Criminal Misc. No.M-3277 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No.M-3277 of 2009 (O&M) Date of Decision:06.02.2009 Sukhdayal Ram .....Petitioner Vs. The State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Ms. Naiya Gill, Advocate for the petitioner. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Sukhdayal Ram under Section 438 of the Code of Criminal Procedure seeking anticipatory bail in case FIR No.403 dated 6.12.2008 (Annexure P.1) registered under Sections 420/ 467/ 468/ 471/ 120-B of IPC at Police Station Jodhewal Basti, Ludhiana. The facts in brief are that Rattan Chand had three sons and six daughters and his wife at the time of his death on 24.3.2001. During his life time, he has executed unregistered will dated 3.1.2001, in favour of his three sons and widow which was attested by Mehnga Ram and Gurcharana Ram. However, on 6.12.2008 the case was got registered by Balbir Chand one of the sons of Rattan Chand that the said will was fabricated by Sukhdial Chand and Hardial Chand son of Rattan Chand, in connivance with the marginal witness, Mehnga Ram and Gurbachana Ram. The signatures of Rattan Chand on the said will were got tested from the Forensic lab, Chgandigarh and they were not found to be of Rattan Chand. Criminal Misc. No.M-3277 of 2009 (O&M) -2- The attesting witness Gurcharan Ram had died. I have heard the learned counsel for the petitioner. The petitioner is the beneficiary under the alleged Will which as per report of the Forensic Science Labotraory, Chandigarh does not bear the signatures of Rattan Chand, the alleged testator. Thus, this will appear to be an outcome of forgery. It can be elicited only during custodial interrogation which is qualitatively more elicitation- oriented as to who was put in place of Rattan Chand to execute the alleged Will. The provisions of Section 438 of Cr.P.C cannot be invoked, where custodial interrogation is necessary or may hamper proper investigation. A Court considering an application under the said Section must strike a balance between the rights of an accused and the duty and obligation conferred upon an investigating agency. Thus, the custodial interrogation of the petitioner is required. Considering the facts of the present case in the light of the aforesaid Section, I am of the considered opinion that the present petition merits dismissal. Accordingly, this petition is dismissed. February 06, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No