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2024 DIGILAW 119 (UTT)

Satinder Pal Singh v. State of Uttarakhand

2024-02-23

RAVINDRA MAITHANI

body2024
JUDGMENT : RAVINDRA MAITHANI, J. 1. The applicant seeks anticipatory bail in Case Crime No. 314 of 2019, under Sections 420, 467, 468, 471 IPC, P.S. Patelnagar, District Dehradun. 2. Heard learned counsel for the parties and perused the record. 3. Briefly stated, the case against the applicant is as follows: The applicant and the informant both were in business transactions. According to the FIR, the informant gave two cheques of Rs.5 lakh each to the applicant in discharge of their obligations. But, according to the FIR, the applicant forged the cheques and made them for Rs.45 lakh each. 4. Learned Senior Counsel appearing for the applicant would submit that the forgery is not established; the Forensic Science Laboratory Report does not confirm that the alleged forgery was committed by the applicant. He would submit that there are some observations with regard to figures in the cheques, but with regard to the words, there is no opinion. 5. Learned Senior Counsel would also submit that it is a case arising out of business transactions. The applicant had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the informant. Initially, when the matter was investigated, final report was submitted. During that period, the applicant had joined the proceedings. Thereafter, the applicant was never told about the pending investigation. He was never made to participate in the investigation. The applicant did join the investigation and appear before the Investigating Officer on various dates, after he was given ad interim protection in ABA No. 1589 of 2023, Satinder Pal Singh vs. State, by the court of Sessions Judge, Dehradun. 6. It is argued that after rejection of the anticipatory bail application on 11.10.2023, on 02.11.2023, the matter was taken up by this Court. He would also submit that the mere issuance of proclamation under Section 82 of the Code of Criminal Procedure, 1973 (“the Code”) is not enough for declining anticipatory bail to the applicant. In order to decline liberty in terms of anticipatory bail, a person should be a proclaimed offender. He would refer the principle of law laid down in the case of State of Haryana vs. Dharamraj, 2023 SCC Online SC 1085. 7. Learned Senior Counsel for the applicant would also refer to Section 79 of the Code to argue that the applicant is a resident of outside the State of Uttarakhand. He would refer the principle of law laid down in the case of State of Haryana vs. Dharamraj, 2023 SCC Online SC 1085. 7. Learned Senior Counsel for the applicant would also refer to Section 79 of the Code to argue that the applicant is a resident of outside the State of Uttarakhand. In case, the non bailable warrant was issued and it was to be executed, there ought to have been some endorsement of the competent authority as required by provision of Section 79 of the Code. 8. In the case of Dharamraj (supra), the Hon’ble Supreme Court referred the law on the point and observed as follows: “16. What the High Court (also) lost sight of was that the respondent was a declared proclaimed offender. The High Court notes, at Paragraph 28, that it was not dealing with the prayer seeking quashing of the proclamation proceedings as the same were not made part of the petition before it. As things were, the respondent was declared a proclaimed offender on 05.02.2021, and sought anticipatory bail from the High Court only in October, 2021. As such, it was not correct for the High Court to brush aside such factum, on the basis of averments alone, purporting to explain the backdrop of such declaration by mere advertence to a similar-sounding name, in the petition before it, as recorded at Paragraphs 9 and 10 of the Impugned Order. The declaration of the respondent as a proclaimed offender, and such declaration subsisting on the date of the Impugned Order, we are unable to agree with the High Court that the respondent was entitled to ‘reform and course correct’. 17. The respondent, without first successfully assailing the order declaring him as a proclaimed offender, could not have proceeded to seek anticipatory bail. Looking to the factual prism, we are clear that the respondent's application under Section 438, CrPC should not have been entertained, as he was a proclaimed offender. We may note that in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730 , this Court was categoric against grant of anticipatory bail to a proclaimed offender. In the same vein, following Lavesh (supra) is the decision in State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 SCC 171 , where this Court emphasised that a proclaimed offender would not be entitled to anticipatory bail. In the same vein, following Lavesh (supra) is the decision in State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 SCC 171 , where this Court emphasised that a proclaimed offender would not be entitled to anticipatory bail. Of course, in an exceptional and rare case, this Court or the High Courts can consider a plea seeking anticipatory bail, despite the applicant being a proclaimed offender, given that the Supreme Court and High Courts are Constitutional Courts. However, no exceptional situation arises in the case at hand. Following Pradeep Sharma (supra), in Prem Shankar Prasad vs. State of Bihar, 2021 SCC Online SC 955, this Court was unequivocal that the High Court therein erred in granting anticipatory bail ignoring proceedings under Sections 82 and 83, CrPC. In Abhishek vs. State of Maharashtra, (2022) 8 SCC 282 , this Court concluded: “68. As regards the implication of proclamation having been issued against the appellant, we have no hesitation in making it clear that any person, who is declared as an “absconder” and remains out of reach of the investigating agency and thereby stands directly at conflict with law, ordinarily, deserves no concession or indulgence. By way of reference, we may observe that in relation to the indulgence of pre-arrest bail in terms of Section 438 CrPC, this Court has repeatedly said that when an accused is absconding and is declared as proclaimed offender, there is no question of giving him the benefit of Section 438 CrPC. [For example, Prem Shankar Prasad vs. State of Bihar, (2022) 14 SCC 529 : 2021 SCC Online SC 955].....” 9. Learned counsel for the informant would submit that it is a case of manipulation of cheque; the amount of five lakh has been made Rs.45 lakh by forgery; he would submit that forensic report confirms it. He admits that it confirms it with regard to the figures. Learned counsel would submit that final report in the matter was initially submitted on 14.01.2021, but thereafter, internal inquiry was conducted by the police and it was found that the Investigating Officer did not conduct investigation properly; the matter is under investigation. 10. He admits that it confirms it with regard to the figures. Learned counsel would submit that final report in the matter was initially submitted on 14.01.2021, but thereafter, internal inquiry was conducted by the police and it was found that the Investigating Officer did not conduct investigation properly; the matter is under investigation. 10. Learned counsel would raise the following points: (i) In the matter, the applicant has been concealing his presence, therefore, non bailable warrant was issued against him on 21.08.2023; when he was still not traceable proclamation under the provision of Section 82 of the Code was issued on 20.09.2023. But it is argued that concealing these facts, the applicant procured ad-interim anticipatory bail order from the Sessions Court. Finally, when it was found that the process under Section 82 of the Code was issued against the applicant, the anticipatory bail was rejected. It is argued that thereafter again, the applicant did not join the proceedings in the investigation. The I.O. tried to arrest him. When he was not traceable, on 19.12.2023, further proclamation under Section 82 of the Code was issued for securing the presence of the applicant. But, the applicant did not appear. 11. It is the stage of bail. Much of the discussion at this stage is not expected of. To the extent of appreciating the controversy, the matter may be examined with the caveat that any observation, made at this stage, shall have no bearing at any subsequent stage of the case. 12. In the case of Dharamraj (supra) the Hon’ble Supreme Court has also referred to the judgment in the case of Prem Shankar Prasad vs. State of Bihar, 2021 SCC Online SC 955 as well as the principle of law as laid down in the case of Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730 and State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 SCC 171 . 13. In the case of Prem Shankar Prasad (supra), the Hon’ble Supreme Court, inter alia, observed “The specific allegations of cheating, etc. which came to be considered by the learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under Sections 82/83 CrPC by simply observing that “be that as it may.” 14. which came to be considered by the learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under Sections 82/83 CrPC by simply observing that “be that as it may.” 14. In cases, when non-bailable warrants and proclamation under Section 82 of the Code are not issued, but the court has reason to believe that the applicant has not been cooperating in investigation and he has been fleeing from justice, perhaps anticipatory bail may be denied to such person. These processes issued by the court confirm that, in fact, the applicant is concealing his presence. 15. The instant case is also a very serious case. The allegations are of forgery in a negotiable instrument, like cheque, in the instant case. The forensic report confirms that there is some variations in the letters. The formation of letter 4 and the “,” which was placed after 5 were found in variance. The court refrains to make deeper scrutiny on this aspect. This Court is not called upon to examine the legality of issuance of warrant and processes by the court of Magistrate. The judicial act that has been done shall be presumed to have been done in accordance with procedure established by law. 16. Admittedly, non bailable warrant has been issued against the applicant on 21.08.2023. Thereafter, on 20.09.2023, proclamation under Section 82 of the Code was issued against him. The applicant did not appear. He moved anticipatory bail application. 17. The question is that as to whether the applicant was totally unaware of any process issued by the court or any reinvestigation that was pending against him? What made him to file anticipatory bail application? It means that the applicant was knowing that further investigation is on and police is proposing to arrest him. He had the knowledge. And, if it is so, in his anticipatory bail application moved by him before the Sessions Judge, the applicant did not reveal about issuance of non-bailable warrant and process under Section 82 of the Code against him prior to filing of the anticipatory bail application. In absence of such information before the Sessions Court, ad interim protection was granted to the applicant on 29.09.2020 but finally the anticipatory bail application was rejected on 11.10.2023. 18. In absence of such information before the Sessions Court, ad interim protection was granted to the applicant on 29.09.2020 but finally the anticipatory bail application was rejected on 11.10.2023. 18. The record reveals that the Investigating Officer moved an application to the concerned court that the applicant was absconding. He filed an application to the concerned Magistrate stating therein that after rejection of the anticipatory bail application, the applicant is absconding. The Investigating officer tried to apprehend the applicant 19.12.2023, 16.12.2023 and 14.12.2023, but he was concealing his presence and was not participating in the investigation. It is thereafter the court of Magistrate on 18.12.2023 passed a detailed order issuing further proclamation against him under Section 82 of the Code. This order is part of supplementary affidavit filed by the informant on 08.01.2024. 19. It is a case of serious business related fraud. Applicant has been concealing his presence. He was not cooperating with the investigation. Warrant of arrest and a proclamation had already been issued against him, which was repeated. As stated, after rejection of anticipatory bail application again the applicant concealed his presence. It commands the Court to reject his anticipatory bail application. Accordingly, the anticipatory bail application deserves to be rejected. 20. The anticipatory bail application is rejected.