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
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:
- 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.
- 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.
- 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.
- 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:
Observations Of The High Court
- 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.
- 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:
- a condition that the person shall make himself available for
interrogation by a police officer as and when required;
- 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
- a condition that the person shall not leave India without the previous
permission of the Court;
- such other condition as may be imposed under sub-section (3) of section
437, as if the bail were granted under that section.
- 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).
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.
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
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.