Calcutta High Court (Appellete Side)
J. Bagchi vs State Of West Bengal And Others on 2 August, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1 2.8.2016 WRIT PETITION NO.29424 (W) OF 2015 Sl. No.4 Ct. No. 28 SB/PA to LAL BABU MOLLA @ ALTU J. Bagchi, J.
. . . PETITIONER VERSUS STATE OF WEST BENGAL AND OTHERS . . . RESPONDENTS Mr. Malay Bhattacharyya . . . For The Petitioner Mr. Kamalesh Bhattacharyya Mr. Swapan Pal . . . For The State Mr. Jaydip Kar Mr. Aryak Dutta . . . For The Pvt. Respondent By order dated 05.07.2016, this Court had commented on the casual approach of the investigating agency in conducting investigation in the instant case of extortion. When the matter was taken up today, report is filed wherefrom it appears that the audio chip of the mobile phone had been sent to the Central Laboratory, Kolkata for the purpose of comparing the voice sample recorded therein with that of the private respondent no.4/accused person.
Learned counsel for the petitioner submits that 2 the private respondent no.4/accused had extorted a sum of Rs.10,00,000 earlier and was demanding further sums of money on the threat if he failed to pay his business would be stopped and he would be done to death.
I am surprised to note that notwithstanding such grave allegation of extortion, the police authority issued a notice under Section 41A of the Code of Criminal Procedure upon the respondent no.4 herein for interrogation. Being dissatisfied with such indifferent and lackadaisical course of investigation, I directed transfer of investigation to a police officer not less than the rank of Additional Superintendent of Police and further directed that such investigation be conducted under the supervision of Superintendent of Police, South 24 Parganas.
The report presently filed before me does not disclose any substantial change in the attitude of the investigating agency. It appears that the investigating 3 agency is eager to dilate and/or stultify the course of investigation by resorting to forensic examination of the audio chip of the mobile phone of the petitioner without verifying call detail register of the said mobile phone so as to verify the allegation that the private respondent had demanded money through his mobile phone. That apart, the acts of extortion by the private respondent no.4 being grave and repetitive in nature, I am of the opinion that the resorting to Section 41A of the Criminal Procedure Code is wholly unjustified.
It has been submitted before me on behalf of the private respondent no.4 that the allegations against him are out and out false and there are embellishments between the earlier General Diary and the application under Section 156(3) of the Code of Criminal Procedure filed by the petitioner. Order passed by the learned Magistrate on such application has also been criticized as contrary to law relying on Priyanka Srivastava and Another -vs- State of 4 Uttar Pradesh and Others reported in (2015)6 SCC
287. On the other hand, the learned counsel for the petitioner submitted that taking advantage of the laconic course of investigation, the petitioner has withdrawn his application under Section 438 of the Code of Criminal Procedure. This is disputed by Mr. Kar, learned senior counsel for the private respondent no.4 who submitted that the petition was withdrawn due to the pendency of the writ petition. Section 41 of the Code of Criminal Procedure was amended and Section 41A inserted vide Amendment Act, 2008 (No.5 of 2009) in order to ensure that there is no indiscriminate arrest effected in respect of investigation offences punishable with less than seven years of imprisonment.
Sections 41 and Section 41A reads as follows:-
"41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person--
[(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable 5 complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary-
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required 6 cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest];
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape, from lawful custody; or 7
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India, which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub- section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
[(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against 8 whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.] 41A. Notice of appearance before police officer. - (1) [The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub- section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
[(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice."
9
A bare reading of the aforesaid provisions of law would make it clear that recourse to section 41A of the Code is permissible in cases where the offence is punishable with imprisonment for seven years and less. In the instant case, FIR has been registered, inter alia, under section 386 IPC which is punishable upto ten years of imprisonment clearly ruling out the applicability of section 41A of the Code. Moreover, in the light of the fact that allegations of extortion of Rs.10 lacs have been levelled against the private respondent no.4 and the repeated and delaying acts of further acts of extortion, I am as appearing in the FIR of the view that such lenient course of action was wholly impermissible both in law and fact. It is true that the necessity of arrest of a suspect during investigation is within the subjective discretion of the investigating agency, however, when such discretion is exercised in a perverse manner contrary to the provisions of law, as in the present case, the superior 10 Courts may in exercise of judicial review issue directions to rectify such perverse exercise of discretion like issuance of notice under section 41A Cr.P.C. in a case invoking offences punishable with imprisonment upto ten years. Hence, I hold that the investigating agency erred in law in issuing notices under section 41A Cr.P.C. and not resorting to intensive and intrusive forms of investigation in the facts of the instant case.
Having gone through the allegations in the F.I.R., I, prima facie, find that there is allegation of extortion of a sum of Rs.10,00,000/- for the petitioner on the threats of closing his business and/or causing grievous hurt even death to him. Subsequent thereto, further acts of extortion and/or criminal intimidations were perpetrated by the accused person. It has been argued that fact of the petitioner did not have sufficient wherewithal to pay Rs.10,00,000/-. It has also been argued that the allegation with regard to 11 further acts of extortion is an embellishment. Taking into account the allegations in the earlier General Diary and the F.I.R. as a whole, I find there is substantial corroboration of allegations of extortion as well as repetition of such offence by the private respondent no.4 herein. Hence, I am unable to accept the contention of the private respondent no.4 that the allegations are patently absurd or do not disclose ingredients of the alleged offences. Nothing substantial has also been placed on record to show that such allegations are prompted with notice. Under such circumstances, I am of the opinion that the investigating agency has wholly derelicted its duty to conduct and failed to conduct investigation in a more intensive manner.
However, in view of the fact that a prayer for pre- arrest bail of the petitioner is pending before the Sessions Court, I do not express any further opinion in the matter.
12
I direct the Sessions Judge to dispose of the pre- arrest bail application of the respondent no.4 in accordance with law as promptly as possible but not later than seven days from the date of communication of this order. The parties are directed to communicate this order to the Sessions Judge for necessary compliance. The petitioner as the victim of the crime shall be permitted to intervene in the hearing of the pre-arrest bail application and assist the State in opposing such application. It is also made clear that the investigating agency shall take necessary endeavours to obtain call detail register of the mobile phone of the petitioner for corroboration of the allegation of extortion through mobile phone by the respondent no.4 and report as to further investigation shall be filed on the next date of hearing.
Reliance on Priyanka Srivastava's (Supra) is misplaced as the allegations in the FIR in the said report related to officers of a bank who had resorted to 13 provisions of SARFAESI Act to take possession of secured asset of the complainant borrower who in retaliation, had filed the impugned criminal case. In this factual backdrop the Apex Court deprecated the practice of mechanically sending application under Section 156(3) of the Code of Criminal Procedure for investigation. In the aforesaid report, in fact, the said criminal case ended in a final report in view of Section 22 of the SARFAESI Act. The factual matrix of the instant case portrays a completely different and ugly profile. Allegations of extortion have been levelled against the respondent no.4 and it is further alleged that the petitioner was compelled to pay Rs.10 lacs as a result of such extortion to save his own life. In this factual backdrop, I do not find any illegality in the learned Magistrate sending such application for investigation by the police. It is not the duty of the Magistrate at that stage to look into the truthfulness, correctness or veracity of the allegations and bearing 14 in mind the grave nature of allegations the magisterial action in sending the application under section 156(3) Cr.P.C. for investigation cannot be said to be contrary to law.
Let the matter appear under the same heading two weeks hence.
(JOYMALYA BAGCHI, J.)