Bail Matters

Rajeev Kumar -Vs CBI, SP, Economic Offences –IV, CGO Complex-CHC 01/10/2019

Calcutta High Court Grants Anticipatory Bail to IPS Rajeev Kumar

The status of a witness is convertible to the accused during the course of investigation subject to the collection of independent sufficient incriminating materials against the petitioner, which must be in the nature of startling and clinching in sense.

ACTS :Section 438 of the Code of Criminal Procedure

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Before :

The Hon’ble Justice SAHIDULLAH MUNSHI

And

The Hon’ble Justice SUBHASIS DASGUPTA

C.R.M. No. 9230 Of 2019

Rajeev Kumar -Versus CBI, SP, Economic Offences –IV, CGO Complex,

Mr. Sekhar Kumar Basu,

Mr. Debasis Roy,
Mr. Gopal Haldar,
Mr. Rudradipta Nandy,
Mr. Rajib Kumar Jha.

… for the petitioner.

Mr. Y. J. Dastur,

Mr. K.C. Mishra,
Mr. Anirban Mitra,
Mr. Samrat Goswami.
… for the CBI

Heard on :. 26.09.2019 & 30.09.2019

Judgment on : October 1 , 2019

Sahidullah Munshi, J.: This is an application under Section 438 of the Code of Criminal Procedure, filed by the petitioner apprehending arrest in connection with case no. R.C.- 04 (S) of 2014 under Section 120B read with Sections 420/406/409 of Indian Penal Code and Section 4 / 6 of Prize Chits and Money Circulation Scheme (Banning) Act, 1978.

It is the petitioner’s case that he has never been entangled in any criminal offences, or has been rendered to be guilty of any misconduct, while he was serving as the Commissioner of Police, Bidhannagar City Police. At the relevant time, he was entrusted to look after the day to day functioning of the SIT, formed by the Government of West Bengal, Home Department, which was notified under Police Gazette on 26th April, 2013. The SIT was headed by the Director General and IGP, West Bengal, who were supposed to be assisted from time to time by the Additional Director General, CID, West Bengal. This petitioner had the role to look after day to day functioning of SIT as a member thereof.

In this application the petitioner has disclosed that although, he rendered his all cooperation during the tenure of his office from January, 2012 to February, 2015, as Commissioner of Bidhannagar Police Commissionerate, and consequently no allegation was made against him, but recently the investigating agency sought for examination of the petitioner for the progress of investigation.

Investigating Authority, has, however, complained repeatedly before this Court in different proceedings including the proceeding of contempt, now pending before the Hon’ble Apex Court, that the petitioner is not cooperating with the investigation process.

The background, which we get of this case arises from one writ petition, being no. W.P. (C) 413 of 2013, which was filed before the Hon’ble Supreme Court with other writ petitions and the Hon’ble Apex Court by a judgment and order dated 9th May, 2014 directed transfer of the investigation from the State Agency to the Central Bureau of Investigation (CBI) under Delhi Police Establishment Act, after having considered the magnitude of the offence, interstate ramification, plight of investors, and the need for swift and efficient investigation.

The application for anticipatory bail discloses that the petitioner all throughout was under protective order of the Hon’ble Apex Court, but because of intervention of certain untoward incident, occurred on 3rd February, 2019, against which the contempt petition was moved by the CBI before the Hon’ble Apex Court, the protective cover was sought to be withdrawn on the prayer of CBI. The protective cover granted on 05.02.2019 was withdrawn by the Apex Court on 17.05.2019. While passing this order the Hon’ble Apex Court observed as follows:

“Therefore, in the given facts, we would withdraw the protection given to Mr. Mr. Rajeev Kumar, former Commissioner of Police, Kolkata, vide our order dated

February 05, 2019 restraining the CBI from arresting him and thereby, leave it open to the CBI to act in accordance with the law. At the same time, we direct that the interim order dated February 05, 2019 would continue for a period of seven days from the date of pronouncement of this order to enable Mr. Rajeev Kumar to approach competent Court for relief, if so advised. The aforesaid directions would be in consonance with the decision in A.R. Antulay v. R.S. Nayak and Another, (1988) 2 SCC 602, which mandates that the procedure established in law should be strictly complied with and should not be departed from to the disadvantage or detriment of any person. We clarify that we have not made any comments on the merits of the contentions and the reasons recorded in the present order would not be a ground to accept or reject the request of custodial interrogation or grant of protection, if any such application/petition is moved.”

We have been given to understand by the parties before us that the said Contempt petition is still pending before the Hon’ble Apex Court. There was a controversy regarding the power and function between the State Police and the CBI. The conflict regarding calling upon the State Police Officials to CBI and the CBI Officials to State assumed a critical dimension. When by order dated 05.02.2019 the Apex Court observed “However, we make it clear that no coercive steps including arrest shall be taken against the Commissioner of Police. To avoid all unnecessary controversy we direct the Commissioner of police

to appear before the Investigating agency in Shillong, Meghalaya on such date as may be fixed.”

The controversy regarding non-cooperation continued even after the petitioner subjected himself for questioning session in Shillong, which continued from 09.02.2019 to 13.02.2019 consuming a period of 40 hours (approx).

It may not be out of place to mention that the Hon’ble Apex Court also passed an order on 16th July, 2018 regarding certain things, which are important to be taken note of while considering this application of the petitioner under Section 438 of the Code of Criminal Procedure. “It is not happy state of affairs that CBI Officers should be called by the State Police; they have to work in tandem with each other is the exception of the Court as per investigation of the Criminal Case is required; however, in the main case since this Court had confined itself to the investigation to be made by the CBI, there are certain other matters with respect to investigation which equipments like laptop, mobile phones etc. are required for this Court to go into. It is not the object of this Court to adjudicate upon such issues on the first instance. Since the investigation is pending it would be open for the CBI, in case any obstructions is faced by its officers, similarly, in case the State machinery had no objection, they are free to approach the High Court at Calcutta.

It was submitted that under the guise of an order of 23rd October

2017 the State Police had asked for certain details from the CBI in case

CBI agreed by the said order we are gave liberty by filing appropriate petition in accordance with law within a period of six weeks in the High Court.”

In consonance of this direction, nothing is brought to our notice that the liberty granted to either of the parties was ever exercised having understood the purport of the order conveyed therein. After the interrogation in Shillong, spanning over a period of 40 hours, this petitioner in compliance of the order passed by the Hon’ble Apex Court, offered himself to be interrogated further by the CBI on 17.06.2019 in connection with this case in Calcutta, which, however, continued covering another session of four hours (approx).

Mr. Dastur, appearing for the opposite party, CBI, has pointed out before this Court by filing certain documents in compilation, being the relevant extract from the Case Diary together with an index in front containing 9 serials with pages from 1 to 138, adverting to seizure list dated 17th April, 2013, on the apparent time discrepancies, shown in the seizure and that of the relevant G.D. Entry of the P.S. recorded for the purpose. Referring to this anomaly in the Case Diary and the seizure list, Mr. Dastur further submits that this is a serious contradiction amongst others, for which petitioner’s role is to be found out by custodial interrogation confronting with the materials already collected, irrespective of the repeated questioning sessions, held earlier.

We, however, do not justify custodial interrogation merely on this score as submitted by Mr. Dastur in the absence of some other convincing materials. According to our considered view, such discrepancy could be appropriately decided at the time of trial.

The prime allegation against the petitioner, as submitted by Mr. Dastur learned Senior Advocate appearing for the CBI is that the petitioner deliberately showed his non-cooperation with the ongoing investigation, questioning the notice since beginning, alleging biasness in the investigation, wrongly interpreting the text of the notice, thereby exposed his arrogancy, obstinancy and defying attitude to obey the terms of the notice, upon advancing frivolous excuses on innumerable counts, and further deliberately tampered and doctorred the CDRs with a delay of about four years, after it was requisitioned, with sole intention of destroying and damaging the material evidence, extending his hands in glove with some other men of potentiality including political dignitaries, so as to give a go by to the allegations levelled against him, and to gloss over some other designed personalities. He has also pointed out to the notices served upon the petitioner and his attitude to evade those notices by taking shelter under the law. It may not be out of place to mention that after such notices under Section 160 of the Code of Criminal Procedure was served upon the petitioner by the investigating agency to examine him, he filed an application under Section 482 of the Code of Criminal Procedure being CRR no. 1308 of 2009, in which the petitioner challenged the proceeding itself and prayed for quashing of the same.

The said CRR 1308 of 2019 was, ultimately, held to be not maintainable at the instance of a third party meaning thereby, the petitioner had no locus standi to pray for quashing of instant criminal proceeding, when apparently a notice under Section 160 of Cr.P.C. was served upon the petitioner calling upon his co-operation to unearth the prosecution.

Mr. Roy, appearing for the petitioner submits that, however, the petitioner was not appropriately advised and wrong forum was chosen by him. Protection which was granted initially in CRR 1308 of 2019 passed by the Single Bench of our High Court, ultimately, stood vacated by the final decision, given on 13th September, 2019.

It is the contention of Mr. Dastur, that after the said CRR was finally disposed of and having lost the protective cover, the petitioner even did not appear before the investigating agency, pursuant to the notice being served afresh upon him requiring his presence on subsequent dates, as mentioned in the notices, found in the compilation, placed before us by the CBI for consideration.

Mr. Roy, however, attempted to justify that the petitioner was on leave till 25th September, 2019 with due intimation to CBI and the instant application for anticipatory bail was taken up for hearing on urgent basis on 26th September, 2019.

Mr. Dastur, further submits that if this application under Section 438 is allowed giving the petitioner protection against

custodial interrogation the investigation which reached certain stage would be grossly hampered.

Mr. Roy in support of his submission has placed reliance on two decisions:

• Siddharam Satlingappa Mhetre –Vs. – State of Maharashtra reported in (2011) 1 SCC 694 &

• Santosh s/o Dwarkadas Fafat –Vs. – State of Maharashtra reported in (2017) 9 SCC 714.

Mr. Dastur appearing for the CBI has relied on three decisions:

• State represented by the CBI –Vs. – Anil Sharma reported in (1997) 7 SCC 187;

• Sudhir –Vs. – State of Maharashtra & Anr. reported in

(2016) 1 SCC 146 &

P. Chidambaram –Vs. – Directorate of Enforcement Published in 2019 SCC online SC 1143

In order to correctly assess the prayer for pre-arrest bail, and the ratio decided by the Hon’ble Apex Court, we deem it appropriate to first consider the decision, which have been relied on by Mr. Dastur.

The first decision delivered in State represented by CBI (supra), relied on by Mr. Dastur, is on the issue of custodial interrogation for eliciting more useful information and material from the interrogatee. Mr. Dastur has drawn our attention to paragraphs 4, 6 and 7. This decision is, however, distinguishable not only from the facts, but also conspicuously differentiable from the judgment, delivered by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre (supra), which basically concerned the personal liberty of a person available under Article 21 of the Constitution of India in context with the decision of the Apex Court, delivered in the case of Gurbaksh Singh Sibbia Etc –Vs. – State Of Punjab reported in (1980) 2 SCC 565. In the case referred above by Mr. Dastur there was allegation levelled by CBI that the respondent amassed wealth far in excess of his known sources of income rendering him to be subjected to a prosecution under Section 13(2) of the Prevention and Corruption Act, 1988. The court at the first instance granted pre-arrest bail, which was cancelled by the concerned High Court and cancellation was however, affirmed by the Hon’ble Apex Court observing therein that the respondent having held a high office, the chance of exercising his influence would create a great handicap to the investigating agency, while interrogating a person, already armed with an order of anticipatory bail, because the custodial interrogation being qualititably more elicitation oriented and that questioning a suspect who is well protected with a favourable order under Section 438 of the Code would render the questioning a mere ritual. The petitioner herein involved in this case not only once, but in all twice subjected himself for questioning purpose covering a period of 44 hours (approx) meaning thereby he had consciously offered himself to be interrogated in the interest of ongoing investigation.

The next decision relied on by Mr. Dastur in Sudhir (supra) relates to case where allegations are of serious nature including corruption and mis-appropriation of public fund requiring custodial interrogation. The appeal before the Hon’ble Apex Court was against the order of cancellation of bail granted by the High Court. The case is distinguishable on fact, that in the cited decision the two First Information Reports were registered against the accused/appellants against themselves with serious allegations of criminal mis-appropriation of funds, released for implementation of scheme of drinking water in the villages, in the context with which, the Apex Court felt the necessity of custodial interrogation for the conduct of the appellants causing the investigation to hold up for sometimes, and upon consideration of such conduct, the anticipatory bail was cancelled observing therein that the investigation could not be proceeded in the event of the appellants being armed with an anticipatory bail. The gist of the materials being extract of the case diary, placed before us in the form of compilation, as mentioned hereinabove, do not conspicuously transpire anything that at the instance of the petitioner the investigation got halted for his active contribution, because investigation has extensively dealt with to reveal the scam examining several persons not only from the police but also from the side of the State.

In context of that fact, the Hon’ble Apex Court considering the ratio of the decision in Gurbaksh Singh Sibbia (supra) has held that the relief of anticipatory bail cannot be said to be barred merely for

the reasons that the allegations relate to economic offences or corruption and clarified that where the allegations are mala fide, prayer for anticipatory bail can be accepted.

Considering the ratio of Siddharam Satlingappa Mhetre (supra) the Hon’ble Apex Court discussed in paragraph 112 thereof, which stated “While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.”

In the case of P. Chidambaram (supra), unlike the case in hand, there is no allegation of money laundering proceeds of the crime as against the present petitioner seeking pre-arrest bail. The significant aspect to be kept in mind is that petitioner has come before the Court with a prayer for anticipatory bail even after subjecting himself for interrogation/ questioning not only once in Shillong, but also here in Kolkata to facilitate investigation. It is thus, not the position that petitioner purposefully kept himself concealed avoiding the desired questioning by CBI. This case is also distinguishable against the petitioner, who was subjected to repeated interrogation, as pointed out earlier, alleging to have made concealment of the materials, yet to be collected. The purpose of custodial interrogation being to elicit materials which may lead to recovery of relevant information, in our considered perception, needs to be critically appreciated in context with the peculiarity of the circumstances involved in this case, wherein petitioner offered himself for interrogation on repeated occasions, when investigating agency was left with sufficient opportunity to collect and/or derive relevant information in the interest of unearthing the prosecution.

We have considered the submissions of Mr. Roy and the principles laid down in the decisions on which he placed reliance. The case of Siddharam Satlingappa Mhetre (supra) has been cited by Mr. Roy, to enlighten the Court for the consideration of the parameters, laid down by the Supreme Court. In the said decision, the Hon’ble Apex Court observed that in the earlier Constitution Bench decision in Gurbaksh Singh Sibbia Etc –Vs. – State Of Punjab reported in (1980) 2 SCC 565 it was held that a person seeking anticipatory bail is still free man, entitled to the presumption of innocence, and the person seeking anticipatory bail, submit himself to the restraint and conditions on his freedom, by accepting the conditions which the Court may deem fit to impose any consideration of the assurance that if he is arrested, he shall be enlarged on bail. We also find that the Hon’ble Apex Court observed that the appropriate course of action ought to be that after evaluating averments and accusation available on record, if the Court is inclined to grant anticipatory bail then an interim bail, can be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor, the Court may either reject the bail application, or confirm initial order of granting bail. The Court would certainly be entitled to impose conditions for grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same Court for cancellation or modifying the conditions of bail any time, if liberty granted by the Court is misused.

Therefore, the bail granted by the Court should ordinarily continue till trial of the case. The provisions of Section 438 of the Code of Criminal Procedure is not an unfettered power granted in favour of the accused rather the same is very restricted and subject to reasonable restrictions.

Section 438 Cr.P.C. itself supplied the conditions which the Court can impose at the time of granting bail to the petitioner. Even the Court can impose such other condition, if it thinks fit and proper. Considering the application for anticipatory bail the appropriate Court while dealing with a regular application for anticipatory bail should come to an independent conclusion whether under the facts and circumstances and the available materials, the prayer for anticipatory bail should be allowed or not.

In the aforesaid decision of Siddharam Satlingappa Mhetre (supra) the principles and parameters have been laid down in paragraphs 109 and112 respectively and the same are set out below:

“Para 109: A good deal of misunderstanding with regard to the ambit and scope of section 438 Cr.P.C. could have been avoided in case the Constitution Bench decision of this court in Sibbia’s case was correctly understood, appreciated and applied. This Court in the Sibbia’s case laid down the following principles with regard to anticipatory bail:

a) Section 438(1) is to be interpreted in the light of Article 21 of the Constitution of India.

b) Filing of FIR is not a condition precedent to exercise of power under section 438.
c) Order under section 438 would not affect the right of police to conduct investigation.

d) Conditions mentioned in section 437 cannot be read into section 438.

e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in the light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

Para 112: The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused’s likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

In paragraph 113, however, the Supreme Court more specifically stated that “arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The Court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”

The ratio of the decision arising out of Siddaram Mahtre (supra), being basically founded upon Gurbaksh Singh Sibbia (supra), the same was reinforced in the case of Bhadresh Bipinbhai Sheth vs State Of Gujarat & Anr, reported in (2016) 1 SCC 152 which has, however, not been cited by either of the parties fighting over the issue before us.

When the apex Court granted protection to the petitioner, by an order dated 05.02.2019 prohibiting CBI from arresting the petitioner, the interrogation/investigation in respect of CDRs with insufficient particulars being sent on 28.06.2018, is expected to have been directed towards securing explanation from the petitioner as regards the alleged delay caused in sending the CDRs together with the alleged suppression, and also for causing disappearance of material evidence in connivance with some designed persons. No new material was, however, sent to CBI at the instance of the petitioner subsequent to 28.06.2018 creating a confusion, or a further mismatch with the materials pertaining to the CDRs already sent. For the alleged discrepancies in the CDRs, the CBI had already collected the relevant information from the service providers, applicable to the case and compared the same with that of the CDRs with insufficient particulars. In paragraph 7 of the additional affidavit, dated 18th February, 2019, filed on behalf of the CBI in connection with the contempt petition pending before the Apex Court, the CBI had specifically contended that the CDRs of the accused, when analysed by the CBI were found to be tampered/doctorred and the material evidence had been destroyed. It was also contended therein that comparison of the doctorred/tampered CDRs, given by petitioner and the CDRs obtained by the CBI from the service providers left no manner of doubt that the CDRs handed over by the petitioner on 28.06.2018 were tampered and doctored. That being the position, relying upon such assertion of the CBI, made in paragraph 7 of such affidavit, referred above, the scope of requirement of any extensive investigation taking the petitioner into custody has been minimised. As has been brought to our attention by the learned advocate for the CBI that the petitioner always attempted to obfuscate the investigation revealing his strong sense of avoidance to the notices and in doing so, the order dated 06.12.2018 and 18.12.2018 passed in CRR 2456 of 2018 has been wrongly interpreted upon misconstruction of such orders in as much as such orders had no reasonable nexus with the instant case. Rightly attention of the Court has been drawn by the learned Senior Advocate for the CBI to the communication issued to petitioner on the basis of misconstruction of the orders dated 06.12.2018 and 18.12.2018 rendering the petitioner to become hostile to the terms of the notice. True it is that the petitioner is the top cop of the State, and at the same time it is also true that he has to rely upon the communication, made to him legally from the State authorities, responsible to make communication. If there be any irregularities in the matter of misconstruction of such orders, pursuant to the valid legal communication being made to the petitioner, the petitioner cannot be made to suffer the consequence, that arose beyond his control.

Notice under Section 160 of the Cr.P.C. describing the petitioner to be a witness was served on innumerable occasions. Learned advocate for both the parties are ad idem to the stand that so long the proceeding pending before the High Court in connection with CRR 1308 of 2019 before a learned Single Judge of this Court, the status of the petitioner was not above the witness. The situation turned a dramatic turn, when the CBI prayed for issuance of a warrant of arrest before the learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas, which was rejected, accepting the petitioner to be an accused involved in this case. It is, therefore, quite relevant to take note that till 13.09.2019, the petitioner, whose status remained as witness suddenly transformed into the category of accused, presumably with the collection of startling/clinching materials, that have been collected in the meantime against the petitioner requiring custodial interrogation, is conspicuously absent. The words “any person” appearing in Sections 160 and 161 Cr. P.C. are wide enough to include the person, who subsequently becomes an accused in course of investigation, and such proposition came to be decided in the case of Mahabir Mandal And Others –Vs. – State Of Bihar reported in AIR 1972 SC 1331.

Therefore, the status of a witness is convertible to the accused during the course of investigation subject to the collection of independent sufficient incriminating materials against the petitioner, which must be in the nature of startling and clinching in sense.

Much has been emphasized by the learned advocate for the petitioner regarding the antecedent of petitioner for his avoidance to the notice on innumerable occasions, and even after making a breach of the conditions while enjoying interim protection in connection with CRR 1308 of 2019 limiting his movement and further confining him to his residence, but uptil now there is nothing produced before us to challenge the order passed in CRR 1308 of 2019, which paves the way for us to conclude that disputing with the conditions and even for a violation of the conditions of the interim protection, the CBI had never challenged taking out an appropriate application, in spite of the liberty being granted to that effect, and that apart in pursuance of liberty being granted by the Apex Court, while withdrawing interim protection against the petitioner to take appropriate steps, the CBI has only moved before the concerned Magistrate with a prayer for issuance of non-bailable warrant.

Antecedent, if isolatedly viewed of recent past of a person, without looking into the entire tenure of the petitioner, when he continued to discharge his police function, proper reflection of antecedent cannot be perfectly ascertained.

In order to unfurl the larger conspiracy to prevent unearthing money, there has been extensive repeated questioning session as regards the petitioner and several persons were also subjected to interrogation for their respective role in the scam, and upon consideration of the materials produced before us being the relevant extract of the Case Diary, shown in the compilation referred above, we have hardly any scope to assume that it is the petitioner only clogging the investigation and without which the investigation is supposed to face the undesirable consequence.

Before this judgment is delivered, we ourselves made threadbare discussion over all the pros and cons of the matter relating to the scope of grant or refusal of the prayer for anticipatory bail. At the commencement of the hearing, we pointed out to the learned advocates for both the sides requesting them to make their precise argument only on the scope of Section 438. While passing the judgment we have persuaded ourselves to confine within the statutory limit of Section 438 of the Code of Criminal Procedure. We have reached a consensus in passing this judgment having equal contribution.

Having considered the rival contentions of the parties and the materials placed before us, in our honest effort while ensuring to strike a balance between the individual’s right to personal freedom and the right of the investigation agency to interrogate the petitioner as to the materials so far collected, we are of the considered view that this is not an appropriate case, when custodial interrogation would be justified.

Consequently, the custodial interrogation, as sought to be enforced by the CBI in the given set of circumstances, is not encouraging one, as it does not inspire confidence of this Court to justify custodial interrogation of the petitioner in this case, when he has rendered his cooperation substantially in the interest of investigation.

Accordingly, we direct that in the event of his arrest the petitioner shall be released on bail upon furnishing a bond of Rs.50,000/- with two sureties of like amount each, one of whom must be local having landed property within the jurisdiction of Kolkata, and he shall comply with the conditions as laid down in Section 438(2) of the Code of Criminal Procedure, and on further condition that he will render cooperation to the investigating officer by physically presenting himself for interrogation before the CBI at Kolkata, as and when demanded, but at least upon 48 hours prior notice being served upon him.

We make it clear that non-observance of the conditions so imposed, apart from the conditions imbeded in Section 438(2) Cr. P.C., as imposed hereinabove, would enable the CBI to seek cancellation of the bail here in granted without making any reference to the Court and the learned Court below would be at his liberty to go for cancellation on a proven breach of the condition without making reference to this Court.

The application for anticipatory bail stands allowed.

CRM no. 9230 of 21019 is thus, disposed of.

The Criminal Section is directed to send down the lower Court records together with a copy of the judgment forthwith to the concerned learned trial Court.

Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.

I agree.

(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)