Criminal Misc. No. M-7413 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-7413 of 2009 (O&M) Date of Decision:18.03.2009 Sushil Kumar Gupta .....Petitioner Vs. U.T., Chandigarh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Bipan Ghai, Senior Advocate with Mr. Deepak Garg, Advocate for the petitioner. Mr. Sukant Gupta, Advocate for U.T., Chandigarh. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Sushil Kumar Gupta under Section 438 of Cr.P.C seeking anticipatory bail in case FIR No.1 dated 1.1.2009 registered under Sections 409 and 420 IPC at Police Station Vigilance, U.T., Chandigarh. The facts in brief are that the petitioner being Inspector Food and Supplies is posted and functioning as In-charge (PR) Provincial Reserve Godown Industrial Area Phase-I, Chandigarh since May, 2006 till date. He pilfered 21 bags along with grains contained in these bags. Further during the period from May, 2006 to August, 2007, he pilfered 401 bags of BPL rice causing loss of 200-50 quintals, AY rice 125 bags, 62.50 quintals. Similarly he pilfered NPAG wheat to the tune of 135 bags. Thus the total loss for one year works out to Rs.4.35 lacs approximately excluding cost of gunny bags, incidental charges pilfered by him. He has Criminal Misc. No. M-7413 of 2009 (O&M) -2- caused loss to the government exchequer to the tune of Rs.2,04,924/- as per government approved rate and as per market value Rs.3,91,1770/- approximately. He misappropriated the essential commodities, i.e., BPL Rice, AAY Rice, BPL Wheat & NPG Wheat meant for poor people for his personal gains. During inquiry, it has been revealed that prima-facie the offence under the afore-referred Sections are made out against him. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. Bipan Ghai, Senior Advocate has strenuously urged that as per procedure, no complaint from any depot holder or department had ever been made that the petitioner has not supplied them the quantity of rice and wheat as mentioned in their terms and conditions. Thus, prima-facie no case is made out against the petitioner. To tide over these submissions, Mr. Sukant Gupta, Advocate appearing on behalf of U.T., Chandigarh pressed into service that in the inquiry proceedings, it has surged to the surface that the petitioner committed the offence of criminal misappropriation at a large scale and his custody is required for interrogation and that being so, the extra-ordinary jurisdiction vested in this Court to exercise the powers under Section 438 of Cr.P.C should not be exercised in favour of the petitioner. I have given a deep and thoughtful consideration to the rival contentions. Arguendo, Mr. Sukant Gupta, Advocate also showed the photostat copy of order dated 25.10.2007 which revealed that the petitioner has been placed under suspension. He has also pointed out that some other FIRs have also been registered against the petitioner. The modus operandi Criminal Misc. No. M-7413 of 2009 (O&M) -3- which was being adopted by the petitioner in pilfering the essential commodities which were meant for poor persons can be wrenched out or elicited only during custodial interrogation. The custodial interrogation of the petitioner is required to elicit from the petitioner as to since when he is indulging into the alleged activity. Section 438 of Cr.P.C confers extra-ordinary powers upon a High Court and a Court of Session to direct that in the event of his arrest, an accused shall be released on bail. This power has to be exercised in exceptional circumstances. In re: State Represented By the C.B.I v. Anil Sharma, 1997(4) Recent Criminal Reports (Criminal) 268 (SC), it has been held as under:- “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 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 Criminal Misc. No. M-7413 of 2009 (O&M) -4- 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.” The provisions of Section 438 ibid cannot be invoked, where custodial interrogation is necessary or may hamper proper investigation. A Court considering an application under Section 438 ibid must strike a balance between the rights of an accused and the duty and obligation conferred upon an investigating agency. Considering the facts of the present case, I do not deem it a fit case to admit anticipatory bail to the petitioner. Consequently, this petition is dismissed. March 18, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No