Subhadeep Giri vs The State Of West Bengal And Others
2023 Latest Caselaw 963 Cal

                  IN THE HIGH COURT AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                             (Appellate Side)
                                              MAT 123 of 2023
                                                  with
                                               CAN 1 of 2023
                                               CAN 2 of 2023

                                                   Reserved on: 31.01.2023
                                                   Pronounced on: 06.02.2023
Subhadeep Giri
                                                                   ...Appellant
                                      -Vs-
The State of West Bengal and Others
                                                                   ...Respondents

Present:-

Mr. Kishore Dutta, Sr. Adv. Mr. Kallol Mondal, Mr. Srijib Chatterjee, Mr. Sabyasachi Chatterjee, Mr. Pritam Roy, Advocates ... for the appellant Mr. Ashim Kr. Ganguly, Mr. Bellal Sk., Advocates ... for the State Mr. Atarup Banerjee, Mr. Abu Sohel, Mr. Rajdeep Pramanik, Mr. S. Nandi, Advocates ... for the respondent no. 6 Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE Prakash Shrivastava, CJ:

1. By this intra-court appeal, appellant has challenged orders

dated 20th of January, 2023 and 24th of January, 2023 passed in WPA

1613 of 2023.

2. The respondent no. 6 herein (writ petitioner) had filed the

petition with the plea that her minor daughter was victim of commission

of sexual offence in the hands of the accused, therefore, on the written 2 MAT 123 of 2023

complaint, police had registered FIR No. 4 dated 10th of January, 2023

under Section 4 of the Protection of Child from Sexual Offences

(Amendment) Act, 2012 and under Sections 34, 376(2)(n) and 506 of

the IPC. Being unable to face the agony, she had even tried to commit

suicide on 1st of November, 2022 by taking poison. The statement of the

victim was recorded under Section 164 of the Cr.P.C.

3. The grievance raised in the petition was that the police

authorities, even after registering the FIR and having all the materials,

were sitting tight over the issue and were in a mood to hurriedly close

the investigation in connivance with the accused persons in view of the

fact that the principle accused and his father are highly influential

having political background. It was also alleged that the writ petitioner

and her husband, i.e., parents of the victim were pressurized and were

continuously threatened by the police authorities to withdraw the

complaint.

4. Learned Single Judge by the order dated 20th of January, 2023

had recorded the statement of counsel for the accused for surrender of

accused and had also noted that the accused to be member of the student

wing of a political party and made observation about restriction on

granting bail. By the subsequent order dated 24th of January, 2023,

contradictory submission of the new counsel for the accused was noted

and the submission relating to attack on the house of the writ petitioner

by certain hooligans and its ransacking on 22nd of January, 2023 was

also taken note of. Hence, a direction was issued to make efforts to

arrest the accused Subhadeep Giri as expeditiously as possible.

5. Learned counsel for the appellant submits that there is no

prayer in the writ petition for arrest and the appellant was not a party in 3 MAT 123 of 2023

the writ petition and the arrest is prerogative of the investigating agency

and that statutory right of the appellant to seek bail cannot be curtailed.

In support of his submission, he has placed reliance upon the judgments

of the Hon'ble Supreme Court in the matter of M.C. Abraham and

Another vs. State of Maharashtra and Others reported in (2003) 2

SCC 649 and in the matter of Sushila Aggarwal and Others vs. State

(NCT of Delhi) and Another reported in (2020) 5 SCC 1. He further

submits that even if the part of the order of the learned Single Judge

about alleged undertaking to surrender is correct, then also the appellant

has a right to seek bail and he cannot be kept in custody till completion

of trial and the order of the learned Single Judge violates Article 21 of

the Constitution. He submits that the mobile phone of the accused has

already been seized, therefore, there is no possibility of making the

video viral.

6. Learned counsel for the State submits that the warrant of arrest

against the accused has already been issued. The statement of the victim

has been recorded under Section 164 of the Cr.P.C. and that the victim's

family is still receiving threat from unknown source.

7. Learned counsel for the private respondent (writ petitioner) has

also opposed the appeal by referring to the disclosures made by the

victim under Section 164 of the Cr.P.C. and has submitted that after

lodging the FIR, the writ petitioner was uprooted from the house and no

police help was extended and that accused no. 2 is the Trinamool

Congress Block President having political background. He submits that

even threats have been received by the advocate appearing for the writ

petitioner and that impleadment of the appellant in the writ petition was

not necessary because in the writ petition, the grievance was against the 4 MAT 123 of 2023

police authorities. He submits that if the appellant has any grievance

relating to the undertaking recorded by the learned Single Judge, then

proper remedy is to file the review before the learned Single Judge and

that statutory right of regular bail has not been curtailed by the

impugned order.

8. We have heard the learned counsel for the parties and have

perused the record. A copy of the statement of the victim girl recorded

under Section 164 of the Cr.P.C. has been produced before this Court

which supports the allegation of commission of alleged offence by the

accused. Order of the learned Single Judge dated 20th of January, 2023

records the statement of the counsel for the appellant/accused that his

client will surrender forthwith and will undergo interrogation. The said

part of the order of the learned Single Judge becomes more clear from

the subsequent order dated 24th of January, 2023 wherein the learned

Single Judge has noted that the new advocate for the accused persons

had made contradictory statements. Subsequent order reflects that in the

earlier order, the statement of the counsel for the accused Subhadeep

Giri was recorded. Hence, in view of the undertaking given before the

learned Single Judge, the accused ought to have surrendered but it has

been pointed out that the accused has not surrendered till now. If the

appellant wishes to contend that no such undertaking was given before

the learned Single Judge, then proper remedy available to the appellant

is to apply for review/modification/clarification of the order of the

learned Single Judge dated 20th of January, 2023. Learned counsel for

the appellant has relied upon the judgments of the Hon'ble Supreme

Court in the case of M.C. Abraham and Another (supra) and Sushila

Aggarwal and Others (supra). There is no dispute to the proposition 5 MAT 123 of 2023

relating to right to apply for anticipatory bail but after giving an

undertaking to surrender before the Court, he cannot claim the benefit of

the said judgment.

9. The report in the form of communication filed by the State

reveals that till now, the accused persons have not been arrested and the

competent Court has issued the warrant of arrest against the two of the

accused persons.

10. So far as the observation of the learned Single Judge that the

principle accused shall not be enlarged on bail, we are of the opinion

that the right to apply for regular bail and to obtain the regular bail in

terms of the provisions of the Act from the competent Court cannot be

curtailed forever in exercise of the writ jurisdiction.

11. Hence, we dispose of this appeal granting liberty to the

appellant to seek review/clarification of the order dated 20th of January,

2023 regarding the undertaking about surrender of the accused. We also

make it clear that if the appellant/accused applies for the regular bail,

then such a regular bail application will be decided by the competent

Court in accordance with law on its own merit without being influenced

by the observations made by the learned Single Judge in the order under

challenge.

12. The appeal is accordingly disposed of.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(RAJARSHI BHARADWAJ) JUDGE Kolkata 06.02.2023 ________ PA(RB)

(A.F.R. / N.A.F.R.)