IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Cr.M.P.(M) No. 895 of 2018 a/w Cr.MP(M) Nos. 896, 902 and 937 of 2018
Date of decision: 18. 9. 2018.
1. Cr.MP(M) No. 895 of 2018
Versus State of Himachal Pradesh ….. Respondent.
2. Cr.MP(M) No. 896 of 2018
Chankya alias Chintu …..Petitioner.
Versus State of Himachal Pradesh ….. Respondent.
3. Cr.MP(M) No. 902 of 2018
Parvesh Kundu …..Petitioner.
Versus State of Himachal Pradesh ….. Respondent.
4. Cr.MP(M) No. 937 of 2018
State of Himachal Pradesh ….. Respondent.
For the Petitioner (s) : M/s. N.S. Chandel, Vinod Kumar Gupta, Ashwani Dhiman, Prashant Chaudhary and Mr. Dhairya Sushant, Advocates.
For the Respondent : Mr. Vinod Thakur, Mr. Sudhir Bhatnagar, Addl. A.Gs., with Mr. J.S. Guleria and Mr. Bhupinder Thakur, Dy. A.Gs. SI/SHO Manoj Kumar, Police Station, Gohar, District Mandi, H.P. present alongwith records.
Tarlok Singh Chauhan, Judge .
Since all these petitions arise out of the same FIR bearing FIR No. 40 of 2018 dated 26.4.2018, registered at Police Station, Gohar, District Mandi, H.P. under Sections 489A, 489B, 489C, 489D, 120-B, 201 and 34 IPC, therefore, these were taken up together for consideration and are being disposed of by a common judgment.
2. Cr.M.P.(M) Nos. 895 and 896 of 2018 have been filed by the petitioners seeking pre-arrest bail, whereas Cr.MP(M) Nos. 902 and 937 of 2018 have been filed for securing regular bail.
3. The case of the prosecution is that on 26.4.2018 Sanjay Kumar son of Sh. Prakash Dohru resident of Palampur District Kangra, at present Manager Himachal Gramin Bank, Thunag, District Mandi, H.P. made a complaint to the police to the effect that one Lal Singh son of Dhani Ram, resident of Drunu, P.O. Shikawari, Tehsil Thunag, District Mandi, H.P. had brought 2000 x 25 notes to the bank for depositing the same in the bank. On the aforesaid date at about 11 a.m. Lal Singh came to the bank and asked the official of the bank for depositing the money by way of F.D. of sum of Rs.50,000/- and had shown the notes to the bank official. On seeing the same, it was found to be fake one. The bank official kept the notes with him. Lal Singh was informed that the notes which he had brought to the bank were fake and was asked about source of these notes and further asked whether he had some more notes with him. The Manager of the Bank checked the pocket of Lal Singh from where some more notes of the denomination of Rs.2000 x25 were found. The bank manager kept all the 50 notes of Rs.2000/- with him and informed the police, out of which two notes of Rs.2000/- were found to be torned. Lal Singh also tried to deposit the notes of Rs.2000/- in the bank as genuine, but due to the vigilance of the bank official he could not succeed. The police registered the case FIR against the accused person and he was arrested and taken into custody. During the course of investigation the house of accused Lal Singh situated at Village Drunu was also got searched, where the accused Lal Singh had also kept the fake currency notes of the denomination of Rs.2000 x 55 which were kept by him in the box which worked out to be Rs.1,10,000/-. The police also took into custody the currency notes vide separate memo. The accused Lal Singh disclosed that this amount of Rs.2,10,000/- he had received from one Teju Ram in lieu of selling half Kg of charas. After that the accused Teju Ram was searched at place Malana Dam. The accused Lal Singh identified the accused Teju who is in fact Deva son of Ganga Ram resident of Maklana, Tehsil Bhunter, District Kullu, H.P. The accused Deva was also investigated by the police and took him to the Police Station. During the course of investigation, accused Deva told to the police that he alongwith other person Kishah alias Bhut resident of Malana on 15.4.2018 had sold 2 kg of Charas to three persons of Haryana and from them they have received Rs.5,60,000/-. The currency notes were checked and found to be fake. Out of the three persons, one of them was named Ankit. The police searched the other accused persons, but they had gone to Gurgaon, Haryana. During the course of investigation, the other accused person Vikrant Bachan son of Sunil Kumar R/o H.No. 206/3, Gali No.4, Gopal nagar near Bus Stand, Gurgaon and other accused Parvesh Kundu son of Rakesh R/o H.No. S38 Chanakya Palace Uttamnagar, New Delhi were associated in the investigation and it was found that Ankit son of Ram Krishan and Chankya alias Chintu son of Kamal, Vikrant and Parvesh Kundu were students of law in Rohtak University.
4. After conducting investigation in Gurgaon, Rohtak, Faridabad, Jind, etc., the SI/SHO alongwith accompanying officials came back to the Police Station with the vehicle, i.e. Swift Dezire bearing Registration No. HR51-BG-0297, on 7.5.2018. On the same day, the aforesaid accused Vikrant Bachchas and Parvesh Kundu, who had been directed to come present in the Police Station for enquiry, came with their respective fathers. They were associated in the investigation and were subjected to deep and intensive interrogation. Both of them disclosed that in the first week of March, 2018, all four of them were residing together in Flat No. 428 of Omex City and such flat was on the second floor. All four of them decided to buy a vehicle since they did not have any conveyance there. Pravesh Kundu disclosed to his three other friends that he had a colour printer with which he had printed one note of Rs.100 denomination and he was able to use and circulate it in the market. Whereupon all of them arrived at a consesus that they would print fake currency notes. Ankit said that a person by the name of Deva was known to him in Malana from whom he had purchased charas in the past. Deva was an illiterate and gulible person and it would be easy to deceive him. Ankit and Chanakya @ Chintu said that they would print fake currency and buy charas from Deva. Therafter, they would sell the same in Gurgaon and Rohtak and buy a vehicle. As per their plan, Pravesh Kundu and Ankit went to the house of Pravesh Kundu in Delhi and brought the colour printer from there. They got it re-filled in the market at Rohtak and Vikrant bought a ream of A4 sheets for Rs. 300 and a green sparkle pen from a stationery shop. Vikrant had 7-8 notes of Rs.2000/- denomination, whereas Ankit, Chanakya @ Chintu and Parvesh Kundu also had 3-4 genuine notes of Rs. 2000/-. It has been verified that on 4.4.2018 and 5.4.2018, Vikrant had deposited and withdrawn money in his account bearing No. 09392191011967 in Rohtak Bank. All aforesaid four accused had printed fake currency notes in their said flat in the first week of April. They exchanged the genuine currency notes, with the help of which they had printed fake currency, in the bank, petrol pump and with the shopkeepers and again printed fake currency notes of Rs. 2000/- denomination as 8/9 notes of one series had been found amongst the recovered notes of Rs.2000/- denomination(SIC). From the investigation carried so far, it has been revealed that all four of them, i.e. Ankit, Chanakya @ Chintu, Vikrant and Parvesh Kundu had played different roles while printing fake currency. The notes had been cut by Parvesh Kundu but he sustained injuries in his hand in this process and hence, Ankit cut the remaining notes. While Vikrant Bacchchas made a strip of green water mark on the notes with the help of green sparkle pen and Chanakya counted the notes and cleaned them up and thus had printed fake currency worth 5/6 lakh rupees. On 12.4.2018, all four of them set out on a tour from Rohtak by their Swift Dezire car bearing No. HR51-BG-0297 and on 13.4.2018, at around 10.00 A.M., arrived in the Guest House at Kasol in District Kullu after having travelled through Panipat, Ropar and Mandi. They rested for a while at Kasol and thereafter, they went around in Kasol and Manikaran and spent their night in Guest House at Kasol itself. On 14.4.2018, they stayed back at Kasol till 3.00 p.m. as Parvesh Kundu was not feeling well. Vikrant brought him medicine and the latter stayed back at Kasol on that day while Ankit made Chanakya @ Chintu and Vikrant to board his vehicle and drove them to Malana. Chanakya @ Chintu drove the vehicle and they reached Malana around 6.00 p.m. Ankit phoned up his old friend Deva of Malana and after some time Deva came to Malana Road at Narang in order to meet Ankit. Both of them talked for quite some time and thereafter Ankit paid Deva four lakh rupees in the denomination of Rs.2000/- and thereafter Deva left for his village in Malana. Ankit repeatedly called up Deva but he did not come. Thereafter, at about 2.00 to 2.30 a.m., Deva came alongwith a long bearded fellow, whose name was later found to be Kishah @ Bhoot. Deva firstly sent the other person and then the other person phoned up Deva and called him to the vehicle. At that time, everybody was sitting in the vehicle and then Deva boarded the vehicle and handed over a polythene bag containing charas to Ankit. Then Ankit took out some more money in the form of Rs.2000/- denomination from his purse and dashboard of the vehicle and paid it to Deva. Subsequently, all three of them reached back by their vehicle in their Guest House in Kasol at 5.00 a.m. Thereafter, they took along their friend Parvesh Kundu and reached Rohtak by their vehicle on 15.4.2018 at around 3.00 p.m. Later, they left for their respective hostels. Next day, i.e. on 16.4.2018, Ankit went to his home in Faridabad by his vehicle. The SIM bearing No. 9518437990 with which Ankit had spoken to the accused Deva regarding purchasing of charas was found to have been issued in the name of Vikrant since January, 2018 in Rohtak. However, the said SIM No. was being used by Chanakya @ Chintu since February, 2018 and he only had given it to Ankit for making calls during the incident. Whatever calls were made to Deva on his mobile No. 9805914335 were made from the said mobile No. 9518437990 only because Ankit only knew Deva as Ankit had purchased charas from him in small quantities earlier also. Chanakya @ Chintu had also met Deva earlier in the company of Ankit in Malana. Accused Deva identified Ankit, Chanakya @ Chintu and Vikrant Bachchas from their photographs. On finding sufficent grounds, the accused Vikrant Bachchas and Parvesh Kundu (were arrested) on 7.5.2018 at 10.00 a.m. and section 120 B was added in the instant case.
5. On 9.5.2018, IO/ ASI Narayan Lal took the accused Vikrant Bachchas and Parvesh Kundu, under police custody, to the Poornima Guest House at Kasol, District Kullu and carried out their interrogation. Spot Map qua pointing out was prepared and the Entry Register of Poornima Guest House, Kasol was checked. As per the entry at Sl. No. 503, three men were found to be staying in Room No. 202 on 13.4.2018 while as per Sl. No. 504, one man and a woman were found to be staying in Room No. 203. According to the entries, two boys were staying with Parvesh Kundu in Room No. 202 while one woman namely Anu was staying with Vikrant Bachchas in Room No. 203. On checking the record of Guest House, it was found that Room No. 202 was booked in the name of Parvesh Kundu. However, his ID and that of other two boys namely Ankit and Chanakya @ Chintu were not found while IDs of Vikrant and his girl friend namely Anu, D/o Sher Singh, R/o Koyalpur, District Jhajjar, Gurgaon, Haryana who stayed in room No. 203 were found. One Mobile No. 8950005969 was found mentioned in the entry register which belonged to Chanakya @ Chintu, apart from a car No. HR51-BG-0297 which belonged to Ankit’s father Sh. Ram Krishan. The IDs so produced and the attested photocopies of entry registry were taken into police possession vide a memo. Statements u/s 161 Cr.P.C of the witnesses were recorded. During interrogation, Vikrant Bachchas revealed that he alongwith Anu, Parvesh Kundu had given their respective IDs to Ankit and Chanakya @ Chintu and had already paid the expenditure of the tour to Ankit. While in the guest house, only Ankit and Chanakya @ Chintu talked about getting rooms on rent and negotiated their tariff and they only made entries in the names of Parvesh and Vikrant and also appended signatures in their names. The ID s of Parvesh Kundu, Ankit and Chanakya, which were deposited in the guest house at the time of making entries were found to have been pulled out by Ankit and Chanakya @ Chintu. They have tried to conceal their presence (in the said guest house) so that no proof against them could be found out. Hence, Section 201 IPC was added in the said case against the accused Ankit and Chanakya @ Chintu. During the course of interrogation, Vikrant Bachchas revealed that the aforesaid Anu was his girl friend who had accompanied him on this tour. However, on 14.4.2018, she was not keeping well, hence she and Parvesh Kundu stayed back in the Guest House only and did not go to Malana. Anu did not know about the said incident (of buying charas etc.). Sections 489A, 489C and 489D have been imposed against the accused Ankit, Chanakya @Chintu, Vikrant Bachchas and Parvesh Kundu in the instant case.
6. On 11.5.2018, the SI/SHO, took accused Parvesh Kundu, under police custody, to New Delhi and Rohtak and carried out the investigations. During the course of investigation, the house of accused Parvesh Kundu was searched and it was found that Parvesh Kundu had knowingly burnt down the printer at Dwarka Park and dumped it in the ‘Nullah’ of Sector 19 of New Delhi with the intention to destroy the evidence. The said place was pointed out and the spot map thereof was prepared. The flat in OMEX City at Rohtak where fake currency had been printed was searched and the spot map was prepared. Statements u/s 161 Cr.P.C. of witnesses were recorded. All four accused were found to have cleaned up the room with an intention of destroying the evidence. Whereupon, Section 201 IPC was imposed against all the four accused, i.e. Vikrant Bachchas, Parvesh Kundu, Ankit and Chanakya @Chintu, for destroying the evidence. Anu, the girl friend of Vikrant, was also associated in the investigation and her statement was recorded. Statement u/s 161 Cr.P.C of the shopkeeper Vinay Kumar, from whose shop in Civil Lines, Rohtak, Ankit and Parvesh Kundu had got the refilling of colour printer done and also bought ink for the printer, was recorded.
7. On 28.6.2018, ASI/IO Narayan Lal, visited the Everest Power Private Ltd. at Malana-II, District Kullu, and got the footage of 14.4.2018 and 15.4.2018 of the CCTV camera installed outside their office which records the activities of people and movement of vehicles crossing on Malana road. The said footage was uploaded on the DVD. On watching the footage/DVD, the aforesaid vehicle bearing registration No. HR51-BG-0297, was found to be going from Jari to Malana side at 5.13.58 p.m.on 14.4.2018 and the same was found returning from Malana to Jari side at 04.31.49 a.m. on 15.4.2018.
8. One accused Kishah @ Bhoot, R/o VPO Malana, Tehsil Bhuntar, P.S. and District Kullu has been absconding since 28.4.2018 in the case who is being looked for both secretively as well as in an open manner at his home, village and in his area and has not been apprehended till date. Whereupon, arrest warrant from the Ld. Court of JMIC, Gohar, has been obtained in order to carry out the proceedings u/s 82 of Cr.P.C. against him.
9. According to the respondents, from the investigations carried out till date, it has been found that the accused Ankit, Vikran Bachchas, Parvesh Kundu and Chanakya @ Chintu together had printed fake currency amounting to six lakh rupees with the help of colour printer of accused Parvesh Kundu in the flat of OMEX City at Rohtak in the first week of April. On 12.4.2018, all four accused alongwith Anu, the girl friend of Vikrant, had stayed in the Poornima Guest House at Kasol in District Kullu with their car bearing Registration No. HR51-BG-0297. In the evening of 14.4.2018, accused Ankit, Vikrant Bachchas, and Chanakya @ Chintu went to Malana by the said vehicle. On reaching there, Ankit phoned up Deva on his mobile phone No. 9805914335 from the phone No. 9518437990, which had been issued in the name of Vikrant Bachchas, and called him to the spot named Narang in Malana. Whereupon Kishah @ Bhoot also came along with Deva to the spot at Narang at night. They purchased 2 Kg. Charas from both of them and Ankit, in the presence of his two other friends Vikrant and Chanakya @ Chintu, paid accused Deva fake currency amounting to Rs.5,60,000/- and thereafter all the three accused came back to Guest House at Kasol and later returned to Rohtak along with their other friend Parvesh Kundu and Anu. On 16.4.2018, the said Deva bought 1/2 Kg charas from the accused Lal Singh at the spot, i.e. near Malana River close to Bridge IV and paid him fake currency amounting to Rs.2,10,000/- in the denomination of Rs.2000/- notes. On 26.4.2018,during investigation Rs. 1,00,000/- was recovered from the accused Lal in Bagsyad Bank and subsequently on 27.4.2018, Rs.1,10,000/- was recovered from his house. As per the CDR of the mobile phones of the aforesaid accused, they were found to have spoken with each other on the day of incident and their location was traced to the Malana area of Himachal Pradesh. During the course of investigation, it was found out that accused Ankit, Chanakya @ Chintu, Parvesh Kundu and Vikrant Bachchas had entered into a criminal conspiracy and printed fake currency and the printer they used for printing such currency was destroyed by the accused Parvesh Kundu. Offence u/s 489B, 489C of IPC by the accused Lal Singh, offence u/s 489B, 489C, 120B, 34 IPC by the accused Deva, offence u/s 489A, 489B, 489C, 489D, 201, 120B of IPC by Vikrant Bachchas, offence u/s 489A, 489B, 489C, 489D, 201, 120B by the accused Parvesh Kundu, offence u/s 489A, 489B, 489C, 489D, 201, 120B by the accused Chanakya @ Chintu and offence u/s 489A, 489B, 489C, 489D, 201, 120B by the accused Ankit and u/s 489B, 489 C, 34 IPC by the accused Kisha @ Bhoot were found to be committed. Challan against the accused Lal Singh, Deva Vikrant Bachchas and Parkash Kundu was prepared and presented in the Ld. Court of JMIC, Gohar, District Mandi on 24.7.2018.
10. The petitioner Chanakya @ Chintu alongwith his three friends Ankit, Vikrant Bachchas and Parvesh Kundu had printed fake currency in their residential flat in Rohtak as per their plan. He drove the vehicle bearing No. HR51-BG-0297 to Malana from Kasol and his friends Vikrant Bachchas and Ankit accompanied him. Chanakya @ Chintu along with his friends Ankit and Vikrant Bachchas was sitting in the aforesaid vehicle when Ankit bought 2 Kg. charas from Deva and paid the latter in fake currency. He had given his ID for effecting entries (in the Register) in Poornima Guest House at Kasol, however, he pulled out his ID from the other ID s in order to conceal his presence in the Guest House. The location of mobile number 8950005969 of the accused Chanakya @ Chintu was traced in Malana and Kasol of District Kullu in Himachal Pradesh from 13.4.2018 to 15.4.2018.
11. Both the petitioners Ankit and Chanakya alias Chintu had filed petition(s) for anticipatory bail in the Court of learned Additional Sessions Judge (2), Mandi, which were rejected on 11.7.2018. Both the petitioners thereafter remained associated in the investigation of the instant case and on 21.8.2018 learned Court again directed the petitioners to remain associated in the investigation and they complied with the orders.
12. On the basis of the analysis of call details of mobile No. 9654290381 belonging to petitioner Ankit, it has been revealed that petitioner Ankit had continuously spoken on mobile Nos. 8800456880, 9873591598, 9899076606, 7011805340 and 8076820001. Whereas, the call details of mobile No. 8950005969 belonging to petitioner Chanakya alias Chintu, it has been revealed that petitioner Chanakya alias Chintu had continuously spoken to mobile Nos.999277612, 9034604360, 9896205294, 8708371711, 8708271769 and 7988748009 and whereupon the petitioners were enquired about it.
13. The petitioner Ankit had disclosed that first mobile number was that of his friend Manish, phone number at serial No.2 was that of mother of Manish, phone number at serial No.3 belongs to his brother Sanjeev, phone number at serial No.4 belongs to his father Ram Krishan, whereas phone number at serial No.5 belongs to the sister of Manish and they even regularly talked to each other as Manish was good friend of Ankit and had in fact accompanied him last year on a visit of Himachal Pradesh. Upon this, Manish S/o Sh. Satish Kumar, R/o House No. 145 Police Line, Sector 30, Faridabad was summoned for questioning at Police Station and he informed that Ankit was a good friend of his and, therefore, they are regularly in touch with each other over telephone numbers and for this purpose would also use the phone numbers belonging to other family members.
14. Likewise, when the petitioner Chanakya alias Chintu was questioned about the phone numbers, he revealed that the mobile No. at Sl. No. 1 belonged to Shekhar Sharma, son of his maternal aunt, R/o Hissar, mobile No. at Sl. No. 2 belonged to his friend Om Shankar, R/o Jind, mobile No. at Sl. Nos. 3 & 4 belonged to his father Sh. Kamal Raj Sharma, mobile No. at Sl. No. 5 belonged to his friend Rohit, R/o Jind, and mobile No. at Sl. No. 6 belonged to his mother Vinod Bala. He often used to speak to all of them.
15. In the status report filed before the Court, it has been averred that both the petitioners are not revealing the truth with regard to fake currency and Charas and are consistently telling lies and, hence, they are required to be interrogated in police custody and are yet to be taken to Malana and Kasol for pointing out the spot(s). It is further averred that the petitioner Ankit has been found to be the main accused because at two or three times earlier he had purchased Charas from Deva and knows him very well. It is lastly averred that both the petitioners belong to the other State and are clever and cunning and crime committed by them relates to the security of the State being students of law as they are studying in 4th year and are well acquainted with law. Therefore, if they are enlarged on bail, there is every likelihood of their jumping the bail, which would adversely affect the investigations.
16. I would first deal with the petitions seeking pre-arrest bail because the two petitions seeking pre-arrest bail as the result thereof is bound to have an effective bearing on the two petitions seeking regular bail.
17. At the outset, it may be observed that the considerations for grant of bail envisaged under Sections 437 and 439 Cr.P.C.are different. An anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 Cr.P.C. is therefore intended to confer conditional immunity from the ‘touch’ or confinement contemplated by Section 46 of the Code.
18. There is no warrant for reading into Section 438 the conditions and limitations subject to which bail can be granted under Section 437 (1). The expression ‘if it thinks fit’, which occurs in Section 438 (1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Section 437 (1). The High Court, therefore, erred in laying down that the discretion under Section 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. Circumstances may justify grant of anticipatory bail in cases such as criminal breach of trust for which the punishment provided is imprisonment for life, though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
19. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. While granting relief under Section 438 (1), appropriate conditions can be imposed under Section 438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail. When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. So also there is no warrant for the proposition that where a legitimate case for the remand of the offender to the police custody under Section 167(2) can be made out by the investigating agency, the power under Section 438 should not be exercised.
20. It is also not proper to hold that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power the discretion under Section 438 of the Code should not be exercised. It is not possible for the court to assess the blatantness of corruption at the stage of anticipatory bail.
21. It is also not possible to hold that anticipatory bail cannot be granted unless it is alleged and shown that the proposed accusations are malafide.
22. Under Section 438 the applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a ‘special case’. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use.
23. No one is justified in reading the conclusion that the power under Section 438 must be exercised in ‘exceptional cases only’ merely because it is of an extraordinary character.
24. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. In fact, there are numerous considerations, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the state” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.
25. The question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. Therefore, the High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code. The judicial discretion granted under Section 438 should not be read down by reading into the statute conditions that are not to be found therein. The Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges which have to be met. (See:Shri Gurbaksh Singh Sibbia and others vs. State of Punjab (1980) 2 SCC 565).
26. The Constitution Bench of the Hon’ble Supreme Court in Sibbia’s case (supra) after taking into consideration the entire law clarified the legal position with regard to anticipatory bail in the following terms:
“34. This should be the end of the matter, but it is necessary to clarify a few points which have given rise to certain misgivings.
35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a nonbailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a nonbailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
36. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
37. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.
38. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.
39. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.”
27. However, before parting, the Hon’ble Supreme Court cautioned the Courts granting blanket order of anticipatory bail, as according to it, a blanket order would protect and every kind of allegedly unlawful activity and is therefore, bound to cause serious interference with the findings of the police. The Courts are required to apply its own mind and decide whether a case has been made out for grant of anticipatory bail. It was lastly held that in certain exceptional circumstances, the Court can on the basis of material placed on record directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of matters covered by the order. These orders, according to the Hon’ble Supreme Court have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The Court has attempted through those orders to strike a balance between the individual’s right to personal freedom and the investigational rights of the police.
28. The legal position has thereafter been meticulously analyzed by the Hon’ble Supreme Court in Siddharam Satlingappa Mhetre vs. State of Maharashtra and others (2011) 1 SCC 694 wherein the Hon’ble Supreme Court again took into consideration the entire law on the subject of anticipatory bail and regular bail including Constitution Bench decision of the Hon’ble Supreme Court in Gurbaksh Singh Sibbia’s case (supra) and held that the following factors and parameters can be taken into consideration by the Court while dealing with anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused’s likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”
29. It was further observed that arrest should be the last option and it should be restricted to those exceptional cases where arresting of the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. However, it was also clarified that the factors as set out above are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualise all situations and circumstances in which a person may pray for anticipatory bail. This is best left for discretion of the Judge, who after taking into consideration the entire material on record and then pass an order and this power was vested only with the Judges of the superior courts so that the discretion would be properly exercised.
30. Another landmark decision on the issue is or fairly recent judgment rendered by the Hon’ble Supreme Court in Bhadresh Bipinbhai Sheth vs. State of Gujarat and another (2016) 1 SCC 152, wherein it was held that while considering application for grant of anticipatory bail, Court is not concerned with feasibility of framing charge or merits thereof as that would be a matter before trial court for arriving at finding on evidence.
31. The Hon’ble Supreme Court after taking into consideration the various judgments including one rendered by the Constitution Bench of the Hon’ble Supreme Court in Gurbaksh Singh Sibbia’s case (supra) and latter decision of the Hon’ble Supreme Court in Siddharam Satlingappa Mhetre case (supra), culled out the following principles for grant of bail as under:
25.1. The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
25.2. The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
25.3. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
25.4. There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
25.5.The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
25.6. It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
25.7. In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
25.8. Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
25.9. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
32. In addition to that, the factors and parameters that need to be taken into consideration while dealing with anticipatory bail as laid down in Siddharam Satlingappa Mhetre case (supra), were reiterated in para 25.10 and, therefore, the same are not being reproduced.
33. Thus, what can be reasonably taken from the aforesaid exposition of law is that while granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial. (See :Central Bureau of Investigation vs. V. Vijay Sai Reddy (2013) 7 SCC 452).
34. The instant bail petitions have been vehemently opposed by the respondent-State on the ground that the petitioners are required for custodial interrogation.
35. What is custodial interrogation, its purpose, whether it is legal and recognized by law, has been meticulously considered by the learned Single Judge of Kerala High Court in bail application No. 4274 of 2008 titled Hyderali vs. State of Kerala, decided on 5.8.2008, wherein it was observed as under:
“19. Custodial Interrogation means? “Custodial interrogation” does not mean mere questioning of the accused by the police. It has a different connotation in law. To constitute “custodial interrogation”, there must be: (i) “custody” of the accused by police and also (ii) “interrogation” by the police. If an accused is released on bail, he is set at liberty by the court and he is not under anybody’s custody. When bail is granted, custody ceases. The question of police custody does not arise thereafter, unless the bail is cancelled. By granting bail, accused is absolutely released from police custody and it may not be proper to say that the accused is in “custody” of police, after he is released on bail. If there be any interrogation by the police while on bail, it cannot be termed to be “custodial interrogation” it is mere “interrogation” without police custody. This is clear from what the Constitution Bench of the Supreme Court held in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565) thus : “to grant bail, as stated in Wharton’s LAW LEXICON, is to `set at liberty a person arrested or imprisoned, on security being taken for his appearance’. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial”.
20. So, strictly speaking, there will not be any “custodial interrogation” by police, once the accused is released on bail. If a police officer interrogates the accused in a case, after his release on bail, it will not amount to “custodial interrogation”, because the police cannot claim his “custody”. He is an absolutely free person upon his release on bail, being not under anybody’s custody, much less, the police custody.
21. Custodial interrogation is legal: It is also relevant to note that “custodial interrogation” is not forbidden by law. On the other hand, it is legal and recognized by the statute. Under section 167(2) of the code, the Magistrate is empowered to release the accused to “police custody” and such custody is allowed, mostly for the purpose of interrogation. During such period, an accused is interrogated by the police in police custody and recovery may also be effected. But, even such custody cannot be given to the police, after expiry of the first fifteen days of remand. That is the settled legal position. Therefore, the custodial interrogation at the early stage of investigation after the arrest has some statutory importance.
22. The police has the right to keep the accused in their custody for some time after the arrest and it is enough that the accused is produced before Magistrate within 24 hours. During this period, between arrest and production, the accused is subjected to some restraint and he will be under the physical control by the police. His movements will be restricted and it can then be said that he was in “police custody”. It is during such custody that he is subjected to “custodial interrogation” and recovery of various material objects are effected through him.
23. Custodial interrogation – purpose. Thus, “custodial interrogation” appears to have a specific purpose which is recognized by law also. The confession, statement or information given to the police officer while in police custody is given certain amount of sanctity also, as per law. Such statements are admissible under section 27 of Evidence Act under certain circumstances. Section 26 of the Evidence Act also indicates that confession made by an accused while in custody of a police officer, in the immediate presence of a Magistrate, may be proved against an accused. Thus, statement or confession made by an accused in police custody can be proved against him, as per law. The confession made by an accused to a police officer in police custody is admissible under certain enactments like TADA Act etc.
24. Thus, the police can, in law, procure or elicit confession, statement or information, which is admissible in law or not, by interrogation of the accused in police custody. Such interrogation is ordinarily referred to as “custodial interrogation”. The court may accept or reject the materials collected during such custodial interrogation, after putting them to judicial scrutiny.
25. Denial of custodial interrogation if proper? But, it may not be proper to deny an investigator an opportunity for “custodial interrogation” of an accused, in fit cases. Unless there are strong reasons to avoid an accused being subjected to “custodial interrogation”, the court shall not stand in the way of the police discharging their official duty, which is sanctioned by law. It must be remembered that investigating agency also plays a very vital role in criminal justice system. The evidence- collection is a part of investigation, as per law. The aggrieved or the victim ordinarily approaches the police and not the court, for redressing their grievance, immediately after an offence is committed.
26. As per the provisions of the code, when a crime is committed against him or her, he may move the police first, unless otherwise prescribed. On doing so, the investigator may proceed to collect evidence relating to such crime. The accused may also be subjected to custodial interrogation, especially in cases where certain facts whether incriminating or not are in his exclusive knowledge. Such materials are collected legally by interrogation of the accused in “police custody”. There is no illegality in “custodial interrogation”. But it is legally recognized by statute.
27. So, when the investigator alerts the court on the need for custodial interrogation, the court must pay due attention to the need expressed and if the court finds that his request is reasonable, the court shall not refuse the same and deny the opportunity to “custodial interrogation”, as permitted by law. It must be remembered that it is based on the materials collected by the investigator, which includes evidence through custodial interrogation also, that he forms an opinion whether there is a case to place the accused before the court for trial or not by filing of a charge-sheet under S ection 173.
28. Referring to “investigation”, the Supreme Court in Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195 held as follows: “Section 2(h) CrPC defines “investigation” and it includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It ends with the formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing of a charge-sheet under Section 173.” The purpose of “custodial interrogation” is also thus, a factor which has to be borne in mind.
29. Interrogation means? The word, “interrogate “, as per dictionary means, “to ask somebody a lot of questions over a long period of time, especially in an aggressive way” (vide Oxford Dictionary). Such ‘aggressiveness’ within a reasonable limit may not amount to torture, because the very expression “interrogation” itself is attached with some sort of aggressiveness. Therefore, any allegation of a possible aggressiveness in questioning by police may not be a sufficient ground to deny to the police, their opportunity to have “custodial interrogation” of the accused. This is intended for collecting evidence and to redress the grievance of the victim by bringing the accused before law. When the police officer confronts a guilty person, needless to say, he may not readily give answers to all the queries made. He may be reluctant to avoid the inconvenient truth and hence it may require sustained questioning of the accused over a long period and in some cases, in an aggressive manner also.
30. A few observations made by the Supreme court may be relevant in this context. While setting aside an order of anticipatory bail granted by Andra Pradesh High court, rejecting the plea for “custodial interrogation”, the Supreme Court in State rep. by the CBI v. Anil Sharma, (1997) 7 SCC 187 held as follows: “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 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”.
31. The ground realities have to be understood by the courts and it shall not be impractical, especially when the investigation is at the initial stage. It must be remembered that it is the duty of the investigating agency to collect sufficient materials and place them before court. So, in short the court has to strike a balance between the right of a victim to be protected by law and also the freedom or liberty of the accused which shall not be interfered with, except in accordance with law. While the liberty of a citizen is of grave concern of the court, that alone must not be the concern. The court must see the other side of the coin as well, and justice must be delivered to both sides equally.
32. In the above circumstances, the argument by learned counsel for petitioner to the effect that it would suffice, if a condition is imposed while granting anticipatory bail that he shall subject himself to interrogation by police cannot be accepted.”
36. Dealing further with the question of Interrogation Vs. Custodial Interrogation, the Court held as under:
“33. Interrogation Vs. Custodial Interrogation: I have already elaborated on what “custodial interrogation” is. It will be clear from the discussion made that any direction given to the accused as per a condition imposed while granting bail to subject himself to “interrogation” may not, in strict terms, constitute “custodial interrogation”. Because, in such cases, there is no submission of the accused to “police custody” because he is free, well-protected and insulated by order for an anticipatory bail. “Bail is basically release from restraint, more particularly, release from the custody of the police”, as the Supreme Court held in Gurbakh Singh Sibbia’s case. Hence, interrogation effected by police while the accused is on anticipatory bail cannot be termed as “custodial interrogation”, especially since there is no cancellation of bail, before the accused is so interrogated,in accordance with or compliance of the condition imposed while granting bail.
34. It is true that sub-section (2) of section 438 of the code lays down that a condition may be imposed that the accused shall make himself available for “interrogation” by the police as and when directed. It is relevant to note that the expression used is,”interrogation” and not “custodial” interrogation. The legislature is aware that after granting bail, in the event of arrest, there cannot be any “custodial interrogation,” though mere “interrogation” may be possible.
35. At any rate, imposition of a condition arises only after the court “thinks fit” to issue a direction under sub-section (1) of Section 438. The court is empowered to impose certain conditions as stated in subsection( 2) of section 438, only when the court makes a direction under sub-section(1) and, not before. That means, the order passed under Section 438(1) takes effect immediately in the event of arrest and the accused has to be released on bail immediately thereafter. Therefore, any interrogation of the accused by the police in cases where the accused is released on bail, as per an order issued under Section 438(1) of the Code, will not constitute “custodial interrogation.
36. It is worthy to bear in mind that anticipatory bail application is filed by a person who wishes to evade arrest, custodial interrogation and detention in custody also, whether “police custody” or “judicial custody”. Such a person may either be guilty or not guilty. But, the court presumes him to be innocent, even if he is actually guilty and proceed on such presumption of innocence. But, an investigator may not be able to proceed on any such presumption because, from the evidence collected during investigation, he will be able to form a reasonable belief about the guilt of the person.
37. So, while exercising jurisdiction under section 438 of the code, at the very early stage of investigation, that is, even before the arrest is effected, it may not be proper, under all circumstances, to apply the presumption of innocence blind-fold, and refuse the request for “custodial interrogation”. The court has to weigh the materials before it and consider the request made by the Investigator for “custodial interrogation” and decide whether it is a reasonable one and if such custodial interrogation will be necessary to bring out the truth and also for an effective investigation.
38. The court’s concern shall not, at that juncture be one- sided that too, on the sole theory of presumption innocence of the accused or on any pre-conceived notion that the accused will be subjected to custodial “torture”. The court shall be concerned about the victim also and his or her grievances, on whose behalf the police acts and collects evidence. It is wise to remember that police also has their own vital role to play. If the court interferes with such role, without sufficient reason, the net result may be lawlessness in the society. The victim of a crime may become yet another victim at the hands of the criminal justice delivery system also. In such circumstances, it is wise to remind oneself that an order passed without application of mind may end up in drastic results and the police will be prevented from collecting sufficient materials and place them before the court to prove the alleged offence. The court must be able to distinguish the genuine request and the fake one.”
37. Section 438 of the Cr.P.C. confers extra ordinary powers upon a High Court and a Court of Session to direct that in the event of his arrest, an accused shall be enlarged on bail. This power is not to be exercised in routine, but has to be exercised with great care and circumspection. The factors to be kept in mind while adjudicating a plea for grant of anticipatory bail are significantly different from those of a plea of regular bail. The provisions of Section 438 Cr.P.C. are in the nature of an exception to general rule that an investigating agency must be given a free reign to arrive at the truth. A few of the factors to be taken into consideration are the gravity or the seriousness of the offences complained of, the proposed charges that are likely to be levelled, the possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that the witnesses would tamper with the evidence as also public interest and the interest of the State. However, no hard and fast rule of law can be laid down for the exercise of such powers. It is for a Court considering a plea of anticipatory bail to arrive at a conclusion for or against the prayer made. A significant fact that must be taken into consideration when the circumstances so warrant is that interrogation of an individual clothed with a protective shield of interim protection is qualitatively less effective than a custodial interrogation.
38. At this stage, it shall be apposite to refer to the observations of the Hon’ble Supreme Court in CBI vs. Anil Sharma, (1997) 7 SCC 187 wherein as regards the nature of custodial interrogation it was observed as under:
“6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconded with a favorable order under S ection 438 if the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disintering many useful informations and also materials which would have been concealed. Succession such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail during the time he 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 accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in task of disinterring offences would not conduct themselves as offenders.”
39. Dealing with the custodial interrogation, the Hon’ble Supreme Court in Muraleedharan vs. State of Kerala AIR 2001 SC 1699 held as follows:
“7…..Custodial interrogation of such accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal conspiracies committed by the persons which ultimately led to the capital tragedy. We express our reprobation at the supercilious manner in which the Sessions Judge decided to think that no material could be collected by the investigating agency to connect the petitioner with the crime except the confessional statement of the co-accused. Such a wayward thinking emanating from a Sessions Judge deserves judicial condemnation. No court can afford to presume that the investigating agency would fail to trace out more materials to prove the accusation against an accused. We are at a loss to understand what would have prompted the Sessions Judge to conclude, at this early stage, that the investigating agency would not be able to collect any material to connect the appellant with the crime. The order of the Sessions Judge, blessing the appellant with a pre-arrest bail order, would have remained as a bugbear of how the discretion conferred on Sessions Judges under Section 438 of the Cr.P.C would have been misused. It is heartening that the high Court of Kerala did not allow such an order to remain in force for long.”
40. A learned Single Judge of the Delhi High Court in Del Agha vs. Directorate of Revenue Intelligence (2001) 2 JCC (Delhi) 110, observed as under:
“10. The judgments of the Apex Court, referred to above, clearly lay down that for invoking the powers of the Courts under Section 438 of the Code for grant of anticipatory bail, an accused has to show something more than what he is required to show for exercising discretion under Section 439 of the Code. The reason is that a prearrest bail order puts the Investigating Agency into a disadvantageous position by reducing the efficacy of custodial interrogation. It also emboldens the accused and demoralises the complainant and general public, who feel that inspite of serious allegations, the accused remains beyond the reach of law. Such orders sometimes have the tendency of eroding public faith in the administration of justice. The seriousness of the offence and gravity of the allegations is always on important factor for an order under Section 439 of the Code if something more is required to be shown for exercise of discretion under Section 438 of the Code, it is obvious that seriousness of offence and the gravity of the allegations remains a relevant factor for orders under Section 438 of the Code also.”
41. In Bharat Chaudhary vs. State of Bihar AIR 2003 SC 4662, the Hon’ble Supreme Court held that the object of section 438 of the Code is to prevent undue harassment of the accused person by pre-trial arrest and detention. It was further held that the gravity of the offence is an important factor to be taken into consideration while granting anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the Courts concerned while entertaining for grant of anticipatory bail.
42. In Parvinderjit Singh & Anr. vs. State (U.T. Chandigarh) and another (2008) 4 SCC 2873, the Hon’ble Supreme Court observed as under:
“17. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his dis-appearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. The above position was highlighted in Adri Dharan Das v. State of West Bengal (2005 (4) SCC 303).”
43. In Promod Kumar Panda vs. Republic of Indian (2015) 60 Orissa Criminal Reports, 660, the Orissa High Court while dealing with the anticipatory bail application of the petitioner in that case, held as follows.
“17. What is custodial interrogation? Custody means formal arrest or the deprivation of freedom to an extent associated with formal arrest. Interrogation means explicit questioning or actions that are reasonably likely to elicit an incriminating response. Questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived of his or her freedom in any significant way is called custodial interrogation. The Court has to strike a balance between individuals right to personal freedom and the investigational rights of the police. On one hand, the Court has to prevent harassment, humiliation and unjustified detention of an accused, on the other hand it is to see that a free, fair and full investigation is not hampered in any manner. When an application for anticipatory bail of an accused is objected to by the State on the ground of necessity of custodial interrogation, the Court can scan the materials available on record and ask the State to satisfy as to in what way the custodial interrogation would benefit the prosecution. The satisfaction of the Court would depend upon several facts viz., the nature of offence, the stage at which the investigation is pending, the materials which could not be traced out by the Investigating Agency due to absence of custodial interrogation and the benefit which the prosecution would get on account of custodial interrogation of the accused. It cannot be stated that in which particular type of cases or particular type of accused, the custodial interrogation would be mandatory. It would all depend upon the facts and circumstances of each case. No strait jacket formula could be laid down. When the accused makes out a case for anticipatory bail, it is not to be defeated by mere asking for custodial interrogation by the prosecution without satisfying the necessity for the same. Of course in terms of section 438 Cr.P.C., the Court can impose a condition on the accused to make himself available for interrogation by the Investigating Officer as and when required. Sometimes the custodial interrogation of suspects would give clue regarding criminal conspiracy and identity of the conspirators and it may lead to recovery of the incriminating materials. Sometimes at the crucial stage of investigation, the custodial interrogation would be a boon to the Investigating Officer. The person in custody likely to be interrogated has a right to remain silent. On some questions, he may answer and on some questions, he may remain silent or refuse to answer. Nobody can be compelled to answer to a particular question. No third-degree method is to be adopted for elicitating any answer. It is illegal to employ coercive measures to compel a person to answer. The Investigating Officer is bound to provide the arrested accused to meet an advocate of his choice during interrogation though not throughout interrogation as required under section 41-D Cr.P.C.”
44. Adverting to the facts, it would be noticed that even though the anticipatory bail of the petitioners was rejected by the learned Additional Sessions Judge (1), Mandi, however, the same was granted by this Court at the time when the records of the case were not available with it. Now, that the records are available and have been perused. I am of the considered view that custodial interrogation of the accused is necessary in the interest of investigation.
45. As observed in Anil Sharma’s case (supra), success in such interrogation eludes if the suspected person knows that he is protected and insulated by a pre-arrest bail order during the time he is interrogated. Even otherwise, the custodial interrogation of the petitioners in this case is indispensably necessary for the investigating agency to unearth all the links of common intention. As held by the Hon’ble Supreme Court in Muraleedharan’s case (supra), no Court can afford to presume that the investigating agency would fail to trace out more materials when the gravity of the offences for which the petitioners have been accused is taken into consideration as admittedly some of the accusations against the petitioners are punishable with even imprisonment for life.
46. In addition to the aforesaid, it would be noticed that one of the leads on which the Investigating Agency is currently working is the involvement or rather sale and purchase of huge quantity of narcotic substance which if established and proved can entail serious consequences especially if it happens to be commercial quantity which is an offence punishable with rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years and shall also be liable to pay fine which shall not be less than Rs.1,00,000/- but may extend to Rs.2,00,000/-.
47. Considering the fact that the petitioners have already been interrogated on earlier occasions and yet have not been arrested because of the interim protection granted by this Court and weighing the right of liberty of the petitioners on one hand and the interest of the investigation on the other hand, I am of the considered view that the period for custodial interrogation may be fixed. For this purpose, five days period would be sufficient for custodial interrogation of the petitioners and are, therefore, direct:
(a) The petitioners Ankit and Chanakya alias Chintu will surrender before the Investigating Officer immediately;
(b) The Investigating Officer shall complete the interrogation of the petitioners within five days of their surrender. On the completion of the interrogation and recovery of any material object/fact, if any, within the aforesaid period, the petitioners thereafter shall be released on bail on their furnishing bonds in the sum of Rs.1,00,000/- each with two sureties of like amount, one surety would be the father or mother and other would be a close relative;
(c) The petitioners shall surrender their passport, if any, and hand over the same to the Investigating Officer;
(d) The petitioners shall thereafter make themselves available as and when required by the Investigating Officer;
(e) The petitioners shall not influence the witnesses or otherwise tamper with the evidence;
(f) It is clarified that if the petitioners mis-use the bail or violate the conditions imposed upon them, the Investigating Officer shall be at liberty to move this Court for the cancellation of the bail.
48. Now, adverting to the regular bail applications filed on behalf of the petitioners Parvesh Kundu and Deva, since the other petitioners Ankit and Chanakya alias Chintu have already been directed to surrender before the Investigating Officer immediately for the purpose of custodial interrogation for the period of five days, these petitioners shall on completion of the aforesaid period be released on bail alongwith petitioners Ankit and Chanakya alias Chintu on the same terms and conditions as in the case of petitioners Ankit and Chanakya alias Chintu.
49. Any observations made hereinabove, shall not be construed to be any reflection on the merits of the case.
50. All the petitions are accordingly disposed of in the aforesaid terms.