ARKADEB MUKHERJEE Vs. STATE OF WEST BENGAL

Investigation handed over to CBI-The case is an instance of brutal murder of a popular personality on the streets of an industrial town and failure of the investigating agency to bring out the identity of the assailants not only exposes its inefficiencies as enumerated hereinbefore but also deals a severe blow to the upholding of rule of law and, therefore, to instil confidence in the mind of society in general and the family members of the victim in particular, it is imperative that the Court does not turn its eyes away and permit a hiatus in the quest for truth in the commission of such a heinous crime by acceptance of closure report and, in this factual backdrop, I am of the opinion that a fit and proper case where the investigation is to be transferred to the Central Bureau of Investigation (C.B.I.) has been made out.

CALCUTTA HIGH COURT

SINGLE BENCH

( Before : Joymalya Bagchi, J. )

ARKADEB MUKHERJEE — Appellant

Vs.

STATE OF WEST BENGAL — Respondent

W.P. No. 24365(W) of 2014

Decided on : 17-03-2017

Constitution of India, 1950 – Article 226

Cases Referred

Dharam Pal Vs. State of Haryana, (2016) 4 SCC 160
Mithilesh Kumar Singh Vs. State of Rajasthan, (2015) 9 SCC 795
NHRC Vs. State of Gujarat, (2009) 6 SCC 767
Pooja Pal Vs. U.O.I., (2016) 3 SCC 135
State of W.B. Vs. Committee for Protection of Democratic Rights, (2010) 3 SCC 571

JUDGMENT

Joymalya Bagchi, J.—Writ petition has been filed by the son of one Arpan Mukherjee (since deceased) who suffered a ghastly death on the streets of a busy industrial township while he was on his daily morning walk on 10th May, 2012. It has been alleged in the First Information Report lodged with Hirapur Police Station that on the fateful day i.e. 10.05.2012 around 4.30 AM victim had left his residence in a Hero Honda motor-cycle for Burnpur stadium where he used to take a daily morning walk. It is further alleged while he was walking around the stadium at around 5.20PM/5.25 PM, some unknown assailants came on a motorbike and fired at him at point blank range. He suffered bullet injuries on his head and other vital parts of his body and was shifted to the hospital for treatment.

2. The de facto complainant who is the son of the victim and the petitioner herein rushed to the hospital where he found his father who was lying with bullet injuries had been declared dead by the medical officer. On the F.I.R. being lodged by the petitioner, investigation commenced through the local investigating agency.

3. Being dissatisfied with the indifferent manner of investigation the petitioner initially approached this Court in W.P. 20262(W) of 2012 and prayed for transfer of investigation to C.I.D. West Bengal. It appears that during the pendency of the said writ petition, investigation was taken up by C.I.D. West Bengal and such investigation was conducted under the leadership of Sri Abas Nandi, O/C SOG, CID, W.B. The said agency, however, was unable to unravel the crime and trace out the miscreants and submitted a final report as true before the learned Magistrate.

4. Protest petition was filed against such final report and the learned Magistrate directed further investigation in the matter through local agency who also drew a blank and further closure report was filed in the matter. In the meantime, the petitioner again approached this Court in this writ proceeding and sought transfer of investigation to a specialized and independent agency, namely, CBI.

5. Mr. Bhattacharya, learned senior counsel appearing for the petitioner submits that in spite of lapse of five years various investigating agency attached to the state administration have not been able to unravel the identity of the assailants who had gunned down the petitioner on a street of a busy town during his daily morning walk. It is also submitted that father of the victim was an active trade union leader and a former member of the Legislative Assembly of the State. The victim was a popular personality of the locality who was involved in various social activities in the area. He was a victim of a deep rooted political conspiracy as he belonged to a family actively involved in politics and, therefore, the State administration was unwilling to unravel the truth relating to his murder. In fact, being emboldened by the indifferent attitude of the investigating agency in the instant case, two other persons, namely, Nirgun Dubey and Dilip Sarkar belonging to the same trade union have also been gunned down on the streets of the said city and criminal cases registered in respect of such crimes have also yielded no result. He submitted that no serious effort was made on behalf of the investigating agency to interrogate the persons who were co-morning walkers and were present at the place of occurrence when the offence was committed. Motive of the crime and other relevant issues have also not been explored.

6. On the other hand, the investigating agency has merely expressed its inability to solve the crime and filed closure reports stating that the identity of the offender could not be found out as witnesses were not co-operative. In this backdrop, it is the cry of justice of the bereaved family that the investigation be transferred to a more specialized, well-equipped and responsible agency, namely, Central Bureau of Investigation for effective investigation into the crime.

7. Pursuant to the direction given by this Court, the investigating officers who conducted the investigation both at the local level as well as the level of C.I.D. West Bengal are present in person. I have interviewed the said officers as well as examined the records of investigation including the statements recorded by them under Section 161 of Code of Criminal Procedure.

8. Md. Sidique, learned counsel for the State vehemently submitted that the instant case does not fall in the category of cases laid down in State of West Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 necessitating shift of investigation to the central agency, namely, CBI. He submitted that all earnest and bona fide efforts were taken to unravel the truth and find out the identity of the assailants, but due to non co-operation of the witnesses including the co-morning walkers in the locality and others in and around the place of occurrence, the investigating agency was unable to crack the case and bring the offenders to book. He also stressed that the other cases of murder of Nirgun Dubey and Dilip Sarkar are unconnected with the instant case and all of them cannot be clubbed together. He also submitted that further efforts shall be made on behalf of the investigating agency under the supervision of the Court, if necessary, to solve the crime and trace out the offenders.

9. I have perused the materials on record including the records of investigation in the light of the aforesaid submissions. It is true the investigating agency has interrogated some persons in the instant case. However, none of them claim to be present at the place of occurrence. Only one morning walker, namely, Sheo Murad Singh was examined by the police but he claimed to had discontinued such practice for the last six months. The other witnesses like Asish Samanta and Prem Kanta Jha claimed that they heard the victim, who was a secretary of a local club, had been murdered and thereafter they rushed to the spot. No investigation, however, appears to have been made to find out the identity of the persons who had informed the said Asish Samanta or Prem Kanta Jha about the incident. It appears that one Suresh Bauri and Dasharath Bauri had taken the victim to the hospital where he was declared dead. Statement of Suresh Bauri and Dasharath Bauri recorded under section 161 of Code of Criminal Procedure disclose that two boys came from the place of occurrence and narrated the unfortunate incident to them. I note with grave concern that identity of the said boys have also not been worked out in the course of investigation conducted by the investigating agencies for the last five years.

10. On the other hand, it appears from the entries made by the agency on 20.9.2012 in the course of investigation that a number of morning walkers, namely, 1. Ajit Rajhansha, 2. Ramananda Ray, 3. Gautam Dhar @ Mona 4. Smt. Parbati Biswas 5. Suresh Bouri 6. Dasarath Bouri 7. Shib Kumar Ram had been examined but they did not give fruitful information about the assailants. In spite of queries, the police officers were unable to explain why the statements of such witnesses had neither been recorded under Section 161 of Criminal Procedure Code nor videographed. The only response was that the said witnesses were unwilling to cooperate and divulge facts and had given evasive answers to queries posed by the investigating agency. Accordingly, the police was unable to unravel the truth and identify the offenders.

11. The aforesaid facts as emanating from the records of investigation portray a very sad and dismal state of affairs as to the quality of investigation in the instant crime. The instant case relates to a brutal murder of a well-known individual hailing from a political family having strong roots in the locality. The victim was no stranger to the aforesaid witnesses. Then, why were the said witnesses so shy from divulging the facts surrounding the brutal murder of one of their own fellowmen and neighbor? Such issues required a deeper and more sensitive approach on the part of the investigating agency to unravel the truth but they have singularly failed to do so and have conveniently washed off their hands from solving the crime by putting the blame at the doorstep of unwilling and uncooperative witnesses.

12. When a crime of such bold and daring nature committed in full public glare on the streets of a busy industrial town goes unsolved and the miscreants are not brought to book it causes an indelible blot on the majesty of rule of law and a severe dent in the confidence of the ordinary man in the administration of criminal justice in the society. If crimes of such nature go unsolved thereby giving rise to a disappointing abdication of responsibility of law enforcement agencies of their duty to find out the truth and bring the offenders to book, it is all but natural that the citizens would lose confidence in the administration of criminal justice and in all likelihood would take law in their own hands resulting in further violence and blood-shed.

13. It is in this backdrop I have addressed the prayer for transfer of investigation to a specialized agency, namely, CBI to trace out the offender who had daringly murdered the victim on the streets of Burnpur. I have also taken note of the fact that soon after the murder of the victim in this case, two persons belonging to the same trade union as that of the father of the victim had been gunned down in a similar fashion by an unknown assailant. It is possible that failure of the law enforcement agency to bring to light the identity of the offender in this case has, in fact, emboldened the criminal to resort to similar modus operandi to do away with the lives of others as the inability and/or inefficiency of the law enforcement agency would give them a reprieve to such heinous and dastardly acts of homicide.

14. It was the duty of the investigating agency in the instant case to generate confidence in the minds of the witnesses like the co-morning walkers and others who were present in and around the place of occurrence so that they came out and disclosed the circumstances leading to the heinous death of the victim. Witnesses are the eyes and ears of the justice delivery system. If they remain silent, the process of administration of criminal justice would remain a lame and futile exercise. It was, therefore, imperative on the part of the investigating agency not only to find out the identity of the morning walkers but also to take necessary steps to build the confidence of the said witnesses so that they could be encouraged to disclose the information which was most vital for working out the crime and finding the identity of the assailants. It is pertinent to note that the investigating agency merely identified the morning walkers but did not record their statements under section 161 of Code of Criminal Procedure or under section 164 Code of Criminal Procedure before the learned Magistrate on the plea that they were not co-operating with the investigation.

15. Witness protection is one of the most important limbs of administration of criminal justice and does not commence only from the stage of recording evidence during trial. It is a continuous process which ought to be undertaken from the stage of registering a criminal case and the identity, life and safety of the witnesses, particularly in sensitive cases, are to be preserved and protected by resorting to various confidence building measures so as to induce them to come out with the facts which are solely within their knowledge and most vital for a just decision in the case. What would be the nature of such confidence building measures must be worked out by the investigating/prosecuting agency in the facts of each case. Several measures for protecting witnesses like (a) ensuring safe passage to and from the court premises; (b) providing security at their places of residence and (c) relocating witnesses at a safe place including a different State have been suggested by the Apex Court in NHRC v. State of Gujarat, (2009) 6 SCC 767. Similar or other confidence building measures ought to have been undertaken by the investigating agency to boost the confidence of the vital witnesses but they have failed to do so. Apart from extending adequate witness protection measures to vital witnesses to encourage them to come out with the circumstances leading to the crime, the investigating agency also failed and/or neglected to address itself to the motive behind the commission of crime. It appears that the petitioner comes from a political family as the victim’s father is not only a trade union leader but a former member of the West Bengal State Legislative Assembly. The victim was also a popular figure who was an active member of a local club. It was, therefore, most important to find out why such a popular person in the locality when gunned down by unknown assailants, no genuine effort to find out the motive of the crime appears to have been made in this case.

16. The investigation conducted so far by the State agencies suffer from the following lacunae and/or deficiencies which have impeded the quest to unravel the crime and bring the offenders to book:-

1. The investigating agency has not explored the motive of crime at all. It has been stated that the victim was a member of political family and was a popular personality of the locality who had no enemies. If that were so, as to why the miscreants gun down such a popular person coming from a political background ought to have been addressed by the investigating agency. No effort towards such end has been taken save and except recording laconic statements that the victim “did not have any enemies”.

2. The identity of persons who had informed Asish Samanta or Prem Kanta Jha about the incident of murder has not been worked out. Neither has the Investigating Agency worked out the identification of the boys who rushed and informed Suresh Bauri and Dasharath Bauri (persons who took the victim to the hospital) of the alleged crime. Failure to identify those persons are the proverbial `missing links’ which has snapped the chain of investigation between the witnesses whose statements have been recorded in the instant case and the persons who were at the place of occurrence and had informed the said witnesses of the incident of murder.

3. The Investigating Agency also did not undertake any confidence building measure with regard to the witnesses who were the co-morning walkers or others who were likely to be present at the place of occurrence. It has been claimed that the said witnesses chose not to cooperate with the Investigating Agency. It was incumbent upon the Investigating Agency to instill confidence in them and give adequate assurance of protection as to their identity, life and safety so as to coax them to come out of their shell and divulge evidence leading to the real offenders of crime.

17. In State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 a Constitution Bench of the Apex Court held that the Constitutional Courts under Article 32 or 226 of the Constitution of India may in rare and exceptional cases give direction to CBI to conduct an investigation in cases where it becomes necessary to provide credibility or confidence in investigations or where the incident may have national or international ramifications or where such order is necessary for doing complete justice or for enforcement of fundamental rights. The Bench, however, cautioned, that no inflexible guideline may be laid down and the High Court must after considering the materials on record come to a conclusion that a prima facie case calling for an investigation by CBI is made out.

18. In Mithilesh Kumar Singh v. State of Rajasthan, (2015) 9 SCC 795, a three-Judge Bench of the Apex Court by a majority of 2:1 held that the test applied for a direction for transfer of investigation to CBI is whether such transfer is necessary to make the process of discovery of truth credible and a person seeking transfer need not make out a cast iron case of abuse or neglect on the part of the State Police (Para 15).

19. In Dharam Pal v. State of Haryana, (2016) 4 SCC 160, the Apex Court held that the Constitutional Courts may direct reinvestigation or further investigation even after commencement of trial to instil faith of victim in the investigating agency so that the victim does not feel he is an “orphan under law”.

20. Similarly in Pooja Pal v. U.O.I., (2016) 3 SCC 135, the Apex Court held that failure to protect the safety and security of witnesses resulting in their turning hostile in Court amounts to ineffective or inefficient investigation which may be remedied by directing reinvestigation/further investigation by CBI under Article 226 of the Constitution of India.

21. The case is an instance of brutal murder of a popular personality on the streets of an industrial town and failure of the investigating agency to bring out the identity of the assailants not only exposes its inefficiencies as enumerated hereinbefore but also deals a severe blow to the upholding of rule of law and, therefore, to instil confidence in the mind of society in general and the family members of the victim in particular, it is imperative that the Court does not turn its eyes away and permit a hiatus in the quest for truth in the commission of such a heinous crime by acceptance of closure report and, in this factual backdrop, I am of the opinion that a fit and proper case where the investigation is to be transferred to the Central Bureau of Investigation (C.B.I.) has been made out.

22. The ethos of constitutional democracy lies in the preservation and protection of the life of its citizen by the sovereign and, therefore, when a brutal murder of a citizen goes unpunished, it is a blot on the constitutional democracy of the country which needs to be addressed by exploring all avenues and resources of investigation, be it of the Centre or of the State, so as to ensure that the administration of criminal justice is not sullied by inaction, inefficiency or any other inhibiting factors and the confidence of the victims of crime is fortified by transferring the investigation to a specialized Central agency which has the wherewithal, facilities and/or sensitively to extend adequate witness protection measures to instill confidence in the vital and probable witnesses of the crime and to take all other measures for a full and effective investigation of the crime.

23. Accordingly, I direct Zonal Director, Central Bureau of Investigation to take over the investigation of the instant case and conduct further investigation and unravel the identity of the offenders who committed this heinous crime and to submit report before this Court on the next date of hearing.

24. The State Investigating Agency is requested to hand over all papers and/or materials relating to investigation of the case to Central Bureau of Investigation forthwith and to render all possible assistance to the said agency in accordance with law.

25. Let this matter appear after three months under the same heading.

26. The presence of the Investigating Officers are noted and dispensed with.

_____________________

(2017) 2 RCR(Criminal) 757