Pratik Agarwal vs The State Of West Bengtal
2022 Latest Caselaw 354 Cal

                                     1


                   IN THE HIGH COURT AT CALCUTTA
                CRIMINAL MISCELLANEOUS JURISDICTION
                           APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
            And
The Hon'ble Justice Bibhas Ranjan De


                            CRM 7652 of 2021

                         PRATIK AGARWAL
                               VS.
                    THE STATE OF WEST BENGTAL


For the petitioner : Mr. Siddhartha Luthra, Ld. Senior Advocate
                     Mr. Debashis Roy,
                     Mr. Sabyasachi Banerjee,
                     Mr. Rudraman Bhattacharya
                     Mr. Nigam Ashish Chakraborty
                     Ms. Suchismita Ghosh,
                     Mr. Sehzan Hashmi
                     Mr. Agniva Banerjee
                     Mr. Karan Dudhewala, Advocates

For the de-facto   : Mr. Sandipan Ganguly,
                     Mr. A. Bhattacharya, Advocates

For the State      : Mr. Saswata Gopal Mukherjee, Ld. P.P
                     Mr. Rudradipta Nandy, Advocates

Heard on           : February 8, 2022

Judgment on        : February 8, 2022


DEBANGSU BASAK, J.:-

    1.

Petitioner seeks anticipatory bail in connection with

Shakespeare Sarani Police Station Case No. 22 dated

28.01.2021 under Sections 341/323/376/506/354/34 of the

Indian Penal Code corresponding to G.R.(S) Case No. 119 of

2021. The present petition was assigned to this Bench by the

Hon'ble the Chief Justice on December 1, 2021.

2. Learned senior advocate appearing for the petitioner

submits that the petitioner was falsely implicated. He refers to

the complaint lodged by the de facto complainant. He submits

that two incidents are alleged in the complaint of the de facto

complainant - one is claimed to be occurring on February 25,

2020 and the other on December 26, 2020. The petitioner is

not involved on the basis of the statements made in the

complaint of the de facto complainant so far as the December

26, 2020 is concerned. He submits that, the complaint was

lodged on December 27, 2020 and the First Information

Report was registered on January 28, 2020. He highlights the

delay in between the first incident and the lodgment of the

complaint.

3. Learned senior advocate appearing for the petitioner

submits that the police complaint is a result of a long pending

civil dispute. There are disputes with regard to the Will of the

deceased father of the petitioner, Mahesh Agarwal dated

December 14, 2019. It is claimed that the deceased father of

the petitioner left behind a Will and testament under which,

he bequeathed a major portion of his property in favour of

nephew Sharad Agarwal and aunty Manju Agarwal and other

persons with the natural heirs not being given due part of

such estate. According to him, although the first incident is

claimed to take place on February 25, 2020 and the locale of

such incident is identified, the locale is a housing complex

where in normal circumstances, an entry and exit ledger of the

visitors to the flat concerned is maintained. The prosecution is

yet to place any documents seizing such register showing that

the de facto complainant entered into that premises on

February 25, 2020 at all.

4. Learned senior advocate for the petitioner submits

that, the police complaint can be said to be activated by the

orders passed in the probate proceedings. According to him,

attempts were being made by the so-called beneficiaries under

the Will of the deceased father of the petitioner to take control

of the estate of the deceased. In the probate proceedings,

several orders were passed. One of such orders is dated

December 23, 2020 which is in close proximity with the date

of the complaint being December 26, 2020. He submits that,

Manju and Sharad Agarwal failed to obtain favourable orders

from the probate Court with regard to the estate of the

deceased and, therefore, caused the de facto complainant to

institute the present police compliant. He submits that, there

are complaints made by the mother of the petitioner against

the attempts made to take control of the estate of the

deceased. He refers to some of such complaints. He submits

that the complaints are prior in point of time than the present

police complaint.

5. Learned senior advocate appearing for the petitioner

submits that the factual scenario in which the petitioner is

sought to be implicated is different from the other co-accused

who is still in custody. He submits that, in the facts of the

present case, prayer for bail should be considered.

6. Learned Public Prosecutor appearing for the State draws

the attention of the Court to the materials in the case diary.

He relies upon the statements of the victim recorded under

Section 164 of the Code of Criminal Procedure. He submits

that the statements of the victim so recorded are sufficient to

constitute offences as alleged. The police require custodial

interrogation of the petitioner for proper investigations. The

police arrested the other co-accused and that such co-accused

is still in custody. In response to the query of the Court as to

whether the mobile phone of the other co-accused was seized

or not, he answers in the affirmative. He submits that such

mobile phone was sent to the Forensic Science Laboratory for

report.

7. Learned Public Prosecutor appearing for the State relies

upon (1997) 7 SCC 187 [State rep. by the C.B.I vs. Anil

Sharma] and (2019) 9 SCC 24 [P. Chidambaram vs.

Directorate of Enforcement] and submits that, since there is

a requirement of custodial interrogation and considering the

gravity of the offence and the involvement of the petitioner

therein, prayer for anticipatory bail should be rejected.

8. Learned advocate appearing for the de facto

complainant relies upon a written notes of arguments. He

submits that, the petitioner is alleged to commit gang rape

upon the de facto complaint which provides for punishment of

rigorous imprisonment for not less than 20 years and which

can extend to life imprisonment. He submits that, the delay in

lodging the First Information Report was explained by the de

facto complainant. He highlights the fact that the de facto

complainant comes from a poor economical background and

due to disease and precarious health conditions of her

husband there was some delay. The husband of the de facto

complainant donated a portion of his liver to the deceased

father of the petitioner. He submits that, the accused which

includes the petitioner were threatening the de facto

complainant. The accused including the petitioner took

photographs of the de facto complainant and threatened the

de facto complainant of releasing the same on the Internet, if

the de facto complainant went to the police and complained

about the gang rape. According to him, the accused person is

influential and powerful and, therefore, in the event, the

accused persons including the petitioner are enlarged on bail

or anticipatory bail, there is likelihood of the de facto

complainant being threatened all over again.

9. Learned advocate appearing for the de facto

complainant submits that the co-accused was arrested on

June 14, 2021 and continues to be in judicial custody. He

highlights the fact that the petitioner approached the learned

Chief Judge, City Sessions Court, Calcutta with a prayer for

pre-arrest bail which was rejected on August 6, 2021. The

present petition was thereafter filed. According to him, a

proclamation was issued against the petitioner on November

23, 2021 and that subsequently, the learned Magistrate by an

order dated December 7, 2021 recalled such proclamation.

However, the learned Chief Judge, City Sessions Court at

Calcutta by an order dated December 16, 2021 stayed the

order of recall.

10. He submits that the contention of the petitioner that

the present police complaint is counterblast to the probate

proceeding is wholly unfounded. The de facto complainant is

no way connected with the probate proceedings. The de facto

complainant is not a beneficiary under the Will of the

deceased. In fact, the husband of the de facto complainant

donated a portion of his liver to the deceased.

11. Learned advocate appearing for the de facto

complainant submits that the charge sheet establishes the

complicity of the petitioner in the incident. According to him,

there are close connections between the petitioner and the

other co-accused who is in custody. He relies upon (2021) 6

SCC 191 [Naveen Singh vs. State of Uttar Pradesh & Anr.]

and submits that prayer for bail should be rejected.

12. Learned senior advocate appearing for the petitioner,

in reply, submits that P. Chidambaram (supra) was

considered by the Supreme Court and effectively overruled in

(2020) 5 SCC 1 [Sushila Aggarwal & Ors. vs. State (NCT of

Delhi) & Anr.]. He submits that the husband of the de facto

complainant is neither diseased nor of poor health as will

appear from the general diary lodged by the co-accused with

the police on December 26, 2020 relating to the incident

created by the husband of the de facto complainant with the

co-accused.

13. The present police case arose out of a complaint

lodged by the de facto complainant on December 27, 2020.

The police registered a First Information Report on the basis of

such complaint on January 28, 2021. In the complaint, the de

facto complainant alleges of two incidents of rape - one of

February 25, 2020 at Southern Avenue and the other on

December 26, 2020 at the office of Haldiram at Exide

Crossing. There is a connection between the de facto

complainant and the petitioner herein. The connection is the

husband of the de facto complainant who donated a portion of

his liver to the deceased father of the petitioner, Mahesh

Agarwal. There is a probate proceeding pending in respect of

the estate of Mahesh Agarwal, since deceased. It is claimed in

such probate proceeding that Mahesh Agarwala, since

deceased, left behind a Will and testament dated December

14, 2019 whereby he bequeathed a portion of his estate to the

petitioner and a major portion of the estate to the aunty Manju

Agarwal and cousin Sharad Agarwal of the petitioner.

14. It appears from the compliant of the de facto

complainant that, the petitioner is not involved in the second

incident of December 26, 2020. The petitioner is sought to be

involved in the first incident of February 25, 2020. The first

incident is alleged to take place at Premises no. 87 Southern

Avenue, Kolkata which is apparently a housing complex. The

police are yet to seize any materials to suggest that the de

facto complainant entered such housing complex after

registering herself in the register maintained in respect of

visitors to such housing complex. It is not the case of the

police that, the housing complex does not maintain any such

register for visitors also.

15. In the probate proceedings, several orders were

passed by the probate court. One of such order is dated

December 23, 2020. Such order relates to the management of

the estate of the deceased. There are the pending issues with

regard to the management and administration of the estate of

the deceased, Mahesh Agarwal. In terms of the order of the

probate court, the management of the estate of the deceased

vests with the widow of the deceased being the mother of the

petitioner. There are complaints on recorded in this petition

which suggests that the mother of the petitioner lodged

various complaints with the police with regard to the efforts

made by persons who are claiming through the Will of the

deceased for the purpose of taking over the management and

control of the estate of the deceased. The police complaint of

the de facto complainant is immediately after the order dated

December 23, 2020 passed in the probate proceedings. The

police complaint as noted above is dated December 27, 2020.

16. Anil Sharma (Supra) relates to anticipatory bail. In

the facts of that case, the accused approached the High Court

for anticipatory bail while the investigations were in progress.

The Supreme Court found that the grant of the order of

anticipatory bail by the High Court was misdirected and,

therefore, set aside such order. P. Chidambaram (Supra)

considers the power to grant anticipatory bail and the relevant

considerations while exercising such discretion in particular

reference to economic offences.

17. P. Chidambaram (Supra) and Anil Sharma (Supra)

were both considered in Sushila Aggarwal (Supra) along with

other authorities. Sushila Aggarwal (Supra) considered two

issues referred to it, namely whether the protection granted

under Section 438 of the Criminal Procedure Code should be

limited to fixed period to enable the person to surrender and

seek regular bail and whether the life of the anticipatory bail

should end at the time and stage when the accused is

summoned by the Court. It answered the first question by

holding that the protection granted under Section 438 of the

Criminal Procedure Code should not be invariably limited to a

fixed period. It answered the second question by holding that

the life of an anticipatory bail order does not normally end at

the time and stage when the accused is summoned or when

charges are framed but can continue till the end of trial. It

observed that, anticipatory bail can be granted, having regard

to all the circumstances, in respect of all offences, unless there

is a statutory bar or restriction in respect of the offence or

offences concerned.

18. Naveen Singh (Supra) is on power to grant

anticipatory bail. It is of the view that the seriousness of the

offence is one of the relevant considerations while considering

grant of anticipatory bail. In the facts of that case, allegations

of forging Court documents were involved. The Supreme

Court found that forging Court documents stands on a

different footing than forgery between two private individuals.

It observed that, given the gravity of the offence mere filing of

charge sheet is no ground for grant of bail.

19. Prayer for grant of bail in anticipation of arrest under

438 of the Criminal Procedure Code should be considered on

the anvil of the nature and gravity of the offences, the

complicity of the petitioner therein and the attending facts and

circumstances of the case including the possibility of the

petitioner fleeing justice, tampering with evidence, or

influencing the course of the investigation. Unless

categorically excluded or restricted by statute the power to

grant bail in anticipation of arrest under Section 438 of the

Criminal procedure Code remains with the Court. Such

powers can be exercised in respect of all offences unless

restricted or excluded.

20. In the facts of the present case, the petitioner being

falsely implicated cannot be ruled out. There is a probate

proceeding in respect of the estate of the deceased father of the

petitioner. The probate proceedings are pending. The

petitioner is shown to be one of the beneficiaries under the

Will of his deceased father. Persons other than the petitioner

who would otherwise succeed to the estate of his deceased

father were not allowed to succeed to such estate albeit

monetary compensations as delineated in the Will of the

deceased father being reserved for them. The probate

proceedings in respect of the Will of the deceased father of the

petitioner are hotly contested between Manju and Sharad

Agarwal on one part and the mother of the petitioner on the

other.

21. It is claimed by the petitioner that, the mother of the

petitioner and his sister were present with Mahesh Agarwal,

since deceased, at the time of his death in Singapore. The

petitioner claims that one of his paternal aunt Manju Agarwal

and his cousin Sharad Agarwal arranged for the husband of

the de facto complainant to donate his liver to Mahesh

Agarwal, since deceased. Manju Agarwal and Sharad Agarwal

are joint executors of the Will dated December 14, 2019 of

Mahesh Agarwal, since deceased, and are beneficiaries

thereunder.

22. Attempts were made to dislodge the management of

the estate of the deceased father of the petitioner. One of the

orders in the probate proceedings relating to the management

of the estate of the deceased is the order dated December 23,

2020. The police complaint is dated December 27, 2020 which

is in close proximity to the order dated December 23. 2020.

The likelihood of the de facto complainant being set up to

lodge the police complaint to falsely implicate the petitioner

given the nexus between the de facto complainant and Manju

and Sharad Agarwal cannot be ruled out with certitude. The

conduct of the de fact complaint is intriguing. The de facto

complainant cites economic duress as one of the reasons for

the delay in the lodgment of the police complaint, yet is

bestowed with admirable resources to hotly contest the prayer

for bail in anticipation of arrest of the petitioner.

23. The police complaint dated December 27, 2020 is

in respect of incidents which firstly happened on February 25,

2020 and secondly on December 26, 2020. The petitioner is

not involved in the incident dated December 26, 2020 even on

the basis of the complaint of the de facto complainant dated

December 27, 2020. It is alleged as against the petitioner that

the petitioner was part of the gang ravishing the de facto

complainant on February 25, 2020 and that the petitioner

along with the other co-accused took offensive photographs of

the de facto complainant. The mobile phone of the other co-

accused was seized by the police. There is no material in the

case diary suggesting that the mobile phone of such co-

accused contained any offensive pictures of the de facto

complainant as alleged by her.

24. Given the conspectus of the factual matrix obtaining

in the present case and particularly in view of the probate

proceedings and the nexus between the de facto complainant

with the deceased the police complainant being a product of

the rivalry in the probate proceeding cannot be ruled out. The

possibility of the petitioner being falsely implicated through

the de facto complainant to impact the probate proceedings

cannot be ruled out also. Such being a plausible view of the

situation, it would be appropriate to grant anticipatory bail to

the petitioner, however, on terms.

25. The contention of the de facto complainant that the

sole evidence of the de facto complainant may be found

sufficient to hold the petitioner guilty, requires consideration.

Trial is yet to commence. Evidence of the de facto complainant

may or may not lead to the petitioner being found guilty. At

this stage and on the basis of the materials presently available

the Court is not required to enter into such speculative realm.

Moreover, the police submitted the charge sheet.

26. Accordingly, we direct that in the event of arrest the

petitioner shall be released on bail upon furnishing a bond of

Rs.10,000/- (Rupees Ten Thousand Only), with two sureties of

like amount each, to the satisfaction of the arresting officer

and also be subject to the conditions as laid down under

Section 438(2) of the Code of Criminal Procedure, 1973 and on

further condition that the petitioner shall appear before the

Court below and pray for regular bail within a period of four

weeks from date and on further condition that the petitioner

shall appear before the jurisdictional Court on every date fixed

for hearing and with a further condition that the petitioner will

surrender his mobile phone which he was using at the

relevant point of time with the Officer-in-Charge of the police

station where the police complaint was lodged, forthwith.

27. Needless to say that the findings herein are prima

facie, made for the purpose of considering the prayer for bail

in anticipation of arrest and shall not prejudice any of the

parties at the trial.

28. Prayer for anticipatory bail is allowed.

29. This application for anticipatory bail is disposed of.

(Debangsu Basak,J.)

30. I agree.

(Bibhas Ranjan De, J.)