Calcutta High Court (Appellete Side)
Moitry Dana & Anr vs Unknown on 4 August, 2022
04.08.2022
Srimanta
List-S/L
CRR/2857/2022
In the matter of :Moitry Dana & Anr.
...petitioners.
Mr. Rajdeep Majumder, Adv.,
Mr. Sarthak Mondal, Adv.
...for the petitioners.
The petitioner no. 1 was appointed as a contractual
Data Entry Operator for a period from 1 st April, 2022 to 28th
August, 2022 or till the duration of the project whichever is
earlier by the Broadcast Engineering Consultants India
Limited, a Government of India Enterprise under the Ministry
of Information and Broadcasting, Government of India to be
ordinarily posted in the office of the AIIMS, Kalyani.
Petitioner no. 2 is the father of the petitioner no.1. Kalyani
Police Station Case No. 241/2022 was registered on 20 th May,
2022 on the basis of a written complaint filed by one Sariful
Islam, a resident of a village in the district of Murshidabad.
In the said complaint, it was alleged that the petitioners along
with one Bankim Chandra Ghosh, Dr. Subhas Sarkar, Dipa
Biswas, Jagannath Sarkar, Ramji Singh and unknown others
entered into a criminal conspiracy and illegally issued order of
appointment in favour of the petitioner no. 1 who is the
debtor of petitioner no. 2. Be it noted here that petitioner no.
2 is a sitting Member of Legislative Assembly in the State of
West Bengal.
It is further found on perusal of the formal FIR that the
petitioners are the FIR named accused persons. Previously,
the petitioner was served with a notice under Section 160 of
the Code of Criminal Procedure by the Investigating Officer
requiring him to meet the Investigating Officer for
interrogation. As petitioner no. 1 did not know about the
incident for which Kalyani Police Station Case No. 241/2022
was registered, she applied for certified copies of the written
complaint, formal FIR and other relevant documents. The
prayer was denied by the Court of the Learned Magistrate on
the ground that the petitioner is not a party to the
proceeding. The petitioner no. 1 assailed the said order
before this Court in CRR 2386/2022, this Court by judgment
dated 8th July, 2022 disposed of the aforesaid criminal
revision directing the Learned Trial Jude to supply the
certified copy of the FIR upon an application to be filed by the
petitioner in the Court below after following of procedure for
obtaining certified copy of the document. The Investigating
Officer was also directed to examine the petitioner on the
basis of the notice under Section 160 of the Code of Criminal
Procedure after supplying a copy of the FIR to her and giving
her the opportunity to go for the same to ascertain as to
whether she has any knowledge about the incident or not.
Subsequent to the said order having been passed, the
petitioner received the certified copy of the written complaint
and formal FIR from the Court below. Then, the petitioner
no. 1 came to know that she and her father are FIR named
accused persons. By suppressing all such fact the petitioner
was supplied with a notice under Section 160 of the Code of
Criminal Procedure which empowers a Police officer to require
attendance of witnesses.
Under such backdrop the petitioners have approached
this Court challenging the legality and veracity of the notice
under Section 160 of the Code of Criminal Procedure with
further prayer to quash the proceeding in connection with
Kalyani P. S. Case No. 241/2022.
Indisputably, the petitioners are FIR named accused
persons. In State represented by Inspector of Police & Ors.
Vs.- NMT Joy Immaculate reported in (2004) 5 SCC 729,
while concurring the judgement of the Bench, His Lordship
the Hon'ble Justice Dr. A. R. Lakshmanan, as His Lordship
then was observed as hereunder:-
"Section 160 of the Code of Criminal Procedure deals
with Police Officer's power to require attendance of witnesses.
This section aims at securing the attendance of persons who
would supply the necessary information in respect of the
commission of an offence and would be examined as
witnesses in the enquiry or trial therefor. This Section applies
only to the cases of persons who appear to be acquainted
with the circumstances of the case, i.e., the witnesses or
possible witnesses only. An order under this Section cannot
be made requiring the attendance of an accused persons with
a view to his answering the charge made against him. The
intention of the legislature seems to have been only to
provide a facility for obtaining evidence and not for procuring
the attendance of the accused, who may be arrested at any
time, if necessary. In other words, this Section has reference
to the persons to be examined as witnesses in the trial or
inquiry to be held after the completion of the investigation.
As an accused cannot be examined as a witness either for or
against himself, he cannot be included in the class of persons
referred to in the Section. But the Police Officers are fully
authorized to require the personal attendance of the suspects
during the investigation."
On perusal of the FIR it is clearly found that the
petitioners are not suspects. They are FIR named accused.
Therefore, the attendance of the petitioners cannot be
procured by issuing a notice under Section 160 of the Code of
Criminal Procedure.
If the law permits and the Investigating Officer wants to
interrogate the petitioners who are arraigned as FIR named
accused persons in connection with Kalyani Police Station
Case No. 241/2022, he has the every authority to issue notice
under Section 41A of the Code of Criminal Procedure to the
petitioners. The Investigating Officer can also take recourse
of Section 41 of the Code of Criminal Procedure. However,
Section 160 of the Code of Criminal Procedure is palpably not
applicable against the petitioner in connection with Kalyani
Police Station Case No. 241/2022.
In view of the consistent decision of the Hon'ble
Supreme Court and due to the reason that the petitioners are
arraigned as FIR named accused persons in the FIR, this
Court is of the view that notice under Section 160 of the Code
of Criminal Procedure issued by the Investigating Officer is
inoperative, inapplicable and bad in law.
For the reasons stated above, the instant revision be
admitted.
The petitioners are directed to serve notice upon
opposite party nos. 1 and 2 under registered speed post with
acknowledgement due and file affidavit-of-service within
three weeks from the date of this order.
In the meantime, operation of the notice under Section
160 of the Code of Criminal Procedure issued by the
Investigating Officer in the names of the petitioners be stayed
for a period of six weeks.
( Bibek Chaudhuri, J. )
