Chanchal Nandi vs State Of West Bengal And Others
2022 Latest Caselaw 6872 Cal

AD-05
Ct No.09
23.09.2022

TN WPA No. 20970 of 2022

Chanchal Nandi Vs.

State of West Bengal and others

Mr. Rajdeep Majumder, Mr. Moyukh Mukherjee, Ms. Aishwarya Bazaz .... for the petitioner

Mr. Amitesh Banerjee, Mr. Suddhadev Adak .... for the State

The present challenge has been preferred

against a First Information Report (FIR) registered on

September 02, 2022, inter alia, against the present

writ petitioner for alleged offences committed

purportedly from the years 2017 to 2020.

It is contended by learned counsel for the

petitioner that the present FIR is the culmination of a

chain of events. Previously, in a patently vindictive

manner, several other FIRs were registered against the

present Leader of the Opposition, West Bengal and his

several associates.

The first, arising out of a complaint lodged in

the Maniktalla Police Station, ultimately culminated in

the Supreme Court of India affirming an order of this

court, passed by a Division Bench in appeal against

the order of a learned Single Judge, whereby the

appeal had been dismissed on the ground of

demurrer. The learned Single Judge had, inter alia,

directed that although FIRs may be registered, no

coercive action should be taken by the Investigating

Agencies against the writ petitioner therein, who was

one of the accused. The Supreme Court directed the

matter to be decided by the learned Single Judge.

In a second such instance, another case was

lodged, this time against the Leader of the Opposition

himself, in which the accused has obtained bail in the

meantime.

A third case was lodged against another

associate of the Leader of the Opposition, namely, one

Rakhal Bera, in the Contai Police Station, in the said

matter as well, the learned Single Judge was pleased

to pass an interim order whereby the Investigating

Agencies were restrained from arresting the said writ

petitioner/accused on the basis of any FIRs registered

against him, although there was no restraint to

registration of such FIRs.

Thereafter, the present FIR was registered

against the writ petitioner Chanchal Nandi on

September 02, 2022, inter alia, on allegations under

Sections 406, 420, 506, 120B and 34 of the Indian

Penal Code. The same was the result of a purported

complaint annexed at page-216 of the present writ

petition. It is submitted that it will be evident from

the attending circumstances and the content of the

complaint that the allegations are patently vindictive,

in a bid to frame the associates of the present Leader

of the Opposition.

For example, learned counsel submits, in the

present case, although an FIR was registered, no

notice has been issued till date under Section 41A of

the Criminal Procedure Code (CrPC), although the law

mandates that such notice has to be issued within

fifteen days from such registration.

That apart, it is too much of a coincidence, it is

submitted, that the close associates of the Leader of

the Opposition are being framed one by one in

criminal cases, that too, after a delay of about two

years from the alleged commission of offence. In the

present case, for example, it is contended that the

alleged offence was said to have been committed

vaguely from 2017 to 2020, without mentioning any

specific date. It is more surprising that the complaint

was lodged and the FIR registered in the month of

September, 2022, that is, at least two years after the

alleged commission of the offence, without there being

any explanation whatsoever for the delay committed in

making such complaint or registering such FIR.

Learned counsel places reliance on the judgment of

Lalita Kumari vs. Govt. of U.P. and Ors., reported in

(2014) 2 SCC 1, in particular, paragraph no.120.6

thereof to indicate that the Supreme Court clearly

specified that preliminary enquiry is to be conducted

in case of registration of FIRs before arresting the

accused person named in the FIR. Several instances

were also given by the Supreme Court. Out of those,

sub-clause (d), enumerated corruption cases and sub-

clause (e) of paragraph no.120.6 dealt with cases

where there is abnormal delay/laches in initiating

criminal prosecution, for example, over three months

delay in reporting the matter without satisfactorily

explaining the reasons for delay. In such cases, it was

observed, preliminary investigation has to be

conducted after the registration of the FIR before

arresting a particular person.

It is submitted that although the present writ

petitioner has not yet been arrested, but the non-

issuance of the notice under Section 41A of the CrPC

and the nature of the allegations made, as well as the

delay committed in registering the FIR, ipso facto

indicate the patent mala fides and vindictiveness

behind the complaint. Hence, it is submitted that the

complaint and the FIR being patently mala fide and

malicious in nature, the FIR may be quashed by this

court.

Learned Senior Counsel appearing for the State

submits that Lalita Kumari (supra) does not hold what

the petitioner is trying to impress upon this court. By

placing specific reliance on paragraph no.119 of Lalita

Kumari's judgment, it is submitted that the Supreme

Court specifically stipulated that if the information

given clearly mentions the commission of a cognizable

offence, there is no other option but to register an FIR

forthwith. Other considerations are not relevant at

the stage of such registration, such as, whether the

information is falsely given, whether the information is

genuine, whether the information is credible, etc.

These are the issues, the Supreme Court went

on to hold, that have to be verified during the

investigation of the FIR. At the stage of registration of

FIR, what is to be seen is merely whether the

information given ex facie discloses the commission of

a cognizable offence.

The remedy of the accused lies after

investigation, since, if the information given is found

to be false, there is always an option to prosecute the

complainant for filing a false FIR.

It is further submitted that, in the present case,

there are several accused persons and there is nothing

to connect the Leader of the Opposition with the

present complaint. Even on the question of credibility

of the allegation, it is submitted that there is nothing

palpably incredible or vindictive in the complaint as

such.

Hence, it is submitted that since the petitioner

has not been arrested till date, the said fact, per se,

indicates that no vindictiveness prompted the filing of

the complaint.

Thus, it is submitted, the writ petition be

dismissed.

Upon considering the submissions of learned

counsel, the explanation and interpretation of Lalita

Kumari's judgment, as advanced by the State, appears

to be more acceptable.

It has been clearly stipulated by the Supreme

Court in paragraph no.119 of the same that even if a

cognizable offence is merely disclosed in the

information, which is the genesis of the FIR, there is

no other option before the Investigating Agency but to

register an FIR.

Whatever is stipulated in paragraph no.120 (and

its sub-paragraphs) of the judgment, the same only

qualifies such proposition as indicated immediately

hereinabove.

The scope of preliminary enquiry was discussed

in such context and it was observed by the Supreme

Court that in certain cases as indicated therein, a

preliminary enquiry "may" be conducted. The said

expression further goes on to show that it was not

held by the Supreme Court as a blanket proposition in

Lalita Kumari (supra) that in every case, even when

the complaint does not disclose a cognizable offence,

investigation shall have to be mandatorily undertaken.

As such, the ratio of Lalita Kumari (supra) does

not help the petitioner's contention even if the

petitioner was ultimately successful in proving that

the complaint-in-question was vindictive and the FIR

registered against the petitioner was a result of such

malicious or vile attempt.

Insofar as the allegations of vindictiveness are

concerned, this court is conscious of the fact that the

petitioner always has the remedy of anticipatory bail

to be invoked by the petitioner, in the event such

circumstances, which justify the grant of anticipatory

bail, are made out by the petitioner. Any observation

made by this writ court, without having the power to

go into or assess on merits the evidence or materials

on record on the said allegation of vindictiveness,

might affect the fate of the petitioner in other criminal

proceedings.

In the present case, the appropriate remedy

available to the petitioner is not an application under

Article 226 of the Constitution to quash the FIR,

particularly, since more than one cognizable offence is

disclosed from the information which gave rise to the

FIR and the FIR itself.

Hence, WPA No. 20970 of 2022 is disposed of

without interfering with the FIR at this stage in any

manner whatsoever but granting the petitioner liberty

to approach the competent court having jurisdiction

with an application for anticipatory bail. If such an

application is moved, nothing in this order shall

influence the contentions of the petitioner or the State

in any manner in such proceeding or in any other

future proceeding insofar as the merits of the

allegations against the petitioner are concerned.

The petitioner is further granted liberty to take

appropriate steps before the competent forum on the

allegation of the petitioner that Section 41A notice has

not been issued in the present case in due time.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)