGMENT - V.S. KOTWAL, J.:---An apparently simple matter is sought to be made complicated in view of the hot contest. 2. One Roshanlal Biharilal Obrai, a permanent resident of Pune, has moved this Court by this application invoking the powers of this Court envisaged under section 438 of the Code of Criminal Procedure as he contended, inter alia, that there are reasonable grounds to believe or apprehend that he would be subjected to imminent arrest at the hands of the police in connection with certain non-bailable offences which have been registered against him at C.R. No. 361 of 1976 by the Farashkhana Police Station, Pune. The registration of the offences came to be a sequel to a complaint lodged by one G.R. Ahuja, also a resident of Pune, some time in the month of October 1976 in respect of offences alleged to have been committed by the petitioner about three years prior thereto, that means in the year 1973. 3. This petition had come up for orders initially on August 21, 1979, when the learned Public Prosecutor requested for time on the ground that he would be required to file an affidavit in reply. An affidavit in that behalf has now been filed by the Deputy Superintendent of Police, C.I.D. Special Cell, Pune, and the matter is now fully thrashed out by both the sides. The offences that have been registered against against the petitioner consist of those under sections 458, 467, 471 and 381 of the Indian Penal Code. 4. At the threshold the learned Public Prosecutor Shri Deshmukh raised a preliminary objection that as section 467 of the Indian Penal Code is punishable with imprisonment for life, provision of section 438 of the Code of Criminal Procedure are not applicable. He sought to rely on a ratio of a judgment of this Court in (Shrimant Appaji Patil v. State of Maharashtra)1, Criminal Application No. 630 of 1978, decided by Jahagirdar, J., on 29th June, 1978, reported in 1978 U.C.R. (Bom.) 499. On carefully going through the said judgment I feel that it does not lay down such a sweeping proposition. On the contrary, there are indications there in that there are no such limitations on the powers of this Court vis-a-vis the provisions contained in section 438 of the Code. On carefully going through the said judgment I feel that it does not lay down such a sweeping proposition. On the contrary, there are indications there in that there are no such limitations on the powers of this Court vis-a-vis the provisions contained in section 438 of the Code. The learned Single Judge relied on the ratio and observations of the Supreme Court in (Balchand Jain v. State of Madhya Pradesh)2, A.I.R. 1977 Supreme Court 367 and (Somabhai Chaturbai Patel v. State of Gujarat)3, 1977 XVII Gujarat Law Reporter 131. Shri Deshmukh submitted that provisions of section 438 of the Code of Criminal Procedure do not apply to an offence punishable with death or imprisonment for life. It is true that some question is echoed in both these judgments while dealing with such cases. It is equally true that the provisions of section 437 of the Code of Criminal Procedure are also considered and it is indicated that section 437 would control section 438 of the Code of Criminal Procedure. However, if one reads the entire judgment that may not appear to be enunciation as sought to be interpreted by the learned Public Prosecutor. Even in the Supreme Court case there are some indications about there being no fetter on the powers of this Court while dealing with section 438 of the Code of Criminal Procedure. The learned Single Judge has referred to those indications. The provisions contained in section 439 of the Code of Criminal Procedure are also required to be taken into account. Further, the observations in the Gujarat judgment (supra) would indicate that section 438 of the Code of Criminal Procedure itself is widely worded and does not engraft any limitations on the power of the Court. It, however, gives a caution as to how and when such powers should be exercised and that too sparingly and in a judicial manner. It thus makes a distinction that it is not as if that the High Court cannot exercise such powers but that it will not do so normally. All things considered, the trend of the judgments would indicate that these observations normally apply to serious offences. It thus makes a distinction that it is not as if that the High Court cannot exercise such powers but that it will not do so normally. All things considered, the trend of the judgments would indicate that these observations normally apply to serious offences. It is interesting to note that the Gujarat High Court was also dealing with a case under section 467 Indian Penal Code where power vested under section 438 of the Code of Criminal Procedure have been exercised in favour of the accused. It is, however, necessary to bear in mind the caution indicated is all these pronouncements and also the various guidelines laid down in the Gujarat judgment. 5. On facts also, there is no clinching or conclusive material so far collected by the investigating machinery to impose such a limitation on the powers of this Court. On the contrary, I am of the opinion that the facts, allegations and the course of events for so many years would indicate that the facts would be covered by the guidelines indicated in these judgments to exercise the powers without hampering with the investigation or without causing any miscarriage of justice. 6. The objections therefore, do not prevail. 7. The dispute which has yet to reach a Court of law in the shape of a charge-sheet has by this time a chequered career of about six years. The offences are alleged to have been committed in the year 1973 and a complaint came to be lodged for the first time by the complainant in the month of October 1976. It took about three years for the complainant to realise the implications of the nefarious activities alleged to have been committed by the accused and it really took him three years to come that he has been duped and criminal offences have been committed. It has been contended that the accused had conducted himself in such a manner as to create confidence in the mind of the complainant so as to put him off the guard and this took about three years as sought to be explained. It is also contended that there is a systematic plan in the perpetration of this crime wherein the complainant is duped of Rs. 3,00,000/- and odd by forging certain documents including cheques. It is also contended that there is a systematic plan in the perpetration of this crime wherein the complainant is duped of Rs. 3,00,000/- and odd by forging certain documents including cheques. It is contended that the petitioner was initially serving with the complainant on a salary which, according to the learned Public Prosecutor, was extremely paltry and after creating mutual confidence he perhaps tried to exercise undue influence and thereafter he forged the cheques either issued by the complainant or extracted from the complainant under that belief and actually after encashing the said cheques the amounts were credited in his individual account. The said amounts were never paid back to the complainant. It is also alleged that documents and letters came to be forged and some stamps also came to be affixed by means of rubber stamp which also has been claimed to be a matter of forgery. The petitioner claims himself to be concerned with film industry as he was producing Marathi films. 8. As I have stated earlier, the present proceedings had also been preceded by at least three similar applications, two having been filed in the Sessions Court and one in this Court. The first application under section 438 of the Code came to be filed before the learned Sessions Judge, Pune, which came to be dismissed on 9th November, 1976, being Application No. 275 of 1976. Thereafter a fresh application was filed in this Court when it was allowed to be withdrawn with the leave of this Court to file a fresh application before the Sessions Court and accordingly Criminal Application No. 229 of 1979 was filed in the Sessions Court which also met with the same fate on August 18, 1979. It is thereafter that the petitioner has moved this Court under section 438 of the Code of Criminal Procedure. 9. Shri Deshmukh, the learned Public Prosecutor strongly opposed the grant of this application. His main contention is that the accused has systematically evaded the arrest or evaded even the interrogation at the hands of the police and he has further evaded being contacted with the police. He has also brought to my notice an interesting feature that in the Sessions Court as well as in this Court the affidavit in the petition was sworn not by the petitioner but by his wife. He has also brought to my notice an interesting feature that in the Sessions Court as well as in this Court the affidavit in the petition was sworn not by the petitioner but by his wife. The petitioner how now been kept present in this proceeding and he has sworn an affidavit in support of the petition. It is thus contended by the prosecution that the petitioner has been absconding from the spot and he has no known permanent address of abode. Now, in this behalf it is worthwhile to note that the first petitioner was dismissed by the Sessions Court on 9th November, 1976 and it is further significant to note that after the second application was heard on 9th August, 1979, on the very day the petitioner sent a letter from Bombay address to the concerned police officer in respect of certain grievances ventilated therein. This letter was actually addressed to Shri Ramakant Kulkarni, D.I.G., Police, State C.I.D., Poona, and is dated 9th August, 1979, wherein it has been specifically mentioned that he had never absconded. This letter is already produced on record of this proceeding as well. 10. Shri Patwardhan has also brought to my notice another intering feature. The order passed by the learned Sessions Judge in the earlier proceeding dated 9th November, 1976 mentions the ground on which the application was opposed by the prosecution and in the order it has not been mentioned that the accused was absconding for sometime. Therefore, at any rate when that application was prosecuted by the accused there were no allegations by the police made before the learned Judge that the accused was absconding or at any rate those did not weigh with the learned Sessions Judge. 11. I am almost surprised at one of the contentions levelled by the prosecution in the said proceeding which unfortunately for the prosecution clearly reflects in the order of the Sessions Judge. It is reproduced in the same terms : "Further it is urged that there is likelihood of some discovery under section 27 Evidence Act." To say the least this contention and the proposition is pregnant with a serious implication, which unfortunately has not been properly realised and it is unheard of that the police knew before hand the accused would discover certain documents under section 27 of the Evidence Act, if he is taken in custody. It is suffice to say and observe that such a proposition can never be countanced. 12. The petitioner has also put forth certain salient features which are extremely relevant. It appears that civil litigation was initiated by the petitioner in August 1976 claiming tenancy rights over certain premises wherein the said complainant Ahuja was impleaded as the defendant, that on September 2, 1976, an order of injunction was served on Ahuja. It is further contended that the complainant appears to have been dissatisfied with the development and ultimately made endeavour to take forcible possession of the premises on account of which the present petitioner was forced to move the police by filing a complaint on September 7, 1976, for various offences and he actually filed a complaint in the Court of the Judicial Magistrate, First Class, Pune, wherein the learned presiding Magistrate was pleased to issue a warrant against the accused, i.e. the present complainant and thereafter the complainant was released on bail. It is, therefore, contended, and rightly, so, by Shri Patwardhan that after realising these developments for the first time in the month of October 1976 that the present complainant thought about moving the police by filing a complaint. 13. It appears that certain allegations have been made against certain Police Officer and especially against one Shri Naik, who was for some time Sub-Inspector and was promoted as Police Inspector. It is contended that when the investigation was being carried out by Dy. S.P. Shri Patki, he was assisted by S.I. Naik, and the petitioner had made a complaint against Shri Naik about his bias against him and therefore, the investigation was withdrawn from him. It is further contended by the petitioner that even though Shri Chavnekar, the Dy. S.P., is at present in charge of the investigation, he is being assisted by Naik. This aspect has been totally denied by the concerned officer in his affidavit, and I find to reason to discard the same. Therefore, it is not necessary for me to consider the allegations made by the petitioner against the Police Officers. 14. Shri Patwardhan has rightly contended that the police are required by this time at least three years to complete the investigation as it is apparent from the fact that his client has not so far been arrested. Therefore, it is not necessary for me to consider the allegations made by the petitioner against the Police Officers. 14. Shri Patwardhan has rightly contended that the police are required by this time at least three years to complete the investigation as it is apparent from the fact that his client has not so far been arrested. There is much force in the submission of Shri Patwardhan inasmuch as if a prima facie case was really made out by the police by the investigation, then there was no impediment for the police to arrest the petitioner. However, the petitioner is not arrested so far is an accepted position. It is also difficult to countenance the claim of the police that they required more than three years to complete investigation in this matter. The omission of the investigation will not be of any assistance to the police. It is more or less an accepted position that at one time the petitioner was staying temporarily in the hotel known as Park-lane at Dadar, which was raided and searched and the petitioner contends that certain documents and some articles were removed from the said hotel. 15. The police also appears to have contacted the concerned Income-tax Department and collected certain information which they feel is germane to these proceedings. 16. It is clearly mentioned in the affidavit that the investigation that remained incomplete pertains to three items, viz., (1) specimen handwriting of the accused is yet to be taken, (2) recovery of the type-writer in question is yet to be made, and (3) rubber stamps for opening accounts in the names of some other firms are yet to be recovered. In fact, these are the only three items which have remained to be completed by this time as evidenced by the affidavit. In fact, it is clearly mentioned in the affidavit that not only rest of the investigation is complete but even copies are ready to be furnished to the accused and the charge-sheet will be filed as soon as these items are completed. If that was so, then, in my opinion, no purpose would be served by detaining the accused in custody inasmuch as these three items can be complied with even by keeping the petitioner outside, provided certain restrictions are put or imposed on the movements of the petitioner. 17. If that was so, then, in my opinion, no purpose would be served by detaining the accused in custody inasmuch as these three items can be complied with even by keeping the petitioner outside, provided certain restrictions are put or imposed on the movements of the petitioner. 17. Certain other correspondence is also placed on record, which, in my opinion, would indicate that the petitioner in all probability was not absconding. 18. Shri Patwardhan has contended that predominately this is a civil dispute as on the showing of the complainant himself certain amounts have been paid to the petitioner in respect of which he has committed the alleged fraud. He has also brought to my notice another factor that there is an agreement between the parties under which the accused is supposed to refund certain amounts. It was also agreed that the complainant would get certain amounts from the proceeds of the film produced by the accused after its exhibition. However, unfortunately the said film proved to be a flop. That these amounts were actually credited in the individual account of the accused and not in the account of the complainant may or may not be a correct fact. However, assuming otherwise, this, contends Shri Patwardhan, would at the most give a right in the Civil Court to the present complainant. It is significant to note that no Civil Suit has yet been filed for the recovery of the amount and Shri Patwardhan contends that by resorting to a criminal proceeding the civil dues are sought to be recovered by the complainant. I am not really called upon to express any opinion on this issue. However, I cannot say that the submission of Shri Patwardhan is wholly unjustified. The gravemen of the charge pertains to misappropriation of the amount in question and certain documents having been falsified or forged. It is therefore, justifiable for the defence to submit that the forum of a Civil Court would be the proper one. 19. Shri Patwardhan then rightly contended that his client his terrific tension for all these years as there was a situation of uncertainty inasmuch as he was running a potential danger of arrest any moment. In my opinion, when the bulk of investigation has now been completed in the absence of the petitioner, there is no property in not granting bail to the accused. In my opinion, when the bulk of investigation has now been completed in the absence of the petitioner, there is no property in not granting bail to the accused. The accused, no doubt, has been subject to some tension at least from 1973 till this day. Shri Patwardhan made a statement before me that his client is prepared to report to the police at reasonable times. In my opinion, balance can reasonably be struck between the controversy by upholding the rights of a citizen when his liberty is in jeopardy and at the same time not causing any handicap to the police in the matter of investigation. This would also serve the ends of justice. This is also contemplated by the provisions under section 438 itself. As indicated earlier, if the accused reports to the Police Station at reasonable times, then the three items which remained incomplete can be completed with reasonable facility. All said and done, the delay in lodging the complaint and the equal delay in completing the investigation on the attractive gloss of showing that the offence involved is of a serious nature and the investigation pertains to heavy dimension, is not a very happy commentary and happy state of affairs. Nonetheless, the net result is that the accused has been put to some harassment all these six years. 20. The reasonable conditions which would be necessary and also sufficient in the interests of justice would be that the petitioner would report to the concerned Police Station twice a day and the learned Public Prosecutor also wants me to incorporate therein a further condition that the petitioner shall not tamper with the evidence or induce the witnesses. This order normally should remain in force for a period of 15 days. It is, in my opinion,, reasonable inasmuch as on the showing of the police themselves all the formalities and the prelude of filing the charge-sheet are over. 21. In the result, the rule is made absolute. 22. In the event of the petitioner being arrested in respect of offences under sections 467, 458, 471 and 381 of the Indian Penal Code or any allied offence on the same facts arising out of Farashkhane Police Station C.R. No. 361 of 1976, he shall be released on bail in the sum of Rs. 22. In the event of the petitioner being arrested in respect of offences under sections 467, 458, 471 and 381 of the Indian Penal Code or any allied offence on the same facts arising out of Farashkhane Police Station C.R. No. 361 of 1976, he shall be released on bail in the sum of Rs. 10,000/- with one surety for the like amount having an option of furnishing one of two sureties. This order small remain in force till the filing of the charge-sheet in this matter. 23. The petitioner shall report to the State C.I.D. headquarters at Pune twice every day, one in the morning and once in the evening, preferably as per the convenience of the concerned Police Officer and in any event the duration at every time would not be for more than two hours. 24. The petitioner also shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the present case so as to dissuade him from disclosing such facts to the concerned officer. ORDER 25. In continuation of the order passed by this Court on 30th August, 1979, and in clarification thereof, the instant order is being passed. 26. It was understood at that time that the first condition imposed on the petitioner of reporting twice a day, once in the morning and once in the evening, to the State C.I.D. Headquarters, Pune, was to be effective only for a period of 15 days in view of the fact that the three items which remained incomplete even according to the affidavit of the concerned Police Officer could be completed within the span of the said 15 days and that is why the duration of this was fixed only for a period of 15 days. However, it appears that this remained to be incorporated specifically in the final order in question, though it is indicated in the earlier part and, therefore, the parties have moved this Court today. I am, therefore, of the opinion, for the reasons recorded in the detailed order passed on the earlier occasion that the condition of reporting twice a day should remain in force for a period of 15 days which would be enough in the interest of justice and would also be sufficient to complete the investigation part. I am, therefore, of the opinion, for the reasons recorded in the detailed order passed on the earlier occasion that the condition of reporting twice a day should remain in force for a period of 15 days which would be enough in the interest of justice and would also be sufficient to complete the investigation part. Shri Deshmukh, the learned Public Prosecutor also rightly contended that even thereafter if the Police require the presence of the petitioner, then he should make himself available to them which appears to me to be quite reasonable. 27. Accordingly the order passed by this Court on the 30th August, 1979 is modified to the extent that the condition imposed on the petitioners reporting twice a day to the State C.I.D. Headquarters should remain in force for a period of 15 days from 30th of August, 1979, the date on which the order was passed. After the exhaustion of the said period of 15 days, the petitioner would be under further liability to report and make himself available to the State C.I.D. Officers in connection with this offence for the purpose of interrogation if and when found necessary. Concerned Police Officer may be intimated accordingly. -----