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CALCUTTA HIGH COURT
Rajasekhar Mantha, J.
(Through Video Conference)
Sri Anubrata Mondal – Petitioner
versus
Union of India and Ors. – Respondents
WPA 1839 of 2022
Decided on 3.2.2022
Constitution of India – Articles 21 and 226 – Criminal Procedure Code, 1973 – Section 160 – Notice to appear – Challenge as to – Alternative remedy is not a bar to exercise of jurisdiction under Article 226 of Constitution of India – Such Jurisdiction can be exercised, if there is violation of natural justice or an action completely without jurisdiction – Remedy before a writ court cannot be ousted especially in a case where rights under Article 21 of Constitution are at stake and prayers and pleadings have made a case of such invasion – Each case must be looked at in its own facts and circumstances and ratio cannot understood de hors facts of case – Petitioner seriously apprehends infringement of his rights under Article 21 of Constitution of India – Liberty is Rule and Custody in only an exception – Petitioner in any event is not principal accused in FIR – CBI has not been able to indicate why custodial interrogation is needed – Given object and purpose of Section 160 of Cr.P.C. it must apply even to investigations of CBI – Notice under Section 160 of Cr.P.C. still at large and has not been withdrawn – CBI, if it so chooses should be entitled to fix any other time for conducting investigation and interrogating petitioner subject to Section 160 of Cr.P.C. (Paras 13, 15, 16, 18 and 22)
Result : Writ Petition allowed.
JUDGMENT
Rajasekhar Mantha, J.—The writ petition has been filed challenging a notice under Section 160 of the Cr.P.C. in connection with an FIR No.RC0562021S0018. The petitioner is not accused. The notice required him to be present today at 11 am at NIT Guest House, Durgapur, West Bengal, The petitioner in reply to the notice contended that he was suffering from diverse ailments and it would be a health hazard for him to travel a distance of 58 Kms, from Bolpur to Durgapur in this pandemic.
2. Mr. Sandipan Ganguly Ld. Senior Advocate, submits that Section 160 of the Cr.P.C. authorizes only a police officer within whose jurisdiction the notice resides to summons. The Notice to appear at Durgapur is outside the Bolpur, under which PS the petitioner resides. The CBI should in deference to the sprit of 160 of the Cr.P.C. should conduct investigation at Bolpur.
3. Counsel of the petition next submits that his client is suspicious of the motives of the CBI and places paragraph 9 at page 5 of the writ petition which is set out hereinbelow :-
“9. That the Petitioner states that the impugned Notice dated 31.01.2022 has been issued without providing any detail of the particular of the Case in connection with which the Investigating Agency propose to put certain question to the Petitioner save and except the case No. RC0562021S0018 registered in CBI, SCB, Kolkata which clearly indicate the malafide intention of the Respondent No.4 to create incriminating circumstances and initiate coercive measure against the Petitioner.
4. Across the bar, Mr. Sandipan Ganguly, learned Senior Counsel appearing for the petitioner submits that his client is willing to attend the investigation even at Durgapur. However, in view of the apprehension expressed in on affidavit as above he has sought protection of the Court from coercive measures.
5. The prayer of the petitioner is aggressively opposed by Mr. S.V. Raju, learned Additional Solicitor General. It is contended that the petition should not be entertained inter alia, for contradiction, approbation and reprobation.
6. Firstly that in the writ petitioner who has averred that that he could not travel from Bolpur to Durgapur for diverse ailments now appears to be willing to so travel, if he protected against arrest. The reference to physical ailments is therefore a mere ruse to protection against arrest. The writ petition, according to Mr. Raju, should therefore not be entertained.
7. It is next argued that the prayer made in the writ petition is akin to a prayer under Section 438 of the Cr.P.C. The petitioner could easily have applied for anticipatory bail. Not having done so, the prayers in the writ petition should not be entertained for the principles of alternative remedy. Learned Additional Solicitor General relied upon the decisions of the Supreme Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi) reported in (2020) 5 SCC 1. On the question of alternative remedy, Mr. Raju also relied upon decisions of a Co-ordinate Bench of this Court in the cases of Rakesh Singh @ Rakesh Kumar Singh Vs. State of West Bengal and Ors. being judgment dated February 23, 2021 in WPA 5448 of 2021 and in the case of Sagar Paik and Anr. Vs. Union of India and Ors. dated March 3, 2021 being WPA 6441 of 2021.
8. Referring to the decision Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors. reported in (2021) SCC OnLine SC 315, it is submitted that the Supreme Court has deprecated the practice of High Courts casually ordering against the coercive measures.
9. Replying to the arguments under Section 160 of the Cr.P.C., Mr. Raju submitted that the CBI is guided by the CBI Manual in conduct of Investigations. Sections 2 (s), 154 and 156 of the Cr.P.C., have no manner of application to the proceedings instituted by the CBI. The CBI is also not bound by the mandate and rigours of Section 160 as the jurisdiction of its Officer at Kolkata extends all over the State of West Bengal. The petition
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