While upholding the legal rights of an accused person even during custodial interrogation, the Himachal Pradesh High Court has in a most learned, laudable, landmark and latest judgment titled Rohit Chauhan Vs State of Himachal Pradesh in Cr. M.P.(M) No. 2527 of 2022 that was reserved on January 4, 2023 and then finally pronounced on January 7, 2023 minced just no words to say that custodial interrogation cannot be used to extract confession.

It must be noted that these observations were made by Hon’ble Mr Justice Satyen Vaidya while hearing a plea in terms of which the petitioner was praying for a pre-arrest bail in an FIR for offences under Section 408 and Section 34 of IPC. It definitely merits no reiteration that all the courts must follow such most commendable judgments because custodial interrogations can’t be used to extract confession as laid down so very brilliantly in this case! While allowing the petition, the Court ordered that the petitioner be released on bail in case of his arrest.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of the Himachal Pradesh High Court comprising of Hon’ble Mr Justice Satyen Vaidya sets the ball in motion by first and foremost putting forth in para 1 that:
By way of instant petition, a prayer has been made for grant of pre-arrest bail to petitioner in case FIR No. 94 of 2022, dated 19.11.2022, registered at Police Station, Kotkhai, District Shimla, H.P. under Sections 408 and 34 of IPC.

As we see, the Bench then points out in para 2 that:
The case has been registered on the basis of a complaint received by the police from Proprietor Stan H.P. Enterprises Gumma, which is a retail sale outlet for petroleum products, alleging inter alia that his four employees including the petitioner have misappropriated an amount to the tune of Rs.28,57,022/-. He further alleged that all the accused had absconded.

To put things in perspective, the Bench then envisages in para 3 that:
During investigation, the police is stated to have taken into possession the records maintained at Stan H.P. Enterprises. The investigation also discovered that the petitioner is maintaining five different bank accounts in his name and between February, 2022 to November, 2022, a total sum of Rs.17,57,014/- was deposited in his account with the Punjab National Bank.

Out of such amount, a sum of Rs.3,26,372/- is stated to have been transferred to the account of another co-accused and Rs.2,45,645/- in the account of the complainant. The balance of the amount of Rs.11,84,997/- is stated to be withdrawn by the petitioner, from time to time and some part of it is stated to be transferred through UPI to other persons.

Simply put, the Bench then lays bare in para 6 that:
The case was registered on 19.11.2022. Petitioner was admitted to interim bail on 23.11.2022. More than a month has elapsed thereafter. Petitioner has joined the investigation as and when required. The Investigating Agency already had sufficient time at its disposal to complete the investigation atleast substantially especially keeping in view the facts of the case.

As it turned out, the Bench then discloses in para 7 that:
It is alleged that petitioner instead of crediting the amount received from retail sale in the account of Petrol Station, had been directly crediting to his account. The allegations against petitioner are subject to proof. Mere fact that huge transaction has been found in the bank account of petitioner does not necessarily lead to the conclusion of his guilt. As per the investigation report, a sum of Rs.2,45,645/- stands transferred from the account of the petitioner to the account of Stan H.P. Enterprises.

From this fact, it can be inferred, atleast prima-facie, that the bank account of Stan H.P. Enterprises was receiving payments from the account of petitioner. How and why there was no reconciliation of the account of the Petrol Station, has not been explained. Had the petitioner intended to misappropriate the amount by depositing the same to his account, he would not have remitted any amount to the account of the Petrol Station.

Needless to say, the Bench then clarifies in para 8 stating that:
The observations as above, have been made only to prima facie assess the seriousness and gravity of allegations against petitioner.

Be it noted, the Bench points out in para 9 that:
The respondent has not been able to justify the reasons for seeking custodial interrogation of petitioner. It is submitted that the petitioner is not disclosing the names and identity of persons in whose account the money has been transferred from his account. The grounds so raised on behalf of the respondents does not appear to be justified for the reason that the bank transactions can be ascertained by the police from documentary evidence. As regards the allegation of money withdrawn by the petitioner from his account and the non-disclosure of identity of persons to whom it has been disbursed, those facts may not be so relevant for proving all the allegations levelled against petitioner. The investigation in a criminal case cannot be used as a recovery proceeding.

While citing a recent and relevant case law, the Bench hastens to add in para 10 stating that:
The importance of personal liberty as a constitutional mandate has been underlined by the Hon’ble Supreme Court in Siddharth vs. State of Uttar Pradesh and another (2022) 1 SCC 676, as under:

10. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person.

If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.

Most significantly, the Bench then minces no words to hold in para 12 what constitutes the cornerstone of this notable judgment stating explicitly, elegantly and effectively that:
Keeping in view the facts of the case and also aforesaid exposition, I am of the considered view that no case for custodial interrogation of petitioner is made out. The tool of custodial interrogation cannot be used to extract confession. Such interrogation is permissible where the Investigating Agency is without any means to extract the facts. As noticed above, in the instant case the bank transactions can easily be ascertained through documentary evidence.

It is worth noting that the Bench then reveals in para 13 that:
The petitioner is permanent resident of Village Gumma, Post Office, Gumma, Tehsil Kotkhai, District Shimla, H.P. and there is no apprehension of his fleeing from the course of justice. It is also not alleged against petitioner that he potentially can tamper with the prosecution evidence. The State has also not come up with a plea that the arrest of other co-accused is not possible without interrogating the petitioner in custody.

Most appropriately, the Bench then directs in para 14 that:
Keeping in view the facts of the case, the petition is allowed and the petitioner is ordered to be released on bail, in case of his arrest, in FIR No. No. 94 of 2022, dated 19.11.2022, registered at Police Station, Kotkhai, District Shimla, H.P. under Sections 408 and 34 of IPC, on his furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of Investigation Officer.

This order is, however, subject to following conditions:

1. That the petitioner shall make himself available for the purpose of investigation, an and when required.
2. That the petitioner shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever.
3. That the petitioner shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
4. That the petitioner shall not leave India without prior permission of this Court till completion of investigation and thereafter of the trial court.
    

Finally, the Bench concludes by holding in para 15 that:
Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove. Petition stands disposed of.

All told, we thus see that the Himachal Pradesh High Court has made it quite abundantly clear that the custodial interrogation definitely can’t be used to extract confession. It thus definitely merits no reiteration of any kind that all the police officers and judicial officers must always bear this in mind while dealing with such cases and act accordingly as directed. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh