Police Can't Misuse S.160 CrPC To Arrest Persons Unconnected With Alleged Offence: Calcutta High Court In Plea By Suvendu Adhikari's Acquaintances

The Calcutta High Court has made it clear that Section 160 of the CrPC which empowers the police to require attendance of witnesses cannot be misused to take coercive steps against persons not connected with the alleged offence.

While hearing a plea filed by persons claiming to be the relatives and acquaintances of West Bengal’s Leader of Opposition, Suvendhu Adhikari, a single bench of Justice Ajoy Kumar Mukherjee observed,

"The practice, if adopted by investigating agency during investigation to call someone not named in the FIR or not connected in any way in committing the offence, by a notice under section 160 of the Cr.P.C and when the person concerned complies direction of such notice, the investigating officer in the name of interrogation, implicate him as an accused and arrest him directly, such practice cannot be encouraged"

The petitioners were issued notices under Section 160 CrPC in relation to alleged irregularities in certain contract works in Contai Municipality and apprehended coercive steps merely for being related to and having similar political affiliations to an opposition party leader. They cited alleged instances wherein under the garb of a Section 160 CrPC notice, the investigating agency has arrested innocent persons on earlier occasions.

In appreciating their submissions, Justice Mukherjee questioned why investigative agencies would need to resort to indirect methods of arrest through notices under Section 160 CrPC when they could directly arrest an accused in any cognizable offences by using their inherent powers of arrest.

The petitioners claimed that the intention of the investigating agency was to not give the person the chance or the opportunity to avail of the benefit of the anticipatory bail or protective order which is available to an accused or a person apprehending arrest.

Counsel for the State opposed the plea, arguing that such notices were needed for conducting a free and fair investigation.

Since the impugned notices under Section 160 CrPC had been rendered infructuous due to passage of time, Justice Mukherjee said there was no need to quash them. However, the bench protected the rights of the petitioner by holding that if any future notices of similar nature were to be issued in relation to the investigation, and if the petitioners were needed to be interviewed pertaining to the same, then they must be given seventy-two hours’ notice.

Further, if the investigating agency would propose to accuse any of the petitioners in any offence or investigate them in relation to this matter, then a show-cause notice must be issued to all petitioners and that they shall not be arrested for a period of ten days from service of such a notice, to allow them to take any and all legal recourse as necessary. He concluded by observing:

Justice Mukherjee placed emphasis on the need for natural justice principles to be respected when it came to investigative proceedings in criminal matters. He reiterated that recourse to all forms of the law should be available to accused persons and that procedural law such as the CrPC cannot be used to prevent accused persons from being able to take legal recourse. He opined that:

"Such procedure adopted by the investigating agency is not in conformity with the provisions and object as laid down in section 160 of the Cr.P.C. and also violative of principles of natural justice. Section 160 under chapter XII of the Cr.P.C empowers a police officer to require attendance of witness and therefore under the garb of section 160 of the Cr.P.C. a person unconnected with the offence, cannot be directed to appear through notice under section 160, for adopting short cut method of denying the right of such person to get his proper redressal. Even if there is any allegation of violation of notice under section 160 of Cr.P.C, the public servant can very well take steps under section 174 of the Indian Penal Code but the investigation agency cannot use section 160 of the Cr.P.C as an oppressive measure against anyone. As such the citizen is subject to the edicts of criminal law and procedure."

In parting, Court remarked it is the duty of court to ensure that the criminal law does not become a weapon for the selective harassment of citizens. "Courts should be alive to both ends of the spectrum - the need to ensure the proper enforcement of criminal law on one hand and the need on the other of ensuring that the law does not become a ruse for targeted harassment.”

Case Title: Sutapa Adhikari & Ors v State of West Bengal & Anr

Coram: Justice Ajoy Kumar Mukherjee

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