Inherent Power of Court

Calcutta High Court has removed protection from Ex-Kolkata Police Commissioner Rajeev Kumar-13/09/2019

By her Judgment dated 13/09/2019, Hon’ble Justice Madhumati Mitra of Calcutta High Court held the following while withdrew interim protection :

A conjoint reading of Section 160 and 161 of the Code of Criminal Procedure would reveal that the Police Officer making an investigation has the authority to examine any person who is supposed to be acquainted with the facts and circumstances of the case. When such person is examined by the Investigating Officer that person shall be bound to answer truly all questions relating to such case put to him by such Officer. Exception is that the person who is examined by the Investigating Officer is not bound to answer the questions which could expose him to a criminal charge or to a penalty or forfeiture. In Selvi and Others Vs. State of Karnataka reported in AIR 2010 SC 1974 our Apex Court held that the ‘right against self-incrimination’ protect persons who have been formally accused as well as who are examined as suspects in criminal case. It also extends to cover witnesses who apprehend that their answers would expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigation.

It has been argued on behalf of the petitioner that the petitioner has not been served any notice under Section 41A of the Code of Criminal Procedure.

The object of introduction of Section 41A, is so that arrest of accused for cognizable offences for which maximum sentence is 7 (Seven) years, is not made in routine manner and restrictions imposed under Section 41(1)(b) to be followed prior to making such arrest. It is compulsory for the police under Section 41(1) to record reasons for making arrest as well as reasons for not making such arrest. Where arrest is not made under Section 41(1), Police Officer compulsorily has to issue notice of appearance under Section 41A to the alleged accused. Unwillingness of alleged accused to whom notice under Section 41A is issued to identify himself, could be ground for arrest.

In this connection, it would not be out of place to mention that the impugned criminal proceedings are under Sections 120B/420/406/409 of the Indian Penal Code. The maximum punishment for an offence under Section 409 of the Indian Penal Code is life imprisonment. The question of service of notice under Section 41A of the Code of Criminal Procedure is redundant to the petitioner. In his petition, the petitioner has stated that he has not been projected as an accused in any of the First Information Reports lodged in connection with chit fund scam. The objective of issuance of notice under Section 41A is quite different from the objective of issuance of notice to a person under Section 160 of the Code of Criminal Procedure, which is for the purpose of investigation.

Admittedly, RC Case No.04(S)-2014 is being investigated by the Central Bureau Investigation as per the direction of our Apex Court. The Investigating Officer issued notice to the petitioner for his examination under Section 160 of the Code of Criminal Procedure. Section 160 of the Code empowers the Investigating Officer to issue notice for securing the attendance of persons who are acquainted with the facts and circumstances of the case to find out the truth. Repeated questioning of the person is part of investigation process. When the Investigating Officer acts within his statutory limit then the question that the Investigating Officer has acted beyond his authority does not arise. Service of notices upon the petitioner requiring his attendance for the purpose of interrogation by the Investigating Officer cannot be said to be mala fide.

Interrogation of a witness or a suspect under Section 161 of the Code of Criminal Procedure is the part of investigation. If during interrogation the Investigating Officer is satisfied that the person concerned has committed a cognizable offence, then the law permits the Investigating Officer to arrest that person subject to the provisions as contained in the Code of Criminal Procedure. Prior to interrogation or investigation, it cannot be said whether the person who is served notice under Section 160 of the Code of Criminal Procedure would come in the category of a witness or an accused. When a witness becomes an accused, he is entitled to the rights available to the accused. If commission of a cognizable offence by a person is detected in course of interrogation then the law permits the Investigating Officer to arrest that person without warrant and without leave of the Court.

I have already observed that at present the petitioner has no locus standi to pray for quashing of the criminal proceedings pending before the Learned Court below. The prayer which has been moulded by the petitioner by way of submitting supplementary affidavit cannot be granted to him, since the investigation of a cognizable offence is a statutory right of the police and the Court should not obstruct the track of investigation so long as the investigating agencies are within their legal bounds.

Read the whole Judgment