Santosh vs The State Of Maharashtra

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 Signature Not Verified Digitally signed by JAYANT KUMAR ARORA also of the same view, although the same court had initially Date: 2017.10.13 11:27:53 IST Reason:

granted interim protection. Thus aggrieved, the appellant is

1 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

2 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

3 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

Karnataka1, 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

4 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.

5

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)

6