The Himachal Pradesh High Court, while allowing the bail application of an accused, has observed that the tool of custodial interrogation cannot be used to extract confession.
The Single-Judge Bench of Justice Satyen Vaidya, while hearing a petition filed by Rohit Chauhan, noted that such interrogation was permissible where the Investigating Agency was without any means to extract the facts.
By way of the petition, a prayer has been made for grant of pre-arrest bail to petitioner in case FIR dated 19.11.2022, registered at Police Station, Kotkhai, District Shimla, H.P under Sections 408 and 34 of IPC.
The case has been registered on the basis of a complaint received by the police from Proprietor “Stan H.P Enterprises” Gumma, which is a retail sale outlet for petroleum products, alleging inter alia that his four employees including the petitioner have misappropriated an amount to the tune of Rs 28,57,022/-.
He further alleged that all the accused had absconded.
During investigation, the police is stated to have taken into possession the records maintained at “Stan H.P Enterprises”.
The investigation also discovered that the petitioner is maintaining five different bank accounts in his name and between February, 2022 to November, 2022, a total sum of Rs 17,57,014/- was deposited in his account with the Punjab National Bank. Out of such amount, a sum of Rs 3,26,372/- is stated to have been transferred to the account of another co-accused and Rs 2,45,645/- in the account of the complainant. The balance of the amount of Rs 11,84,997/- is stated to be withdrawn by the petitioner, from time to time and some part of it is stated to be transferred through UPI to other persons.
The respondent-State has opposed the grant of pre-arrest bail to the petitioner on the ground that the petitioner is not disclosing the name of persons in whose account he has transferred the money in addition to the co-accused and complainant.
It has also been submitted that petitioner has been avoiding the questions on this behalf and has also been providing evasive answers.
On the other hand, it has been submitted on behalf of the petitioner that the petitioner is innocent. The transactions in his bank account were being made at the instance and with the consent of the complainant as also the Manager of the establishment named Surender Singh Pathania, who was looking after the accounts.
It has further been contended on behalf of the petitioner that during investigation, he has fully associated himself and has provided entire details of accounts to the police. The petitioner is stated to be a permanent resident of Village Gumma, Post Office, Gumma, Tehsil Kotkhai, District Shimla, H.P.
He has also undertaken to abide by all the terms and conditions as may be imposed while disposing of this application.
The Court noted that,
The case was registered on 19.11.2022. Petitioner was admitted to interim bail on 23.11.2022. More than a month has elapsed thereafter. Petitioner has joined the investigation as and when required. The Investigating Agency already had sufficient time at its disposal to complete the investigation at least substantially, especially keeping in view the facts of the case.
It is alleged that the petitioner instead of crediting the amount received from retail sale in the account of Petrol Station, had been directly crediting to his account. The allegations against the petitioner are subject to proof. Mere fact that a huge transaction has been found in the bank account of the petitioner does not necessarily lead to the conclusion of his guilt. As per the investigation report, a sum of Rs 2,45,645/- stands transferred from the account of the petitioner to the account of “Stan H.P Enterprises”.
From this fact, it can be inferred, at least prima-facie, that the bank account of “Stan H.P. Enterprises” was receiving payments from the account of the petitioner. How and why there was no reconciliation of the account of the Petrol Station, has not been explained. Had the petitioner intended to misappropriate the amount by depositing the same to his account, he would not have remitted any amount to the account of the Petrol Station.
The Court observed that,
The respondent has not been able to justify the reasons for seeking custodial interrogation of the petitioner. It is submitted that the petitioner is not disclosing the names and identity of persons in whose account the money has been transferred from his account. The grounds so raised on behalf of the respondents does not appear to be justified for the reason that the bank transactions can be ascertained by the police from documentary evidence. As regards the allegation of money withdrawn by the petitioner from his account and the non-disclosure of identity of persons to whom it has been disbursed, those facts may not be so relevant for proving all the allegations levelled against petitioner. The investigation in a criminal case cannot be used as a recovery proceeding.
Keeping in view the facts of the case and also aforesaid exposition, I am of the considered view that no case for custodial interrogation of petitioner is made out. The tool of custodial interrogation cannot be used to extract confession. Such interrogation is permissible where the Investigating Agency is without any means to extract the facts. As noticed above, in the instant case the bank transactions can easily be ascertained through documentary evidence.
The petitioner is a permanent resident of Village Gumma, Post Office, Gumma, Tehsil Kotkhai, District Shimla, H.P and there is no apprehension of his fleeing from the course of justice. It is also not alleged against the petitioner that he potentially can tamper with the prosecution evidence. The State has also not come up with a plea that the arrest of other co-accused is not possible without interrogating the petitioner in custody.
The Court ordered that,
Keeping in view the facts of the case, the petition is allowed and the petitioner is ordered to be released on bail, in case of his arrest, in FIR dated 19.11.2022, registered at Police Station, Kotkhai, District Shimla, H.P under Sections 408 and 34 of IPC, on his furnishing personal bond in the sum of Rs 50,000/- with one surety in the like amount to the satisfaction of Investigation Officer. This order is, however, subject to following conditions: –
(i) That the petitioner shall make himself available for the purpose of investigation, and when required.
(ii) That the petitioner shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever.
(iii) That the petitioner shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(iv) That the petitioner shall not leave India without prior permission of the Court till completion of investigation and thereafter of the trial court.