The Punjab and Haryana High Court has clarified that mere attestation of a disputed will, without evidence of dishonest intent at the time of execution, cannot justify custodial arrest in cases of alleged forgery. This ruling reinforces the principle that anticipatory bail must be granted where the prosecution’s case rests on circumstantial inferences rather than direct proof of criminal mens rea.
Background & Facts
The Dispute
The petitioner, Bhupinder Singh Aulakh, is accused of being an attesting witness to a private will dated 17.08.2019, which formed the basis for mutation of land in favor of co-accused Bhajan Singh. The prosecution alleges that the executant, Mukhtiar Kaur, was residing in the United States of America at the time of execution and was not present in India. Despite this, the petitioner allegedly signed as an attesting witness, thereby facilitating fraudulent mutation and subsequent sale deeds. The FIR invokes Sections 419, 420, 465, 467, 468, 471 and 120-B of the IPC.
Procedural History
- 30.08.2025: FIR No. 129 registered at Sadar Police Station, Malerkotla
- 22.10.2025: Co-accused Lakhwinder Kaur granted anticipatory bail
- 22.10.2025: Co-accused Charanjit Kaur granted anticipatory bail
- 03.11.2025: Petitioner filed application under Section 482 of the BNSS, 2023 for anticipatory bail
- 16.12.2025: Hearing adjourned; petitioner protected from arrest pending next date
- 23.02.2026: Final hearing and judgment
Relief Sought
The petitioner seeks protection from arrest, arguing that he is not a beneficiary of the will or the property transfers, and that his role as an attesting witness cannot, by itself, establish criminal intent. He offers to fully cooperate with the investigation.
The Legal Issue
The central question was whether mere attestation of a will, where the executant was abroad and documentary evidence confirms absence, constitutes sufficient grounds for custodial arrest under Sections 467 and 468 IPC, or whether dishonest intent at the time of execution must be established prima facie before arrest is justified.
Arguments Presented
For the Petitioner
Counsel argued that the petitioner’s role was limited to attesting the will, and there was no evidence he knew the executant was absent from India. He emphasized that the prosecution’s case hinges entirely on documentary proof - passport records, mutation records, and sale deeds - which can only be tested at trial. He cited Arnesh Kumar v. State of Bihar to argue that arrest cannot be automatic in non-bailable offenses where custody is not essential for investigation. He also noted that two co-accused had already been granted anticipatory bail, making differential treatment unjustified.
For the Respondent/State
The State filed a status report acknowledging the petitioner’s role as an attesting witness and presented five key documents: the will, passport records of the deceased, mutation order, sale deeds, and legal opinion. While asserting a prima facie case under Sections 465, 467, 468, 471 and 120-B IPC, the State did not contest that the petitioner was not a beneficiary. It argued that the petitioner’s attestation facilitated a fraudulent chain of transactions, thereby implicating him in a criminal conspiracy.
The Court's Analysis
The Court examined the nature of the petitioner’s involvement and the evidentiary threshold required for arrest. It noted that while the documents presented by the State establish a chain of fraudulent transactions, they do not establish that the petitioner had dishonest intent at the time of attestation. The Court emphasized that Section 467 IPC requires proof of forgery with intent to cause damage or injury, and Section 468 IPC requires proof of forgery for the purpose of cheating. Mere presence as a witness, without evidence of knowledge of the executant’s absence or intent to deceive, cannot satisfy these elements.
"The role attributed to the petitioner is that of an attesting witness, and the prosecution’s case is built on the fact that the executant was abroad. But the question of whether the petitioner knew this fact, or acted with dishonest intent, remains unproven and must be determined at trial."
The Court distinguished between facilitating fraud and committing it. It held that the petitioner’s conduct, while potentially negligent or complicit, does not meet the threshold for immediate custodial interrogation. The Court also noted that the petitioner is not a beneficiary, has no criminal antecedents, and has offered full cooperation. Granting anticipatory bail would not impede investigation, as the documentary evidence is already in custody.
The Verdict
The petitioner won. The Court held that anticipatory bail must be granted where the prosecution’s case depends on documentary evidence and lacks prima facie proof of dishonest intent at the time of the alleged offense. The petitioner is granted anticipatory bail subject to conditions including surrender of passport, cooperation with investigation, and prior court permission for foreign travel.
What This Means For Similar Cases
Attestation Alone Is Not Proof of Forgery
- Practitioners must challenge arrest applications in forgery cases where the accused is only an attesting witness and not a beneficiary
- The burden shifts to the prosecution to establish mens rea at the time of attestation, not merely post-facto consequences
- Courts must avoid conflating civil fraud with criminal forgery without clear evidence of intent
Documentary Evidence Must Be Tested at Trial, Not Used to Justify Arrest
- Passport records, mutation orders, and sale deeds are admissible as evidence but cannot substitute for proof of criminal intent
- Arrest cannot be predicated on the outcome of a transaction; it must be grounded in the accused’s state of mind at the time of the act
- Investigating agencies must record statements of attesting witnesses before seeking custody
Cooperation Mitigates Need for Custody
- Willingness to join investigation and surrender travel documents significantly strengthens the case for anticipatory bail
- Courts are increasingly reluctant to order arrest in white-collar crimes where the accused is not a flight risk or evidence tamperer
- Conditions like passport surrender and court permission for travel are now standard in such cases
