ORDER
Rajive Bhalia, J.
1. This order shall dispose of Crl. Misc. No. 63954-M of 2005, Crl. Misc. No. 63956-M of 2005, Crl. Misc. No. 63958.M of 2005 and Crl. Misc. No. 63960-M of 2005.
2. Prayer in the present petitions is for grant of anticipatory bail in FIR No. 312, dated 10-7-2002, registered at Police Station Thanesar, District Kurukshetra, in case RC No. 10(S) 2003 SCB, CHD, dated 9-l0-2003, registered under Sections 302/120/B/34 of the IPC, in FIR No. 685, dated 24-10-2002, registered at Police Station City Sirsa, District Sirsa, and case RC No. 8(S) 2003 SCB CHG, dated 9-12-2003, registered under Sections 302/120-B/34 of the IPC.
3. The facts, that have led to the filing of the present petitions, are enumerated hereunder.
4. Dera Sacha Sauda was set up in the year 1948. It is a social organization with a large following. As per averments, in the petitions, an anonymous letter regarding misdeeds and sexual misdemeanours of Dera functionaries was circulated. On 10-7-2002, one Ranjit Singh was murdered and FIR No. 312, dated 10-7-2002, lodged, pursuant to the statement of his father Joginder Singh. Thereafter, Ram Chander Chatarapait, a journalist, who allegedly published the anonymous letter was assaulted, which led to the lodging of FIR No. 685, dated 24-10-2002, initially under Sections 307/120-B of the IPC but subsequently, on his demise, converted to Section 302/120-B of the IPC. Though some of the accused were arrested and in one of the cases, trial was in progress, this Court was petitioned to entrust investigation to the CBI to unravel the conspiracy. Allegations levelled were that Ranjit Singh, the alleged author of the anonymous letter and Ram Chander Chatarpati, who had published the letter in a newspaper, had been murdered, pursuant to a conspiracy, hatched by Dera Functionaries. Pursuant to the orders of this Court, investigation into the aforementioned FIRs was entrusted to the Central Bureau of Investigation, which lodged RC No. 10[S) 2003 SCB CHD, and RC No. 8(S) 2003 SCB CHG and proceeded to further investigate the matter.
5. Inder Sain, petitioner, received a notice from the CBI to appear on 20-12-2004, at its office in Chandigarh. It is claimed that he appeared before the CBI up to 22-12-2004, on which date he was served with another notice, requiring him to come present on 11-1-2005. Thereafter, he was telephonically directed to appear at the CBI office on 8-2-2005. He duly appeared from 8th to 10th February 2005. During this interrogation, he was asked on 9-2-2005, whether he would consent to undergo a polygraph test. The petitioner consented to undergo a polygraph test. The test was conducted at Chandigarh from 18-4-2005 to 20-4-2005. The petitioner was again required to undergo another polygraph test at New Delhi on 18-7-2005, which the petitioner duly underwent. The petitioner was thereafter produced before a Judicial Magistrate at Chandigarh to secure his consent for undergoing a narco analysis test. The petitioner consented to the aforementioned test but the said test was not carried out.
6. Avtar Singh, petitioner, also received a notice, under Section 160 of the Cr.P.C, from the CBI to appear before it on 24-6-2005 at its Chandigarh Office. The petitioner duly appeared before the CBI and was interrogated. Thereafter, he was directed to undergo a polygraph test at New Delhi. The petitioner duly underwent the said test from 18-7-2005 to 21-7-2005.
7. Thereafter, the petitioners received a notice, under Section 160 of the Cr.P.C. to appear before the CBI at its Chandigarh office. A similar notice was also served upon a co-accused, namely, Krishan Lal, who was allegedly arrested on 30-8-2005 from his village and tortured by the CBI. Apprehensive of similar treatment, the petitioners filed petitions, under Section 438 of the Cr.P.C. before the Special Judge, CBI, Ambala.
8. After issuance of notice and in the presence of counsel for the CBI, the Special Judge, Ambala, vide order dated 9-11-2005, directed the petitioners to join investigation. However, as no interim protection was granted, the petitioners preferred applications, praying therein that interim protection be granted so as to enable them to join investigation. However, vide orders dated 9-11-2005 and 19-11-2005, the aforementioned applications were dismissed, leading to the filing of the present petitions.
9. Counsel for the petitioners contends that the petitioners have joined investigation, pursuant to notices, served upon them, under Section 160 of the Cr.P.C. and have co-operated fully with the Central Bureau of Investigation. They have undergone polygraph tests and as investigation with regard to their alleged roles in the murders, having concluded, they should be admitted to the concession of pre-arrest bail.
10. It is further contended that the object of investigation, cannot be to force or coerce an accused into suffering admissions or admitting to his culpability. The object of the CBI is to extract a confession from the petitioners by means of torture, as has been done in the case of Krishan Lal-co-accused and, therefore, the petitioners apprehend that in case they are arrested, they would be tortured and coerced into suffering admissions that would implicate them in the commission of the offences, being investigated.
11. It is further argued that even during the pendency of the present petitions, the petitioners have joined investigation and pursuant thereto, have been thoroughly questioned. There appears to be no rationale for opposing the grant of anticipatory bail or to urge that custodial interrogation of the petitioners is necessary.
12. It is contended that there is no evidence as to the petitioners complicity in the murders of Ranjit Singh and Ram Chander Chatarapati. The accused, who committed the murders, have been arrested and, therefore, the present petition be allowed and the petitioners be released on anticipatory bail.
13. Counsel for the Central Bureau of Investigation, on the other hand, contends that pursuant to orders, passed by this Court, investigation into the FIRs, registered by the Haryana Police, was entrusted to the CB1 so as to unravel the conspiracy behind the two murders. In order to unravel the conspiracy and to arrive at a firm conclusion as to the identity of the conspirators, the custodial interrogation of the petitioners is necessary. Though the petitioners have appeared before the CBI, on a few occasions, and have been interrogated, they have concealed the truth. This fact is established from the polygraph report prepared, pursuant to the polygraph tests, undergone by the petitioners. As per the report 90% of the queries were evasive. Thus, as the petitioners are concealing the truth, their custodial interrogation is necessary.
14. It is further argued that Ranjit Singh was murdered, pursuant to a conspiracy, hatched by Dera functionaries, as they suspected that he was the author of an anonymous letter that sought to expose the misdeeds and sexual escapades of senior functionaries of the Dera. Ram Chander Chatarpati was murdered as he dared to publish this anonymous letter in a newspaper. These individuals were murdered, pursuant to a high level conspiracy, hatched by Dera functionaries. Inder Sain, petitioner, is a Dera Manager and Avtar Singh, petitioner, a grandson of the earlier Dera Chief, and a member of the governing body of the Dera. The respondents have evidence to establish a conspiracy, by the Dera officials, to eliminate Ranjit Singh and Ram Chander Chatarpati, as the fatal bullet, that led to the death of Ram Chander Chatarpati matched a licenced weapon, owned by Krishan Lal. a co-accused, and a Dera Manager. A walkie-talkie, recovered from the accused, who participated in the actual murder of Ram Chander Chatarapati bears the words “M/S Dera”. Two of the accused, namely, Nirmal Singh and Kuldeep Singh, the persons who participated in the murder of Ram Chander Chatarapati were working as carpenters at the Dera. The custodial interrogation of the petitioners is necessary to unravel the ramifications of the conspiracy, the names of the conspirators and the motive behind the murders.
15. It is further argued that the allegations regarding torture of Krishan Lal are absolutely false. During interrogation, Krishan Lal attempted to escape and suffered injuries. The petitioners are evading arrest so as to prevent the CBI from unearthing the true conspiracy behind the aforementioned murders. The right to remain silent, available to an accused, has to be balanced with the obligation of an Investigating Agency to arrive at the truth. It is further contended that the CBI has been able to collect evidence implicating the petitioners in the conspiracy. However, the entire ramifications thereof can only be brought before the trial Court, in case the custodial interrogation of the petitioners is conducted.
16. I have heard learned Counsel for the parties and perused the paper book, as also the record of investigation.
17. As noticed hereinbefore, an anonymous letter, levelling allegations of sexual misdemeanours against senior functionaries of the Dera, was circulated. This letter apparently, as per counsel for the CBI, led to the murders of Ranjit Singh, the suspected author of the anonymous letter, and Ram Chander Chatarapati, a journalist, who published the letter in a newspaper. These murders led the Haryana Police to register two FIRs. The matter was brought before this Court, by individuals, aggrieved by the manner of investigation. this Court entrusted investigation into the aforementioned FIRs to the CBI.
18. As noticed in the narrative of facts and contentions, raised by counsel for the petitioners, they have appeared before the CBI, pursuant to notices, served upon them. They have also undergone polygraph tests at a government approved laboratory. Pursuant to interim orders passed by this Court, they joined investigation and as claimed by counsel for the petitioners, were subjected to a detailed and thorough interrogation.
19. The question that requires consideration is whether the petitioners should be admitted to the concession of pre-arrest bail, and the interim orders made absolute.
20. Section 438 of the Cr.P.C. confers extra ordinary powers upon a High Court and a Court of Session to direct that in event of his arrest, an accused shall be released on bail. This power, as is apparent from the very provisions of Section 438 of the Cr.P.C. as also the large body of legal precedents, has to be exercised in exceptional circumstances. The factors to be kept in mind, while adjudicating a plea for grant of anticipatory bail, are significantly different from those of a plea of regular bail. The provisions of Section 438 of the Cr.P.C. are in the nature of an exception to general rule that an investigating agency must be given a free reign to arrive at the truth. A few of the factors to be taken into consideration are the gravity or the seriousness of the offences complained of, the proposed charges that are likely to be levelled, the possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that the witnesses would tamper with the evidence, as also public interest and the interest of the State. However, no hard and fast rule of law can be set down, for the exercise of powers, under Section 438 of the Cr.P.C. It is for a Court considering a plea of anticipatory bail, to arrive at a conclusion for or against the prayer made. A significant fact, that must be taken into consideration when the circumstances so demand, is that interrogation of an individual, clothed with a protective shield of interim protection, is qualitatively less effective than a custodial interrogation. At this stage, observations of the Hon’ble Supreme Court in a judgment reported as State Rep. by the C.B.I, v. Anil Sharma , as regards the nature of custodial interrogation would be appropriate.
6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.
21. Furthermore, the provisions of Section 438 of the Cr.P.C. cannot be invoked, where custodial interrogation is necessary or may hamper proper investigation. A Court considering an application, under Section 438 of the Cr.P.C. must strike a balance between the rights of an accused and the duty and obligation conferred upon an investigating agency.
22. Considering the facts of the present case, in the light of the provisions of Section 438 of the Cr.P.C. as interpreted by a long line of the legal precedents I am of the considered opinion that the present petitions merit dismissal.
23. It is no doubt true that the petitioners have appeared before the CBI on number of occasions, one such occasion being pursuant to the orders of this Court. In my considered opinion, the present are cases where the observations of the Hon’ble Supreme Court, reproduced herein before, would aptly apply. The CBI, in its endeavour, to arrive at the truth as regards the conspiracy behind the murders of two individuals, has proceeded to collect evidence that may prima facie enable it to establish the vital links in the conspiracy that led to the murders. The gun that was fired, in the murder of Ram Chander Chatarapati has been matched, by forensic analysis, with the bullet that struck him, and as per the respondents, belongs to Krishan Lal, co- accused, a Dera Manager. A walkie-talkie recovered bears the words “M/S Dera”. The accused, who carried out the killings, were allegedly working as carpenters at the Dera. The contentions, raised by counsel for the CBI, that the petitioners’ replies were evasive and untruthful, appear to be borne out from the report of the polygraph tests. A perusal of the report, produced before this Court, clearly reveals that a majority of the replies were evasive. An accused may have a right not to make admissions that would implicate him but at the same time is not absolved of his obligation to speak the truth, if and when he chooses to answer questions, put by the prosecution during investigation. In case the prosecution establishes prima facie that despite joining investigation, the accused has failed to disclose the truth, such conduct, in given circumstances, would be sufficient to warrant dismissal of the petition for grant of anticipatory bail. In the present case, the polygraph tests have established that the petitioners’ replies were evasive.
24. In my considered opinion, without custodial interrogation of the petitioners, it may be difficult or near impossible for the prosecuting agency to arrive at the truth. The contention, raised by counsel for the petitioners, that the prayer for custodial interrogation is an attempt to coerce the petitioners into suffering disclosure statements and/or to confess to the line of investigation, being adopted by the CBI, in my considered opinion, does not merit acceptance. The mere fact that Krishan Lal, a co-accused, claims to have been tortured and a criminal complaint has been filed on his behalf against the investigators is insufficient to accept the aforementioned contention. It would also be appropriate to notice here that the petitioners are functionaries of the Dera, Inder Sain being a Manager, whereas Avtar Singh, a Member of the Managing Committee, is the grandson of the earlier Dera Chief.
25. Another contention, raised by counsel for the petitioners, that at best, contention of the respondent is that the petitioners are conspirators and, therefore, no recoveries have to be effected and no further interrogation required, in my considered opinion, does not merit acceptance. It is true that direct evidence as regards conspiracy is rare. A conspiracy is generally inferred from the surroundings circumstances. However, as the matter is still at the stage of investigation, and the prosecuting agency is in the process of collecting evidence, it would not be appropriate to deny custodial interrogation. It would also be pertinent to mention here that the brain behind the finger that pulls the trigger is the primary accused and not a mere appendage to the accused who pulled the trigger. An argument to the contrary, in my considered opinion, would be a perversion of fact and law. The gravity of the offence i.e. the murder of two innocent individuals, the back ground of the case, narrated herein before, the evasive nature of the replies, the fact that investigation is still in progress, in my considered opinion are circumstances sufficient to deny bail to the petitioners. Their custodial interrogation, in the facts and circumstances of the present case, is necessary.
26. In view of what has been stated above, the present petitions are dismissed.
27. Nothing stated herein, shall be construed to be expression of opinion, on the merits of the controversy.