BREAKING: Calcutta High Court Directs CBI To Not Take Any Coercive Action Against TMC Leader Anubrata Mondal In WB Post Poll Violence Case

The Calcutta High Court on Thursday directed the Central Bureau of Investigation (CBI) to not take any coercive measures against Trinamool Congress Birbhum district president Anubrata Mondal without the leave of the Court.

Mondal had moved the High Court seeking protection from arrest pursuant to the issuance of a CBI notice directing him to appear before its investigating team for the ongoing probe into the West Bengal post poll violence cases. He had been summoned by the CBI as a witness at the NIT camp office in Durgapur in neighbouring Paschim Bardhaman district at 11am on Thursday in connection with a murder case at Alambazar in Birbhum which is alleged to have a connection with the post-poll violence in West Bengal.

It may be noted that a 5 judge Bench of the High Court vide order dated August 19, 2021 had handed over to the CBI the investigation of the cases related to murder, rape and crime against women in connection with the violence in the State of West Bengal that had allegedly taken place in May 2021 soon after the declaration of the assembly election results. 

Justice Rajasekhar Mantha directed the petitioner to appear before the CBI at its Durgapur office and corporate with the ongoing investigation and further observed, 

In the event of any such fresh notice, the petitioner shall appear and cooperate in such investigation. However, no coercive measures shall be taken by the CBI against the petitioner without the leave of this Court.

While dictating the order, the Court further noted that the instant petition had become infructuous since the impugned notice issued by the CBI had directed the petitioner to appear on Thursday at 11am. However, it was observed that the notice issued under Section 160 CrPC by the CBI is still at large as such a notice has not been withdrawn by the CBI. 

Accordingly, Justice Mantha observed that the CBI is entitled to fix any other time for investigation and accordingly directed the CBI to issue notice afresh if necessary and call upon the petitioner for questioning at its Durgapur office. 

The Court rejected the contention of the CBI that the petitioner should have preferred an anticipatory bail application owing to the availability of alternative remedies. The Court underscored that jurisdiction of a writ Court under Article 226 of the Constitution cannot be ousted in so far as rights under Article 21 of the Constitution are involved and a prayer has been made of invasion of such rights. Reliance was placed on the Calcutta High Court judgment in Shyamali Adhikari v. The Kolkata Municipal Corporation in this regard. It was further held that it is a well settled law that each case must be looked at on its own facts and that ratio cannot be made de hors the facts. 

"The facts and circumstances of the instant case indicate that the petitioner apprehends infringement of rights under Article 21 of the Constitution", the Court noted further. The Court proceeded to further observe that protection under Article 226 of the Constitution is granted to even the worst offenders. Justice Mantha also took into consideration that the petitioner is not the principal accused in the FIR registered but is merely a witness. 

 Furthermore, the Court also dismissed the contention of the CBI that the territorial limitations as envisaged under Section 160 CrPC does not apply to a CBI investigation. 

"This Court is of the view that given the object and purpose of the Section 160 of the Cr.P.C. it must apply even to the investigations of the CBI. The fact that the CBI acts under its own manual and under the provisions of the Delhi Special Police Establishment Act 1946 will not deprive a citizen of this Country, much less a person who not even the principal accused of the fairness and due process of law, which have been mandated and engraved into Section 160 of the CrPC", the Court underscored further. 

Submissions on behalf of the petitioner 

Advocate Sandipan Ganguly appearing for the petitioner submitted that the petitioner had been summoned to appear as a witness in a case registered by the CBI pertaining to the West Bengal post poll violence. The Court was apprised that the highest charge in the concerned case is that of murder under Section 302 of the IPC. The Court was also informed that notices had been issued to the petitioner by the CBI under Section 160 of the CrPC.

The first such notice had been issued on January 27, 2022 and thereafter, the petitioner had responded on January 28, 2022 stating that due to his various ailments, he will only be able to appear before the CBI after 8 weeks. Subsequently, without addressing the averments made by the petitioner in his reply, the CBI issued another notice seeking appearance on January 28, 2022 itself. 

The counsel argued that under Section 160 CrPC, the police officer issuing notice thereunder must be the person within whose territorial limits the noticee must reside. He argued that in the instant case, the petitioner is a resident of Bolpur which does not fall within the jurisdiction of the Durgapur Police Station or any other adjoining police station. Accordingly, the counsel submitted that the CBI should have directed the petitioner to appear at any office in Bolpur instead of in Durgapur. 

Arguing further, the counsel remarked, "Under the guise of calling me as a witness, I may be apprehended..it is a practice adopted by police authorities". He further submitted that the petitioner is willing to appear before the Durgapur in the event that the Court protects him from the apprehended arrest. 

Opposing the argument of the CBI that no reasonable case of apprehension of arrest has been made out, the counsel submitted that the conduct of the CBI to not even address the reply of the petitioner dated January 28, 2022 and instead issue another notice reflects such an apprehension. 

The Court was also apprised that the CBI had issued notices from an address in Lucknow and thus he remarked further in this regard, "They are coming to Durgapur from Lucknow, what prevents them from coming to Bolpur?"

Reliance was also placed on the Supreme Court judgment in Vinod Dua v. Union of India and it was pointed out that the Supreme Court had granted protection from arrest against an issuance of notice under Section 160 CrPC by the CBI. 

Submissions on behalf of the CBI 

Additional Solicitor General (ASG) SV Raju appearing for the CBI argued that if the petitioner apprehends arrest, then he should be filing an anticipatory bail application. He emphasised that a writ petition cannot be a substitute for an anticipatory bail application. Thus, it was contended that the writ petition is hit by the principal of alternative remedy and thus should not be entertained. Reliance was placed on the Calcutta High Court judgement in Rakesh Singh v. State of West Bengal in this regard. 

He further submitted that since the counsel for the petitioner has already averred that the petitioner would be willingly to go to the concerned office in Durgapur if protection is given to him against any coercive action, thus he argued that the health grounds relied upon by the petitioner are a sham. It was also submitted that any apprehension of arrest has not been made out by the petitioner vide the averments made in the writ petition. 

"He has been issued notice under Section 160 CrPC, where is the apprehension of arrest?", ASG Raju further remarked. 

Reliance was also placed on the Supreme Court judgments in Sushila Aggarwal v. State (Nct Of Delhi) and Neeharika Infrastructure Pvt Ltd. v. State of Maharashtra and accordingly contended that an order granting protection against arrest cannot be issued if a reasonable case of arrest is not made out. 

Furthermore, the ASG argued that the petitioner does not come with clean hands before the Court. He submitted that the Court while passing orders under Section 482 CrPC or Article 226 of the Constitution, acts as a Court of Equity. He further referred to the reply filed by the petitioner to the notice issued by the CBI and accordingly argued that the response was a sham on the face of it. 

Referring to the contention of the petitioner that he suffers from chronic obstructive pulmonary disease (COPD), the ASG further submitted that it is a chronic disease and not an acute disease. He argued that one can carry out regular activities with a chronic disease which is in other words a disease that one possesses for a lifetime.  It was thus reiterated that the health grounds relied upon by the petitioner to not appear before the CBI is thus a sham and is bogus in nature. 

The ASG also fervently argued that there is a difference between an investigation being conducted by the local police authorities and the CBI and thus submitted that territorial limitations as envisaged under Section 160 CrPC does not apply to a CBI investigation. 

Case Title: Anubrata Mondal v. Union of India 

Case Citation: 2022 LiveLaw (Cal) 29. 

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