Breaking | Calcutta High Court Upholds Single Judge Order Refusing Protection From Arrest To TMC Leader Anubrata Mondal In Cattle Smuggling Case

The Calcutta High Court on Tuesday upheld a  Single Bench order refusing to grant protection from arrest to Trinamool Congress (TMC) leader Anubrata Mondal in the ongoing cattle smuggling case, probed by the Central Bureau of Investigation (CBI). 

Mondal had moved a Single Bench of the High Court pursuant to the issuance of a CBI notice under Section 160 of CrPC directing him to appear before its investigating team for questioning in the CBI office at Nizam Palace, Kolkata. He had declined to appear before the CBI on three prior occasions citing various medical ailments. Mondal had also requested for the questioning to take place at a place nearer to his residence considering the ongoing pandemic.

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed that the order of the Single Bench does not suffer form any error.

Furthermore, the Court dismissed the plea of the appellant that he is suffering from various medical ailments due to which he is being unable to appear before the CBI for the purpose of investigation by observing that sufficient material has been placed on record to show that Mondal has been travelling to different places and had even come down to Kolkata, near the place where he was asked to appear for questioning by the CBI. 

"..this Court also finds substance in the arguments of learned Counsel for respondents that the plea of the appellant that he is suffering from various ailments due to which he is unable to appear for the purpose of investigation, is unsustainable as material has been placed on record to show that the appellant is travelling to different places and had even come to Kolkata, near the place where he is required to appear in pursuant to notice. Appellant is seeking the interim protection to the effect that no coercive steps should be taken against him but there is no material on record showing that any such steps are intended by the respondent", the Court observed. 

Reliance was also placed on the Supreme Court decision in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others wherein the Apex Court had depreciated the practice of passing orders restraining arrest pending investigation even when petitions under Section 482 of Cr.P.C. or Article 226 of the Constitution are dismissed.

The Court noted that in the instant case the appellant is not even an accused and hence the Single Judge had not committed any error in refusing to exercise his discretion under Article 226 of the Constitution.

"Learned Single Judge has already clarified that dismissal of petition will not prejudice any other rights of the petitioner inter alia under Section 438 of the Cr.P.C..In the above circumstances, no ground is made out to interfere in the order of the learned Single Judge. The appeal is accordingly dismissed", the Court ruled. 

The Court further underscored that mere issuance of notice under Section 160 of CRPC does not violate the fundamental right enshrined under Article 21 of the Constitution. 

It was further noted that numerous opportunities had been given to the appellant to appear before the CBI for questioning however, the appellant had failed to abide by the same. It was further noted that a notice dated April 21, 2021 under Section 160 CrPC had been issued to the appellant to appear before the CBI on April 27, 2021 however the appellant had sent a reply dated April 26, 2021 with a prayer to grant a fortnight's time to appear and thereafter the prayer was accepted. 

Then again, a notice dated February 8, 2022 grant a fortnight's time to appearance on February 14, 2022 and vide reply dated February 14, 2022, appellant had made a prayer for fixing the date after March 11, 2022. This prayer was also accepted and a fresh notice dated March 4, 2022 was issued seeking appearance on March 15, 2022.

Accordingly, the Court observed that considering the facts of the case, it does not find the action of the respondents to be unreasonable in issuing the impugned notice. The Court however highlighted that the date fixed by the impugned notice i.e. March 15, 2022 has already passed.

The Court further observed that under Section 160 CrPC, police authorities have the power to seek attendance of any person who appears to be acquainted with the facts and circumstances of the case and that the scope of interference by Courts at such a stage of investigation is very limited.

Reliance was placed on a host of Supreme Court decisions in State of Bihar and Another v. J.A.C. Saldanha and Others, State of West Bengal vs. S.N. Basak, Union of India and Another vs. Kunisetty Satyanarayana and Special Director and Another v. Mohd. Ghulam Ghouse and Another wherein it had been held that Courts should be slow to interfere at the stage of investigation unless an extraordinary case of gross abuse of power is made out by those in charge of investigation. 

The Court noted that in the instant case, there is nothing on record to show that any such extraordinary circumstances exist requiring interference.

Impugned Judgment 

Justice Rajasekhar Mantha had dismissed the plea of Mondal after noting that he had travelled outside Bolpur on several occasions and that his aliments as examined by the Medical Board are not that serious that would requirement confinement to his home or a hospital.

"Having carefully heard the submissions of the parties, this Court notes that indeed the petitioner has been traveling outside Bolpur and on a couple of instances traveled all the way to Howrah. He has appeared in Kolkata before the Medical Board, the ailments referred to by the Medical Board are not as serious as to require the petitioner to remain confined to his home or a hospital", the Court had recorded.

The Court had further observed that the instant case does not warrant an interference under Article 226 of the Constitution of India as an alternate remedy is available under Section 438 of CrPC.

"The remedy under Article 226 of the Constitution of India in the face of available remedy under Section 438 of the Cr.P.C. is discretionary. The writ petition may be maintainable but as to whether it should be entertained or not is to be assessed in the facts and circumstances of each case. This Court is not satisfied that the facts of the instant case would warrant such interference", the impugned order had stated.

It may be noted that the High Court last month had directed the CBI to not take any coercive measures against Mondal without the leave of the Court in relation to the ongoing probe into the West Bengal post poll violence cases. He had been summoned by the CBI as a witness at the NIT camp office in Durgapur in neighbouring Paschim Bardhaman district in connection with a murder case at Alambazar in Birbhum which is alleged to have a connection with the post-poll violence in West Bengal.

Case Title: Anubrata Mondal v. Union of India & Ors

Case Citation: 2022 LiveLaw (Cal) 94

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