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2018 DIGILAW 185 (GUJ)

HARDIK MOTILAL SHETH v. STATE OF GUJARAT

2018-01-19

J.B.PARDIWALA

body2018
JUDGMENT : 1. By this application under Article 227 of the Constitution of India, the applicant-original accused No.1, calls in question the legality and validity of the order dated 16th December, 2017 passed by the 11th Judicial Magistrate, First Class, Ahmedabad (Rural) upon a remand application filed by the Investigating Agency in connection with the first information report being C.R. No.I-97 of 2017 registered at the Vastrapur police station, Ahmedabad for the offence punishable under sections 406, 420, 467, 468, 469, 471 and 120B of the Indian Penal Code. 2. It appears from the materials on record that the applicant herein, apprehending arrest at the hands of the police in connection with the first information report, referred to above, came before this Court and prayed for anticipatory bail by filing the Criminal Misc. Application No.24868 of 2017. A Coordinate Bench of this Court allowed the anticipatory bail application vide order dated 28.11.2017. The order reads thus; “1. This application is filed seeking bail under Section 438 of the Code of Criminal Procedure, 1973 in respect of the offences punishable under Sections 406, 420, 467, 468, 469, 471 and 120B of the Indian Penal Code for which FIR came to be registered at C.R. No.I-97/2017 with Vastrapur Police Station, Ahmedabad. 2. Learned advocate appearing on behalf of the applicant would submit that considering the nature of offence, the applicant may be enlarged on anticipatory bail by imposing suitable conditions. Learned Advocate for the applicant on instructions states that the applicant is ready and willing to abide by all the conditions, including the condition with regard to the powers of Investigating Agency to seek remand of the petitioner; subject to the petitioners right to oppose it. 3. On the other hand, the learned APP appearing for the respondent-State has opposed this application. 4. Having considered the rival contentions including that of the petitioner, although it appears that a fraud of sum Rs.23,02,38,711/- is alleged against the accused persons; so far as, petitioner is concerned learned APP could not point out his active role in the commission of fraud except introduction of other accused persons to the complainant and his presence in the bank where allegedly fake Letter of Credit was presented. In above view of the matter, in absence of credible case against the petitioner at this stage, discretion is required to be exercised in favour of the petitioner by admitting him to bail in anticipation of his arrest; in absence of apprehension against the petitioner tampering with the evidence or threatening the witnesses or fleeing from justice. In the result, this application is allowed. It is directed that in the event of arrest of the applicant herein in connection with FIR registered at C.R. No.I 97-2017 at Vastrapur Police Station, the applicant shall be released on bail on his furnishing a personal bond of Rs.10,000/- (Rupees ten thousands only) with one surety of the like amount on the following conditions that he shall: (a) cooperate with the investigation and make himself available for interrogation whenever required; (b) remain present at the concerned Police Station on 04.12.2017 between 11.00 a.m. and 2.00 p.m.; (c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him/them from disclosing such facts to the court or to any police officer; (d) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders; (f) not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; and (g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the same on merits; 6. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for Police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if ultimately granted and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the Police custody, upon completion of such period of Police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. At the trial, the Trial Court shall not be influenced by the prima-facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute to the above extent. Direct service is permitted.” 3. It appears that this Court, while granting the anticipatory bail, reserved the right of the Investigating Agency to apply to the Competent Magistrate for police remand of the applicant herein. In such circumstances, the Investigating Officer preferred an application dated 16.12.2017 and prayed for five days of police custody on the following grounds; “(1) That the accused of this offence through their relatives introduced the main accused namely Nishant Shah and in connivance with him, obtain trust and purchase the coal from the complainant company, and the remaining amount of Rs.5,85,66,017/- has not been returned to the complainant which is required to be recovered from the accused. (2) The accused have not disclosed the correct details as to whom the coal of Rs.5,85,66,017/- was sold. Therefore, the accused are required to be interrogated. (3) As the accused, in connivance with each other, made a bogus L.C and the accused are not disclosing the names of the persons who have signed in the same. Therefore, the accused are required to be interrogated and the necessary evidences are also required be obtained. (4) The details of the bank accounts/properties/income tax return are required to be taken by interrogating them. (5) In this offence, the L.C is opened in the bank at Newzeland and the said account is of whom? Therefore, the accused are required to be interrogated and the necessary evidences are also required be obtained. (4) The details of the bank accounts/properties/income tax return are required to be taken by interrogating them. (5) In this offence, the L.C is opened in the bank at Newzeland and the said account is of whom? and in the said account, how many bogus L.C.s are opened, the true details of which, are also required to be taken from the accused. (6) In the bogus L.C prepared in the said offence, the used stamp pad and letter pad is being used. Where the said stamp pad and the letter pad was made and in the said process, how many other accused other than the accused herein were involved? And for the said purpose, the accused are required to be interrogated and the stamp pad and the letter pad are also required to be seized. (7) The accused is absconding till today, where he stayed and in the commission of the said offence, he is in whose contact, is also required to be interrogated.” 4. The Magistrate, after considering the objections of the applicant-accused herein, thought fit to grant police custody for a period of three days. 5. Being dissatisfied with the order passed by the Magistrate of grant of police remand of three days, the applicant is here before this Court with this application under Article 227 of the Constitution of India. 6. While issuing rule in this application vide order dated 16.12.2017, making it returnable on 18.12.2017, a Coordinate Bench, observed as under; “1. Rule returnable on 18.12.2017. Mr. L.R. Pujari, learned Additional Public Prosecutor waives service of notice of rule for and on behalf of respondent-State. 2. This is an application challenging the order dated 16.12.2017 passed by the learned 11th Additional Judicial Magistrate First Class, Ahmedabad (Rural) in connection with First Information Report being C.R. No.I- 97 of 2017 registered with Vastrapur police station, Ahmedabad for the offences punishable under sections 406, 420, 467, 468, 469, 471 and 120(B) of the Indian Penal Code. 3. The applicant herein has been already granted anticipatory bail by this Court vide order dated 28.11.2017 in Criminal Miscellaneous Application No. 24868 of 2017, one of the conditions of which is as under:- 6. 3. The applicant herein has been already granted anticipatory bail by this Court vide order dated 28.11.2017 in Criminal Miscellaneous Application No. 24868 of 2017, one of the conditions of which is as under:- 6. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for Police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if ultimately granted and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the Police custody, upon completion of such period of Police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 4. The Investigating Officer Mr. N.N. Jadeja moved an application for 05 days remand before the learned 11th Additional Judicial Magistrate First Class, Ahmedabad (Rural) today. The Court concerned passed an order granting remand upto 19.12.2017 and, hence, this application. 5. This Court has heard learned advocate Mr. Rahul Dholakiya appearing with learned advocate Mr. Mithul Shelat and learned advocate Mr. Paresh Darji for the applicant and Mr. L.R. Pujari, learned Additional Public Prosecutor for the respondent-State. 6. It is urged before this Court that it is a non-reasoned order. The request was made before the concerned Court for staying the order. However, that request was not acceded to. It is also urged by learned advocates that specimen signatures of the applicant has already been taken by concerned authority and he has been cooperating. Over and above the merits of the matter, emphasis is on the non-speaking order. He has further urged that the role of the applicant is apparent from the record and he had been absconding in the past. 7. Mr. Pujari, learned Additional Public Prosecutor for the respondent-State requires time to seek instructions. According to him, the details provided by the Investigating Officer speak of the reasons of remand. 8. He has further urged that the role of the applicant is apparent from the record and he had been absconding in the past. 7. Mr. Pujari, learned Additional Public Prosecutor for the respondent-State requires time to seek instructions. According to him, the details provided by the Investigating Officer speak of the reasons of remand. 8. Learned Additional Public Prosecutor since is desirous of getting further details from the Investigating Officer, acceding to his request, matter is being posted on 18.12.2017. Considering the cryptic and virtually non-reasoned order also the matter would require consideration, the same is stayed at this stage for hearing, on the returnable date at 2:30 p.m. 9. Learned Additional Public Prosecutor shall intimate the same to the Investigating Officer by way of fax message. Direct service is permitted today.” 7. Thereafter, on 18.12.2017, this Court passed the following order; “1. I take notice of the order passed by a Co-ordinate Bench dated 16th December, 2017. The Investigating Agency filed an application in the court of the learned 11th Additional Judicial Magistrate, First Class, Ahmedabad (Rural), Mirzapur seeking police remand of the applicant herein for a period of five days on the following grounds; (1) That the accused of this offence through their relatives introduced the main accused namely Nishant Shah and in connivance with him, obtain trust and purchase the coal from the complainant company, and the remaining amount of Rs.5,85,66,017/- has not been returned to the complainant which is required to be recovered from the accused. (2) The accused have not disclosed the correct details as to whom the coal of Rs.5,85,66,017/- was sold. Therefore, the accused are required to be interrogated. 3. As the accused, in connivance with each other, made a bogus L.C and the accused are not disclosing the names of the persons who have signed in the same. Therefore, the accused are required to be interrogated and the necessary evidences are also required be obtained. 4. The details of the bank accounts/properties/income tax return are required to be taken by interrogating them. 5. In this offence, the L.C is opened in the bank at Newzeland and the said account is of whom? and in the said account, how many bogus L.C.s are opened, the true details of which, are also required to be taken from the accused. 6. 5. In this offence, the L.C is opened in the bank at Newzeland and the said account is of whom? and in the said account, how many bogus L.C.s are opened, the true details of which, are also required to be taken from the accused. 6. In the bogus L.C prepared in the said offence, the used stamp pad and letter pad is being used. Where the said stamp pad and the letter pad was made and in the said process, how many other accused other than the accused herein were involved? And for the said purpose, the accused are required to be interrogated and the stamp pad and the letter pad are also required to be seized. (7) The accused is absconding till today, where he stayed and in the commission of the said offence, he is in whose contact, is also required to be interrogated. 2. The applicant shall appear before the Investigating Officer tomorrow, i.e., on 19.12.2017 in the morning for the purpose of interrogation. This order is passed only with a view to observe the conduct of the applicant. If he cooperates in the investigation, then the custodial interrogation may not be necessary. However, it would all depend how the applicant cooperates with the Investigating Officer. In such circumstances, the Investigating Officer shall interrogate the applicant to his hearts content for the whole day and file a report before this Court as to in what manner, the applicant has cooperated in the interrogation. It is clarified that tomorrow, the applicant shall not be put to custodial interrogation. 3. Post the matter on 20.12.2017 on top of the board. 4. On 20.12.2017, the Investigating Officer shall remain present with an appropriate report . 5. A copy of this order be provided to Ms. Thakkar, the learned APP for its onward communication.” 8. Considering the affidavit filed by the applicant herein, this Court passed the following order on 20.12.2017; “1. An affidavit is filed today by the applicant herein pointing out as to what transpired yesterday in the course of the interrogation. The affidavit reads as under:- I, Hardik Sheth, son of Motilal Sheth, aged adult, residing at Ahmedabad state on solemn affirmation as under. 1. I state that I am petitioner in the captioned Criminal Misc. Application. I am conversant with regard to the fact and circumstances of the case. 2. The affidavit reads as under:- I, Hardik Sheth, son of Motilal Sheth, aged adult, residing at Ahmedabad state on solemn affirmation as under. 1. I state that I am petitioner in the captioned Criminal Misc. Application. I am conversant with regard to the fact and circumstances of the case. 2. I state that in compliance to the order dated 18.12.2017 passed by the honourable high court, I appeared before the concerned Investigating Officer at Vastrapur Police Station on 19.12.2017. 3. I state that I have provided my written statement in reference to the questions referred to in the remand application filed by the Investigating Officer. I state that in addition to the same, I have provided copies of the documents of my business including ledger accounts, Income Tax Returns, Sales and Purchase bills to the Investigating Officer. 4. I state that in addition to the above no questions were asked by the investigating officer. I state that the writer has asked certain questions to me and I have given the reply tot he best of my knowledge and information. 5. I state that no further questions were asked to me. I state that I have remained present and cooperated during all the time. I was summoned in pursuance to the order passed in the order granting anticipatory bail and also in furtherance of the order passed by this Honourable Court in the present application. Solemnly affirmed at Ahmedabad on this 20th day of December, 2017. 2. The affidavit is ordered to be taken on record. A copy of the affidavit be provided to Ms. Moxa Thakkar, the learned APP at the earliest. 3. In the affidavit, it has been stated by the applicant that not a single question was put to him by the Investigating Officer. It is the writer, who interrogated the applicant. I want the learned APP to look into this aspect and file an appropriate rejoinder to the reply. Post this matter on 22/12/2017 on top of the board. Till then, the impugned order shall remain stayed.” 9. The Investigating Officer has filed reply in this matter stating as under; “5. In the aforesaid matter this Hon’ble Court was pleased to pass an order directing the petitioner to remain present for interrogation before the police officer and directed to fully co-operate with the investigation. Till then, the impugned order shall remain stayed.” 9. The Investigating Officer has filed reply in this matter stating as under; “5. In the aforesaid matter this Hon’ble Court was pleased to pass an order directing the petitioner to remain present for interrogation before the police officer and directed to fully co-operate with the investigation. It is submitted that pursuant to the order passed by this Hon’ble Court the petitioner reached to the Police Station at around 11:30 am on 19.12.2017. That thereafter, the deponent had started interrogating the petitioner and put certain questions to him. The questions like How the fraud is committed connivance with the other offence, who are the other accused involved in the other offence, the money of the coil has been deposited in whose account and where it was diverted, the aforesaid forged letter of credit is created with whose help how many such type of LOC is created with the help of the other accused, regarding the LOC the bank account has been Opened at Newzealand in that regard the interrogation was made. The forged Stamp and the letter-pad of Kayala India Consultant Company was made. The interrogation was made with regard to that where it was made, with whose help it was made and at present where such letter pad and stamps are lying. With regard to the aforesaid queries the petitioner was interrogated by the deponent himself. However, the petitioner had not fully cooperated and given the answer which have been put to him. 6. It is submitted that with a view to get the favourable order before this Hon’ble Court the false allegations were made that the deponent was not present and the petitioner was interrogated by the writer of the investigating officer. 7. It is submitted that the petitioner had left the police station at 5 O’ Clock which reflect from the station diary entry in which, the signature of the deponent is there which shows that deponent was very much present and the deponent had interrogated to the petitioner. But the petitioner with a view to avoid the custodial interrogation had created frivolous ground. The copy of the station diary entry is annexed herewith and marked as Annexure-R1. 8. But the petitioner with a view to avoid the custodial interrogation had created frivolous ground. The copy of the station diary entry is annexed herewith and marked as Annexure-R1. 8. It is submitted that absolutely frivolous allegations was made by the Petitioner that in fact in the statement of the petitioner wherein signature of the deponent was made at the end. The deponent herein was present for the whole day which reflect from the location book. i may be permitted to produce the copy of the said location book as well as the statement wherein the signature of the deponent is taken at the time of interrogation. 9. It is submitted that earlier twice the statements were taken and pursuant to the orders passed by this Hon’ble Court the petitioner came for interrogation on 19.12.2017. However, petitioner neither earlier nor on 19.12.2017 had disclosed the true facts before the Investigating Officer. Since the said offence is a huge scam the involvement of the petitioner is very much there that he is aware about many things with a view to avoid to answer the same. The petitioner is creating the frivolous and false ground before this Hon‘ble Court so that he could succeed in the petition. Therefore, in view of the aforesaid facts the deponent prays to dismiss the petition with heavy cost for making false allegations against the petitioner and misleading the Hon’ble Court.” 10. Mr. N.D. Nanavati, the learned senior counsel appearing for the applicant submitted that pursuant to the order passed by this Court, the applicant remained present before the investigating Officer and furnished all the information which was within his knowledge. The learned senior counsel submitted that the Investigating Officer is insisting to disclose certain facts and details, which are actually not within the personal knowledge of the applicant. It is submitted that the applicant, as such, has no role to play except that of a mediator. In such circumstances, the applicant would not be within the knowledge of the entire transaction or the other minutest of the details. According to the learned senior counsel, whatever the applicant had to disclose, has been made clear before the Investigating Officer. Mr. In such circumstances, the applicant would not be within the knowledge of the entire transaction or the other minutest of the details. According to the learned senior counsel, whatever the applicant had to disclose, has been made clear before the Investigating Officer. Mr. Nanavati submitted that this Court, while releasing the applicant on anticipatory bail, has observed in the order that the applicant has not played any active role in the commission of the fraud except the introduction of the other accused persons to the complainant. 11. In such circumstances, referred to above, the learned senior counsel, prays that there being merit in this application, the same be allowed and the impugned order be quashed. 12. On the other hand, this application has been vehemently opposed by Ms. Thakkar, the learned APP appearing for the State. According to the learned APP, it would be within the discretion of the Magistrate whether to grant police remand or not, and if police remand is granted, then this Court may not disturb such order in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The learned APP pointed out that although this Court asked the applicant to remain present before the Investigating Officer and cooperate, yet the applicant has not fully cooperated and answered all the questions. In such circumstances, referred to above, the learned APP prays that there being no merit in this application, the same be rejected. 13. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the impugned order be quashed. 14. The Act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under section 167 is that the investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. The purpose of remand as postulated under section 167 is that the investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. (See Manubhai Ratilal Patel Tr. Ushaben vs. State of Gujarat and Ors., AIR 2013 SC 313 ). 15. A learned Single Judge of this Court in the case of Jairajsingh Temubha Jadeja vs. State of Gujarat [ 2002 (1) GLR 215 ] has explained in details the position of law. I may quote the observations made by the learned Judge, as contained in paras 4, 5 and 7 as under: ..The principle of granting or not granting remand is always depending upon the facts and circumstances of the case and collection of evidence by Investigating Agency. On that evidence, the Investigating Agency may ask for the remand of the accused persons for further investigation i.e., to say that the Investigating Agency has to make out a case that certain evidence is collected against the accused and without the custodial investigation, no further investigation is possible and if the remand is not granted, the investigation would be throttled. These are the ordinary principle of granting or not granting the remand and it depends upon the facts of each case to grant or not to grant the remand. After keeping in mind the legal principles established by the Court, it will be useful to refer to a decision of this Court on which reliance has been placed by both the side in the matter of Siyaram Gopichand Gupta and Ors. After keeping in mind the legal principles established by the Court, it will be useful to refer to a decision of this Court on which reliance has been placed by both the side in the matter of Siyaram Gopichand Gupta and Ors. v. State of Gujarat, reported in 1990 (2) GLR 905 wherein after referring many decisions of the Apex Court, this Court quoted in Para 23 the words of 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 hand, is a perennial problem of statecraft." It was observed by this Court in the above said decision that the Courts have to strike balance between the propositions above. Meaning thereby that Courts will have to see that is there a case made out by Investigating Agency to hand over the accused on remand or on the pretext of remand, the liberty of a citizen is likely to be affected. Therefore, the remand under Section 167(2) of the Criminal Procedure Code is an exception and not the rule. The law does not fasten judicial duty on Magistrate to record reasons for not granting remand to police custody, but it is imperative that Magistrate must record reasons for granting remand to the police custody; Section 167 of the Criminal Procedure Code makes its obligatory on Police Authority to transmit a copy of the entries in the diaries relating to case along with the forwarding of the accused. Passing of the mechanical orders of remand by the Magistrate has been deprecated by law, because Section 167(3) of the Code casts duty on the Magistrate to apply judicial mind to the issue. At this juncture. Magistrate is bound to satisfy himself firstly that the accusation is whether well founded. The Magistrate will have to satisfy himself that the presence of the accused in police custody is whether absolutely necessary. The Magistrate shall look into the evidence and material collected by the Investigating Agency, and therefore, it is imperative for the Police Officer to transmit case diary to the Magistrate. Remand to police custody should not be granted to collect the material and evidence, when there is no prima facie or at least sufficient material collected by the investigating Officer. The Magistrate shall look into the evidence and material collected by the Investigating Agency, and therefore, it is imperative for the Police Officer to transmit case diary to the Magistrate. Remand to police custody should not be granted to collect the material and evidence, when there is no prima facie or at least sufficient material collected by the investigating Officer. That is exactly making out a case by the Investigating Agency and at that crucial point of time the Magistrate must satisfy himself upon the material collected that without the police custody, it would be impossible for Police Authorities to go further in the investigation and in those cases only remand to the police custody is justified by the law. 5. It is again useful to refer to the observations of the Apex Court in the matter of C.B.I., Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, reported in AIR 1992 SC 1978. This decision is relied upon by the respondent-State. In Para 10, the Apex Court observed that "the proviso to Section 167 is explicit on this aspect. The detention in police custody is generally disfavoured by law, the provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a Magistrate for reasons judicially scrutinised and for such limited purpose as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. Article 22(2) of the Constitution of India and Section 57 of Criminal Procedure Code, give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest". The Apex Court further observed that "these two provisions clearly manifest the intention of the law in this regard, and therefore, it is the Magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in police custody. Section 167(3) requires that the Magistrate should give reasons for authorising the detention in the custody of the police. Section 167(3) requires that the Magistrate should give reasons for authorising the detention in the custody of the police. It can be thus seen that the whole scheme underlying the Section is intended to limit the period of police custody." From the above, it is clear that the granting of the remand is an exception and not the rule and for that the Investigating Agency is required to make out a case. 7. While, going through the above mentioned 11 grounds of the remand, it clearly appears that none of the grounds is sufficient to come to the conclusion that the police custody is necessary for the interrogation even if there be a prima facie material with the Investigating Agency. In the facts and circumstances of the case, irrespective of the involvement of the petitioners in the crime and the material collected by the Police Authorities, none of the grounds is sustainable to order remand in police custody. Remand cannot be granted to obtain confessional statement, the remand cannot be granted to discover materials used by the other accused or for the arrest of the other accused. In this regard, the observation of the Apex Court in the matter of Smt. Nandini Saipathy v. P.L. Dani, reported in AIR 1978 SC 1025 expresses in so many words that when remand contravenes Article 20(3) of the Constitution of India, remand cannot be granted. In para 32 of the said decision, the Apex Court observed as under : "32. We will now answer the questions suggested at the beginning and advert to the decisions of our Court which set the tone and temper of the 'silence' clause and bind us willy nilly. We have earlier explained why we regard Section 161(2) as a sort of parliamentary commentary on Article 20(3). So, the first point to decide is whether the police have power under Sections 160 and 161 of the Criminal Procedure Code to question a person who, then was or in the future may incarnate as an accused person. The Privy Council and this Court have held that the scope of Section 161 does include actual accused and suspects and we deferentially agree without repeating the detailed reasons urged before us by Counsel." Thereafter, in Paras 42 and 53 the Apex Court observed as under : "42. The Privy Council and this Court have held that the scope of Section 161 does include actual accused and suspects and we deferentially agree without repeating the detailed reasons urged before us by Counsel." Thereafter, in Paras 42 and 53 the Apex Court observed as under : "42. Let us hypothesize a homicidal episode in which A dies and B is suspected of murder; the scene of the crime being "C". In such a case a bunch of questions may be relevant and yet be innocent. Any one who describes the scene as well-wooded or dark or near a stream may be giving relevant evidence of the landscape. Likewise, the medical evidence of the wounds on the deceased and the police evidence of the spots where blood pools were noticed are relevant but vis-a-vis B may have no incriminatory force. But an answer that B was seen at or near die scene, at or about the time of the occurrence or had blood on his clothes will be incriminatory, is the hazard of inculpatory implication. In this sense, A answers that would, in themselves, support a conviction are confessions, but answers which have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory. Relevant replies which furnish a real and clear link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend Article 20(3) if elicited by pressure from the mouth of the accused. If the statement goes further to spell in terms that B killed A, it amounts to confession. An answer acquires confessional status only, if in terms or substantially, all the facts which constitute the offence are admitted by the offender. If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20(3) strikes at confessions and self-incriminations but leaves untouched other relevant facts." "53. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation - not, as contended, commencing in Court only. In our judgment the provisions of Article 20(3) and Section 161(1)substantially cover the same area, so far as police investigations are concerned. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation - not, as contended, commencing in Court only. In our judgment the provisions of Article 20(3) and Section 161(1)substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending of imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence, but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing an intimidatory methods and the like - not legal penalty for violation. So, the legal perils following upon refusal to answer or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of Article 20(3)." 16. Judged by the principle of law explained in the aforenoted decision, I am of the view that the court below was not justified in passing the impugned order of police remand. In all, there are four accused. I am told that one of the accused is absconding. The two main accused were arrested and were subjected to police remand and, thereafter, were remanded to the judicial custody. As on date also, the two of the co-accused are still in the judicial custody. The charge-sheet has also been filed so far as the two co-accused, who are in the judicial custody, are concerned. Thus, it could be said that the investigation, as such, has been completed. Besides the same, I take notice of what has been observed by the Coordinate Bench while enlarging the applicant on anticipatory bail. The charge-sheet has also been filed so far as the two co-accused, who are in the judicial custody, are concerned. Thus, it could be said that the investigation, as such, has been completed. Besides the same, I take notice of what has been observed by the Coordinate Bench while enlarging the applicant on anticipatory bail. At the cost of repetition, I may quote the relevant observations; "so far as, petitioner is concerned learned APP could not point out his active role in the commission of fraud except introduction of other accused persons to the complainant and his presence in the bank where allegedly fake Letter of Credit was presented. In above view of the matter, in absence of credible case against the petitioner at this stage, discretion is required to be exercised in favour of the petitioner by admitting him to bail in anticipation of his arrest;” 17. Over and above, pursuant to the order passed by this Court, the applicant did remain present on three occasions before the Investigating Officer and was interrogated. Of course, the Investigating Officer is not satisfied with the manner in which the applicant answered. The applicant has made himself very clear that whatever was within his personal knowledge, he has disclosed the same before the Investigating Officer. The learned APP very fairly pointed out that so far as the ground No.1 is concerned, the same would not be tenable in law for the purpose of seeking police remand. The learned APP also fairly pointed out that the applicant has disclosed the details as regards the bank account, income tax returns and the other properties etc. However, the Investigating Officer is quite keen to know certain details with regard to some bank account, which was opened in a Bank at New Zealand. 18. I am conscious of the fact that ordinarily the High Court should not interfere with the orders of police remand which are essentially interlocutory in nature. The custodial interrogation, no doubt, is one of the effective modes of the investigation, but for the same, very solid and cogent grounds should be made out. 18. I am conscious of the fact that ordinarily the High Court should not interfere with the orders of police remand which are essentially interlocutory in nature. The custodial interrogation, no doubt, is one of the effective modes of the investigation, but for the same, very solid and cogent grounds should be made out. Having regard to the fact that the applicant was released on anticipatory bail by this Court and has cooperated with the investigation, of course not to the satisfaction of the Investigating Officer, the case on hand is not one, in which, the applicant should be subjected to the custodial interrogation for a period of three days. 19. For the foregoing reasons, this application succeeds and is hereby allowed. The impugned order dated 16th December, 2017 passed by the 11th Judicial Magistrate, First Class, Ahmedabad (Rural) is hereby quashed. However, it shall be open for the Investigating Officer to summon the applicant once again for the purpose of interrogation, but such interrogation shall not be custodial in nature. The applicant shall cooperate with the investigation, at least, till the time, the charge sheet is filed against him. Rule is made absolute to the aforesaid extent. Direct service is permitted.