IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 Bail Appl..No. 4274 of 2008() ----------------------------- (CRIME NO.819 of 2007 OF THE HILL PALACE POLIE STATION) PETITIONER/ACCUSED NO.9:- ------------------------------------- HYDERALI, S/O MOIDEENKUTTY HAJI, RESIDING AT KOOTANGODAN HOUSE, P.O. PANNIPPARA, EDAVANNA. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.M.H.HANIS SRI.MANU TOM RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ,KOCHI. 2. THE STATION HOUSE OFFICER, HILL PALACE POLICE STATION, THRIPUNITHURA. 3. THE CIRCLE INSPECTOR, CBCCID, ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION (SRI.P.G.THAMPI) BY PUBLIC PROSECUTOR(SRI.C.K.SURESH) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ----------------------------------------------- Bail Appl.No. 4274 of 2008 ----------------------------------------------- Dated this the 5th day of August, 2008. ORDER This petition is filed by the 9th accused for anticipatory bail. Facts briefly: 2. According to prosecution, huge amount of money, running to crores was misappropriated by several persons from government exchequer, by using certain forged documents. The crime was detected when the first accused was arrested and interrogated by the Sub Inspector of Police. He allegedly created fake bills purported to be issued to several persons for the purchase of bitumen (tar) from the Bharath Petroleum Corporation Ltd ('BPCL', for short) and Indian Oil Corporation (`IOC', for short). Those persons include government contractors, engineers, office bearers of District Panchayath, Grama Panchayath etc. Such bills were presented by several persons and to claim huge amount of money from the government and the money was paid also. [B.A.No.4274/08] 2 3. The petitioner is one of such government contractors, who was in possession of such forged bills created by the first accused and knowing the same to be forged and intending that the same shall be fraudulently or dishonestly used as genuine. He made a claim for more than Rs.11 lakhs from the government, on the strength of such forged bills created and supplied by first accused, purporting to be issued by Bharath Petroleum Company or Indian Oil Company for the purchase of bitumen. The investigation is proceeded against 9 accused for offences under sections 465, 468, 471, 474, 20, 511 of 420, 420 read with 34 of IPC. 4. Petitioner's contentions : According to learned counsel for the petitioner, petitioner is absolutely innocent of the allegations made. The petitioner, as a government contractor, had taken up a contract for road-work and he also submitted bills before the Executive Engineer's office for purchase of tar. The physical verification of the tar used for the work was done by Engineers and those are entered in a measurement book also. The bills produced by him were duly countersigned by the officials concerned after verification and upon satisfaction that the tar is used. The bills are accepted only thereafter. [B.A.No.4274/08] 3 5. It is also submitted by learned counsel for petitioner that other similarly placed accused in this crime were granted anticipatory bail by different benches of this Court, as per different orders issued on their applications for anticipatory bail and hence, petitioner is also entitled to get the same relief from this court. It is also pointed out by him that even the third accused who allegedly obtained more than Rs.40 lakhs also was granted anticipatory bail, but the petitioner has not even obtained the money but only made a claim. Therefore, the High Court cannot speak in two voices, he added. 6. In a case of this nature, the guilt or involvement of the petitioner can be proved by documentary evidence and a custodial interrogation of the petitioner may not be necessary and if at all it is required, it can be done, even after granting anticipatory bail, learned counsel for petitioner submitted. According to him, if anticipatory bail is not granted, it will only ensure custodial torture by the police by using third degree method and, hence, the prayer for anticipatory bail may be granted by this Court. 7. Respondent's contentions: Learned Director General of Prosecution vehemently opposed this bail application. He submitted that when the first application for anticipatory bail was [B.A.No.4274/08] 4 filed in this case by the third accused, he had vehemently opposed the application and this fact was recorded also, in the order. It was pointed out that huge loss of money, to the tune of crores, was caused to the Government, in connection with the construction and maintenance of road by the use of fake bills and this was detected only when the first accused was arrested and questioned. 8. Learned Director General of Prosecution also brought to my notice that he had addressed the authorities concerned and vigilantly taken steps to alert the Government on the oral observations made by this Court during the pendency of this petition, and accordingly, a special team of investigators headed by senior police officials in the State is constituted, as per the immediate orders issued by the Director General of Police. A thorough investigation is being conducted into the crime and petitioner is required for custodial interrogation for an effective investigation in this case. Therefore, it may not be proper to grant anticipatory bail to the petitioner in an offence of this nature. 9. However, regarding the question, whether anticipatory bail can be refused to petitioner alone, since other co-accused were granted the same relief, learned Director General of [B.A.No.4274/08] 5 Prosecution submitted that he can only agree with the submissions made by learned counsel for petitioner on this score. Thus, resultantly, both sides would agree that anticipatory bail can be granted to the petitioner, since three different Benches of this court granted anticipatory bail to the co-accused who are also contractors. 10. But, can I agree? Heard both sides in detail. Perused the case diary consisting of as many as seven thick volumes. This includes the case diary relating to the crime registered as crime no. 999/2007 of the same station, in connection with “unnatural death” of first accused and the “work file” also. On going through the case diary and on consideration of the arguments advanced by both sides, I find that I shall not mechanically act on the unanimous submissions made by both sides and grant anticipatory bail to petitioner on the ground that other accused were granted the same relief. 11. According to me, power under section 438 of the code is not intended to be invoked on the basis of any compromise or consensus of opinion expressed by both sides. It shall also not be exercised on any concession extended to an accused by the opposite opposite party, either. The court shall not grant the relief on the mere request for it. Of course, it may [B.A.No.4274/08] 6 appear on an apparent reading of sub-section (1) of section 438 of the code that anticipatory bail can be granted, if the twin factors in the section exist viz., i) that a person has reason to believe that he may be arrested ii) that such arrest may be on an accusation having committed a non-bailable offence. But, such an allegation can be made by any person who is an accused in a case involving a non-bailable offence and hence, granting of anticipatory bail does not depend upon satisfaction of the above twin conditions alone. 12. Then, when can it be granted? It is only if the court "thinks fit" that the court may grant the relief, as referred to in the provision. How can this satisfaction be arrived at? For reaching a conclusion whether it is a fit case or not to grant anticipatory bail, the court shall keep in mind, various aspects. These include, the nature of offence or the allegations made against the accused. Another factor is the need for custodial interrogation by the police. There are, of course, various other factors also, which even the legislature could not or did not elaborate in the provision but left to the discretion of the court to decide on the facts of each case when anticipatory bail can be granted and when the court can “think fit” to allow the [B.A.No.4274/08] 7 relief. It is held in Bharat Chaudhary v. State of Bihar , ((2003) 8 SCC 77), as follows: " "The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation." 13. Nature of offence: I shall first consider the nature of offence allegedly involved in this case. The case diary reveals various shocking instances, how huge amount of money running to crores could be dishonestly and fraudulently siphoned off from the government exchequer by various government contractors, Engineers, officials of PWD, Grama Panchayath, District Panchayaths etc. etc. This was done by using fake bills supplied by first accused. The case diary also shows that just like the first accused there were some other persons also who were engaged in similar activity of fabricating bills and supplying the same to various persons who are in need of the fake bills to claim huge money from government. 14. In many cases, on the strength of each of such fake bills (which are purported to be issued for supply of bitumen (tar) from BPCL and IOC), more than two lakhs were claimed and disbursed by government to various government contractors and other persons. This mode of misappropriation and forgery was carried on, since a very long time past at least from 1995 [B.A.No.4274/08] 8 onwards. The first accused prepared the bills with the help of his computer, lap top etc. He also got some bills printed at a Press and many persons approached him to get such fake bills. He charged an amount of Rs. 2000 to Rs 5000 for each bill and supplied them to various persons including Engineers working in PWD. 15. The first accused gave the details of many persons, local authorities, engineers in the PWD etc. etc. during custodial interrogation. More details were collected from his lap top, computer, pen drive, forged bills etc., which were siezed from the house and office of first accused, pursuant to the information given by the first accused to the Sub Inspector under section 27 of the Evidence Act. He had, in his lap top and pen drive, the names and details of various persons who were involved in the offence. Several forged bills were also seized from his possession which contain the details of several engineers, contractors etc. A rough estimate itself reveals that a huge financial loss to the tune of crores of rupees is caused to the government. 16. The first accused was questioned on more than one occasion. Several valuable information regarding the persons who were involved in the offence was received from the first [B.A.No.4274/08] 9 accused. He was scheduled to be questioned on 27.12.2007 by the Crime Branch officials. He must be expected to divulge much more details about the persons who were involved in the crime. But, he was found missing on the evening of 26.12.2007 and his dead body floated in the river on 29.12.2007. When learned Additional Chief Judicial Magistrate released him to police custody and also when he was released on bail, he cautioned the State about the safety of the fist accused by making specific observations in this regard. But, a very valuable source is 'left to be lost' for ever and the cause of death is still under investigation. 17. In such circumstances, no doubt, no court can overlook the seriousness and gravity of the offence and the nature of allegation made. State itself is the aggrieved in this case and this court cannot ignore the interest of the State. The larger interests of the public or the State is certainly one of the factors to be taken into account while an application for anticipatory bail is considered. Therefore, the gravity and nature of offence committed, the specific allegations made against petitioner, the societal interest are all factors which only dissuade this Court from granting anticipatory bail to the petitioner. [B.A.No.4274/08] 10 18. Need for custodial interrogation: As already referred to by me earlier, Supreme Court has made it clear that the need for custodial interrogation is a factor to be looked into in an application for anticipatory bail. According to learned counsel for the accused, even if petitioner is required for custodial interrogation, it is enough if a condition is imposed that petitioner shall make himself available for interrogation. With due respect, I can only disagree with this. 19. Custodial Interrogation means? “Custodial interrogation” does not mean mere questioning of the accused by the police. It has a different connotation in law. To constitute "custodial interrogation", there must be: (i) "custody" of the accused by police and also (ii) "interrogation" by the police. If an accused is released on bail, he is set at liberty by the court and he is not under anybody's custody. When bail is granted, custody ceases. The question of police custody does not arise thereafter, unless the bail is cancelled. By granting bail, accused is absolutely released from police custody and it may not be proper to say that the accused is in "custody" of police, after he is released on bail. If there be any interrogation by the police while on bail, it cannot be termed to be "custodial interrogation" it is mere “interrogation” without police custody. [B.A.No.4274/08] 11 This is clear from what the Constitution Bench of the Supreme Court held in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565) thus : "to grant bail, as stated in Wharton’s LAW LEXICON, is to ‘set at liberty a person arrested or imprisoned, on security being taken for his appearance’. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial". 20. So, strictly speaking, there will not be any "custodial interrogation" by police, once the accused is released on bail. If a police officer interrogates the accused in a case, after his release on bail, it will not amount to "custodial interrogation", because the police cannot claim his “custody”. He is an absolutely free person upon his release on bail, being not under anybody's custody, much less, the police custody. 21. Custodial interrogation is legal: It is also relevant to note that “custodial interrogation” is not forbidden by law. On the other hand, it is legal and recognized by the statute. Under section 167(2) of the code, the Magistrate is empowered to release the accused to “police custody” and such custody is allowed, mostly for the purpose of interrogation. During such [B.A.No.4274/08] 12 period, an accused is interrogated by the police in police custody and recovery may also be effected. But, even such custody cannot be given to the police, after expiry of the first fifteen days of remand. That is the settled legal position. Therefore, the custodial interrogation at the early stage of investigation after the arrest has some statutory importance. 22. The police has the right to keep the accused in their custody for some time after the arrest and it is enough that the accused is produced before Magistrate within 24 hours. During this period, between arrest and production, the accused is subjected to some restraint and he will be under the physical control by the police. His movements will be restricted and it can then be said that he was in “police custody”. It is during such custody that he is subjected to “custodial interrogation” and recovery of various material objects are effected through him. 23. Custodial interrogation – purpose. Thus, "custodial interrogation" appears to have a specific purpose which is recognized by law also. The confession, statement or information given to the police officer while in police custody is given certain amount of sanctity also, as per law. Such statements are admissible under section 27 of Evidence Act under certain circumstances. Section 26 of the Evidence Act [B.A.No.4274/08] 13 also indicates that confession made by an accused while in custody of a police officer, in the immediate presence of a Magistrate, may be proved against an accused. Thus, statement or confession made by an accused in police custody can be proved against him, as per law. The confession made by an accused to a police officer in police custody is admissible under certain enactments like TADA Act etc. 24. Thus, the police can, in law, procure or elicit confession, statement or information, which is admissible in law or not, by interrogation of the accused in police custody. Such interrogation is ordinarily referred to as "custodial interrogation". The court may accept or reject the materials collected during such custodial interrogation, after putting them to judicial scrutiny. 25. Denial of custodial interrogation if proper? But, it may not be proper to deny an investigator an opportunity for "custodial interrogation" of an accused, in fit cases. Unless there are strong reasons to avoid an accused being subjected to “custodial interrogation”, the court shall not stand in the way of the police discharging their official duty, which is sanctioned by law. It must be remembered that investigating agency also plays a very vital role in criminal justice system. The evidence- [B.A.No.4274/08] 14 collection is a part of investigation, as per law. The aggrieved or the victim ordinarily approaches the police and not the court, for redressing their grievance, immediately after an offence is committed. 26. As per the provisions of the code, when a crime is committed against him or her, he may move the police first, unless otherwise prescribed. On doing so, the investigator may proceed to collect evidence relating to such crime. The accused may also be subjected to custodial interrogation, especially in cases where certain facts whether incriminating or not are in his exclusive knowledge. Such materials are collected legally by interrogation of the accused in “police custody”. There is no illegality in “custodial interrogation”. But it is legally recognized by statute. 27. So, when the investigator alerts the court on the need for custodial interrogation, the court must pay due attention to the need expressed and if the court finds that his request is reasonable, the court shall not refuse the same and deny the opportunity to “custodial interrogation”, as permitted by law. It must be remembered that it is based on the materials collected by the investigator, which includes evidence through custodial interrogation also, that he forms an opinion whether there is a [B.A.No.4274/08] 15 case to place the accused before the court for trial or not by filing of a charge-sheet under Section 173. 28. Referring to "investigation", the Supreme Court in Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195 held as follows: "Section 2(h) CrPC defines “investigation” and it includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It ends with the formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing of a charge-sheet under Section 173." The purpose of "custodial interrogation" is also thus, a factor which has to be borne in mind. 29. Interrogation means? The word, "interrogate ", as per dictionary means, "to ask somebody a lot of questions over a long period of time, especially in an aggressive way" (vide Oxford Dictionary). Such 'aggressiveness' within a reasonable limit may not amount to torture, because the very expression “interrogation” itself is attached with some sort of aggressiveness. Therefore, any allegation of a possible aggressiveness in questioning by police may not be a sufficient ground to deny to the police, their opportunity to have "custodial [B.A.No.4274/08] 16 interrogation" of the accused. This is intended for collecting evidence and to redress the grievance of the victim by bringing the accused before law. When the police officer confronts a guilty person, needless to say, he may not readily give answers to all the queries made. He may be reluctant to avoid the inconvenient truth and hence it may require sustained questioning of the accused over a long period and in some cases, in an aggressive manner also. 30. A few observations made by the Supreme court may be relevant in this context. While setting aside an order of anticipatory bail granted by Andra Pradesh High court, rejecting the plea for "custodial interrogation", the Supreme Court in State rep. by the CBI v. Anil Sharma, (1997) 7 SCC 187 held as follows: “We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that [B.A.No.4274/08] 17 the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders”. 31. The ground realities have to be understood by the courts and it shall not be impractical, especially when the investigation is at the initial stage. It must be remembered that it is the duty of the investigating agency to collect sufficient materials and place them before court. So, in short the court has to strike a balance between the right of a victim to be protected by law and also the freedom or liberty of the accused which shall not be interfered with, except in accordance with law. While the liberty of a citizen is of grave concern of the court, that alone must not be the concern. The court must see the other side of the coin as well, and justice must be delivered to both sides equally. 32. In the above circumstances, the argument by learned counsel for petitioner to the effect that it would suffice, if a condition is imposed while granting anticipatory bail that he shall subject himself to interrogation by police cannot be accepted. [B.A.No.4274/08] 18 33. Interrogation Vs. Custodial Interrogation: I have already elaborated on what "custodial interrogation" is. It will be clear from the discussion made that any direction given to the accused as per a condition imposed while granting bail to subject himself to "interrogation" may not, in strict terms, constitute "custodial interrogation". Because, in such cases, there is no submission of the accused to "police custody" because he is free, well-protected and insulated by order for an anticipatory bail. "Bail is basically release from restraint, more particularly, release from the custody of the police", as the Supreme Court held in Gurbakh Singh Sibbia's case. Hence, interrogation effected by police while the accused is on anticipatory bail cannot be termed as "custodial interrogation", especially since there is no cancellation of bail, before the accused is so interrogated,in accordance with or compliance of the condition imposed while granting bail. 34. It is true that sub-section (2) of section 438 of the code lays down that a condition may be imposed that the accused shall make himself available for