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2003 DIGILAW 1173 (DEL)

KANCHI SINGH v. STATE OF DELHI

2003-11-25

S.K.AGARWAL

body2003
S. K. AGARWAL, J. ( 1 ) THIS is a petition under Section 438 with section 482 Cr. P. C for grant of anticipatory bail to the petitioner in case FIR No. 319/ 2003 u/section 420/468/471/34 IPC, P. S. Okhla Industrial Area, New Delhi. ( 2 ) THIS case was registered on a complaint lodged by Mr. S. S. Sharma, resident of Village nagdi, Bihar, alleging that on 3. 4. 2003, at about 10. 30 a. m. , he went to the post office at Okhla, Phase-I for sending some money to his village through Money Order (for short mo ); and he made enquiries from the petitioner, Kanchi Singh, who was the Post master. Petitioner introduced him to another person sitting near the door, whose name he came to know later as Ram Dhani Mishra. He was sent there to get the MO form filled up and for receipt. Complainant handed over rs. 2,000/- to Ramdhani Mishra and also paid rs. 100/- towards fee and expenses. The money was handed over to the petitioner by ramdhani Mishra in the presence of the complainant and a Receipt was given to the complainant. The receipt was shown by the complainant to the petitioner, who stated the same to be correct, assuring him that money would be delivered in time. The money never reached his village. Thereafter he met petitioner several times making enquiries. Ultimately, he lodged the report, Ramdhani mishra was arrested by the police, who disclosed that at the instance of the petitioner, he used to issue Receipts and that deposited money was given by him to petitioner. He further stated that he used to issue 8 to 10 m. O. Receipts every day, during last six months. He also confessed having issued the receipt in the case of the complainant at the instance of the petitioner. Therefore, the petitioner was sought to be interrogated by the police. Petitioner moved an application for grant of anticipatory bail and the matter was argued at length, the same was dismissed as withdrawn on 30. 9. 2003, (Annexure - 3 page 9-A ). The order reads as under:- "ld. Counsel for the petitioner, after arguing the matter, seeks permission to withdrawn the petition. Allowed, as prayed. Dismissed as withdrawn. Petitioner moved an application for grant of anticipatory bail and the matter was argued at length, the same was dismissed as withdrawn on 30. 9. 2003, (Annexure - 3 page 9-A ). The order reads as under:- "ld. Counsel for the petitioner, after arguing the matter, seeks permission to withdrawn the petition. Allowed, as prayed. Dismissed as withdrawn. " ( 3 ) AFTER the dismissal of the application, petitioner did not participate in the investigation and NBWs were obtained against him to secure his presence. This is the second petition for anticipatory bail. ( 4 ) LEARNED counsel argued that the matter was not argued properly and some new points have emerged and there is change in circumstances. It is argued that challan has been filed against the co-accused and referred to the following and argued that petitioner cannot be made witness against himself: "the accused Kanchi Singh appeared before the I. O. and participated in he investigation. He supplied the documentary evidence as demanded but refused to say anything. " ( 5 ) LEARNED Counsel for the petitioner argued that to compel the accused to make a statement would be in violation of Article 20 (3) of the Constitution of India. It was argued that very purpose and object of the provision of Anticipatory bail would get defeated if the accused who is a public servant, and who has already given the documents is denied bail, on the ground that he was refused to make a statement as required by the police. It is argued that there is no likelihood of the petitioner tampering with the evidence, therefore, he is entitled for anticipatory bail. Reliance is placed on the observations made by the Supreme Court in Gurbax Singh sibia and Another Vs. State of Punjab, (1980) 2 SCC 565 . ( 6 ) LEARNED APP for the State has argued to the contrary. I have considered rival contentions. ( 7 ) PETITIONERS earlier application for anticipatory bail was dismissed as withdrawn on 30. 9. 2003, even thereafter petitioner did not surrender. Petitioner appears to have joined investigations only during pendency of the earlier petition while he was enjoying protection against arrest. In this case, allegations are that at the instance of petitioner, Ram Dhan Misra (Co-accused), used to issue forged MO Receipts to the innocent persons. This was continued for about six months. 9. 2003, even thereafter petitioner did not surrender. Petitioner appears to have joined investigations only during pendency of the earlier petition while he was enjoying protection against arrest. In this case, allegations are that at the instance of petitioner, Ram Dhan Misra (Co-accused), used to issue forged MO Receipts to the innocent persons. This was continued for about six months. In addition to the statement of the complainant, Ram Dhan mishra (co-accused) has also named the petitioner in his disclosure statement, which cannot be ignored at this stage, and deny the investigating officer an opportunity to fully investigate the case. The prayer of the prosecution that custodial interrogation of the petitioner is necessary cannot be said to be without any foundation. It is settled law that custodial interrogation is qualitatively more elicitation-oriented than questioning the suspect having an order of pre-arrest bail, as held by the Supreme Court in State Vs. Anil sharma, 1997 (7) SCC 187 . In the facts and circumstances of this case, case for grant of anticipatory bail is not made out. Dismissed.