Calcutta High Court (Appellete Side)
Sh. Shivdutta Gorakh Nanagare vs Union Of India & Anr on 3 February, 2021
IN THE HIGH COURT AT CALCUTTA 03.02.2021
. CIRCUIT BENCH AT PORT BLAIR, ANDAMAN & NICOBAR ISLANDS Item no.03 CRIMINAL MISCELLANEOUS JURISDICTION Crt.11 KB C.R.M 928 of 2021 Sh. Shivdutta Gorakh Nanagare
-vs-
Union of India & Anr.
(Via video conference) In Re: An application for anticipatory bail under Section 438 of the Code of Criminal Procedure in connection with FIR No. 56 of 2020 registered at Police Station Car Nicobar, District Nicobar dated 27th November, 2020 under Sections 406, 408, 420 and 34 of the Indian Penal Code, 1860.
Mr. Shreeyash U. Lalit Mr. Ramendu Agarwal ...... for the petitioner. Mr. Krishna Rao ........ for the A & N Islands Administration. This application for anticipatory bail arises out of FIR No. 56 of 2020 registered at Police Station Car Nicobar, District- Nicobar dated 27th November, 2020 under Sections 406, 408, 420 and 34 of the Indian Penal Code, 1860.
Mr. Lalit, learned Counsel, appears in support of the application filed under Section 438 of the Code of Criminal Procedure (CrPC). Learned Counsel for the petitioner submits that the prime accused in this case of alleged defalcation of funds is the father of the petitioner, one Gorakh Baban Nangare. It is submitted that the funds were alleged to be transferred by the de facto complainant, the Company, to the personal account of the prime accused and thereafter the funds were diverted to the accounts of the petitioner. It is also submitted that, even if the case made out by the de facto complainant 2 is taken to be true the petitioner as an alleged recipient of the funds is unaware of the source of the alleged defalcation/alleged breach of trust committed by the prime accused.
It is submitted that the petitioner is a resident of Pune and, in the event the petitioner is now called upon to attend the summons under Section 41A of the Criminal Procedure Code by the Investigating Officer (I.O.) in connection with the above-stated FIR, there is every apprehension that the petitioner shall be detained without the requirement of custodial interrogation arising at this stage.
It is also the stand of the petitioner that the petitioner is otherwise ready to attend to the summons and co-operate with the investigation and only seeks the relief of pre-arrest bail.
Mr. Rao, learned Counsel for the prosecution submits that notice under Section 41A Cr.PC is complete both in facts and in law. The petitioner is under a legal obligation to co-operate with the investigation once served with the notice under Section 41A Cr.P.C.
It is submitted that inspite of several notices in the past the petitioner has not arrived at Car Nicobar to co-operate with the investigation. It is pointed out that the amount involved in the alleged defalcation is to tune of Rs.27 lakhs and the petitioner is one of the direct beneficiaries of the alleged defalcated amount.
Staying away from the investigation in Pune, the petitioner has delayed the investigation thereby deliberately creating conditions for delaying the filing of the charge-sheet and assist the prime accused in his efforts to obtain bail.
Mr. Rao further submits that the primary purpose of the notice 3 under Section 41A Cr.P.C (supra) dated 17th December, 2020 is to ensure the co-operation of the petitioner in the investigation with the rider that in the event such co-operation is received from the petitioner, the petitioner shall not be arrested.
After hearing the parties and considering the materials placed, this Court is of the view that the petitioner is required to comply with the notice issued under Section 41A Cr.PC.
Accordingly, the petitioner shall comply with the notice issued under Section 41A Cr.P.C as issued by the I.O. on the next date as instructed to do so.
In the event such co-operation is extended by the petitioner and is considered adequate to serve the scope and intent of the notice under Section 41A Cr.PC, the Investigating Authority shall not take any coercive action against the petitioner without bringing the matter first to the notice of the Hon'ble Court.
It is also made clear that in default of compliance of the notice under Section 41A Cr.P.C, the directions as passed in this order, shall stand automatically vacated.
Let the matter appear next under the same heading "Application For Anticipatory Bail" before the appropriate Bench two weeks from this date.
All concerned parties shall act in terms of the copy of the order downloaded from the official website of this Court. [Hiranmay Bhattacharyya, J.] [Subrata Talukdar, J.] 4