Custodial Interrogation Not Mandatory

The Patiala House Courts while dismissing the application filed by the Enforcement Directorate (ED) for the Anticipatory Bail cancellation of the non-applicant held that custodial interrogation is not mandatory and it can be done via video-conferencing.

The bench of ASJ Dheeraj Mor has held that no explanation has been forthcoming from the complainant as to why physical presence of the non-applicant is imperative for his interrogation and conclusion of investigation. In the anticipatory bail order, the court has held that his custodial interrogation is not required. Therefore, it is not clear why the complainant is insisting upon his physical appearance for his interrogation.

Background

The department/ED has moved the application for cancellation of anticipatory bail of non-applicant Vaibhav Dipak Shah, who was admitted to anticipatory bail subject to certain conditions.

In compliance of conditions, the non-applicant deposited Rs.7.10 Crores on 23.11.2022. However, he failed to return to India on 28.11.2022. He moved an application for seeking extension of time to return to India on the medical grounds. During pendency of the application of the non-applicant, the complainant filed the present application for seeking cancellation of his anticipatory bail on the ground of violation of the condition of failure to return to India, improper application of Section 45 of Prevention of Money Laundering Act, 2002 (PMLA) and attempt of non-applicant to influence the witnesses or process.

The non-applicant withdrew his application for being infructuous. Vide order, all the grounds for seeking cancellation of anticipatory bail of the non-applicant except for the ground of failure to return to India were rejected with the detailed reasoning.

While discussing the aspects related to the questions, the Patiala House Court, New Delhi concluded that failure on the part of the non-applicant to return to India was due to health reasons and his subsequent attempts to return to India failed due to travel ban imposed upon him which cannot be considered to be deliberate breach of condition imposed by the court.

Thus, it concluded that the non-appearance of the non-applicant in terms of the order cannot be considered to be deliberate.

Arguments

The ED contended that the non-applicant did not make any effort to return to India pursuant to the conditions laid down in his anticipatory bail order by which he was required to return till end of November, 2022. Initially, he avoided returning to India on the false pretext of his medical grounds and later, he collusively procured a travel ban to circumvent the said condition. Several summons/notices were issued to him for joining investigation and providing requisite documents and information/financial transactions made by him with CFO of Sagar Diamonds Ltd.

The ED contended that it is not a coincidence but a malicious attempt of the non-applicant to frustrate the rights of the investigating agency to comprehensively conclude its investigation qua him.

The non-applicant contended that till his travel ban is revoked, he is ready to join the investigation through video conferencing. He further assured that he would come to India as and when the travel ban is revoked. He has already tendered all the documents to the IO through e-mail which were sought by him. He has responded to each and every notice of ED through e-mail and he is fully co-operating in the investigation of this case.

The non applicant contended that he cannot be expected or compelled to do the things which are impossible. As it is impossible for him to travel to India due to travel ban, his failure to comply with the condition cannot be construed to be a deliberate defiance on his part.

Conclusion – Custodial Interrogation

The Court held that generally, bail is not cancelled unless the court identifies compelling and robust reasons against the accused. The cancellation of his significant judicial decision that profoundly impacts an individual’s freedom as enshrined in Article 21 of the Constitution of India. Therefore, the court has to exercise abundant and considerable caution when retracting bail. Thus, the court must strike a delicate balance between safeguarding individual liberty and maintaining the integrity of the judicial process.

The court held that in the era of advancement of information technology, he can be easily interrogated by using scientific tools like videoconferencing. When the trial can be conducted through video conference, this court sees no reason that the investigation, in which custodial interrogation has been held to be not required, cannot be conducted by using the said scientific means.

The court held that when it is found that non-traveling of the non-applicant to India is on account of circumstances beyond his control, the IO ought to have used the scientific means for conclusion of investigation.