Refusal to Confess Is Not Non-Cooperation: Punjab & Haryana High Court Grants Anticipatory Bail, Slams Investigative Misuse and Coercion

“Investigating Officer Cannot Compel Self-Incrimination Under Guise of Cooperation” –  In a significant ruling Punjab & Haryana High Court granted anticipatory bail to the petitioner accused of vehicle theft under Sections 305 and 317(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS).

Justice Harpreet Singh Brar delivered a robust critique of the investigation, finding it tainted by coercion and influence, and held that refusal to confess does not amount to non-cooperation. Invoking Article 20(3) of the Constitution, the Court reaffirmed that testimonial compulsion cannot be used as a basis to seek custodial interrogation.

The FIR was registered at Police Station Bajghera, Gurugram on November 25, 2024, initially under Section 303 BNS, later modified to Sections 305 and 317(2) BNS, which pertain to theft-related offences. The petitioner was not named in the original FIR and was added as an accused four months later.

The petitioner contended that the case stemmed from a malicious investigation, influenced by the complainant — the owner of a powerful construction company. It was also argued that innocent individuals were being wrongly implicated, including those who merely stood surety for co-accused persons. The defence also pointed out that no notice under Section 35(3) BNSS (equivalent to old Section 41A CrPC) had been issued.

Justice Brar noted that the status report filed by the Commissioner of Police, although voluminous (402 pages), failed to establish any lawful ground for custodial interrogation. The only grievance of the police was that the petitioner had not confessed.

In a stern rebuke, the Court held: "This Court has observed a curious trend, where the jurisdictional police authorities deem the bail applicant to be uncooperative merely because he would not confess to his guilt."

Quoting Article 20(3) of the Constitution — “No person accused of any offence shall be compelled to be a witness against himself” — the Court reminded the authorities that constitutional protections cannot be bypassed under the cloak of ‘non-cooperation’.

Referring to the landmark eleven-judge Constitution Bench in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, the Court emphasized: “It is well established that clause (3) of Article 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information.”

Similarly, the Court cited the authoritative decision in Selvi v. State of Karnataka, (2010) 7 SCC 263, which held: “While there is no bar in directing the accused to give any physical evidence such as his fingerprints, blood sample, or specimen signatures, he cannot be expected to make self-inculpatory statements, as that would amount to testimonial compulsion.”

The Court was unequivocal in condemning the method of investigation: “It appears that under the garb of non-cooperation during investigation, the investigating agency is compelling the petitioner to make self-incriminating statements.”

“Relying solely on self-incriminating statements made by the accused is not only legally unsound but also contrary to the principles of natural justice and fair trial.”

“Opposing the release of an accused on bail solely because he refuses to testify against himself is a draconian practice that, in good conscience, cannot be allowed to continue unchecked by this Court.”

The Court found no justification for custodial interrogation and noted that the maximum sentence prescribed for the alleged offences was seven years. Further, the petitioner had clean antecedents, and the recovery in the case had already been made from another co-accused.

“Keeping in view the facts and circumstances of the case and also that maximum sentence for the offences… is up to 07 years and the petitioner is having clean antecedents, this Court deems it appropriate to grant anticipatory bail to him.”

Accordingly, the interim bail granted on April 7, 2025, was made absolute, and the petitioner was directed to comply with the conditions under Section 482(2) BNSS (formerly Section 438(2) CrPC).

The judgment is a resounding endorsement of constitutional safeguards, particularly the right against self-incrimination under Article 20(3). It reinforces that silence cannot be used as a weapon against the accused, and anticipatory bail remains a shield against investigative arbitrariness, not a privilege subject to the whims of police discretion.

Date of Decision: May 7, 2025