IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1759 OF 2017
(Arising out of S.L.P.(Criminal) No. 8439 of 2016)
SANTOSH S/O DWARKADAS FAFAT ... APPELLANT (S)
VERSUS
THE STATE OF MAHARASHTRA ... RESPONDENT (S)
J U D G M E N T
KURIAN, J.:
Leave granted.
2. The appellant is one of the accused in Crime No. 63 of 2016
registered at Goregaon Police Station, Goregaon, Maharashtra
for offences under Section 408 of the Indian Penal Code, 1860
read with Sections 3 and 7 of the Essential Commodities Act,
1955. The allegation is that he received misappropriated
food-grains meant for public distribution. In the order dated
07.10.2016, the Additional Sessions Judge, Gondia rejected the
application for anticipatory bail. The High Court of Judicature at
Bombay, Nagpur Bench, as per order dated 24.10.2016 was
also of the same view, although the same court had initially
granted interim protection. Thus aggrieved, the appellant is
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REPORTABLE
before this Court.
3. On 07.11.2016, this Court passed the following Order:
“Learned counsel for the petitioner seeks an
adjournment, so as to enable him to obtain instructions,
whether or not the petitioner is ready and willing to
deposit the total amount of Rs.45,08,469/- for the
misappropriated grains, referred to in the first
information report.
At request, and in the interest of justice, post for
hearing on 11.11.2016.
Instructions be obtained, in the meantime.”
4. The amount was deposited. Accordingly, the Court granted
interim protection by order dated 18.11.2016 staying the
arrest. On the submission made by the learned Counsel
appearing for the State that the appellant was not cooperating
with the investigation, this Court on 24.08.2017, passed the
following Order:
“Learned counsel appearing for the
respondent/State submits that in view of the order
dated 18.11.2016 there is no cooperation on the part of
the petitioner. Therefore, the order dated 18.11.2016
regarding the stay of arrest of the petitioner is modified
to the effect that the Investigating Officer is free to
arrest the petitioner. However, after arrest he shall be
released on bail on execution of a personal bond to the
tune of Rs.2,00,000/- (Rupees Two Lacs) with two
solvent sureties for the like amount. The petitioner is
directed to cooperate with the investigation by
responding to the call and attending the place
wherever and whenever required by the Investigating
Officer.
The respondent/State is directed to file a status
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report with regard to the cooperation extended by the
petitioner within two weeks.
Post on 12.09.2017.”
5. The Investigating Officer (hereinafter referred to as “the IO”)
has accordingly filed a Status Report dated 11.09.2017, which
reads as follows:
“xxx xxx xxx
1. Pursuant to the order dated 24.08.2017, the
Petitioner was arrested and released on bail after
completing necessary formalities.
2. Thereafter, the petitioner has been called daily to
the Police Station by me towards investigation. Upon
inquiry, the petitioner did not answer the questions
properly. The petitioner reiterated that he has not
purchased the food grains. Thereafter, I made Gulam
Sarver Fharukh Khan i.e. the accused No. 1 to sit in
from of the petitioner and asked him certain questions.
The accused No.1 Gulam was the godown keeper.
Gulam specifically submitted that he knows the
petitioner very well. Gulam further submitted that he
has nothing to say than the statement recorded during
the police custody in remand. In his statement, Gulam
had given the modus operandi of the petitioner which
has been mentioned in detail in the Counter Affidavit.
3. Since there is no cooperation by the petitioner, the
petitioner is not entitled for the relief of anticipatory
bail. For proper completion of investigation the custody
of the petitioner is very much necessary. ..”
6. We are informed that the co-accused have been released on
bail.
7. It appears, the IO was of the view that the custody of the
appellant is required for recording his confessional statement in
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terms of what the co-accused had already stated in the
Statement under Section 161 of the Code of Criminal
Procedure, 1973. The IO was of the opinion that the appellant
was not cooperating because he kept reiterating that he had
not purchased the food-grains. The purpose of custodial
interrogation is not just for the purpose of confession. The right
against self-incrimination is provided for in Article 20(3) of the
Constitution. It is a well settled position in view of the
Constitution Bench decision in Selvi and others v. State of
Karnataka1
, that Article 20(3) enjoys an “exalted status”. This
provision is an essential safeguard in criminal procedure and is
also meant to be a vital safeguard against torture and other
coercive methods used by investigating authorities. Therefore,
merely because the appellant did not confess, it cannot be said
that the appellant was not cooperating with the investigation.
However, in case, there is no cooperation on the part of the
appellant for the completion of the investigation, it will
certainly be open to the respondent to seek for cancellation of
bail.
8. Having regard to the peculiar facts and circumstances of the
case, we are of the view that the liberty as above should be left
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(2010) 7 SCC 263
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to the jurisdictional Sessions Court, i.e., Sessions Court, Gondia.
9. In case there is no cooperation on the part of the appellant for
the completion of the investigation, it will be open to the
respondent to approach the Sessions Court, Gondia,
Maharashtra in which case the Sessions Court having regard to
the materials already collected by the IO, if so satisfied that the
custodial interrogation of the appellant is still required for
completion of the investigation, will be free to pass appropriate
orders.
10.The appeal is disposed of as above.
...........................J.
(KURIAN JOSEPH)
...……………………J.
(R. BANUMATHI)
NEW DELHI;
OCTOBER 10, 2017.
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ITEM NO.1501 COURT NO.4 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 8439/2016
SANTOSH S/O DWARKADAS FAFAT Petitioner(s)
VERSUS
THE STATE OF MAHARASHTRA Respondent(s)
Date : 10-10-2017 This petition was called on for Judgment today.
For Petitioner(s) Mr. Garvesh Kabra, AOR
Ms. Pooja Kabra, Adv.
Ms. Nikita Kabra Jaju, Adv.
For Respondent(s) Mr. Nishant Ramakantrao Katneshwarkar, AOR
Ms. Deepa Kulkarni, Adv.
Hon'ble Mr. Justice Kurian Joseph pronounced the reportable
Judgment of the Bench comprising His Lordship and Hon'ble Mrs.
Justice R. Banumathi.
Leave granted. The appeal is disposed of.
As far as the deposit of Rs. 46,67,489/- made in this Court
(along with accrued interest) is concerned, further orders, if
required, will be passed subject to the orders, if any, passed by
the trial court.
Pending Interlocutory Applications, if any, stand disposed of.
(JAYANT KUMAR ARORA) (RENU DIWAN)
COURT MASTER ASSISTANT REGISTRAR
(Signed reportable Judgment is placed on the file)
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