Jharkhand High Court
Sumitra Shah vs The Union Of India Through Cbi on 5 April, 2013
Author: R.R.Prasad
Bench: R.R.Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 76 of 2013
Sumitra Shah.. ............. Petitioner
Versus
Union of India through C.B.I............ Respondent
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Coram: Hon'ble Mr. Justice R.R.Prasad
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For the Petitioner : Mr. Indrajeet Sinha, Advocate
For the C.B.I. : Mr. (Md.) Mokhtar Khan, ASGI
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2./05.04.2013Heard the learned counsel appearing for the petitioner and the learned counsel for the CBI.
Notice, issued under Section 160 Cr.P.C. by the Deputy Superintendent of Police, CBI, as contained in Annexure3, asking the petitioner to appear before him for the purpose of answering certain questions relating to the case, is being sought to be quashed on the ground that the notice could not have been issued to the petitioner in terms of Section 160 Cr.P.C. as the petitioner happens to be the accused in this case and not the witness, which position of law gets clarified from a decision rendered by the Hon'ble Supreme Court in a case of "State Represented By Inspector of Police & Others versus N.M.T. Joy Immaculate [(2004) 5 SCC 729]", wherein it has been held herein under: "Section 160 of the Code of Criminal Procedure deals with police officer's power to require attendance of witnesses. This section aims as securing the attendance of persons who would supply the necessary information in respect of the commission of an offence and would be examined as witnesses in the inquiry or trial therefor. This section applies only to the cases of persons who appear to be acquainted with the circumstances of the case i.e. the witnesses or possible witnesses only. An order under this section cannot be made requiring the attendance of an accused person with a view to his answering the charge made against him. The intention of the legislature seems to have been only to provide a facility for obtaining evidence and not for procuring the attendance of the accused, who may be arrested at any time, if necessary. In other words, this section has reference to the persons to be examined as witnesses in the trial or inquiry to be held after the completion of the investigation. As an accused cannot be examined as a witness either for or against himself, he cannot be included in the class of persons referred to in the section. But the police officers are fully authorised to require the personal attendance of the suspects during the investigation."
It has never been disputed that the petitioner is the accused in this case and according to the petitioner, he was granted bail before the C.B.I. Took over the investigation, but his apprehension is that whenever he will respond to the notice issued under Section 160 Cr.P.C., he will be taken into custody in a case, investigation of which was lateron taken by the CBI when the case was registered also for an offence under P.C. Act, and, thereby, he has filed this application seeking quashing of the notice issued under Section 160 Cr.P.C. However, at the same time, it was stated before this Court that the petitioner is ready to appear before the CBI, if the CBI wants to interrogate him, but at the same time, he may not be taken into custody for the reason that he has already been admitted to bail.
Thus, the notice issued under Section 160 Cr.P.C. to an accused, itself is bad in view of the provision as contained in Section 160 Cr.P.C. and also in view of the observation made by the Hon'ble Supreme Court in a case referred to above.
Accordingly, notice dated 01/04/2013, issued under Section 160 Cr.P.C. is hereby quashed.
However, the CBI would be at liberty to ask the petitioner to appear for interrogation by serving a notice issued under Section 41 A of the Cr.P.C. While resorting to such power he will adhere to the provision contained therein.
In the result, this application stands allowed.
(R.R.Prasad, J) Mukund/cp.3