19.08.2026 Ct. No. 446 Sl. No.9 akd [ALLOWED] C. R. M. (A) 2124 of 2026 In Re: An application for anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 filed on 01.07.2026 in connection with Saktipur Police Station Case No.176 of 2026 dated 27.06.2026 under Sections 192/196(2)/197(1)(c)/296(b)/132/ 356(2)/352/353(2)/351(2) of the Bharatiya Nyaya Sanhita, 2023. (G.R. Case No. 856 of 2026) And In Re: Humayun Kabir … … Petitioner Mr. Soumyajit Das Mahapatra Mr. Syed Ali Afzal Ms. Rebika Sultana … … for the petitioner Mr. Kallol Mondal .. ld. Public Prosecutor Mr. Pawan Kumar Gupta Mr. Anamitra Banerjee … … for the State 1. This is an application for anticipatory bail filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 in connection with Saktipur Police Station Case No.176 of 2026 dated 27.06.2026 under Sections 192/196(2)/197(1)(c)/296(b)/ 132/356(2)/352/353(2)/351(2) of the Bharatiya Nyaya Sanhita, 2023. 2. Mr. Soumyajit Das Mahapatra, learned Advocate appearing for the petitioner, submits that the petitioner is a political leader and has been falsely implicated in the present case on the basis of certain statements allegedly made by him while addressing a public gathering. It is submitted that the prosecution has selectively relied upon certain expressions used in course of a political speech and has attempted to give the same a criminal colour. Referring to the written transcription of the speech, he further submits that the said speech was allegedly 2 delivered targeting a particular police official and not against any particular religious community. 3. Referring to the provision invoked by the prosecution, Mr. Mahapatra submits that the offence punishable under Sections 192/296/352 of the Bharatiya Nyaya Sanhita, 2023 are all bailable in nature. He further submits that although the prosecution has invoked Sections 196(2)/197(1)(c)/353(2)/132 of the Bharatiya Nyaya Sanhita, 2023, but the said Sections are inapplicable in the instant case. He also submits that this case, at best, be treated as a case of defamation.It is submitted on behalf of the petitioner that the petitioner is a sitting MLA, having deep roots in the society and he is willing to cooperate with the investigation. 4. Mr. Mahapatra also submits that the notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 was issued to the petitioner. A copy of the notice served upon the petitioner has been placed on record wherefrom it would appear that the endorsement made in the said notice will indicate that the petitioner had complied with the instructions contained in the same. 5. Referring to the provisions of sub-sections (5) and (6) of Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023, Mr. Mahapatra submits that if an accused person complies and continues to comply with the notice issued under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, he shall not be arrested in respect of the offence referred to in the notice, unless for the reason to be recorded that the police officer is of the opinion that he ought to be arrested. He submits that if at any point of time, the accused person, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such order, as may have been passed by the 3 competent court in this behalf, arrest him for the offence referred to in the said notice. 6. Learned Advocate for the petitioner submits that here no reason has been recorded justifying the arrest of the present petitioner and no competent court of law has ever passed any order empowering the concerned Investigating Officer to nab the accused person. He submits that the Investigating Officer has collected the incriminating materials and therefore, in the present case, custodial interrogation of the present petitioner is not warranted. 7. Mr. Kallol Mondal, learned Public Prosecutor, vehemently opposes the prayer for anticipatory bail of the petitioner. He submits that the statements made by the petitioner, while addressing a public gathering, had the potential to disturb the communal harmony and public order. He further submits that the entire statement is directed against the police administration and the State. Many other cases of like nature are pending against the petitioner. He also submits that though the petitioner has complied with the terms of the notice issued under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, yet if the circumstances satisfied any of the conditions contained in sub- section (1) of Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023, then the police office has every authority to arrest the petitioner. He submits that the petitioner had delivered such sorts of provocative speech on several occasions and six cases are currently pending against him. Therefore, according to Mr. Mondal, custodial interrogation of the present petitioner is necessary for a proper investigation. 8. Heard the learned Advocate appearing for the petitioner as well as the learned Public Prosecutor and perused the case diary as well as the other materials on record including the Memo of Evidence. 4 9. At the outset, it needs to be observed that the petitioner is a political leader or a sitting MLA, cannot by itself, either aggravate or dilute the criminal liability arising out of his speech. The law must operate uniformly, irrespective of the identity, political affiliation or religious background of any person who is alleged to have made any statement. Equally, the exercise of the power of arrest cannot be justified merely on account of the political or public profile of anyperson. 10. There can be no manner of doubt that freedom of speech and expression does not extend to speech which satisfies the statutory ingredients of offences relating to promotion of enmity, disturbance of public order, incitement to violence or acts prejudicial to the sovereignty, unity and integrity of the country. At the same time, the constitutional protection of speech requires the criminal law to be invoked only when the essential ingredients of the alleged offence are prima facie disclosed. 11. While dealing with an application, Court shall consider whether any mens rea existed or not. Whether the speech contained sufficient ingredients to incite communal harmony or the promotion of enmity or hatred between two groups or interfering the liberty of any citizen. There is a distinction between an objectionable expression and a punishable expression. The mere fact that a statement is provocative, distasteful or capable of offending a section of society will not be a punishable expression. The entire speech is to be looked into, not any word used therein in isolation, intention of the people and actual and reasonably forcible consequences. 12. Although, there is little scope of meticulous examination of evidence while dealing with an application for bail and/or anticipatory 5 bail; however, while determining the question whether custodial detention is necessary or whether the statutory and judicial parameter governing the anticipatory bail have been satisfied or not, the Court has to consider various factors. 13. Undisputedly, in the present case, the primary evidence relating to the alleged offences is the electronic evidence in nature and is already within the reach of the Investigating Agency. There is no allegation that any physical recovery is required to be effected from the petitioner and for this purpose, custodial interrogation of the present petitioner is indispensable. 14. In addition to the aforesaid aspects, the Court is required to consider the nature and gravity of the offence, the role attributed to the applicant, the possibility of the applicant influencing the witnesses, and the likelihood of the applicant fleeing from justice. As noted hereinbefore, the electronic evidence is already in the custody of the prosecution and, therefore, there appears to be little scope for the petitioner to tamper with such evidence. The petitioner is a sitting MLA and has deep roots in society. There is also no allegation that he is likely to evade the process of investigation or trial. 15. So, therefore, I am of the opinion that sufficient materials are not available in the case diary demonstrating the need of custodial interrogation of the present petitioner. 16. This order is not an approval of the statements made by the petitioner and all the observations made herein, prima facie, are only for the purpose of disposal of the application. 17. Therefore, I am of the opinion that custodial interrogation of the petitioner is not necessary and that he may be granted anticipatory bail, however, subject to certain conditions. 6 18. Accordingly, I direct that in the event of arrest, the accused/petitioner, namely, Humayun Kabir, be released on bail upon furnishing a bond of Rs.50,000/- (Rupees Fifty thousand only), with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Chief Judicial Magistrate, Berhampore, Murshidabad and also subject to the conditions as laid down under Section 482(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023. 19. The petitioner shall appear before the Investigating Officer as and when called upon, and shall cooperate with the investigation in all respects. He shall not, directly or indirectly, make any attempt to influence, intimidate or induce any witness acquainted with the facts of the case. The petitioner shall not make any further statement, public utterance or social media post concerning the present criminal proceeding with a view to influence any witness or any other person acquainted with the facts and circumstances of the case. 20. It is clarified that in case of failure to comply with any of the conditions mentioned hereinabove, the Investigating Officer shall be at liberty to approach the learned court below for appropriate order in accordance with law. 21. The application for anticipatory bail is, thus, disposed of. (Partha Sarathi Chatterjee, J.)