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Calcutta High Court Directs Action Against Investigating Officer For Misuse Of Section 41A CrPc

This article is a reflexive piece which would delve into the order of the Calcutta High Court whereby it came down heavily on an investigating officer for harassing a citizen by abusing the provision of law enshrined under Section 41A of the Code of Criminal Procedure, 1973. The article would also be dealing with the obiter dictum and decision of the Supreme Court of India in this regard.

Matter In Issue
The Division Bench of the Calcutta High Court was hearing a Petition for anticipatory bail filed by one Ranjit De who was served a notice under Section 41A of the Criminal Procedure Code to appear before the investigating officer about a crime in the case of Ranjit De @ Ranjit Kumar De v. State (CRM 8507 of 2020).

In this case, three people allegedly attempted to deposit a forged cheque in the bank and on suspicion by a bank official decamped. Later, one or more of them were arrested. One of the arrested persons claimed that the petitioner introduced him to Gautam Bhar who then introduced him to another person who was a co-conspirator in the present case. The arrested person was associated with a charitable organisation which required donations and Gautam Bhar was an erstwhile bank official who would be aware of possible donors, therefore the petitioner, a retired taxman introduced the arrested person to Gautam Bhar.

Relevant Provisions - Criminal Procedure Code, 1973

Section 41A. Notice of appearance before a 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 believes 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.

Section 438. Direction for grant of bail to person apprehending arrest:
  1. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
  2. When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including:
    1. a condition that the person shall make himself available for interrogation by a police officer as and when required;
    2. a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any police officer;
    3. a condition that the person shall not leave India without the previous permission of the Court;
    4. such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
  3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

Observations Of The High Court
The court observed that the chain of events exhibits no role neither of the petitioner nor even of Gautam Bhar. Merely on the ground that the petitioner introduced the arrestee to Gautam Bhar, a retired Bank Manager to help his charitable institution to get donors, and Gautam Bhar happened to introduce him to Samir Babu, a retired public prosecutor, it cannot be established that the petitioner was involved in the conspiracy hatched by Samir Babu, the arrested statement maker and a third person named Biswajit. The bench identified it as a case of sheer extortion and harassment by the investigating officer by misusing the provision under Section 41A of the Code of Criminal Procedure.

The Court noted that there was no role mentioned about the petitioner in the case records running over 100 pages and the only mention of the petitioner in the entire file is that he introduced the arrestee to Gautam Bhar. Apart from that, he is not even remotely related to the conspiracy.

The Court remarked that it is more important to proceed against uniformed criminals before another criminal activity is checked. The Court surmised that the Section 41A notice served on the petitioner appears to have been for extraneous considerations and, possibly, for the known police proclivity to extort money by needlessly entangling citizens in criminal cases.

Order Of The Division Bench
Court has directed the Director-General of Police to initiate inquiry against the concerned investigating officer, and also disciplinary proceedings of found necessary depending on his past conduct for similar feats. Since there was no material to proceed against the petitioner, the petitioner must not be disturbed in any manner whatsoever concerning the case.

The Division Bench of Justices Sanjib Bannerjee and Aniruddha Roy said that apparently, it is a case of extortion and harassment by an investigating officer and immediate appropriate disciplinary measures must be instituted against possible unruly conduct.

Opinion Of The Supreme Court
Very recently in 2020 itself, the Supreme Court has held in the case of Rohini Biswas v. State of West Bengal, that it must be ensured that the policy does not and cannot harass, intimidate and threaten ordinary citizens by misusing and abusing legal provisions especially Section 41A of CrPC. The Bench comprising of JusticesD YChandrachud and Indira Banerjee thereby stayed the notice summoning a Delhi resident by Bengal police for her social media post allegedly criticizing the Bengal government for the lapse in enforcing the lockdown protocols.

Earlier in March 2015, the Supreme Court took a similar stand by scrapping of Section 66A of the Information Technology Act and thereby putting a check on the arbitrary powers of the police.

The Calcutta High Court has rightly checked the arbitrary use of power by the police officials. The police are already notorious for abuse of powers and it is indeed necessary to put a check on the same to ensure the rule of law rather than a reinforcement of the principle of might is right. More recently, the will of the people in this regard was also put forth forcefully enough in the wake of the Kerala Police Act (Amendment) Ordinance, 2020 when the public forced the government to withdraw the draconian ordinance giving arbitrary powers to the police.

Considering the will of the people in a democratic state and the principle of the rule of law as per our Constitution, the Calcutta High Court has taken a step ahead to safeguard the citizen's fundamental rights.

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