CENTRAL BUREAU OF INVESTIGATIONversusVIKAS MISHRA @ VIKASH MISHRA

                         [2023] 3 S.C.R. 321                              321


            CENTRAL BUREAU OF INVESTIGATION                               A
                                  v.
              VIKAS MISHRA @ VIKASH MISHRA
                  (Criminal Appeal No. 957 of 2023)
                           APRIL 10, 2023                                 B
          [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
       Code of Criminal Procedure, 1973 – s. 167(2) – Application
for default bail – Frustration of judicial process by conduct –
Respondent was accused of having committed offence u/s 409/120B
                                                                          C
of IPC – On 16.04.2021, the respondent-accused was arrested by
the CBI and was remanded to the CBI custody for a period of seven
days i.e., till 22.04.2021 – However, during the said period the
respondent-accused was admitted in the hospital and thus could
not be interrogated by the CBI – Thereafter, he obtained interim
bail on 21.04.2021 which came to be extended till 08.12.2021 –            D
Later, the interim bail was cancelled on the ground that the accused
did not appeared before the Special Court despite specific directions
and also did not cooperated in the investigation – Accused was
arrested again and was remanded to judicial custody, but he again
got himself admitted in the hospital for that period – Accused filed
                                                                          E
an application for default bail u/s. 167(2) Cr.P.C. on the ground of
non-filing of the charge sheet/report within the prescribed period
of 90 days – Application was rejected – However, High Court
allowed the said application and has directed to release the
respondent on statutory/default bail u/s. 167(2) Cr.P.C. – On appeal,
held: CBI could not interrogate the respondent-accused – Accused          F
remained in the hospital from time to time – Accused frustrated the
judicial process by his conduct – It cannot be disputed that the
right of custodial interrogation/investigation is also a very important
right in favour of the investigating agency to unearth the truth,
which the accused has purposely and successfully tried to frustrate
                                                                          G
– CBI permitted to have the police custody remand of the respondent
for a period of four days.
      Allowing the appeal, the Court
      HELD: 1. While considering the prayer of the CBI for police
custody for the remainder period of seven days, it is required to         H
                                 321
322            SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A     be noted that as such the Special Judge granted seven days police
      custody of the respondent-accused on 16.04.2021. The order
      granting seven days police custody as such had attained finality.
      However, it so happened that before the seven days police custody
      is over and before the CBI exercises the power of interrogation
      for full seven days which as per the order passed by the learned
B
      Special Judge was available to the CBI, the respondent-accused
      got himself hospitalised on 18.04.2021. On 21.04.2021, the
      learned Special Judge granted interim bail to the accused. As
      per the settled position of law therefore once on bail/interim bail,
      during that period there cannot be any police custody. Therefore,
C     the CBI could not interrogate the respondent-accused for full
      seven days under the police custody remand, which otherwise
      the CBI was entitled to. That thereafter, the accused remained
      in the hospital from time to time during the interim bail which
      also came to be extended from time to time. That thereafter, by
      order dated 08.12.2021, the Special Judge cancelled the interim
D
      bail by observing that the respondent accused has misused the
      interim bail and has not cooperated with the CBI in investigation
      and that there was no valid reason for his hospitalisation. The
      Special Judge also observed that in view of the non-cooperation
      by the accused, the interrogation of the accused under judicial
E     custody/police custody has necessitated. [Para 6][327-B-F]
             2. Despite the fact that on 16.04.2021, the Special Judge
      allowed police custody of the respondent-accused for seven days
      i.e., up to 22.04.2021, the respondent-accused got himself
      admitted in the hospital during the period of police custody, i.e.,
F     on 18.04.2021 and obtained interim bail on 21.04.2021 which came
      to be extended till 08.12.2021 when his interim bail came to be
      cancelled by the Special Judge by observing that the accused
      has misused the liberty shown to him and during the interim bail
      he has not cooperated with the investigating agency. At the cost
      of repetition, it is observed that initial order of grant of seven
G     days police custody attained finality. However, due to the aforesaid
      reasons of having got the accused himself hospitalised on
      18.04.2021 and thereafter obtaining the interim bail on
      21.04.2021, the CBI could not interrogate the accused in the
      police custody though having a valid order in its favour. Thus,
H
 CENTRAL BUREAU OF INVESTIGATION v. VIKAS MISHRA                         323
               @ VIKASH MISHRA

the respondent-accused has successfully avoided the full                 A
operation of the order of police custody granted by the learned
Special Judge. No accused can be permitted to play with the
investigation and/or the court’s process. No accused can be
permitted to frustrate the judicial process by his conduct. It cannot
be disputed that the right of custodial interrogation/investigation
                                                                         B
is also a very important right in favour of the investigating agency
to unearth the truth, which the accused has purposely and
successfully tried to frustrate. Therefore, by not permitting the
CBI to have the police custody interrogation for the remainder
period of seven days, it will be giving a premium to an accused
who has been successful in frustrating the judicial process. [Para       C
8][330-D-H]
      Central Bureau of Investigation v. Anupam J. Kulkarni
      (1992) 3 SCC 141 : [1992] 3 SCR 158 –
      reconsideration required.
      Budh Singh v. State of Punjab (2000) 9 SCC 266 –                   D
      referred to.
                       Case Law Reference
[1992] 3 SCR 158          reconsideration required          Para 5.1
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.               E
957 of 2023.
      From the Judgment and Order dated 30.09.2022 of the High Court
at Calcutta in CRM (DB) No. 1638 of 2022.
      Tushar Mehta, SG, Mrs. Aishwarya Bhati, ASG, Kanu Agarwal,
                                                                         F
Vatsal Joshi, Ms. Ameyavikrama Thanvi, Ms. Deepabali Dutta, Arvind
Kumar Sharma, Advs. for the Appellant.
       Neeraj Kishan Kaul, Sr. Adv., Rajat Sehgal, Abhir Datt, Anurag
Rawal, Debayan Gangopadhyay, Ms. Aarzoo Aneja, Samyak Jain, Advs.
for the Respondent.
                                                                         G
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
      1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 30.09.2022 passed by the High Court of Calcutta in
                                                                         H
324             SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A     Criminal Miscellaneous Application No. 1638/2022, by which the Division
      Bench of the High Court has directed to release the respondent – accused
      on statutory/default bail under Section 167(2) of the Code of Criminal
      Procedure (Cr.P.C.), the Central Bureau of Investigation (CBI) has
      preferred the present appeal.
B           2. The facts leading to the present appeal in nutshell are as under:
             That on 27.11.2020, an FIR/complaint came to be registered by
      the CBI (ACB, Kolkata) against inter alia the officials of Eastern Coalfield
      Limited, CISF, Railways and others for the commission of offences under
      sections 120B/409 of the IPC and the relevant provisions of the Prevention
C     of Corruption Act. That on 16.04.2021, the respondent – accused Vikas
      Mishra came to be arrested by the CBI and was remanded to the CBI
      custody for a period of seven days i.e., till 22.04.2021. However, during
      the said period of remand to CBI custody, the respondent – accused
      Vikas Mishra was admitted in the hospital and thus could not be
      interrogated by the CBI despite police custody remand.
D
             2.1 That on 21.04.2021, the respondent-accused was enlarged on
      interim bail by the learned Special Court which came to be extended
      from time to time. On 08.12.2021, the learned Special Court cancelled
      the interim bail of the respondent-accused on the ground that he did not
      appear before the Special Court despite specific directions and also did
E     not cooperate with the CBI investigation. That on 09.12.2021 and pursuant
      to the interim bail being cancelled, the respondent-accused came to be
      arrested again on 11.12.2021 and was remanded to judicial custody. That
      again from 12.12.2021 to 08.04.2022, while in judicial custody, the accused
      got admitted to the hospital and then again from 07.05.2022 to 08.09.2022.
F            2.2 That the accused submitted an application for default bail under
      Section 167(2) Cr.P.C. on the ground of non-filing of the charge sheet/
      report within the prescribed period of 90 days. The learned Special Judge
      rejected the said application inter alia on the ground that the accused
      was not remanded to custody under Section 167(2) Cr.P.C. after
G     cancellation of his bail on the grounds that the accused was granted
      interim bail under the provisions of Chapter XXXIII Cr.P.C. and his
      detention pursuant to cancellation of bail was on the strength of warrants
      issued by the Court. That on 19.07.2022, the CBI filed a charge sheet
      against the accused and the cognizance was taken by the learned Special
      Court on the same date.
H
 CENTRAL BUREAU OF INVESTIGATION v. VIKAS MISHRA                              325
         @ VIKASH MISHRA [M. R. SHAH, J.]

       2.3 Against the judgment and order passed by the learned Special       A
Judge rejecting the application submitted by the accused – Vikas Mishra
for statutory/default bail under Section 167(2) Cr.P.C., the respondent-
accused preferred the present application before the High Court. By the
impugned judgment and order, the High Court has allowed the said
application and has directed to release the respondent on statutory/default
                                                                              B
bail under Section 167(2) Cr.P.C. as even within 90 days from the date
of re-arrest, i.e., from 11.12.2021, the charge sheet was not filed and
which came to be filed only on 19.07.2022. Against the impugned
judgment and order passed by the High Court directing to release the
respondent-accused Vikas Mishra on statutory/default bail, the CBI has
preferred the present appeal.                                                 C
      3. While issuing notice on 27.02.2023, this Court passed the
following order:
      “Issue notice to consider the prayer of the Investigating Agency
      to have the custodial interrogation of the accused, making it
      returnable on 13.03.2023.                                               D

      Shri Rajat Sehgal, learned counsel accepts notice on behalf of the
      respondent, who is on caveat.
      To be notified within first ten items.”
      4. Ms. Aishwarya Bhati, learned ASG appearing on behalf of the          E
CBI has vehemently submitted that as such the CBI got the police custody
remand for a period of seven days on 16.04.2021 till 22.04.2021. It is
submitted that however the accused got himself first admitted to hospital
and thereafter got interim bail which came to be subsequently cancelled
on 08.12.2021, the CBI could not exercise the police custody remand           F
which as such was allowed by the learned Special Judge on 16.04.2021.
       4.1 It is submitted that as such the order granting seven days
police custody remand attained finality and therefore the CBI should be
given the police custody remand of the accused for the remainder period
of seven days.
                                                                              G
      4.2 It is submitted that as such all throughout the respondent-
accused managed to get himself hospitalised on one ground or the other
and therefore as such successfully frustrated the order of police remand
allowed by the learned Special Judge. It is submitted that nobody can be
permitted to frustrate the court’s process.
                                                                              H
326             SUPREME COURT REPORTS                             [2023] 3 S.C.R.


A           4.3 Making above submissions, it is prayed to grant the police
      custody remand of the respondent-accused for the remainder period of
      seven days which the CBI could not exercise because of the respondent
      got himself hospitalised and was released on interim bail.
            5. The present application and the prayer of the CBI for further
B     police custody remand is vehemently opposed by Shri Neeraj Kishan
      Kaul, learned Senior Counsel appearing on behalf of the respondent –
      accused.
             5.1 Relying upon the decisions of this Court in the case of Central
      Bureau of Investigation v. Anupam J. Kulkarni, reported in (1992)
C     3 SCC 141 and the subsequent decision in the case of Budh Singh v.
      State of Punjab, reported in (2000) 9 SCC 266, it is vehemently
      submitted by Shri Neeraj Kishan Kaul, learned senior counsel appearing
      on behalf of the accused that as such no police custody can be granted/
      allowed beyond the first 15 days from the date of arrest. It is submitted
      that therefore now the police custody which shall be beyond the period
D     of 15 days from the date of arrest is not permissible.
              5.2 It is further submitted that even otherwise in the present case
      the respondent-accused was hospitalised from time to time due to his
      grave and fragile medical condition. That on 18.04.2021, the health of
      the respondent heavily deteriorated due to which he had to be admitted
E     in the hospital by the appellant agency itself. It is submitted that thereafter
      on 20.04.2021 he was transferred to another hospital – a government
      hospital for better treatment and medical facilities. It is submitted that
      therefore there is no substance in the submission on behalf of the
      investigating agency that on 18.04.2021 the accused got himself admitted
F     to the hospital to evade his custody.
             5.3 It is further submitted that even otherwise between 08.04.2022
      to 18.04.2022 when the respondent was remanded to police custody in
      another case, during that time, he was extensively interrogated in the
      present RC as well. It is submitted that even while on interim bail the
G     respondent accused was interrogated. It is submitted that therefore the
      prayer on behalf of the CBI made now to have the police custody of the
      respondent-accused may not be granted.
            5.4 Shri Neeraj Kishan Kaul, learned senior counsel appearing on
      behalf of the accused has drawn our attention to the pendency of the
      Special Leave Petition(Criminal) Nos. 1620-1621/2021 filed by the co-
H
 CENTRAL BUREAU OF INVESTIGATION v. VIKAS MISHRA                             327
         @ VIKASH MISHRA [M. R. SHAH, J.]

accused in which the investigation by the CBI itself is under challenge      A
and this Court passed an interim order that no coercive steps be taken
against the petitioner of that special leave petition.
      5.5 Making above submissions, it is prayed to dismiss the present
appeal.
       6. We have heard learned counsel for the respective parties at        B
length.
        While considering the prayer of the CBI for police custody for
the remainder period of seven days, it is required to be noted that as
such the learned Special Judge granted seven days police custody of the
respondent-accused on 16.04.2021. The order granting seven days police       C
custody as such had attained finality. However, it so happened that before
the seven days police custody is over and before the CBI exercises the
power of interrogation for full seven days which as per the order passed
by the learned Special Judge was available to the CBI, the respondent-
accused got himself hospitalised on 18.04.2021. On 21.04.2021, the           D
learned Special Judge granted interim bail to the accused. As per the
settled position of law therefore once on bail/interim bail, during that
period there cannot be any police custody. Therefore, the CBI could not
interrogate the respondent-accused for full seven days under the police
custody remand, which otherwise the CBI was entitled to. That thereafter,
the accused remained in the hospital from time to time during the interim    E
bail which also came to be extended from time to time. That thereafter,
by order dated 08.12.2021, the learned Special Judge cancelled the interim
bail by observing that the respondent accused has misused the interim
bail and has not cooperated with the CBI in investigation and that there
was no valid reason for his hospitalisation. The learned Special Judge       F
also observed that in view of the non-cooperation by the accused, the
interrogation of the accused under judicial custody/police custody has
necessitated. Some of the observations made by the learned Special
Judge made in the order dated 08.12.2021 cancelling the interim bail are
relevant, which are as under:
                                                                             G
         “Heard both sides, perused the materials in the CD and in the
      case record and considered.
         Following propositions were submitted and seems to be
      admitted that neither the accused person has attempted to tamper
      any evidence nor he is likely to flee from justice. The only aspect
                                                                             H
328      SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A     on which the present prayer under adjudication seems to be banked
      upon is that the accused person willfully halted the progress of
      the investigation by not cooperating the investigating agency during
      his attendances before them. For that I am here to decipher how
      genuine the allegation is and as to whether such alleged non-
      cooperation on the part of this accused person is a sufficient ground
B
      to curb his bailed freedom and commit him back to custody
      invoking section 437(5) Cr. P.C. I have carefully gone through the
      transcribed conversations on different dates between the 10 and
      this accused person while on bail and the 10. The answers given
      to questions put to him are by no means in the direction of
C     corroborating the contents of the documentary evidence collected
      by the 10 during the investigation. The statements of the witnesses
      recorded u/s 161 and 164 Cr. P.C. and the documentary evidence
      like account statements etc. collected disclose direct involvement
      of this accused person in transmitting huge sums, to yet unknown
      or unidentifiable entities. This money trail also bears a direct
D
      linkage to the other FIR named accused persons, whether or not
      public servants, as it transpires from the CD. Any man of common
      prudence would understand that unless these details are elicited
      the investigation would be badly hampered and the total truth will
      never be unearthed. In such circumstances I feel that judicial
E     detention and custodial interrogation of the accused person have
      to be resorted to. I also am convinced to say that this non-
      cooperation is consciously active and pre-designed and this is
      sufficient to presume willful misuse of liberty of bail on the part of
      the accused person which he obtained exclusively on medical
      ground. In my appreciation allowing furtherance of this liberty
F
      would certainly defeat the cause of public justice. The nature and
      seriousness of the offence, the character of evidence collected
      before and after the interim bail was granted as against this accused
      person, the present circumstances and shown gesture of designed
      reluctance of the accused person in assisting the investigation to
G     progress, and the larger interest of the public and the nation - all
      at a time, impel me to jump to the judicial inference that the accused
      person should no more be allowed to enjoy the liberty of the interim
      bail granted to him on 21.04.2021 and which has been extended
      from time to time till date. The precedents relied upon by the Ld.
      Advocates for the accused person are all dissimilar to the factual
H
 CENTRAL BUREAU OF INVESTIGATION v. VIKAS MISHRA                               329
         @ VIKASH MISHRA [M. R. SHAH, J.]

      matrix of the present case and hence require no separate                 A
      mentioning. So far as the present health condition of the accused
      person is concerned from the documents supplied on behalf of
      the accused person, it is definitely evident that his health is in
      condition than what he was in at the time of obtaining the Interim
      Bail, of course with advice by the doctors to keep away from
                                                                               B
      physical and mental stress. But only that should not save him
      from the rigours of incarceration which he was supposed to be in,
      had the illness of that not there at the time of getting magnitude
      been not person the interim bail. There is nothing in the medical
      documents to assume that the accused is not fit enough to move,
      think or talk properly, as was urged by the Ld. Advocate for the         C
      accused person. In the contrary it is found that the accused person
      is suffering from cirrhosis of liver since before this case was
      initiated and there had been ups and downs in his health condition.
      For that this court cannot let the truth submerge in the plea of his
      chronic ailments.
                                                                               D
          Coming to the medical reports submitted today it is found that
      today at 12.10 am he shifted himself to Apollo Hospital where he
      was examined and was readily admitted in some medically
      unspecified ward (Deluxe) under treatment of a specialist
      pulmonologist. Notable that the documents produced show that
      the emergency admission advice form has been struck down by              E
      hand making it a direct admission advice form and the bed number
      there is also illegible due to repeated overwriting. The admission
      form submitted shows that expected length of stay of the patient
      at the hospital is nil. Even if it is accepted that the accused person
      is admitted in hospital for a suspected pulmonary tract infection,       F
      that does not take away the adverse inferences already drawn by
      this court hereinabove. For the sake of precise investigation
      coercive participation of the accused person by way of judicial
      detention now appears to be imminent and indispensable.”
       7. In light of the aforesaid facts and circumstances and the            G
observations made by the learned Special Judge while cancelling the
interim bail, the decision of this Court in the case of Anupam J. Kulkarni
(supra) is required to be considered.
      7.1 It is true that in the case of Anupam J. Kulkarni (supra),
this Court observed that there cannot be any police custody beyond 15          H
330             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A     days from the date of arrest. In our opinion, the view taken by this Court
      in the case of Anupam J. Kulkarni (supra) requires re-consideration.
      When we put a very pertinent question to Shri Neeraj Kishan Kaul,
      learned senior counsel appearing on behalf of the respondent-accused
      that in a given case it may happen that the learned trial/Special Court
B     refuses to grant the police custody erroneously which as such was prayed
      within 15 days and/or immediately on the date of arrest and thereafter
      the order passed by the trial/Special Court is challenged by the
      investigating agency before the higher Court, namely, Sessions Court or
      the High Court and the higher Court reverses the decision of the learned
      Magistrate refusing to grant the police custody and by that time the
C     period of 15 days is over, what would be position? The learned senior
      counsel is not in a position to answer the court query.
              8. Be that as it may, the facts in the present case are very glaring.
      Despite the fact that on 16.04.2021, the learned Special Judge allowed
      police custody of the respondent-accused for seven days i.e., up to
D     22.04.2021, the respondent-accused got himself admitted in the hospital
      during the period of police custody, i.e., on 18.04.2021 and obtained
      interim bail on 21.04.2021 which came to be extended till 08.12.2021
      when his interim bail came to be cancelled by the learned Special Judge
      by observing that the accused has misused the liberty shown to him and
E     during the interim bail he has not cooperated with the investigating agency.
      At the cost of repetition, it is observed that initial order of grant of seven
      days police custody attained finality. However, due to the aforesaid reasons
      of having got the accused himself hospitalised on 18.04.2021 and
      thereafter obtaining the interim bail on 21.04.2021, the CBI could not
      interrogate the accused in the police custody though having a valid order
F
      in its favour. Thus, the respondent-accused has successfully avoided the
      full operation of the order of police custody granted by the learned Special
      Judge. No accused can be permitted to play with the investigation and/
      or the court’s process. No accused can be permitted to frustrate the
      judicial process by his conduct. It cannot be disputed that the right of
G     custodial interrogation/investigation is also a very important right in favour
      of the investigating agency to unearth the truth, which the accused has
      purposely and successfully tried to frustrate. Therefore, by not permitting
      the CBI to have the police custody interrogation for the remainder period
      of seven days, it will be giving a premium to an accused who has been
H     successful in frustrating the judicial process.
 CENTRAL BUREAU OF INVESTIGATION v. VIKAS MISHRA                                 331
         @ VIKASH MISHRA [M. R. SHAH, J.]

        9. Now so far as the submission on behalf of the accused about           A
the pendency of Special Leave Petition (Criminal) Nos. 1620-1621/2021
by the co-accused before this Court and the interim order that “no
coercive steps be taken against the petitioner therein” is concerned, it is
required to be noted that the pendency of the special leave petitions at
the behest of the co-accused has nothing to do with the present
                                                                                 B
proceedings. It is required to be noted that the accused in the present
case - Vikas Mishra in fact filed a similar special leave petition, however,
this Court declined to grant the permission to the respondent-accused to
file the special leave petition by reserving liberty in his favour to pursue
the remedies which were available in law.
                                                                                 C
       10. In view of the above and for the reasons stated above, the
present appeal succeeds. The appellant-CBI is permitted to have the
police custody remand of the respondent for a period of four days (taking
into consideration that pursuant to order dated 16.04.2021 passed by the
learned Special Judge the police custody remand of seven days of the
respondent-accused was granted, however for the reasons stated above,            D
the CBI could interrogate the respondent-accused only for a period of
two and half days and therefore could not exercise the right of
interrogation for the full period of seven days of police custody remand).
      11. The instant appeal is accordingly allowed to the aforesaid
extent.                                                                          E


Ankit Gyan                                                     Appeal allowed.
(Assisted by : Abhishek Agnihotri and Mahendra Yadav, LCRAs)


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