2014 Supreme(Ori) 393

IN THE HIGH COURT OF ORISSA, CUTTACK.
S.K. SAHOO, J.
Binod Bihari Dash and others - Petitioners
Versus
State of Odisha - Opp. Party
BLAPL NO. 18130 OF 2014
Decided on: 29.11.2014

Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec.438 - Case registered under Sec.13(2) r/w. Sec.13(1)(d) of P.C. Act, 1988, and Secs.409, 465, 467, 471 r/w. Sec.120-B, I.P.C. - Anticipatory bail - It cannot be prima facie said that the petitioner No. 3 has any role in the alleged unfair means adopted by the Selection Committee Members in the recruitment process to facilitate some favoured ineligible candidates to get scope for appointment - Petitioner No.3 has made out an exceptional case in her favour for grant of anticipatory bail - Possibility of the petitioner No.3 fleeing away from the justice is remote and there is also no criminal antecedent against the petitioner No.3 - Materials so far collected by the Vigilance Authority during course of investigation do not attribute any specific role to the petitioner No.3 in the alleged commission of the offences - Held, since the petitioner No.3 is a lady and she is Deputy Collector serving in the Collectorate and prima facie no illegality appears to have been committed by her in the entire recruitment process, keeping in view the proviso to Sec.437(1), Cr.P.C., Court inclined to release petitioner No.3 on anticipatory bail.

        2. PENAL CODE, 1860 - Sec.120-A - Meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is the sine quo non of criminal conspiracy - Offence can be proved largely from the inferences drawn from the acts or illegal omission committed by the conspirators in pursuance of a common design in as much as the conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators.

        The entire agreement is to be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve. The essence of criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. Encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment

        3. WORDS AND PHRASES - ’Custody’ - It means formal arrest or the deprivation of freedom to an extent associated with formal arrest.

        4. WORDS AND PHRASES - ’Interrogation’ - It means explicit questioning or actions that are reasonably likely to elicite an incriminating response.

        5. WORDS AND PHRASES - ’Custodial Interrogation’ - Questioning initiated by Law Enforcement Officers after a person is taken into custody or otherwise deprived of his or her freedom in any significant way is called custodial interrogation.

        6. CUSTODIAL INTERROGATION - What it means - Duty of Court - It cannot be stated that in a particular type of cases or for a particular type of accused, the custodial interrogation is mandatory - It would all depend upon the facts and circumstances of each case - No strait jacket formula could be laid down - Details stated.

        The Court has to strike a balance between individual’s right to personal freedom and the investigational rights of the police. On one hand, the Court has to prevent harassment, humilition and unjustified detention of an accused, on the other hand it is to see that a free, fair and full investigation is not hampered in any manner. When an application for anticipatory bail of an accused is objected to by the State on the ground of necessity of custodial interrogation, the Court can scan the materials available on record and ask the State to satisfy as to in what way the custodial interrogation would benefit the prosecution. The satisfaction of the Court would depend upon several facts viz., the nature of offence, the stage at which the investigation is pending, the materials which could not be traced out by the Investigating Agency due to absence of custodial interrogation and the benefit which the prosecution would get on account of custodial interrogation of the accused. It cannot be stated that in a particular type of cases or for a particular type of accused, the custodial interrogation is mandatory. It would all depend upon the facts and circumstances of each case. No strait jacket formula could be laid down. When the accused makes out a case for anticipatory bail, it is not to be defeated by mere asking for custodial interrogation by the prosecution without satisfying the necessity for the same. Sometimes the custodial interrogation of suspects would give clue regarding criminal conspiracy and identity of the conspirators and it may lead to confession of guilt and recovery of the incriminating materials. Sometimes at the crucial stage of investigation, the custodial interrogation would be a boon to the Investigating Officer. The person in custody likely to be interrogated has a right to remain silent. On some questions, he may answer and on some questions, he may remain silent or refuse to answer. Nobody can be compelled to answer to a particular question. No third-degree method is to be adopted for elicitating any answer. It is illegal to employ coercive measures to compel a person to answer.