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2023 Supreme(Cal) 1417
IN THE HIGH COURT AT CALCUTTA
PRAKASH SHRIVASTAVA, RAJARSHI BHARADWAJ, JJ.
Subhadeep Giri - Appellant
Versus
The State of West Bengal and Others - Respondents
MAT 123 of 2023 with CAN 1 of 2023, CAN 2 of 2023
Decided On : 06-02-2023
For the Appellant : Mr. Kishore Dutta, Mr. Kallol Mondal, Mr. Srijib Chatterjee, Mr. Sabyasachi Chatterjee, Mr. Pritam Roy.
For the Respondents: Mr. Ashim Kr. Ganguly, Mr. Bellal Sk., Mr. Atarup Banerjee, Mr. Abu Sohel, Mr. Rajdeep Pramanik, Mr. S. Nandi.
IMPORTANT POINT
The right to apply for regular bail cannot be curtailed forever in exercise of the writ jurisdiction.
Headnote:
Protection of Child from Sexual Offences - Sexual Offence against Minor - Section 4 of POCSO Act, 2012, Sections 34, 376(2)(n), 506 of IPC - Summary: The court addressed the delay in arresting the accused, the right to seek bail, and the impact of an undertaking to surrender on the right to bail. The judgment emphasized the importance of following legal procedures and clarified that the right to apply for regular bail cannot be curtailed forever in exercise of the writ jurisdiction.
Fact of the Case:
The writ petitioner's minor daughter was a victim of a sexual offense, and the police were allegedly delaying the investigation due to the accused's political influence. The court addressed the delay in arresting the accused and the right to seek bail.
Finding of the Court:
The court disposed of the appeal, granting liberty to the appellant to seek review/clarification of the order regarding the undertaking about surrender of the accused. It also clarified that the regular bail application will be decided by the competent Court in accordance with the law on its own merit without being influenced by the observations made by the learned Single Judge.
Issues: Delay in arresting the accused, right to seek bail, influence of political background on the investigation.
Ratio Decidendi: The right to apply for regular bail cannot be curtailed forever in exercise of the writ jurisdiction.
Final Decision: The appeal is disposed of, granting liberty to the appellant to seek review/clarification of the order regarding the undertaking about surrender of the accused. The regular bail application will be decided by the competent Court in accordance with the law on its own merit without being influenced by the observations made by the learned Single Judge.
JUDGMENT :
Prakash Shrivastava, J.
1. By this intra-court appeal, appellant has challenged orders dated 20th of January, 2023 and 24th of January, 2023 passed in WPA 1613 of 2023.
2. The respondent no. 6 herein (writ petitioner) had filed the petition with the plea that her minor daughter was victim of commission of sexual offence in the hands of the accused, therefore, on the written complaint, police had registered FIR No. 4 dated 10th of January, 2023 under Section 4 of the Protection of Child from Sexual Offences (Amendment) Act, 2012 and under Sections 34, 376(2)(n) and 506 of the IPC. Being unable to face the agony, she had even tried to commit suicide on 1st of November, 2022 by taking poison. The statement of the victim was recorded under Section 164 of the Cr.P.C.
3. The grievance raised in the petition was that the police authorities, even after registering the FIR and having all the materials, were sitting tight over the issue and were in a mood to hurriedly close the investigation in connivance with the accused persons in view of the fact that the principle accused and his father are highly influential having political background. It was also alleged that the writ petitioner and her husband, i.e., parents of the victim were pressurized and were continuously threatened by the police authorities to withdraw the complaint.
4. Learned Single Judge by the order dated 20th of January, 2023 had recorded the statement of counsel for the accused for surrender of accused and had also noted that the accused to be member of the student wing of a political party and made observation about restriction on granting bail. By the subsequent order dated 24th of January, 2023, contradictory submission of the new counsel for the accused was noted and the submission relating to attack on the house of the writ petitioner by certain hooligans and its ransacking on 22nd of January, 2023 was also taken note of. Hence, a direction was issued to make efforts to arrest the accused Subhadeep Giri as expeditiously as possible.
5. Learned counsel for the appellant submits that there is no prayer in the writ petition for arrest and the appellant was not a party in the writ petition and the arrest is prerogative of the investigating agency and that statutory right of the appellant to seek bail cannot be curtailed. In support of his submission, he has placed reliance upon the judgments of the Hon’ble Supreme Court in the matter of M.C. Abraham and Another vs. State of Maharashtra and Others reported in (2003) 2 SCC 649 and in the matter of Sushila Aggarwal and Others vs. State (NCT of Delhi) and Another reported in (2020) 5 SCC 1. He further submits that even if the part of the order of the learned Single Judge about alleged undertaking to surrender is correct, then also the appellant has a right to seek bail and he cannot be kept in custody till completion of trial and the order of the learned Single Judge violates Article 21 of the Constitution. He submits that the mobile phone of the accused has already been seized, therefore, there is no possibility of making the video viral.
6. Learned counsel for the State submits that the warrant of arrest against the accused has already been issued. The statement of the victim has been recorded under Section 164 of the Cr.P.C. and that the victim’s family is still receiving threat from unknown source.
7. Learned counsel for the private respondent (writ petitioner) has also opposed the appeal by referring to the disclosures made by the victim under Section 164 of the Cr.P.C. and has submitted that after lodging the FIR, the writ petitioner was uprooted from the house and no police help was extended and that accused no. 2 is the Trinamool Congress Block President having political background. He submits that even threats have been received by the advocate appearing for the writ petitioner and that impleadment of the appellant in the writ petition was not necessary because in the writ petition, the grievance was a
