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2. The background facts are that the said FIR was registered under Sections 380/411/34 IPC for an alleged theft of sarees worth Rs. 15 lacs from the shop of the complainant at Defence Colony. The accused were women whose anticipatory bail applications were listed on 2 nd January, 2023. Petitioner No.2, being the IO of the case, opposed the bail applications. The Ld. ASJ after hearing arguments was pleased to dismiss the bail applications. During the course of early investigation, the petitioner No.2 had issued notice under Section 41A Cr.P.C. to accused Ms. Raj Bala and Ms. Sunita on 4th January, 2023 pursuant to which they appeared on 5th January, 2023 and cooperated in the investigation and consequently, there was no requirement to arrest the accused. Thereafter another accused person namely Vikas Gulati @ Vicky filed his anticipatory bail application which was opposed by the IO and was accordingly dismissed. In fact, the said Vikas Gulati @ Vicky had also preferred an anticipatory bail application before this Court which is listed on 13th March, 2023.

3. However, amidst these proceedings, while passing orders on 21 st January, 2023 in the anticipatory bail application moved on behalf of Vikas Gulati @ Vicky, the Ld. ASJ proceeds to examine further issues relating to the investigation and notes in the order that a perusal of the case diary shows that there is no entry between 23 rd December, 2022 and 4th January, 2023 and the IO had omitted to write the case diary entry for 2nd January, 2023 when the anticipatory bail applications of co-accused Raj Bala and Sunita were dismissed. The IO wrote on 4th January, 2023 regarding the issuance of section 41A Cr.P.C. notices to the said 2023/DHC/001506 accused. Noting this fact, the Ld. ASJ opines that there was no need for the IO to oppose the anticipatory bail applications of the said accused if their custody was not required and having opposed the said applications and then making them join the investigation by serving them notices under Section 41A Cr.P.C., indicates there was "something fishy on part of police". The Ld. ASJ then proceeds to dismiss the anticipatory bail application of Vikas Gulati @ Vicky but observes that "from conduct of IO, it appears that he is not carrying out investigation in a proper manner and there is something more written on wall than visible".

(ii) As regards the issuance of Section 41A Cr.P.C. notice by the IO despite dismissal of anticipatory bail application by the Ld. ASJ, the Ld. ASC adverted to the decision of Hon‟ble Supreme Court in M. C. Abraham & Anr. v. State of 2023/DHC/001506 Maharashtra, (2003) 2 SCC 649 where the Apex Court in para 14 and 15 has stated in relation to Section 41 Cr.P.C. (which was a precursor to Section 41A Cr.P.C. introduced by an amendment in 2008) that in similar circumstances where anticipatory bails had been rejected by the High Court and the accused had not been arrested, it was to be noted that the IO did not consider it necessary, having regard to all the facts and circumstances, to arrest the accused. There was no justification for the High Court to direct the State to arrest the accused since it would amount to unjustified interference in investigation of the case. The Apex Court noted "The mere fact that the bail applications of some of the appellants had been rejected is no ground for directing their immediate arrest. In the very nature of things, a person may move the court on mere apprehension that he may be arrested.

10 Learned counsel for the petitioner has also adverted to the decision in Ajit Kumar v. State (supra) pointing out that the impugned order in that decision as well was passed by Ld. ASJ Sonu Agnihotri in "Amitabh Saniyal v. Siddharth Sharma" and has placed records in that regard to substantiate the same.

11 Having heard the contentions on behalf of the counsel for the petitioner as well as the Ld. ASC and perusing the records before the Court, it is quite evident that the Ld. ASJ has excessively exaggerated the issues relating to the conduct of the petitioners (the SHO and the IO) in relation to investigation and keeping of records. Firstly, a mere omission of noting a court order in case diary on a particular day while investigation is still undergoing and particularly which has no implication or prejudice to the proceedings, cannot be amplified beyond proportion, as has been done by the Ld. ASJ. This Court also had the occasion to see the case diary in order to examine the context in which such remarks were made and considering that these entries are computerized and not in hand, not having noted that the anticipatory bail application was dismissed on 2nd January, 2023, was at best mere clerical omission. Secondly, the opposition of the IO to an anticipatory bail application is normal, obvious and expected since that is the role of the State and the investigating agency. Any concession or consent to an anticipatory bail application by an IO would in fact have amounted to it being „fishy' but certainly not an opposition to it. The investigation was 2023/DHC/001506 still at its nascent stage, the issue relating to the act of stealing sarees from a shop done at the behest of the mastermind Vikas Gulati @ Vicky, who was received of the stolen goods, therefore, it was natural for the IO to oppose the same. Thirdly, dismissal of anticipatory bail application was a result of judicial function performed by the Ld. ASJ and it would have no implication on what any of the parties had contended in support of their respective stands. Once the judicial order was passed, it was clearly open to the IO to issue notices under Section 41A Cr.P.C. to allow the accused to join the investigation. These are normal, regular and routine practices where Section 41A Cr.P.C. notices are issued, allowing the investigating agency to summon the accused without arresting them and in fact a process mandated by the Hon‟ble Supreme Court in Arnesh Kumar v. State of Bihar (supra). As held in MC Abraham (supra) there was no automatic mandate on the IO to arrest the accused once their anticipatory bail application was rejected. That, in law, can never be a consequence since it is the IO‟s prerogative to seek custodial interrogation or otherwise collect pieces of evidence without such a custodial process. Ld. ASJ drawing an unnecessary sequitur in this regard reflecting on the conduct of the IO/SHO is therefore, completely out of context and inappropriate. Fourthly, pursuant to directions of the Ld. ASJ, the DCP (South) had in fact submitted a report which was also noted in the order dated 31st January, 2023. When the report clearly explained circumstances and addressed the concern of the conduct of the petitioners, as also mentioned that show cause notices were issued to them regarding case diary omission, the issue ought to have rested there. It was not within the mandate or scope of the Ld. ASJ at that stage to have chosen to disbelieve the report of the DCP, South merely on the basis that his apprehension was not addressed. The two concerns of the Ld. ASJ as regards the case diary omission and the 2023/DHC/001506 issuance of Section 41A Cr.P.C. notice had been adequately dealt with in the report of the DCP and at best, an internal process was being initiated for allowing the petitioners to explain the omission of the case diary entry (even though, as noted by this Court, it was at best a clerical mistake having no immediate consequence whatsoever). The DCP‟s report in no manner whatsoever "brushes the matter under the carpet" in fact, objectively deals with concerns of the Ld. ASJ and offers a proper explanation as well as informs about the administrative steps which were being taken. Fifthly, having wrongly and unnecessarily disbelieved the report of the DCP, the Ld. ASJ then overreaches to order yet another enquiry from a DCP outside jurisdiction of Police District South. This direction was completely exaggerated and wholly unnecessary and merely impinges on the administrative time of the police authorities for something which was already addressed and possibly, at some level, quite trivial. Lastly, the direction to use the platform of bail application, even though it had been disposed of on a previous date i.e., 21st January 2023, to further seek an explanation from Commissioner of Police regarding SCRB updations and also directing action to be taken against SHOs of at least 4 other police stations, and noting that it was a „misconduct and disciplinary action must be taken', is not only disproportionate, but is also a serious overreach into administrative functions of police authorities.