Calcutta High Court (Appellete Side)
Mr. A. Singh ..For The vs Jitendra Kumar Tewari And Ors on 7 November, 2022
07.11.2022
Ct. 30
Sd./3 CRR 3047 of 2022
Mr. Rajdeep Majumder
Mr. Sourav Chatterjee
Mr. M. Mukherjee
Mr. P Roy
Mr. A. Singh ..For the petitioners.
Mr. S.G. Mukherjee
Mr. R. Nandy ..For the State.
Mr. S. Banerjee
Mr. A. Keshari ..For the O.P. No. 2.
Supplementary affidavit has been filed by the
petitioners.
Learned lawyer for the petitioners submits that
in view of the observation of this Court vide order dated
15.9.2022, the petitioners had moved the court of
learned District and Sessions Judge, Purba Midnapore
praying for relief under section 438 CR.P.C(anticipatory
bail).
Vide his order dat4d 31.8.2022, the learned
Sessions Judge, Sri Gopal Karmakar passed the following
order.
"The application u/S. 438 Cr.P.C. arising
out of Contai P.S. Case No. 265 of 2022 dated
29.06.2022 u/S.
406/409/420/467/468/471/477(A)/120B
I.P.C. for the accused/petitioners namely, Ram
Chandra Panda and Amit Kumar Das is taken
up for hearing.
At the time of hearing Ld. P.P. made
submission that notices under Section 160
Cr.P.C. were served on the petitioners as they
2
are acquainted with the fact of the case and it is
premature at this stage to comment as to
whether they are accused or witness.
I.O. is present and made submission that
notices under Section 160 Cr.P.C. were served on
the petitioners particularly not as an accused
and they were asked to appear before the I.O. to
facilitate the investigation as they are
acquainted with the fact of the case.
Ld. Senior counsel made submission that
as the petitioners were served with notice by the
I.O. being persons acquainted with the fact of the
case and not as accused, the purpose of filing of
the petition under Section 438 Cr.P.C. become
infractuous.
Considering all these facts Ld. Advocate
for the petitioners on record not pressed the bail
petition under Section 438 Cr.P.C.
Considered the submission of Ld. P.P., Ld.
Advocate for the petitioners and I.O., wherefrom
it appears that a petition under Section 438
Cr.P.C. will not lie only in the event of service of
notice under Section 160 Cr.P.C. as question
apprehension of arrest is lacking at this stage.
Hence, the petition under Section 438
Cr.P.C. is disposed of with the observation being
not maintainable.
CD and LCR be returned."
It is further submitted by the learned lawyer for
the petitioner before this Court that subsequently on
4.11.2022
, the petitioner no. 1 Ram Chandra Panda has
been arrested and is in custody. It is submitted that the
protection given by this Court was till the disposal of the
application for anticipatory bail.
It is seen that the investigating officer present
before the learned District and Sessions Judge submitted
that the petitioners have been served the notice u/S. 160
Cr.P.C. not as an accused. They have been asked to
appear to facilitate the investigation as they were
acquainted with the facts of the case.
The learned senior counsel who made the
submissions before the learned Sessions Judge clearly
stated before the court that "the petitioners were served
with notice by the I.O being persons acquainted with the
facts of the case and not as an accused. The purpose of
filing the petition under section 438 Cr.P.C becomes
infructuous". And on the said statement, the learned
advocate for the petitioner "Not pressed" the bail
application under section 438 Cr.P.C.
It is submitted by the learned Counsel for the
petitioners that in spite of the I.O of the case submitting
before the Sessions court that they were only called as
persons to facilitate the investigation and not as an
accused, the petitioner no. 1 was subsequently arrested.
Learned lawyer for the petitioners has relied upon
the judgment of a Division Bench of this Court In MAT
1690 of 2022 dated 11.10.2022 being, State of West
Bengal vs. Jitendra Kumar Tewari and Ors., wherein the
Court held -
"Writ petitioners were issued notices under
Section 160 of the Code of Criminal Procedure.
Failure to respond to the said notices would
attract penal consequences under Section 174 of
the Indian Penal Code.
In view of the aforesaid circumstances, we
are of the prima facie opinion petitioners had a
right to assail the legality of the investigation
undertaken by CID including issuance of
notices under Section 160 of the Code of
Criminal Procedure in connection therewith."
And in another judgment (relied upon by the
petitioners in this case) of a Division Bench of this Court
in WPA 20866 of 2022 dated 12.9.2022 (Subodh
Adhikary vs. Central Bureau of Investigation and Ors.),
the Division Bench passed the following directions:-
(i) The Central Bureau of Investigation will
be free to issue another set of notices
under section 91 and 160 of the Criminal
Procedure Code to the petitioner asking
him to appear on a day with the
documents not earlier than 28th
September, 2022. A self attested copy of
the passport of the petitioner shall,
however, be submitted to the Central
Bureau of Investigation by 72(seventy
two) hours from date.
(ii) If the petitioner's presence is required for
investigation without the documents, he
shall be given at least 72 (seventy two)
hours' notice to appears.
(iii) Interrogation of the petitioner shall be at
a stretch and not more than three hours
on a particular day. He may again be
summoned on 72 hours' notice.
(iv) Should at any point of time the
Central Bureau of Investigation
propose to accuse the petitioner of
any alleged offence and start a
criminal case against him, he shall
not be arrested for a period of 10
(ten) days from such decision to
enable him to avail of his remedies
against arrest available in law."
Learned Public Prosecutor submits that, it is on
the prayer of the petitioners that the application was "Not
pressed". It is further submitted that the investigating
officer very fairly submitted before the Sessions Court
that the petitioners have been summoned to facilitate the
investigation and not as an accused. Learned Public
Prosecutor further submits that subsequently on the
basis of statements of witnesses examined by the I.O, the
culpability of the petitioner no. 1 has clearly transpired
and facilitated the arrest of the petitioner no. 1 which
was in accordance with law. There was no malafide on
the part of the investigation agency and that the arrest
has been done in the interest of justice and in
accordance with law considering further incriminating
evidence against the petitioner no. 1 which transpired
from the statements of further witnesses examined, and
as there was no protective order of this Court in force on
the petition u/S. 438 Cr.P.C. being disposed of being 'Not
Pressed'.
Learned lawyer appearing for the opposite party
no. 2 submits that the revisional application at this
stage is infructuous as notice under section 160 Cr.P.C
has been challenged before this Court and quashing of
the said notices has been prayed for. He has relied upon
the guidelines laid down in 2021 SCC Online SC 315
(Neeharika Infrastructure Pvt. Ltd. vs. State of
Maharashtra and Others, submitting that as the
petitioner is not entitled to any final relief, no interim
relief can be given to the petitioners.
The said contention shall be considered in
accordance with law at the time of final disposal of the
present case in view of the observations of the Division
Bench of this Court in MAT 1690 of 2022 and WPA
20866 of 2022 .
Now, considering the submissions of all the parties
before this Court and the materials on records including
the judgments relied upon, it has come before this Court,
that in view of the order of this Court dated 15.9.2022,
passed as per the guidelines of the Supreme Court in
Neeharika Infrastructure Pvt. Ltd. vs. State of
Maharastra and Ors. (supra), the petitioners moved the
learned Sessions Judge praying for protection under
section 438 Cr.P.C. Subsequently, before the learned
Sessions Judge, the counsel for the petitioners "Not
pressed" the prayer for bail u/s 438 Cr.P.C.
The learned Sessions Judge disposed of the said
application with the observation that the petition was
thus not maintainable.
The Sessions Judge while disposing of the
application held -
"Considered the submission of Ld. P.P.,
Ld. Advocate for the petitioners and I.O.,
wherefrom it appears that a petition under
Section 438 Cr.P.C. will not lie only in the event
of service of notice under Section 160 Cr.P.C. as
question apprehension of arrest is lacking at this
stage".
The said finding of the Sessions Judge is in
total contradiction to this Court's order dated
15.9.2022, regarding the question as to apprehension
of arrest at this stage.
Accordingly, let a report be called from the
Sessions Judge, Tamluk, Sri Gopal Karmakar, who
passed the said order dated 31.10.2022 in Criminal
Misc. Case No. 1117/2022, through the learned
Registrar General, High Court, Calcutta.
Be it noted that the if the officer has been
transferred, the report be called from the officer where he
is posted at present. The report be filed by 18.11.2022.
The present situation is that the petitioner no. 1
Ram Chandra Panda is in custody. The petitioner no. 2,
namely, Amit Kumar Das has not yet been arrested
though notice under section 160 Cr.P.C has also been
issued upon him.
The following guidelines of the Supreme Court in
Neeharika Infrastructure Pvt. Ltd. vs. State of
Maharastra and Ors. (supra) is quoted below:
"xvi) The aforesaid parameters would be
applicable and /or the aforesaid interim order in
a quashing petition in exercise of powers under
Section 482 Cr.P.C. and/or under Article 226 of
the Constitution of India. However, an interim
order of stay of investigation during the
pendency of the quashing petition can be passed
with circumspection. Such an interim order
should not require to be passed routinely,
casually and/or mechanically. Normally, when
the investigation is in progress and the facts are
hazy and the entire evidence/material is not
before the High Court, the High Court should
restrain itself from passing the interim order of
not to arrest or "no coercive steps to be adopted"
and the accused should be relegated to
apply for anticipatory bail under Section
438 Cr.P.C. before the competent court. The
High Court shall not and as such is not justified
in passing the order of not to arrest and/or "no
coercive steps" either during the investigation or
till the investigation is completed and/or till the
final report/chargesheet is filed under Section
173 Cr.P.C., while dismissing/disposing of the
quashing petition under Section 173 Cr.P.C., and
/or under Article 226 of the Constitution of India.
............xviii) Whenever an interim order is
passed by the High Court of "no coercive steps to
be adopted" within the aforesaid parameters, the
High Court must clarify what does it mean by
"no coercive steps to be adopted" as the term "no
coercive steps to be adopted" can be said to be
too vague and/or broad which can be
misunderstood and/or misapplied."
Considering the said guidelines of the Supreme
Court and also the order passed by the Division Bench of
this Court in WPA 20866 of 2022 and MAT 1690 of
2022 and the circumstances which led to the arrest
of the petitioner no. 1, it is directed that:-
(1) if the petitioner no. 2's presence is required for
investigation, he shall be given at least 72
(seventy two) hours' notice to appear.
(2) Should at any point of time the Investigating
Agency propose to accuse the petitioner of any
alleged offence and start a criminal case against
him, he shall not be arrested for a period of 10
(ten) days from such decision to enable him to
avail of his remedies against arrest available in
law.
let the matter appear on 23.11.2022 for final
hearing of the Criminal Revisional Application.
Parties to act on the server copy of this order,
downloaded from the official website of this Hon'ble
Court.
( Shampa Dutt (Paul), J. )
