On January 07, 2023, the Himachal Pradesh High Court, while granting pre-arrest bail to the petitioner, observed that an Investigation in a Criminal Case cannot be used as a Recovery Proceeding.
Brief Facts:
An FIR was registered under section 408 and 34 of IPC on the basis of a complaint received by the police from a Proprietor “Stan H.P. Enterprises” Gumma, a retail sale outlet for petroleum products, alleged inter alia that his four employees including the petitioner misappropriated an amount to the tune of Rs.28,57,022/-. He further alleged that all the accused had absconded. The investigation discovered that the petitioner was maintaining five different bank accounts in his name and between February, 2022 to November, 2022, a total sum of Rs.17,57,014/- was deposited in his account with the Punjab National Bank. Out of such amount, a sum of Rs.3,26,372/- was stated to be transferred to the account of another co-accused and Rs.2,45,645/- in the account of the complainant. The balance amount of Rs.11,84,997/- was stated to be withdrawn by the petitioner, from time to time and some part of it was stated to be transferred through UPI to other persons. the case was registered on 19.11.2022 and the petitioner was admitted for an interim bail on 23.11.2022. The instant petition was filed by the petitioner seeking for a grant of pre-arrest bail against the FIR under Sections 408 and 34 of IPC.Contentions of the Petitioner:
The counsel for the petitioner submitted that he was innocent and the transactions in his bank account were being made at the instance and with the consent of the complainant as also the Manager of the establishment named Surender Singh Pathania, who was looking after the accounts.
The counsel further submitted that during the investigation, he fully associated himself and provided entire detail of the accounts to the police. Moreover, the petitioner ensured the court to abide by all the terms and conditions imposed while disposing of the application.
Contentions of the Respondent:
The counsel representing the state opposed the grant of the pre-arrest bail to the petitioner on the ground that the petitioner was not disclosing the name of persons in whose account he transferred the money in addition to the co-accused and the complainant. It was further submitted that the petitioner was avoiding the questions in this behalf and was also providing evasive answers.
Observations of the Court:
The Hon’ble court observed that the grounds raised on behalf of the respondents did not appear to be justified for the reason that the bank transactions could be ascertained by the police from documentary evidence.
As regards the allegation of money withdrawn by the petitioner from his account and the non-disclosure of the identity of persons to whom it was disbursed, the hon’ble court further observed that those facts might not be so relevant for proving all the allegations leveled against the petitioner and the investigation in a criminal case could not be used as a recovery proceeding.
The court was of the considerate view that no case for custodial interrogation of the petitioner was made out. Moreover, the tool of custodial interrogation could not be used to extract a confession, such interrogation was permissible where the Investigating Agency was without any means to extract the facts. The judgments in the cases of, Siddharth vs. State of Uttar Pradesh and another, and Nathu Singh vs. State of Uttar Pradesh and others, were referred by the court.
The Decision of the Court:
The petition was allowed and the petitioner was ordered to be released on bail, in case of any arrest, in FIR No. No. 94 of 2022, dated 19.11.2022.
Case Title: Rohit Chauhan Vs. State of Himachal Pradesh
Coram: Hon’ble Mr. Justice Satyen Vaidya
Case No.- Cr. M.P.(M) No. 2527 of 2022
Advocate for Petitioner: Mr. C.N. Singh
Advocate for Respondent: Mr. Manoj Chauhan and Mr. Varun Chandel.
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