N.V. Anjaria, J.
1. The prosecution has filed the present application seeking cancellation of regular bail granted to respondent Nos. 1 and 2 herein. These respondents are the accused Nos. 1 and 2 respectively in the First Information Report being Crime Register No. 1-75 of 2004 dated 22nd February, 2004 lodged with Godhra Town Police Station alleging offences against the accused persons-in all seven in number-under Sections 406, 463, 465, 467, 468 and 114of the Indian Penal Code. In the aforesaid F.I.R., the complainant stated that he was promoter of one Ashirvad Builders, that he purchased various plots being land Survey No. 44/16 situated at Village-Vavdi Buzarg, Taluka-Godhra, District-Panchmahal by registered Sale Deed in March, 1998 from their respective original owners and pursuant to which the name of the complainant came to be entered in the record of rights. It was the say that the said plots were purchased by the complainant from his personal fund and as promoter of Ashirvad Builders and that he was having ownership rights over the plots. It was further alleged that accused Nos. 1 and 2-respondent Nos. 1 and 2 herein-were the working partners in the said Ashirvad Builders along with the complainant, but the complainant had independent status of promoter of the said firm also and that the plots were purchased by him alone in which accused persons had no right. It was alleged that by misusing the sale document in respect of Plot Nos. 16 to 19 and 24 to 27 the respondents got their names mutated in the record of rights by forging signature of the complainant and executed further documents transferring some of the plots. Role of other accused was also alleged.
1.1. Respondent Nos. 1 and 2 moved Criminal Miscellaneous Application No. 404 of 2004 for regular bail. Learned Additional Sessions Judge, Fast Track Court, Godhra by common order dated 26th April, 2004 passed in Criminal Miscellaneous Application No. 404, 408 and 409 of 2004 granted regular bail. Prior to the said regular bail application, the respondents-accused had filed application praying for anticipatory bail which was allowed.
2. The proceedings and events that took place may be briefly referred to so as to have a complete factual picture. An application was made before the Court of learned Chief Judicial Magistrate being Application below Exhibit 3 in Criminal Case No. 2826 of 2004 with a prayer for further investigation under Section 173(8) of the Code of Criminal Procedure, 1973 in connection with the aforesaid First Information Report. The said application came to be rejected by order dated 05th October, 2007. The original complainant thereafter filed a Special Criminal Application No. 1958 of 2007. By order dated 05th February, 2008, this Court allowed the petition directing the Investigating Officer to conduct further investigation under Section 173(8) of the Code, 1973
"only qua the request made by the petitioner, namely to inquiry as to who has signed the notice under Section 135-D (of the Bombay Land Revenue Code, 1879) by pausing as the petitioner and arraign such person as an accused". The said exercise was required to be carried out within two months.
2.1. It is the case of the prosecution in this application that thereafter the Investigating Agency conducted investigation as above. An application to extend time to complete further investigation was filed by the prosecution but the same was not entertained. It is further stated that the original complainant thereafter filed Criminal Miscellaneous Application No. 9639 of 2009 in the aforesaid Special Criminal Application No. 1958 of 2007, seeking a direction to transfer the further investigation to independent agency like CBI, CID (Crime) or any other superior officer not below the rank of DSP on the ground inter alia that despite specific direction of his Court, further investigation was not completed. In the said Miscellaneous Criminal Application no relief was granted by this Court.
2.2. The original complainant thereupon approached the Supreme Court by filing Special Leave to Appeal (Criminal) No. 57 of 2011. The Apex Court by its order dated 23rd February, 2013 inter alia observed that inspite of efforts made by the investigating team, the persons who forged the signature and who impersonated the complainant were not identified and directed as under :-
"In view of the aforesaid apprehension expressed . We are of the opinion that direction for investigation being conducted by person higher than the rank of DSP would be required. We, therefore, direct the inspector General, Godhra to further investigation the matter to ensure that the actual perpetrators of the crime are dealt with according to law. Let the investigation be completed within a period of two months.
We make it clear that the investigation shall be carried out by keeping in view that we have not expressed any opinion on the merits."
2.3. Thereafter Deputy Commissioner of Police, Vadodara Division, Vadodara being the Investigating Officer who took charge of the investigation upon the order of the Supreme Court as above applied to the Chief Judicial Magistrate, Godhra on 04th September, 2013 stating inter alia that as during the investigation the accused persons were not revealing the name of the persons who forged the signature of the complainant in 135-D notice, it had become necessary to undergo a Lie Detection Test of the four accused including the respondent Nos. 1 and 2 herein and accordingly prayed to the Court to permit the conducting of the Lie Detection Test. Simultaneously on 05th September, 2013, the Investigating Officer also applied by Application Exhibit 39A to the Chief Judicial Magistrate for cancellation of bail on the ground that the accused persons including respondent Nos. 1 and 2 herein were not cooperating in the investigation and that they were not revealing the name of the person who forged the signature.
2.4. Both the above applications being Application Exhibit 39A for cancellation of bail and Application Exhibit 39B in respect of seeking permission for Lie Detection Test of the respondents-accused came to be rejected by separate orders, both dated 18th September, 2013. The State thereafter wanted to challenge the said order below Exhibit 39A by filing Criminal Revision Application before the Sessions Court, in which there was a delay. A delay condonation application being Criminal Miscellaneous Application No. 73 of 2014 came to be dismissed on 24th March, 2014. The State did not challenge further the said order of not condoning delay.
2.5. With above background of facts the State has filed the present application under Section 439(2) of the Code of Criminal Procedure praying that regular bail granted to the respondents-accused is required to be cancelled.
3. Heard learned Additional Public Prosecutor Mr. N.J. Shah for the applicant-State and learned Advocate Mr. Manan Bhatt for the respondents.
3.1. Learned Additional Public Prosecutor took the Court through the grounds urged in the petition in support of the plea of cancellation of bail. He reiterated that the respondents-accused were not cooperating in the investigation which was being conducted as per the extension of two months permitted by the Supreme Court and it was not disclosing the names of the persons who may have forged the signature. The accused persons did not consent for conducting Lie Detection Test. Learned Additional Public Prosecutor submitted that the said test was necessary to be conducted so that the investigating agency could find out the name of the person who committed forgery. It was submitted that by non-cooperating in the investigation in the aforesaid manner, respondents-accused breached the conditions of bail and bail was liable to be cancelled. As noted above, the investigating agency's application made before the Chief Judicial Magistrate for permitting it to do Polygraphy Test or Lie Detection Test was dismissed. The request of the investigating agency for conducting the Lie Detection Test and refusal of the accused persons to undergo the same was the main plank of ground and the submissions on which the prayer for cancellation of bail is based in this application. Learned Additional Public Prosecutor wanted to submit that it was investigational need that Lie Detection Test should be conducted.
4. It is well-settled that very cogent and overwhelming circumstances are necessary for justifying cancellation of bail already granted. Aslam Babalal Desai v. State Of Maharashtra., (1992) 4 SCC 272 is one of the catena of the decisions wherein the Supreme Court listed some of the circumstances on which the bail could be cancelled-(i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vii) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. Again these grounds are illustrative and not exhaustive. The cancellation of bail may be justified on the grounds of imperatives of investigational needs and where the accused is found to be misusing the liberty or influencing or tampering the investigation or the course of trial. None of the above circumstances or any of the grounds in the above realm exists in the present case.
4.1. In the present case, the ground for seeking cancellation of bail is that the respondents-accused persons are needed to be subjected to Lie Detection Test. The prayer of the Investigating Agency in this regard has been turned down by the competent Court and the respondents did not consent for such test. The compulsive administration of tests on the accused persons in course of investigation, such as Polygraph Test or Lie Detection Test and use of similar other methods is not permissible. They are held to be smothering the rights of the accused person under Article 21 of the Constitution and violative of his rights against self-incrimination.
4.2. In Smt. Selvi and others v. State of Karnataka, (2010) 7 SCC 263], the Apex Court has disapproved the administration of Lie Detection Test unless the accused has consented for the same. It was held that such forcible methods of carrying out Narco Analysis Test or Polygraph Test by the police is destructive of accused rights against self-incrimination and it violates personal liberty, which are non-derogable rights. It was held that production of the accused against the self-incrimination is available even at the stage of investigation. Relying upon the said decision, this Court in State of Gujarat v. Ashishbhai Kapilbhai Nanda and another [2011 (2) GCD 1578 (Guj)] has also held that if the accused objects to such Test, the same cannot be forcibly administered in view of the aforesaid Apex Court judgment and in view of guidelines published by the National Human Rights Commission.
4.3. In Smt. Selvi (supra), the Apex Court stated,
"we hold that no individual should be forcibly to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the response during the administration of the test."
5. It may be true that investigational imperatives is one of the grounds for cancellation of bail; so also the non-cooperation on part of the accused in the investigation is. But as far as the personal tests on the accused person, such as Lie Detection Test are concerned, they could be employed only if the accused is willing and voluntarily submits himself agreeing for conducting of such tests. The opinion of Investigating Agency and its perceived requirement for conducting such test against the accused for the purposes of investigation of the case, cannot form part of "investigational need" to be a ground for supporting prayer of cancellation of bail, where the accused has not consented for the same. Therefore, necessarily, when the accused does not give consent to be subjected to Lie Detection Test or for using any such prohibited method against him, by no stretch of reasoning, logic or imagination, it could be said that the accused is not cooperating in the investigation. For the foregoing reasons and discussion, the prayer for cancellation of bail is devoid of merits, and is not liable to be entertained. The petition stands dismissed. Rule is discharged.
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