Mahammad Asfakur Rahaman vs The Central Bureau
2022 Latest Caselaw 4008 Cal

                                     1




                    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 (A) 2686 of 2022

                      Sk Abu Taher @ Sk Abu Taker
                      Mahammad Asfakur Rahaman
                                   VS.
                           The Central Bureau
                          of Investigation & Anr.


For the Petitioner : Mr. Kishore Datta, ld. Sr. Adv.
                     Mr. Rajaul Alam, Advocates


For the CBI         : Mr. Dhiraj Trivedi, ld. ASG
                      Mr. Samrat Goswami, Advocates

Heard & Judgment on      : July 6, 2022


DEBANGSU BASAK, J.:-

1.

Petitioner seeks anticipatory bail under Section 438 of the

Code of Criminal Procedure in connection with CBI re-

registered F.I.R. vide RC0562021S0032 dated 30.08.2021 at

CBI SCB Kolkata Kolkata under Sections 147 /148 /149 /323

/325 & 302 of the Indian Penal Code which was earlier under

investigation by the Nandigram Police Station vide their F.I.R

No. 224/2021 dated 13.05.2021.

2. Learned senior advocate appearing for the petitioner

submits that the petitioner was falsely implicated. He refers to

the averments made in paragraph 5 of the application for

anticipatory bail. He submits that the petitioner subscribed to

a particular political ideology. It is for reason of his political

ideology that the petitioner is being wrongfully proceeded

against. He contends that the leader of opposition makes a

statement in the public domain with regard to the persons

that the Central Bureau of Investigation (CBI) is likely to

arrest. Thereafter, the CBI springs into action. In the present

case, he submits, that another co-accused Sk. Supiyan

approached this Hon'ble Court with a prayer for anticipatory

bail which was rejected. He refers to the Hon'ble Supreme

Court granting anticipatory bail to Sk. Supiyan. He draws the

attention of the Court to the portions of the order of the

Hon'ble Supreme Court with regard to Sk. Supiyan and

submits that, the petitioner is similarly placed and

circumstanced as that of Sk. Supiyan. The petitioner should

also be enlarged on anticipatory bail.

3. Learned senior advocate appearing for the petitioner

submits that the incident occurred on May 3, 2021. The

victim died on May 13, 2021. The CBI took over investigations

on August 30, 2021 pursuant to order of the Hon'ble High

Court. CBI filed the first charge sheet on October 5, 2021

where the petitioner was not named as an accused. Second

charge sheet was submitted by CBI on January 6, 2022.

Again, the petitioner was not named therein. Immediately

thereafter, on January 9, 2022, the petitioner received a notice

under Section 41A of the Criminal Procedure Code. The

petitioner thereafter, received two notices under Section 160 of

the Criminal Procedure Code on November 16, 2021 and June

30, 2022.

4. Learned Assistant Solicitor General refers to the materials

in the case diary. He submits that the name of the petitioner

transpires from the statements recorded under Section 161 of

the Criminal Procedure Code. Thereafter, two of the witnesses

volunteered and recorded statements under Section 164 of the

Criminal Procedure on January 24, 2022. Such two witnesses

are Ashish Das and Biswajit Panda. Those two witnesses

implicate the petitioner along with other accused persons.

Based on such statements recorded under Section 164 of the

Criminal Procedure Code, CBI tried to interrogate the

petitioner. According to him, since a notice under Section 41A

of the Criminal Procedure Code cannot be issued in respect of

a heinous crime in view of the judgement of the co-ordinate

Bench rendered in CRM 5927 of 2019 dated August 5, 2019

[Manoj Shaw @ Manoj Kumar Shaw vs. The State of West

Bengal], notices under Section 160 of the Criminal Procedure

Code were issued to the petitioner. In response to that, the

petitioner informed the CBI that the petitioner will not be able

to attend the Investigating Officer. Finally, the petitioner

wanted to talk to the Investigating Officer and/or participate

in investigation over the mobile phone. He submits that the

custodial interrogation of the petitioner is required in order to

ascertain his involvement in the incident. According to him,

there is no bar in the CBI submitting a supplementary charge

sheet.

5. Learned Assistant Solicitor General contends that Sk.

Supiyan stands on a different footing than that of the

petitioner in the instant case. CBI did not file a charge sheet

naming Sk. Supiyan therein despite his name transpiring in

the Section 164 statements. In the facts of the present case,

the name of the petitioner transpires from the statements

recorded under Section 164 of the Criminal Procedure Code

which are subsequent to the filing of the second charge sheet.

In the case of Sk. Supiyan, the name of Sk. Supiyan

transpired prior to the filing of the second charge sheet.

Learned Assistant Solicitor General submits, on instructions

of the Investigating Officer who is present in Court, that,

despite the best efforts of the CBI in order to apprehend the

petitioner, the petitioner was not found at his place. The

petitioner is not cooperating with the investigations.

6. The contention of learned Assistant Solicitor General that

the petitioner is not cooperating with the investigation or that

the petitioner was not found at his residence by the

Investigating Agency, is disputed on behalf of the petitioner.

7. The police case relates to an incident happening on May 3,

2021. Death of the victim occurred on May 13, 2021. The

incident relates to post poll violence. The Hon'ble High Court

required the CBI to investigate police cases relating to post poll

violence. The incident of May 3, 2021 resulting in the death of

the victim was being investigated by the State police.

Subsequent to the order of the Hon'ble High Court, CBI took

over the investigations and registered a First Information

Report on August 30, 2021.

8. On October 5, 2021, CBI submitted the first charge sheet.

The petitioner is not named in the first charge sheet.

9. On January 6, 2022, the CBI submitted a second charge

sheet. Again, the petitioner is not named therein.

10. The petitioner was served with a notice under Section

41A of the Criminal Procedure Code on January 9, 2022.

11. Manoj Shaw @ Manoj Kumar Shaw (supra) is of the view

that, recourse to Section 41A of the Criminal Procedure Code

is wholly prohibited in case of offences involving punishment

in excess of 7 years.

12. Two persons claiming to be witnesses namely, Ashish Das

and Biswajit Panda volenteered and recorded statements

under Section 164 of the Criminal Procedure on January 24,

2022.

13. We perused the statements of Ashish Das and Biswajit

Panda recorded under Section 164 of the Criminal Procedure

Code, on January 24, 2022. Such statements, squarely

implicates the petitioner.

14. While implicating the petitioner in the offences by the

statements recorded under Section 164 of the Criminal

Procedure Code, such persons, also names Sk. Supiyan

therein. Sk. Supiyan, was granted anticipatory bail by the

Hon'ble Supreme Court on February 9, 2022.

15. The Hon'ble Supreme Court considered the prayer for

anticipatory bail of Sk. Supiyan in SLP (Cri.) No. 9796 of 2021

( Sk. Supiyan @ Suffiyan @ Supisan vs. The Central Bureau of

Investigation), the Hon'ble Supreme Court observed that the

statements of Ashish Das and Biswajit Panda were recorded

belatedly on January 24, 2022. Such observatim by the

Hon'ble Supreme Court that, with regard to the statements of

Ashish Das and Biswajit Panda is to be understood in the

context of Sk. Supiyan's prayer for anticipatory bail. Sk.

Supiyan was not named in the two charge sheets filed by the

CBI. Name of Sk. Supiyan transpired in statements of five

other witnesses which were recorded prior to the filing of the

second charge sheet on January 6, 2022. The statements of

Ashish Das and Biswajit Panda recorded under Section 164 of

the Criminal Procedure Code were recorded on January 24,

2022 which subsequent to the filing of the second charge

sheet on January 6, 2022. In such context that the Hon'ble

Supreme Court observed that, the two statements of Ashish

Das and Biswajit Panda were belated in relation to the second

charge sheet not naming Sk. Supiyan being filed on January

6, 2022.

16. In the present case, there is no charge sheet as against

the petitioner presently. The name of the petitioner transpires

from the statements of Ashish Das and Biswajit Panda

recorded on January 24, 2022. Such statements were

recorded subsequent to the filing of the second charge sheet

on January 6, 2022.

17. The records do not disclose that there is any statement

recorded under Section 164 of the Criminal Procedure Code

implicating the petitioner prior to the filing of the second

charge sheet.

18. The investigations are yet to be concluded.

19. In the circumstances, considering the involvement of the

petitioner as transpiring from the statements of the two

witnesses recorded under Section 164 of the Criminal

Procedure Code on January 24, 2022 which is subsequent to

the filing of the second charge sheet dated January 6, 2022,

and the gravity of the offences we deem it appropriate not to

grant anticipatory bail to the petitioner.

20. Prayer for anticipatory bail of the petitioner is rejected.

21. CRM (A) 2686 of 2022 is, accordingly, dismissed.

(Debangsu Basak,J.)

22. I agree.

(Bibhas Ranjan De, J.)