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TMI Blog2021 (9) TMI 1508X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of such liberty is required to survive the tests of due process and or the procedure established by law. In the instant case there is prima facie evidence before this Court of abuse and or misuse of State and police machinery in registering cases for investigation based on half-truths, fiction, concoctions and nonevents. The State shall furnish information as regards any further FIR registered against the petitioner. The State shall also obtain leave of this Court before arresting the petitioner or taking with any coercive action against the petitioner in all such cases - Investigating Authorities shall, as far as possible, considering the public responsibilities of the petitioner, accommodate him, if he is required to give any statement, from a place and time convenient to him. Let affidavit-in-opposition be filed within a period of four weeks from date. Reply, if any, be filed within a period of two weeks thereafter. - Rajasekhar Mantha, J. For the Appellant : Mr. Paramjit Singh Patwalia, ld. Sr. Advocate, Mr. Rajdeep Majumder, Mr. Billwadal Bhattacharyya, Mr. Sourav Chatterjee, Mr. Kallol Mondal, Ms. B. Swaraj, Mr. S. Kotwal, Ms. M. Hasija, Mr. Moyukh Muk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. On 22 nd February, 2021, Maniktala Police Station Case No. 28 of 2021 was registered under Sections 120B/420/467/468/471. The complainant, one Sujit De, accused one Rakhal Bera and Chanchal Nandy and three Other Unknown Persons of taking money and promising a government job in July 2019. It is submitted that it is the writ petitioner who is the actual target of the Maniktala Police Station at the instance of the ruling dispensation. Admittedly, the said Rakhal Bera and Chanchal Nandi are close associates of the petitioner. It is submitted that despite the delay of about two years in registering FIRs, the Maniktala Police Station has mechanically registered the FIR contrary to the dicta of the Hon ble Supreme Court in the case of the Lalita Kumari vs Govt. Of U.P. Ors reported in (2014) 2 SCC 1. The said Rakhal Bera was arrested but was released pursuant to the orders of this Court dated 2 nd August, 2021 passed in WPA 11778 of 2021 under Article 226 of the Constitution of India. Affidavits have been called in the said writ petition, which is pending. On an appeal being MAT No. 730 of 2021 preferred by the State against the said order dated 2 nd August, 2021 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 120B of the Penal Code. The complaint was lodged by one Mrs. Subarna Kanjilal Chakraborty, alleging that her husband Late Suvabrata Chakraborty, who was a part of the security team assigned to the writ petitioner, was killed by him, on 13 th October, 2018. It is submitted by the petitioner that the Phoolbagan Police Station had initiated a UD Case being inquest No. 71 dated 15 th October, 2018 on the death of the said Subabrata Chakraborty. The post-mortem report which was with the Phoolbagan PS, had indicated that the said Suvabrata died as a result of a suicide after having shot himself with his service revolver. GDE No. 696 dated 13.10.2018 recorded at 10.55 hrs. indicated that the victim committed suicide. A statement of the erstwhile S.P., Purba Medinipur, given to the media is also referred. The registration of an FIR about 3 years later, is malicious. It is also submitted that a murder investigation was started against the petitioner, pertaining to an incident that was closed 3 years ago, only with a view to malign, harm and victimize the petitioner by implicating him in a false and frivolous investigation. No preliminary enquiry was even conducted by the police prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 SCC 749 , particularly Paragraph 22 thereof. Reliance is also placed on T.C. Thangraj Vs. V. Engammal reported in (2011) 12 SCC 328 paragraphs 9, 10, 11 and 12 thereof. Reliance is also placed on State of Punjab Vs. CBI reported in (2011) 9 SCC 182 paragraphs 32 thereof. Reliance is also placed on Subrata Chattaraj Vs. UOI reported in (2014) 8 SCC 768 . In answer to the demurrer, Mr. Patwalia, Counsel for the petitioner, placed paragraphs 21, 22 and 26 of the Pepsi Food decision (supra) , which is set out hereinbelow: 21. The questions which arise for consideration are if in the circumstances of the case, the appellants rightly approached the High Court under Articles 226 and 227 of the Constitution and if so, was the High Court justified in refusing to grant any relief to the appellants because of the view which it took of the law and the facts of the case. We have, thus, to examine the power of the High Court under Articles 226 and 227 of the Constitution and Section 482 of the Code. 22. It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. BhajanLal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution. The decision of Arnab Goswami Vs. UOI reported in (2020) 14 SCC 12 paragraph 57 has also been placed. A recent decision in the case of Kapil Agarwal Vs. Sanjay Sharma reported in (2021) 5 SCC 524 has also been relied upon. Para 18 as a whole is set out hereinbelow. 18. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 CrPC. In that case, the complaint case will proceed further in accordance with the provisions of the CrPC. 18.1. As observed and held by this Court in a catena of decisions, inherent jurisdiction under Section 482 CrPC and/or under Article 226 of the Constitution is designed to achieve s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertained and/or maintainable in the given facts and circumstances. f) Transfer of the proceedings to the CBI from the State police or to an independent agency can be ordered both under Section 482 Cr.P.C. and under Article 226. It is a given facts that a Court under Article 226 would entertain such prayer. In view of the above, this Court is of the view that the writ petition and the prayers made thereunder are eminently maintainable. Learned Advocate General on merits submitted that the petitioner is not a named accused in the Manicktala P.S. No. 28 of 2021 and Contai P.S. Case No. 248 of 2021. No relief can therefore be sought in respect of the said proceeding. It is submitted that in respect of Manicktala P.S. Case No. 28/21, this Court did not interfere with the investigation into the FIR. It however, appears to this Court that combined reading of all six cases against the petitioner, are directly or indirectly linked to the petitioner and/or his close associates who profess the ideology of one political party. It is next submitted that the withdrawal of security given to the petitioner by the State was not done over night. Since after shifting of the political ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the State. Learned Advocate General next argued that transfer of investigation is sought primarily by the victim of a crime. The basis of such transfer is inadequate investigation into the crime perpetrated upon the victim. This Court is of the view that a prayer for transfer of investigation cannot be restricted, to be sought only by a victim of a crime. An accused can equally be prejudiced by a biased investigation or malicious prosecution and can, therefore, seek transfer of investigation. In respect of Contai P.S. case No.248 of 2021, the learned Advocate General by reference to the GD Entry No. 696 of 2018 with Phoolbagan P.S. submitted that UD case No. 45 of 2018 was registered on 14 October, 2018 after the security guard died. A magisterial inquest was done along with post mortem. It, therefore, cannot be said no preliminary inquiry as mandated in the decision of Lalita Kumari (supra) was made by the police before registration of the FIR. There was sufficient evidence before the police and there was no need for any preliminary enquiry. This Court finds that the Contai PS did not even bother to enquire as to what cause the delay of 3 years in the victim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he image and dignity of a person in the eye of society. Guidelines came to be laid down under Section 41 and 41A of the Cr.P.C for the Police to mandatorily comply with. Further in the case of Mukesh v. State (NCT of Delhi) , (2017) 6 SCC 1, Paragraph 50 the Hon ble Supreme Court held that usually delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by the courts with suspicion. This Court finds substantial force in the petitioner s argument. Prima facie there appears to be an attempt at implicating and victimizing him in criminal cases and mala fides, malice and collateral purpose in registering the FIRs against the petitioner and his associates. A scheme and or conspiracy and or pattern and or stratagem appear to have been devised to entrap the petitioner and his associates to ensure their incarceration and custody inter alia to embarrass them. Article 21 of the Constitution of India enshrines the most vital rights that a citizen of this country is required to be secured with. The rights under Article 21 and importance thereof cannot be overemphasized. The rights under Article 21 are so very basic and fund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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