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

Karnataka  1, 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 1  (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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