1. Prayer in this petition is for cancellation of bail granted to respondent No.2 in FIR No.248 dated 30.06.2021 registered under Sections 420 and 120-B IPC at Police Station Pataudi, District Gurugram.

2. Counsel for the petitioner has argued that the FIR was registered on the premise that after an agreement to sell was entered into between the petitioner and respondent No.2, by changing one page of the agreement, the description of the property was changed and a house which is the only house of the petitioner was included in the same.

3. Counsel for the petitioner has further submitted that the petitioner along with the purchaser has signed all the pages but as per certified copy only page No.1 and 3 of this agreement are signed by the petitioner, however, on page No.2 of this agreement, there is no signature of the petitioner, which itself demonstrates that a fraud has been played. It is also submitted that the order passed by the Additional Sessions Judge, Gurugram, is a totally non-speaking order as in the entire order, there is not even a single line of the contents of the FIR is referred to, which is the basic requirement for forming an opinion as to whether anticipatory bail needs to be granted to the accused persons. It is also submitted that the only criteria adopted by the Additional Sessions Judge to rely upon the judgment of the Hon'ble Supreme Court in “Arnesh Kumar vs State of Bihar and another”, 2014(8) SCC 273, wherein primarily dealing with a matrimonial case, a direction was issued that notice of appearance in terms of Section 41-A Cr.P.C. be served where the punishment is less than 07 years or may extend to 07 years. It is also submitted that since the FIR has been registered only under Sections 420 and 120-B IPC and it will be only during the course of investigation, offence under Sections 467, 468 and 471 IPC, are likely to be added on account of the forgery committed by the accused wherein punishment is upto 10 years, therefore, in the absence of referring to facts of the case, the Additional Sessions Judge, has not applied the judicial mind.

4. For a reference, the entire order passed by the Additional Sessions Judge, Gurugram, reads as under:-

“By this order, I shall dispose of the anticipatory bail application of the accused-applicant, particulars of which are given above.

2. On notice, reply was filed by the prosecution. The offences under Sections 420,120B IPC are punishable with imprisonment for a term which may extend to seven years or with fine or with both.

3. In the cases, where offences are punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, the Investigating Officer before arresting accused is bound to follow the directions given by the Hon'ble Apex Court in Arnesh Kumar Versus State of Bihar and Anr. Criminal appeal No. 1277 of 2014 decided on 02.07.2014. The relevant portion is re-produced as under:-

“Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.

(2) All police Officers be provided with a check list containing specified sub-clauses under Section 41(1)(b) (ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41-A of Cr.P.C. be served on the accused within two weeks from the the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. Or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.”

4. The present case is squarely covered by the law settled by the Hon'ble Apex Court in the aforesaid authority and, therefore, Investigating Officer is directed to comply with the directions before effecting arrest of the accused-applicant, failing which he shall be liable for departmental action as well as for contempt of court.

5. The relief of anticipatory bail sought by the accused-applicant has been opposed by the prosecution simply on the ground that if the accused-applicant is released on bail she can tamper with the evidence.

6. As per the case of the prosecution, if the accusedapplicant is released on bail, she can tamper the evidence. Regarding tampering with the evidence/documents, no evidence has been placed on record by the prosecution. As such, these are the general pleas and cannot be taken into consideration for declining the relief of anticipatory bail. Even otherwise, the dispute is of civil nature and case is based on documentary evidence.

7. Resultantly, the present application is allowed with the directions to Investigating Officer to follow the procedure prescribed under sections 41(1)(b) and 41 A of Cr.P.C. for effecting arrest and in the event of arrest, accused-applicant shall be released on anticipatory bail on her furnishing bail bonds in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the Investigating officer/SHO concerned. The accusedapplicant shall join the investigation of this case as and when required by the police and shall abide by the terms and conditions as laid down under Section 438 (2) of Cr.P.C. File be consigned to record room after due compliance.”

5. Apparently, the order lacks the art of writing of an order as a reference to the case law will be secondary to reference to the facts of the case in order to make up a mind whether the anticipatory bail or in a given case regular bail can be granted.

6. Notice of motion.

7. Mr. Deepak Grewal, DAG, Haryana who is present in the Court accepts notice on behalf of the respondent – State.

8. List again on 09.12.2021.

9. In the meantime, the Director, Chandigarh Judicial Academy, is directed to look into the matter and issue necessary directions.