Gujarat High Court
Siyaram Gopichand Gupta And Ors. vs The State Of Gujarat on 3 October, 1989
Equivalent citations: 1990CRILJ2435, (1990)2GLR905
ORDER R.J. Shah, J.
1. The above Criminal Revision Applications are directed against the order dated 16-6-1989 passed by the Chief Judicial Magistrate, Junagadh below Ex. 3 in Prabas Patan Police Station Crime Register No. 100 of 1989.
2. The facts leading to the present applications are as under:--
A first information report was lodged on 8-10-1988 by one Gyanchandra Trikamdas Bhanudas against Chimanlal Bhaichandbhai Limbachiya; Badriparasad Shankerlal Maniar; Siyaram Gopichand Gupta, Rajendraprasad Gopichand Gupta, Bupendra Munnalal Shah and Dhanpal Babulal Shah of Krishna Trading Company. The aforesaid Chimanlal Bhaichandbhai Limbachiya has filed aforesaid Criminal Revision Application No. 219 of 1989; aforesaid Siyaram Gopichand Gupta, Rajendraprasad Gopichand Gupta and Bhupendra Munnalal Shah have filed aforesaid Criminal Revision Application No. 218 of 1989, aforesaid Badriprasad Shankerlal Maniar has filed aforesaid Criminal Revision Application No. 220 of 1989; and aforesaid Dhanpal Babulal Shah has filed the aforesaid Criminal Revision Application No. 282 of 1989. It was alleged in the F.I.R. that the complainant Gyanchandra was doing business in the name of Somnath C.S. Agency and was having agencies regarding Soda Ash and Cement. The office of the said complainant has been situated in Patan in G.I.D.C. estate since last about 1 1/2 years. He was getting goods i.e. Soda Ash from Tata Chemicals, Mithapur and cement from Kamdar Cement Factory. The mode of business was that the complainant was obtaining orders from different parties and was informing said Tata Chemicals, Mithapur and Kamdar Cement Factory and the company was directly supplying goods to the parties concerned while making out the bill in the name of the complainant as Agent. In turn, the complainant agency made out a bill in the name of the parties to whom the goods were supplied directly. The payment of the goods supplied was received by the complainant agency from the party concerned and according to the terms and conditions, the complainant make payment to one or the other aforesaid companies, which supplied the goods at the instance of the complainant.
3. According to the complainant, there was Krishna Trading Company, which was doing business near Sarkhej Sanand Railway Crossing. With the said Krishna Trading Company, the complainant had business transactions since four to five months regarding Soda Ash. According to the complainant, aforesaid Chimanlal Bhaichand Limbachiya, Badriprasad Shankarlal Maniar; Siyaram Gopichand Gupta; Rajendraprasad Gopichand Gupta, Bhupendra Munnalal Shah and Dhanpal Babulal Shah, who were managing the affairs of said Krishna Trading Company, were placing orders either by telephone or by post and as per the information given by the complainant to aforesaid Tata Chemicals, Mithapur, goods were supplied to Krishna Trading Company and in the beginning, as per the terms, the payment was also received by draft and thus confidence of the complainant was secured by aforesaid six persons.
4. As stated in the aforesaid F.I.R. towards the end of August 1988, said Chimanlal Bhaichand Limbhachiya had a telephone talk with the complainant that in the month of September 1988, he was in need of 1000 tons of Soda Ash and the payment thereof was to be made within 15 to 20 days. The complainant came to Ahmedabad in the beginning of September, 1988 and had contacted the office of Tata Chemicals, Mithapur at Ahmedabad. Accompanied by Shri K.S. Kelkar, Officer of the Tata Chemicals, at Ahmedabad, he had gone to the premises of Krishna Trading Company at Sarkhej and had contacted said Chimanlal Bhaichand Limbhachiya. Said Chimanlal had assured at that time that if his company was given goods weighing 1000 tons of Soda Ash on credit, the payment would be made within 15 days from the date of receipt of the said goods. The complainant, relying on the said assurance, decided to sell 500 tons of Soda Ash, over and above the regular supply of Soda Ash, which was continuing till then. In respect of regular supply of Soda Ash, the dues were of Rupees 9,05,264.04. In respect of the goods supplied in September 1988 to the tune of 500 tons, the dues were of Rs. 20,07,927.69 and so the total dues at that time came to Rs. 29,13,191.73/-. Towards the said dues up to 21-9-1988, only Rs. 7,29,655.44 had been received by draft on or about 27-9-88. When the complainant telephoned to Krishna Trading Company at Ahmedabad regarding the aforesaid dues, the owner of the godown by name Navinbhai had informed that persons, who were trading in the name of Krishna Trading Company, had vacated the said godown and had taken away all their belongings. The complainant, therefore, immediately rushed down to Ahmedabad and on making enquiries, he learnt that the persons, who were dealing in the name of Krishna Trading Company had cheated the complainant. The complainant had made further enquiries as stated in the said complaint and had found that the premises and godowns had been changed from time to time and the goods were transferred from one godown to the other, but the complainant was not able to meet any of the aforesaid persons, who were dealing in the name of Krishna Trading Company. During the period that the complainant was making the aforesaid enquires, he had put up in Hotel Paradise, Ahmedabad. At that time he had employed one customer Surendrabhai Patel and one Brocker by name Mohanlal to help him in the investigation. On 3-10-88, as stated in the said F.I.R. some stay was served at the aforesid Hotel address at the instance of aforesaid Bhupendra Munnalal, aforesaid Dhanpal Babulal Shah as the proprietor of Madhav Sales Corporation and Rajendraprasad Gopichand Gupta, proprietor of Vijay Trading Company, Ahmedabad. The aforesaid persons, according to the complainant, were managers of Krishna Trading Company and they had stated that the said Soda Ash belong to Krishna Oil Trading Company. It seems that the complainant had taken the matter in appeal before the Narol Court and had got the stay vacated on 10-10-1988, but during the said period, the aforesaid persons had removed the goods from one godown to other premises. It was in the aforesaid circumstances that the said F.I.R. was lodged against the aforesaid six persons.
5. It appears that thereafter during the course of investigation, an application for taking the aforesaid persons on remand pursuant to the said complaint came to be made on or about 17-1-1989 before the Chief Judicial Magistrate, Junagadh. That application came to be allowed as per the order dated 18-1-1989, granting remand of the accused up to 4.00 p.m. of 27-1-1989. The matter was pursued further at the instance of the accused by way of Criminal Revision Application Nos. 3, 4, 7 and 16 of 1989 and the learned Additional Sessions Judge, Junagadh was pleased to allow the aforesaid revision applications on 31-1-1989 on certain conditions while setting aside the order of remand passed by the Chief Judicial Magistrate, Junagadh. Since the said order of the learned Additional Sessions Judge was passed in Gujarati, the original terms were also in Gujarati. When translated, the said terms would read as under:--
(1) All the accused should appear before the Investigation Officer on 6-2-89 at 8.00 a.m. and should continuously remain present till 8.00 a.m. on 16-2-89 and co-operate in the investigation. The Investigating Officer will only permit the accused to attend to daily necessities and go to sleep at night at other place and inform them when to attend again and he will not keep accused in lock up or handcuff them;
(2) If the Investigating Officer wants panchnamas to be made under Section 27 of the Indian Evidence Act, then from the time the preliminary panchanamas are made till the final panchanamas are completed, he will have the authority to keep the accused in Police custody, but will release the accused after the final panchanamas are made and the previous bail given to the accused will continue;
(3) If on 16-2-89 the Investigating Officer feels that the accused need to be taken on remand, then he will inform the accused to remain present at 11.00 a.m. on 16-2-1989 in the court of the Chief Judicial Magistrate, Junagadh and the accused shall remain present accordingly and the Investigating Officer will be entitled to present a fresh application for remand in those circumstances and the learned Chief Judicial Magistrate will dispose of the same on merits.
6. It is claimed that pursuant to and in keeping with the said order, the aforesaid Ex. 3 was presented and after hearing the parties, the same came to be allowed granting remand for the period up to 27-6-89 in the case of each of the accused. Hence the present Criminal Revision Applications.
7. Rule in all the four applications. Mr. D.K. Trivedi has waived service of the rule and with the consent of parties, the rule has been heard.
8. It seems that pursuant to the said order passed by the learned Additional Sessions Judge, Junagadh, as stated above, the investigating agency has not been able to make much progress in the matter of investigation. It has been claimed in the said application for fresh remand (Ex. 3, Annexure C) filed by Mr. K.T. Chauhan, Police Inspector, C.I.D. Crime, Junagadh, amongst other things, as under:--
1. That there is material to show that certain bills have been made subsequently. That several bills and copies do not tally and there is prima facie reason to believe that acused Chimanlal has made out false bills. The connection betwen the several bills needs to be probed further.
2. In the Sales Register of Krishna Trading Company, nine truck load of Soda Ash has been shown to have been sold to accused Dhanpal Shah as owner of Madhav Sales Corporation, but during enquiry it is noticed that accused Chimanlal is claiming that these nine truck load of Soda Ash has been given to accused Bhupendra as the owner of Mehta Traders and that no bill has been made out regarding the same and the same has been sold without bill. Further, one firm known as Badriprasad & Sons is noticed to be the firm of the son of accused Bhadriprasad. In his name, 15 truck loads of Soda Ash, without bill, has been noted. During enquiry, it is noticed that accused Chimanlal states that there 15 truckloads have been given to Mehta Traders. Thus, during enquiry it is noticed that 24 truckloads have been given to Mehta traders without bill. The aforesaid facts do not bring out any clear position and a suspicion is created that accused Chimanlal has sold large quantities of Soda Ash without bill and without keeping any account.
3. Accused Chimanlal has not stated during enquiry as to how much amount has been given in what manner, when, and has not submitted any accounts. It has not even been stated as to on what Banks the drafts have been received. It has also been noticed during the enquiry made up to the time of making the fresh application for remand that a Bank account, which was in Madhupura Market Cooperative Society, Ahmedabad, has been closed on 22-9-1988 and it has not been stated as to where or in which banks such large amounts in respect of Soda Ash have been put by accused Chimanlal. Accused Chimanlal, according to the Investigating Officer, has not co-operated in the investigation.
4. Accused Siyaram Gopichand Gupta, who is the owner of Kaniya Corporation, has dealing with said Krishna Trading Company. He has purchased six truckloads of Soda Ash under a bill issued by Krishna Trading Company. Seeing the bill produced by Siyaram, it does not tally with the office copy kept by Krishna Trading Company. It sees, therefore, prima facie that bills 116A, 117A and 123A have been brought about subsequently. During investigation, no clarification is offered by accused Siyaram Gupta.
5. Accused Dhanpal Shah, as stated in the fresh application for remand, is the proprietor of Madhav Sales Corporation. He states during investigation that all the records, books and accounts of Madhav Sales Corporation are with accused Siyaram, whereas accused Siyaram states that he is not in possession of any record of Madhav Sales Corporation. The say of accused Dhanpal is that said Madhav Sales Corporation has been brought about by accused Siyaram on his name and a godown has been taken on rent also. Thus, both the said accused are claiming that the record of Madhav Sales Corporation is not with either of them and so the said record is also required to be traced. It has also been noticed during enquiry that the bill has been made out in the name of Gita Industries, whereas during investigation no such concern has been found to exist. Furthermore, it has transpired during investigation that one Amratlal is the Mehtaji of accused Siyaram and there is reason to believe prima facie that the accused have with the help of their servants brought about false record and have disposed of nine truck loads of goods. No accounts in that connection has been traced so far.
6. Accused Siyaram has purchased five truckloads of Sod Ash in the name of Mehta Traders vide certain bill numbers, xerox copies of which have been produced during investigation. The said bills do not tally with the bills produced by Mehta Traders. There is, therefore, reason to believe that those bills have been subsequently made out and so further enquiry is required to be made in that connection also.
7. Rajendraprasad Gupta is the owner of Vijay Traders. Accused Rajendraprasad and Bhupendra are concerned with some transactions with Krishna Trading Company. The investigation so far made shows that both the accused had transported soda ash of Krishna Trading Company from Sarkhej to Aslali. There is another godown at Caliconagar where the goods have been kept in the first instance and from both these godowns, the goods have been removed to several godowns in Ahmedabad City. Further investigation is, therefore, required to be made regarding the trucks as well as godowns and in connection with the labourers who had helped in transporting the said goods from one godown to another. During investigation, it has also transpired that Krishna Trading Company has given false addresses of several firms and have removed the goods to Kheda and Ahmedabad. It is also necessary, therefore, to trace out those goods and gather information regarding the persons who have helped in such clandestine transactions.
8. Accused Bhupendra Munnalal is the owner of Mehta Traders. He is connected with accused Chimanlal since the beginning and is managing the affairs of Krishna Treading Company along with Chimanlal. He was attending to the delivery of goods and phone callls, etc. It appears that he is the servant of accused Rajendraprasad Gupta and said Rajendraprasad has brought about the firm in the name of said Bhupendra. In the sale register of Krishna Trading Company, it is stated that said Bhupendra had taken away 16 truckloads of soda ash whereas said Bhupendra has produced entries from the stock register of Krishna Trading Company wherein it is showed that he has taken 40 truckloads of soda ash. The facts in the fresh application for remand go to show that said Bhupendra had taken a leading part in the transport of soda ash from one place to another.
9. Accused Dhanpal Shah, who is the owner of Madhav Sales Corporation, is the servant of accused Siyaram and it was accused Siyaram, who has got Madhav Sales Corporation to be opened in the name of Dhanpal Shah. There is some record to show that nine truckloads of soda ash have been purchased from Krishna Trading Company and the same have been sold to Gita Industries, but it has not been disclosed during investigation as to the place where Gita Industries is functioning and the several particulars regarding Gita Industries.
10. The firm of Badriprasad and Sons is running in the name of the son of accused Badriprasad. The record of Krishna Trading Company shows that without bill 15 truck-loads of soda ash have been sold to this firm whereas Bardriprasad says that he has never purchased those goods. The investigation so far made shows that accused Badriprasad and Chimanlal know each other since very long and it was Badriprasad, who had helped in taking a godown on rent when the business of Krishna Trading Company had started.
9. It has been alleged that during the period of remand, it is noticed that all the accused are closely connected and an impression is gathered that they are taking a stand in unison. It has also been stated that the accused are under legal advice from the beginning and are doing the business in a pre-planned manner. It seems to the investigating officer, who has made the remand application, that as soon as the accused realised that they have been able to corner a huge quantity of goods, they have kept themselves busy in disposing of the said huge quantity of goods in a clandestine manner going to the extent of making out false bills. According to the Investigating Officer, there is prima facie reason to believe that the persons who are stated to be doing business in different trade names are in fact their servants. It is also necessary to trace out the huge quantity of goods which have been disposed of in a clandestine manner. It is also claimed in the fresh remand application that the accused have not cooperated during investigation though the learned Additional Sessions Judge had clearly ordered them to do so and so it has become necessary to present the fresh application for remand requesting the court to grant remand for 15 days.
10. The facts alleged in the F.I.R. If true, at once impress that the matter in hand is a very serious matter. Persons, who are connected with the transactions in question, have not acted in independent transactions and have also not acted in stray transactions. There is prima facie evidence to show that all the accused know each other and are connected with each other in business transactions since a long time. There is also prima facie evidence to show that some of the accused are merely employees of other accused and are acting as per the wishes of the persons, who are their employers, even though held out to be owners of proprietory concerns. The facts revealed in the FIR go to show prima facie that the entire transactions regarding soda ash have been brought about by scheming minds with a view ultimately to defraud. The modus operandi seems to be prima facie, as usual, the confidence has to be gained of the person with whom such transactions are to be carried out. Prima facie, it would seem that such confidence was inspired by the accused so that when payments were received in the regular course of business regarding the small transactions in the beginning, the complainant was induced to do more and more business with the accused and when goods worth 500 tons of soda ash were delivered, it was realised by the complainant for the first time that something is amiss. The transfer of the goods from one godown to other during a short span of time prima facie does not seem to be a result of normal business transaction. Discrepancies as noticed in the bills produced of several parties also prima facie point in the direction that under the show of normal transactions of business, something else was intended. If the facts stated in the FIR are ultimately established, then the complainant has been defrauded in a systematic manner of a huge sum, amounting to Rs. 2 lakhs and odd. It has not appeared so far that all the transactions regarding soda ash with different concerns have been cash transactions. It has not been noticed so far as to how payments in respect of the goods supplied have been received. The results of investigation so far have not been able to show as to where such huge quantities of goods have vanished. The results of the investigation so far also do not show as to in whose pockets the realisations of those goods have gone and where the same have been kept.
11. Under the conditional order passed by the learned Additional Sessions Judge, remand of a kind was granted. Under the said remand order passed by the learned Additional Sessions Judge the accused were to continuously remain present in between 8.00 a.m. on 6-2-89 and 8.00 a.m. on 16-2-89. The learned Additional Sessions Judge, however, had thought it proper to order that the accused would be able to go to sleep at night at other place and would attend on the next day at a time when their presence was required on the next day by the investigating agency. While imposing such a condition, it seems to have been overlooked that in a matter such as this, the investigation would not be over in a few days, particularly because the transactions have a prima facie look that it has been a well-planned exercise and scheming minds have attended to all the details right from the beginning with a view to see that ultimately the persons concerned could walk out with huge sums of money in their coffers on the one hand and on the other without being caught in the net of law. It is difficult to appreciate as to what earthly purpose could have been served by ordering that the accused could sleep at other places at night and attend again on the next day when required. It ought to have been appreciated that whatever facts might have been disclosed during investigation pursuant to the order in question by all or any of the accused during the day, could have been nullified by all or any of the accused during the intervening period between night and day when they would be out to sleep elsewhere by taking measures with a view to cover up the tracks where they might have felt that the investigation was proceeding in a particular unsavoury direction. The accused are not poor illiterate persons without any means. They obviously have hands outside, who can carry out their instructions effectively. Such a condition, it would seem, has defeated its own purpose and has hampered the course of investigation.
12. Under the said order of remand on terms, it has been specifically provided that the accused would cooperate in the investigation. From what has been disclosed in the record and argued before me, it appears that the accused have not cooperated at all during the investigation. On the contrary, an impression is created that the accused have deliberately attempted to mislead and linger the investigation knowing full well that under the said order of remand, they could be kept on remand under certain conditions, which perhaps were palatable to them, up to 16-2-89, beyond which date they could not be kept under remand and it would be the investigating agency which would be required to make out a case for fresh remand, which the court would only grant after hearing them. It also seems that the accused were intending to while away the time without appearing to look that they are not cooperating in the investigation in the hope that fresh remand would not be granted against them and if at all it would be granted, it could not be on any stricter terms than what were imposed on them in the said order passed by the learned Additional Sessions Judge. It is pertinent to note at this stage that there is a good deal of truth in the claim made by the Investigating Officer that since the accused were under legal advice from the beginning, they were behaving in the manner in which it was clear that they would only make a show of cooperation during remand without really intending to cooperate.
13. Going through the contents of the application, Ex. 3, for fresh remand, it would seem that not only a good case, but also a strong case has been made out for fresh remand. The aforesaid order passed by the learned Additional Sessions Judge has defeated its own purpose, as stated herein-above, and the remand granted up to 16-2-89 under the said order has not helped the investigation at all and for all practical purposes, it has been an order of remand only in appearance. In such a serious matter as this, two aspects have to be considered, namely, that the accused should not be harassed during the period of remand in any manner, and at the same time, it has to be appreciated that the provisions regarding remand are not without importance. It has to be appreciated that whatever information is gathered during the period of remand should not be allowed to be counteracted at the instance of the accused, so that in a case such as this, on every night that they are out, they could take effective steps to cover up the shady transactions with a view to ultimately walk out clean from the clutches of law.
14. Mr. Shethna, learned Advocate for the applicants, has submitted that by using third degree measures after obtaining an order of remand, the investigating agency wants to illegally extract information from the accused so as to bring the guilt home to the accused. Now, if investigation degenerates into use of third degree measures, then it reflects bankruptcy of resourcefulness and skill on the part of the investigating agency.
Not only that, but by un-use, the intellectual faculties of the investigating officers get rusted. Investigation on remand can be looked upon as an art. In the case of Smt. Nandini Satpathy v. P. L. Dani, AIR 1978 SC 1025 : (1978 Cri LJ 968), it has been observed that valuable source of information about present Police practises may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics. These ((1966) 384 US 436, 449) are used by law enforcement agencies themselves as guides. It should be noted that these texts professedly present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By considering these texts and other data, it is possible to describe procedure observed and noted around the country.
15. In the same judgment, it has also been observed as under:--
"The officers are told by the manuals that the 'principal psychological factor contributing to a successful interrogation is privacy being alone with the person under interrogation' (Inbau & Reid, Criminal Interrogation and Confessions (1962) at p. 1). The efficacy of this tactic has been explained as follows:
'If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more ((1966) 384 US 436, 450) reluctant to tell of his indiscretions or criminal behaviour within the walls of his home. Moreover, his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law' (O'Hara, Fundamentals of Criminal Investigation (1956) at 99).
16. To highlight the isolation and unfamiliar surroundings, the manuals instruct the Police to display an air of confidence in the suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments towards the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unsatisfied desire for women. The officers are instructed to minimise the moral seriousness of the offence (Inbau & Reid, supra at 34-43, 87) to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already that he is guilty. Explanations to the contrary are dismissed and discouraged.
17. The texts thus stress that the major qualities an interrogator should possess are patience and perserverance. One writer ((1966) 384 US 436, 451) describes the efficacy of these characteristics in this manner:
'In the preceding paragraphs emphasis has been placed on kindness and strategems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress and coercion. The method should be used only when the guilt of the subject appears highly probable, (O'Hara, supra at 112)'.
18. The manuals suggest that the subject be offered legal execuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say :--
'Joe, you probably did not go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that is why you carried a gun for your own protection. You know him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that ((1966) 384 US 436, 452) he was about to pull a gun on you, and that is when you had to act to save your own life. That is about it, isn't it, Joe?' (Inabu & Reid, Supra, at 40).
19. Having then obtained the admission of shooting, the interrogator is advised to refer to circumstantial evidence which negates the self-defence explanation. This should enable him to secure the entire story. One text notes that "Even if he fails to do so, the inconsistency between the subject's original denial of the shooting and his present admission of at least doing the shooting will serve to deprive him of a self-defence 'out' at the time of trial".
20. When the techniques described above prove unavailing, the texts recommend they be alternated with a show of some hostility one ploy often used has been termed the 'friendly-unfriendly' or the 'Mutt and Jeff act:
A thorough and intimate sketch is made of the versatility of the arts of torture developed officially in American country calculated to break, by physical or psychological crafts, the morale of the suspect and make him cough up confessional answers. Police shops and syrups of many types are prescribed to wheedle unwitting words of guilt from tough or gentle subjects. The end product is involuntary incrimination, subtly secured, not crudely traditional. As again observed in the aforesaid Supreme Court decision :--
"The Miranda court quoted from the conclusion of the Wickersham Commission Report made nearly half a century ago and continued -- words which ring a bell in Indian bosoms and so we think it relevant to our consideration and read it:--
"To the contention that the third degree is! necessary to get the facts the reporters aptly reply in the language of the present Lord Chancellor of England (Lord Sankey) : It is not admissible to do a great right by doing a little wrong......It is not sufficient to do justice by obtaining a proper result by irregular or improper means'. Not only does the use of the third degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and prosecutors less zealous in the search for objective evidence. As the New York prosecutor quoted in the report said, 'it is a short cut and makes the police lazy and unenterprising'. Or, as another official quoted remarked : 'If you use your fists, you are not so likely to use your wits. ((1966) 384 US 436, 448)'. We agree with the conclusion expressed in the report that 'The third degree brutalises the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public".
Thus, it is absolutely clear that third degree measures have not met with the approval of the highest court, namely, Supreme Court and since that is so, we cannot accept the submission of Mr. Shethna that if the accused are permitted to be taken on remand, then third degree measures will be adopted and confessions and admissions would be extracted from the applicants by the investigating agency. In the light of what has been stated hereinabove, this court feels confident that the investigating agency would not reveal in the present case at least, that there is bankruptcy of resourcefulness and skill on the part of the investigating agency. It is expected from what has been observed hereinabove that the investigating agency will desist from deploying any third degree measures in the present case, if ultimately the applicants are permitted to be taken on remand as requested.
21. It has next been urged by Mr. Shethna that there was already an order in favour of the investigating agency to take the accused into custody for the purpose of discovery of muddamal articles and that the investigating Officer has failed to take action accordingly, even though there were opportunities available to him to have recourse to that action. The submission at this stage does not seem to be well-founded for the simple reason that not only the accused have not cooperated so far in the matter of investigation, but also have resorted to measures with a view to mislead the investigation. As stated above, the aforesaid remand order passed by the learned Additional Sessions Judge has not helped the investigation at all and if I may say so, has unwittingly hampered the course of investigation.
22. It was next urged by Mr. Shethna that remand at this late stage cannot be asked for even for discovery of any muddamal articles when as many as almost nine months have passed in between. It cannot be gainsaid that time factor is likely to come in the way of investigation. At the same time, however, it has to be appreciated that it is always a difficult task to discover the truth when scheming minds are at work, almost at cross-purposes. To an extent, in such matters there is a battle of wits and to the extent that scheming minds are successful in their design, greater will be the time that would be required during investigation. If the facts alleged by the complainant are true, then present is a very serious matter where about Rs. 21 lakhs have been swindled out from the pockets of the complainant in a systematic fraud, which at this stage seems to be faultless both in design and execution. Moreover, it is also to be noted that the investigating agency had a very short time in matters such as this to deal with the accused after having been granted remand and that too under strict conditions. The aforesaid, therefore, cannot be a ground on which the application for fresh remand can be turned down.
23. An anxiety was also expressed by Mr. Shethna that the fresh remand order would only be utilised by the investigating agency to compel the accused to produce the documents which might ultimately incriminate the accused. It goes without saying that no such compulsion could be practised even when a person is on remand. It cannot be presumed that experienced investigating agencies would over-step their authority in their zeal to discover the truth from a person on remand. The contents of the fresh application for remand clearly show that there are many aspects to be investigated in order to reach at the truth of the affair in question. This aspect, therefore, cannot assist the present applicants.
24. It was also urged by Mr. Shethna that in order to trace out the persons who had links with the accused, the remand cannot be asked for. There cannot be any such absolute proposition to be followed during investigation. It also happens at times that during investigations, the investigating agency comes across material which tend to point in the direction that the transactions with the accused were honest business transactions. Investigation does not and cannot mean that by hook or crook material only against the accused has to be gethered. At the same time, investigation also means that where suspicion is aroused regarding the transactions in question, then it becomes the duty of the investigating agency to probe all avenues with a view to reach the truth. This submission of Mr. Shethna also, therefore, fails.
25. In support of his submissions, Mr. Shethna has invited my attention to several judicial pronouncements. He has referred to Emperor v. Basya (1903) 5 Bom LR 27. In this matter, nine persons were to be dealt with under Chapter VIII of the Criminal Procedure Code, 1898. Chapter VIII of the said Code related to security for keeping the peace and for good behaviour. It was in such a matter that it was rules that Section 167 of the Criminal Procedure Code, 1898 applies to investigations under Chapter XIV of the Code and gives no authority to a Magistrate to remand an accused person in custody in proceedings under Chapter VIII of the Code in order to enable the Police to trace other persons to be proceeded with under that Chapter. As will be clear from the facts appearing hereinbefore, the said decision can have no bearing on the present case.
26. Reference was also made by Mr. Shethna to the decision in the case of State of Gujarat v. Shyamlal Mohanlal AIR 1965 SC 1251 : (1965 (2) Cri LJ 256). In paragraph 31 of the judgment, it has been pointed out that Article 20(3) of the Constitution has been construed by the Supreme Court in Kalu Oghad's case AIR 1961 SC 1808 : (1961 (2) Cri LJ 856) to mean that an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge. It has further been pointed out that Section 94 of the Criminal Procedure Code permits the production of all documents, including the class of documents mentioned in the judgment and that if Section 94 is construed to include an accused persons, some unfortunate consequences would follow. The Supreme Court, therefore, concluded that Section 94 could not be construed to include and accused person as such construction was likely to lead to grave hardship for the accused and make investigation unfair to him. As already pointed out hereinabove, on page 26, no such compulsion can be practised even when a person is on remand.
27. Another decision relied upon by Mr. Shethna in support of his case is the one in the case of M. N. Shreedharan v. State of Kerala 1981 Cri LJ 119 (Ker). The facts in this case were in a short compass and were also not disputed. The revision petitioners, who were the alleged culprits in Crime No. 47 of 1979 registered under Sections. 302, 341 and 34 of the C.P.C. of Vellikulangara Police Station, obtained an order for anticipatory bail under Section 438 (2) of the Criminal Procedure Code from the High Court. However, subsequently, the accused surrendered before the court and obtained bails. Thereafter, the investigator filed M.P. No. 1778 of 1979 seeking custody of these persons. In the application filed by the Circle Inspector he stated :--
"I request that sanction may kindly be accorded for the interrogation of the accused and recovery of one torchlight and a thorthu mundu used by the accused for the commission of the offence, as there is information that the accused are keeping these M.Os. They may be directed to produce the M.Os. and made available for interrogation in the Crime Branch Office, Trichur between 10 a.m. and 5 p.m. for four days from 28-5-79 onwards."
In reply, the revision petitioners filed a counter-affidavit before the learned Magistrate, alleging that they have nothing to do with the alleged crime or with the torchlight and thorthu mundu referred to in the petition, that they did not know the whereabouts of these articles and that they had no information to give regarding the alleged offences. On these facts, it was concluded that in the face of such a categoric assertion on the part of the said persons of lack of the knowledge or information regarding existence or whereabouts of the material objects sought to be recovered from them, there was no purpose in directing police custody for the alleged purpose of recovery. It was further observed that having told the court in clear and unambiguous manner that they had no such knowledge about the material objects, it was unlikely that they would tell the police investigator about the whereabouts of these articles, except by adopting means of interrogation which were not approved of by law and that courts could not allow themselves to be used for the purpose of enabling an investigator to use means of interrogation not approved by law. As stated above, the facts in the present case are entirely different. Prima facie, present is a case of design and well throughout execution of the planned design. The swindled amount is to the tune of more than Rs. 21 lakhs. Huge quantity of goods have disappeared into the hands of several persons. Of necessity, at least some realisations of those huge quantities must also have gone into the coffers of several persons. In view of all the aforesaid, a clear case has been made out for further remand and a caution has already been given in the present judgment regarding the permissible limits that can be resorted to when persons are on remand. The Kerala case is thus distinguishable from the present one.
28. The next decision relied upon by Mr. Shethna is the one in the case of Ranchhoddes Khimji Ashere v. Tempton Jehangir(1961) 2 Guj LR 415 : (1961 (2) Cri LJ 338). In view of this decision, it is pointed out to the investigating authority in the present case that the constitutional guarantee under Article 20(3) of the Constitution is not confined to oral testimony, but also extends to any compulsory process for production of evidentiary documents which are reasonably likely to support the prosecution against the accused.
29. The short facts in the case of T. N. Jayadeesh Devidas v. State of Kerala 1980 Cr. LJ 906 (Ker) referred to by Mr. Shethna were that Crime No. 757 of 1978 was registered by the Police against the petitioner and Anr. person for offences punishable under Sections 419, 420 and 471 read with Section 34 of the I.P.C. The accusation against the accused was that they had forged certain documents and cheated the Andhra Bank to the tune of Rs. 500/-and took delivery of certain steel items meant for some other consignee. It was further alleged that the steel items were subsequently sold by the accused persons to some other dealers. The occurrence was alleged to have taken place on 28-9-78 and the crime was registered on 8-10-78. When the petitioner learnt about the registration of the crime, he surrendered before the Chief Judicial Magistrate, Ernakulam on 21-12-78 and moved for bail. He was released on bail on the same day. Subsequently, on the request made by the investigating officer, the Chief Judicial Magistrate directed the petitioner to appear before the Officer for interrogation in connection with the investigation of the case. Pursuant to the said direction, the petitioner appeared before the Officer on 3-1-79 and he was interrogated by the Head Constable attached to the Central Police Station. It was thereafter that the investigating Officer submitted a further report, requesting the court that the petitioner be remanded to custody of the police to enable him to effect certain recoveries on information to be furnished by the petitioner . The petitioner objected to this request. The Chief Judicial Magistrate, however, allowed the petition and passed an order, which was under attack in the above case before the Kerala High Court. In the first place, this authority is clearly distinguishable on facts from the present case. In the next place, in the present case huge stocks have changed hands and places Several times and so it will not be correct to say at this stage that recoveries are going to be effected on information to be furnished by the petitioners. It may also be that the petitioners are not aware of all the transactions that have taken place after receipt of the goods in question. The facts of the present case, it appears, are so complex that it cannot be foretold as to in which direction the investigation in the matter will further proceed. In the facts and circumstances of the case, I am satisfied that the Investigating Officer wants to probe deep into the matter with a view to get at the truth even though the applicants are deliberately trying to mislead him. In the present case, as stated hereinabove, the accused have not kept their mouths shut, but have opened their mouth to mislead the investigation. Such was not the case before Kerala High Court.
30. As pointed out in the aforesaid case of Nandini Satpathi (supra), there are two important considerations which must be placed at the forefront before sizing up the importance and impregnability of the anti-self-incrimination guarantee, the first thing being that we cannot afford to write off the fear of police torture leading to forced self-incrimination as a thing of the past. Recent Indian history does not permit it, contemporary world history does not condone it. In the next place, we must never forget that crimes in India and internationally are growing and criminals are outwitting the detectives. What holds good in the cities of the United States is infecting other countries, including our own. The problem, therefore, has been and is, as has been put sharply (as quoted in the said judgment) by Lewis Mayers, as under:--
"To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft....."
It has, therefore, always to be remembered that the first obligation of the criminal justice system is to secure justice by seeking and substantiating truth through proof. Of course, the means must be as good as the ends and the dignity of the individual and the freedom of the human person cannot be sacrificed by resort to improper means, however, worthy the ends.
31. In the result, it is not possible to accept the contentions urged on behalf of the applicants against the order in question. All the above applications, therefore, fail. The order in question passed by the learned Chief Judicial Magistrate, Junagadh is confirmed with the modification that the accused will now be taken on remand by the Investigating Officer for a period up to 16-10-89, beginning from 4-10-89. Rule in all the applications is discharged accordingly.
32. At this stage, on behalf of the applicants in all the matters, a request has been made that since they want to pursue the matter before the proper forum against the present order, two months' time may be granted to the applicants. The aforesaid request for grant of time has been stoutly opposed by Mr. D. K. Trivedi, learned A.P.P., in the facts and circumstances of the case. It is evident that in a matter such as this, two months time can never be granted. All the same, considering the circumstances of the case, it is necessary to grant reasonable time to the applicants when they want to pursue the matter further against the present order. In the circumstances, the operation of the order passed to-day is ordered to be stayed till 18-10-89. The applicants should note that the time fixed as aforesaid will not be further extended by this court. If the applicants fail in obtaining any order of stay from the proper forum of or before 18-10-89, then the period of remand should be taken to be from 19-10-89 to 2-11-89.
33. Certified copy should be made available to the applicants latest by 5-10-89.