Criminal Misc. No. M-16493 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-16493 of 2009 (O&M) Date of Decision:02.07.2009 Kamlesh .....Petitioner Vs. State of Haryana .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Chouhan S.S. Sisodia, Advocate for the petitioner. Mr. Amit Kaushik, Assistant Advocate General, Haryana. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Kamlesh under Section 438 of Cr.P.C seeking anticipatory bail in case FIR No.41 dated 22.1.2009 under Sections 419/420/406 read with Section 34 of IPC registered at Police Station Sadar Dadri, District Bhiwani. The facts in brief are that the petitioner is employed as a Sweeper at Army Hospital Ambala Cantt. Taking an undue benefit of her such employment, she allegedly received a sum of Rs.4 lacs each from Sandeep and Manoj, Rs.2,50,000/- each from Dinesh, Amit, Naresh, Naveen Manjeet, Billu, Sombir Taiab Hussain, Zakir Hussain and Sunil totaling Rs.33 lacs on the promise that she will get them employed. She introduced her son Suresh as Army Colonel, who posing as such used to talk to the aforesaid persons on mobile phone bearing No.9896843658. So much so, she arranged appointment/ call letters for the above-mentioned unemployed persons. These letters were found to be forged and fake. Criminal Misc. No. M-16493 of 2009 (O&M) -2- I have heard the learned counsel for the parties. Learned counsel for the petitioner maintained that indeed the petitioner had borrowed a loan from the complainant and she being unable to return the same, the former coined the story of her having received the above-mentioned amount on the aforesaid pretext. I regret my inability to be one with the learned counsel for the petitioner. The petitioner has not placed on record any document showing that she had borrowed a loan from the complainant. Needless to say, a mind boggling amount is involved herein. To recover this amount, her custodial interrogation is required. In re: State Represented By the C.B.I v. Anil Sharma, 1997(4) Recent Criminal Reports (Criminal) 268 (SC), it has been held as under:- “We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all Criminal Misc. No. M-16493 of 2009 (O&M) -3- accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.” The provisions of Section 438 ibid cannot be invoked where custodial interrogation is necessary or may hamper proper investigation. A Court considering an application under this Section must strike a balance between the rights of an accused and the duties and obligation conferred upon an investigating agency. Considering the facts of the present case in the light of the provisions of Section 438 ibid, I am of the considered opinion that the present petition merits dismissal. Thus, this petition is dismissed. July 02, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No