Safiya Malik

The Calcutta High Court in its judgement on an application seeking the vacation of an interim protection order granted to the petitioners in an ongoing criminal investigation. The court declined to vacate the protection, concluding that the petitioners have demonstrated cooperation with the investigation, and custodial interrogation is not necessary at this stage. The order extends the existing interim relief until April 30, 2025, or until further orders.

The petitioners, facing proceedings in a criminal case, sought to quash the investigation before the Additional Chief Judicial Magistrate, Second Court, Calcutta. The High Court, by an order dated August 9, 2024, restrained coercive action against them, provided they cooperated with the investigation. This interim order had been extended periodically. The private opposite party challenged the interim order before the Supreme Court in Special Leave Petition (Cri) No. 53651 of 2024, which allowed them to apply for the vacation of the order before the High Court.

The applicant alleged that the petitioners had failed to comply with Section 41A notices under the Code of Criminal Procedure and were obstructing the investigation into a large-scale fraud involving forged public documents. The applicant contended that the interim protection order had hindered the investigation and enabled the petitioners to evade legal consequences. The applicant further argued that multiple attempts to secure their cooperation had been unsuccessful and that the protection order had severely hampered the authorities' ability to conduct an unbiased investigation.

Conversely, the petitioners argued that the case was commercially motivated and that they had cooperated with the investigating officer. They contended that compliance does not necessitate admitting to an alleged crime they deny committing. The petitioners asserted that they had provided all necessary documents and had appeared before the authorities when required. One of the petitioners, suffering from health ailments, had requested time to physically appear before the investigating agency, a request which had not been addressed by the authorities.

The State’s counsel supported the plea for custodial interrogation, asserting that the petitioners had been evasive and that multiple attempts to arrest them had failed. The State’s representatives submitted that despite summonses and search warrants, the petitioners had managed to avoid scrutiny, with some allegedly absconding for a period. The State further argued that the petitioners' influence and access to key documents made it imperative for their custodial interrogation to ensure the integrity of the investigation.

The court examined the claim that the petitioners were not cooperating with the investigation. It noted that one petitioner had physically appeared before the investigating officer, while others had responded in writing, offering to cooperate through video conferencing if necessary. The court found no record of the investigating agency either accepting or rejecting their request for a virtual appearance. The court observed that no substantial proof had been provided by the authorities indicating that the petitioners were deliberately avoiding cooperation.

The court also examined legal precedents on the issue of non-cooperation in criminal investigations. Referring to Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Others, the court observed: "Non-cooperation by the accused is one matter and the accused refusing to confess to the crime is another. There would be no obligation upon the accused that on being interrogated, he must confess to the crime and only thereafter, would the Investigating Officer be satisfied that the accused has cooperated with the investigation."

Applying this principle, the court held that the petitioners’ refusal to confess could not be construed as non-cooperation. The court further observed that cooperation in an investigation must be assessed based on compliance with summonses, the submission of necessary documents, and appearances before authorities, rather than whether the accused admitted to the allegations.

The court stated that criminal investigations should be independent and impartial. It noted that while the investigating agency had the right to interrogate the accused, it must do so within the framework of law. It was recorded that the investigating authorities had failed to provide sufficient justification for seeking custodial interrogation, and the petitioners' willingness to cooperate through alternative means had not been adequately considered.

The court also noted discrepancies in the manner in which the investigation had been conducted. It observed that the prosecution had ample opportunity to investigate the matter over a substantial period before the petitioners had filed the present revisional application. The court stated that it was not convinced that custodial interrogation was required, given that the investigation had continued for over two years without any substantial evidence being brought against the petitioners that would necessitate their arrest.

Having found no evidence of deliberate non-cooperation, the court dismissed the application seeking the vacation of interim protection. The order stated: "Since this Court is convinced that the petitioners are cooperating in investigation, it cannot be said that custodial interrogation of the petitioners is required for the purpose of investigation or that the petitioners are taking undue advantage of the protection granted by this Court."

Nonetheless, the court cautioned that failure to comply with investigative requirements would automatically vacate the protection granted. It further stated that the investigating officer had the authority to summon the petitioners again, should additional material evidence arise.

The court extended the interim order until April 30, 2025, or until further orders. It directed that any alleged future non-cooperation by the petitioners must be substantiated with concrete evidence before seeking any further modification of the interim relief.

Case Title: Modhucon Projects Limited & Others v. The State of West Bengal & Another
Case Number: CRR 3230 of 2024
Bench: Justice Suvra Ghosh

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