Calcutta High Court (Appellete Side)
An Application For Anticipatory Bail ... vs Smt. Roopa Ganguly on 24 February, 2017
Author: Patherya
Bench: Patherya
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24. 02 .2017 C.R.M. 970 of 2017.
ALLOWED In the matter of : An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 7th February, 2017 in connection with Harwood Point Coastal Police Station Case No 122 of 2016 dated 22. 5.2016 under Sections 341/323/325/354B/34 of the Indian Penal Code.
And In the matter of : Smt. Roopa Ganguly.
Petitioner Mr. Phiroze Edulji Mr. Rajdeep Biswas Mr. Ranajit Roy Ms. Alotriya Mukherjee For the Petitioner Mr. Saswata Gopal Mukherjee, Public Prosecutor Mr. Prasun Dutta Mr. Subrata Roy Mr. Rudradipta Nandy For the State Apprehending arrest in connection with Harwood Point Coastal Police Station Case No 122 of 2016 dated 22. 5.2016 under Sections 341/323/325/354B/34 of the Indian Penal Code, this application for anticipatory bail has been filed under Section 438 of the Code of Criminal Procedure.
By this application, the petitioner seeks grant of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 on the ground that while all sections are bailable, the only section which is not bailable, is Section 354B of the Indian Penal Code which has been inserted in 2013 with the intent to attribute such offence to a man alone. Although the Verma Commission used the term 'whoever' the legislature in its wisdom included any 'man' therefore, it is only a man who can commit the offence under Section 354B and none else.
Section 10 of the Indian Penal Code has specifically provided that 'man' is to denote the male human being of any age and 'woman' is to denote the female human being of any age and according to Section 7 of the Indian Penal Code every expression explained in the Indian Penal Code is to be read in conformity with the explanation. Therefore, man cannot be termed as woman and man must be read as man.
The petitioner is a woman and Section 354B of the Indian Penal Code, therefore, cannot be attributed to her in view of the above.
The notice issued under Section 41A of the Code of Criminal Procedure was only after filing of this application and service of the petition on the State.
2Section 160 is also attracted and the presence of the petitioner cannot be required at the police station in view of the decision reported in AIR 1978 SC 1025.
The mala fidies of the Investigating Officer is also apparent from the second show cause notice issued under Section 41A on 22nd February, 2017 which has been issued at 11-41 P.M. Contempt proceedings as per Arnesh Kumar's judgment be initiated against the I.O.
The Public Prosecutor opposes the said application and submits that it is not the case of the petitioner that she did not receive the notice under Section 41A of the Code of Criminal Procedure. The said notice was received and she also agreed to comply with the same. Having agreed to comply, she must be bound to comply with the same. The statement of the victim girl recorded under Section 161 of the Code of Criminal Procedure at page 9 so also the neighbours at pages 8 and 10 be looked into.
Section 160 will not be applicable to the accused as it is to apply to witness. Therefore, it has no application in the instant case. The petitioner having abetted in the offence under Section 354B of the Indian Penal Code is equally liable as the principal accused.
Section 41A of the Code of Criminal Procedure is issued in a case where arrest of a person was not required and on receipt of notice, it is the bounden duty of the person receiving the notice to comply with it. It is only when the arrest of the person is required that not only reasons are recorded but sufficient time is to be given in view of the decision of a Single Judge of this Hon'ble Court so as not to infringe the fundamental rights of the accused.
The case is under investigation and the petitioner is required to co-operate with the same. Therefore, in the investigation, there is every possibility of converting the section or including a section as may unfold. Therefore, to grant anticipatory bail to the petitioner at this stage will be pre-empting any action that may be taken. As the petitioner has agreed to comply with the notice under Section 41A of the Code of Criminal Procedure, she ought to be bound to comply with the same.
Having considered the submissions of the parties and on scrutiny of the case diary produced by State Counsel, it is true that notice under Section 41A of the Code of Criminal Procedure was issued to the petitioner but this notice was issued in February, 2017 whereas the F.I.R. was filed in May, 2016 and the I.O. during the said period did not consider it necessary to issue any notice under Section 41A of the Code of Criminal Procedure. It is during the pendency of the application that the notice has been issued and in hot haste. This will appear from the notice under Section 41A of the Code dated 22nd February, 2017 at 11-41 P.M. It is not for us at this stage to decide the case as investigation is still on going but on scrutiny of the case diary sufficient material exists to warrant grant of anticipatory bail to the petitioner, namely Roopa Ganguly, in the event of her arrest upon furnishing bond to the tune of Rs. 10,000/- with two sureties of Rs 5,000/- each to the satisfaction of the arresting authority and subject to the condition imposed under Section 438(2) of the Code of Criminal Procedure.
3Needless to mention that the petitioner will co-operate with the investigation. The prayer for anticipatory bail is allowed and the application is, thus, disposed of. Certified copy of this order, if applied for, be given to the parties on priority basis.
( Patherya, J.) (Shivakant Prasad, J. ) 4