In Jyotsna Roy Vs. State of West Bengal and Others(W.P.A. 201 of 2019) , a judgement (21st January, 2021) was passed by the Calcutta High Court ( Through Hon’ble Justice Moushumi Bhattacharya) and investigation of the murder case of an IB Officer was transferred to the CBI from the State Police. The judgement is well reasoned and justified and the Hon’ble Court observed specific points of law relating to transfer of investigation from State Police to an independent agency like CBI.
The specific observations of the Hon’ble Court on the points of law are as follows:
“This court is of the view that Section 173(8) cannot prevent a Writ Court from passing further directions if the court deems it appropriate to do so in fit circumstances. Section 173(8) is premised on the action of the Officer-in-Charge of the concerned police station on obtaining further evidence after a final report of the investigation has been made. The scope of the provision is limited in operation and is dependent on the Officer chancing upon a piece of evidence after completion of investigation.”
“A fair trial wholly depends on the quality of investigation. If there are several loopholes in the investigation or an absence of collection or preservation of crucial evidence, the investigation becomes superficial and perfunctory. Fair trial is a sine qua non for instilling faith in the public that the truth behind a crime will be revealed through an impartial investigation. An investigation has to be fair, untainted and independent. Any investigation which ex facie raises a suspicion of not having been conducted with due diligence or dedication, taking all relevant and crucial evidence into account, must be revisited. The role of a court is to ensure that the investigating agencies have attended to the concerns raised and have considered the material facts and evidence for answering the issues raised. The Court, for less a Writ Court, is not equipped by way of expertise to take on the task of monitoring an investigation. That must be left to specialized agencies. The right to an unbiased and complete investigation is as much that of an accused as of the victim and the victim‟s family. The fairness of a truth-finding mission is the substratum of a civilized society.” (Page 14-15)
A writ petition ( through Mr. Arjun Chowdhury, Adv) has been filed by the wife of the victim Mr. Rabindra Nath Roy (aged 52), who was in service under the capacity of Sub-Inspector of the G.D. Cell of Sashastra Seema Bal (Intelligence Bureau) at Panitanki, Nepal Border. The dead body of the said Rabindra Nath Roy was found beside a railway track between Naxalbari Station and Batasi Hault Station with several injury marks all over the body.
Previously several orders had been passed by the learned Judges sitting in Circuit( Calcutta High Court) for directions on the police to complete the investigation into the death of Rabindra Nath Roy, the petitioner‟s husband. The Inspector-in Charge, Siliguri Town, was directed to complete the investigation within four weeks from date and a report of completion with particulars of the specific facts to be filed on 5th November, 2019 before the next Circuit Bench. On 15th November, 2019, an order was passed by a learned Judge noting that the death of Rabindra Nath Roy at the age of 52 years and while in service was not a fact to be taken lightly, by reason of which, a verifiable independent report of an expert should be collected in the course of the investigation. On 15th November, 2019, an order passed by a learned Single Judge noted that a final report of the investigation has been submitted by the investigating officer and the petitioner was given liberty to move an application under The Code of Criminal Procedure, 1973 before the A.C.J.M., Siliguri. An order was passed on 21st January, 2020 thereafter directing the Assistant Commissioner, Siliguri Commissionarate to file his affidavit within a specified timeframe and the railway authorities to file an application for expunging their names from the array of parties in the writ petition.
The final investigation report has been filed by the investigating officer, the petitioner has filed an application before the A.C.J.M., Siliguri under Section 173 of The Code of Criminal Procedure and the parties herein have filed their respective affidavits in the writ petition. Dissatisfied by this, the petitioner now sought for an order for re investigation or fresh investigation by an independent agency, preferably Central Bureau of Investigation, on the ground that the investigation has not been conducted in a satisfactory manner.
“The question before this Court is whether the facts in the present proceeding warrant an order for fresh investigation by another agency on the contention of the petitioner that the cause of the death of the petitioner‟s husband should be ascertained and the culprits then should be brought to book if the cause of death is found to be unnatural”. The question whether the investigation has been carried out in an appropriate manner requires to be determined from the statements made in the affidavit-in-opposition of the respondents who are material to the investigation.
Apparently annoyed Calcutta High Court observed that A.S.I. Narayan Saiba of Siliguri (T) GRPS lodged the F.I.R. after completion of Inquest Report but no photograph of the spot where the dead body of Rabindra Nath Roy was found was taken. Again no attempt was made for collection of evidence for analysis of forensic examination from the spot where the dead body of the deceased was found. Then no seizures were made from the spot where the dead body of the deceased was found. The Court further observed that that case was started under Section 304/34 of the I.P.C. and the case diary did not disclose the steps taken by the investigating officers for redressal of the grievances raised by the petitioner in the application filed before the A.C.J.M., Siliguri. The first impression of High court was that there were several loopholes in the manner of collecting vital evidence in the case for dislodging the presumption of homicidal death, it was imperative that evidence is collected for establishing that death occurred as a result of an accident.
While referring the the case to the CNI under Article 226 the Calcutta High Court relied on the following Cases :
- Vinay Tyagi vs. Irshad Ali @ Deepak & Ors. reported in (2013) 5 SCC 762
- Pooja Pal vs. Union of India (2016) 3 SCC 135
- Dharam Pal vs. State of Haryana (2016) 4 SCC 160
The operating portion of the ordered as below:
“The Central Bureau of Investigation is directed to start the investigation not later than four weeks from communication of this order and complete the investigation within a reasonable period of time but preferably within ten weeks from the date on which the investigation is started”.
21st January, 2021
Detailed report shall be followed…