SANTOSH S/O DWARKADAS FAFATversusTHE STATE OF MAHARASHTRA

                         [2017] lOS.C.R. 129


              SANTOSH S/O DWARKADAS FAFAT                                A
                                  v.
                THE STATE OF MAHARASHTRA
                   (Crimina!Appea!No. 1759of2017)
                         OCTOBER 10, 2017                                B
        [KURIAN JOSEPH AND R. BANUMATHI, JJ.]
       Bail: Anticipatory bail - Entitlement - Allegation against
appellant that he received misappropriated food grains meant for
public distribution - Appellant seeking anticipatory bail - Rejection C
by the courts below - Before this Court, Investigating Officer of the
opinion that custody of the appellant ivas required for recording
his confessional statement in terms of what co-accused had already
stated; and that he was not co-operating because he kept 011
reiterating that he had not purchased the food-grains - Held:
Purpose of custodial interrogation is not just for the purpose of D
confession - Right against self-incrimination is provided for in
Article 20(3) of the Constitution - Merely because the appellant
did not confess, it cannot be said that the appellant was not co-
operating with the investigation - However, in case, there is no co-
operation on the part of the appellant for the completion of the E
investigation, it would be open to the State to seek for cancellation
of bail - Constitution of India - Article 20(3).
      Selvi and Ors. v. State of Kamataka (2010) 7 SCC 263 :
      [2010] 5 SCR 381 - referred to.
                        Case Law Reference                               F
[2010] 5 SCR 381                referred· to               Para 7
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No~ 1759 of 2017

      From the impugned Judgment and final Order dated 24.10.2016        G
passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur
in Criminal Application (ABA) No. 672 of 2016.
       Kavin Gulati, Sr. Adv., Garvesh Kabra, Mrs. Pooja Kabra, Advs.
for the Appellant
      Nishant Ramakantrao Katneshwarkar, Adv. for the Respondent.        H
                              129
130            SUPREME COURT REPORTS                           [2017] 10 S.C.R.


A           The Judgment of the Court was delivered by
            KURIAN, J. I. 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
B 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
c was also of the same view, although the same court had initially granted
  interim protection. Thus aggrieved, the appellant is 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
D            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
              I 1.11.2016.
E
                   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
F
      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
G            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
H
        SANTOSH S/O DWARKADAS FAFAT v. THE STATE OF                             131
                 MAHARASHTRA [KURIAN, J.]

          the call and attending the place wherever and whenever required       A
          by the Investigating Officer.
               The respondent/State is directed to file a status report with
          regard to the cooperation extended by the petitioner within two
          weeks.
               Post on 12.09.2017."                                             B

        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      c
         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 D
         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. I to sit in
         from of the petitioner and asked him certain questions. The
         accused No. I Gulam was the godown keeper. Gui am specifically E
         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.
                                                                                 F
         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.                                                                          G

      7. It appears, the IO was of the view that the custody of the
appellant is required for recording his confessional statement in 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
                                                                               H
132             SUPREME COURT REPORTS                       [2017] 10 S.C.R.


A 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
B
  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
c 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 to the
 D 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
 E 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.


      Nidhi Jain                                               Appeal disposed of.




      1
          (20 JO) 1 sec 263