A police officer in charge of a police station is bound to register a case if a person even based on his hearsay information, makes out a case of commission of a cognizable offence in a situation where he is yet unable to give the name of the culprit.
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present: The Hon’ble Mr. Justice Bhaskar Bhattacharya And The Hon’ble Mr. Justice Prasenjit Mandal
M.A.T. No. 703 of 2008
Ashok Kumar Todi
Versus
Kishwar Jahan & Ors.
M.A.T. No. 895 of 2008
Pradip Kumar Todi
Versus
Kishwar Jahan & Ors.
M.A.T. No. 704 of 2008
Anil Sarogi
Versus
Kishwar Jahan & Ors.
M.A.T. No. 713 of 2008
Kishwar Jahan & Ors.
Versus
State of West Bengal & Ors.
M.A.T. No. 714 of 2008
Ajoy Kumar & Ors.
Versus
Kishwar Jahan & Ors.
M.A.T. No. 744 of 2008
State of West Bengal & Ors.
Versus
Kishwar Jahan & Ors.
For the Appellant in MAT 703/2008: Mr. S.K. Kapoor,
Mr. D.N. Mittra,
Mr. Samit Talukdar,
Mr. Sandipan Ganguly,
Mr. Ayan Chakraborty,
Mr. Ayan Bhattacharyya,
Mr. Sourav Bhagat,
Ms. Sanchari Chakraborty.
For the Appellant in MAT 895/2008:
Mr. Bhaskar Sen,
Mr. Subrata Ghosh,
Mr. Samit Talukdar,
Mr. Ayan Chakraborty.
For the Appellant in MAT 704/2008:
Mr. Anindya Mitra,
Mr. Joydeep Kar,
Mr. Ayan Chakraborty,
Mr. Ayan Bhattacharyya.
For the Respondent and Appellant in
MAT 713/2008:
Mr. Kalyan Bandyopadhyay,
Ms. Chaitali Bhattacharyya,
Mr. Rajdeep Majumder,
Ms. Lipi Majumdar.
For the Cross-Appellant in COT 58/2008:
Mr. Samaraditya Pal,
(connected with MAT 713/2008)
Ms. Vineeta Meharia,
Mr. Debanjan Mandal,
Mr. Sanjib Kumar Trivedi.
For the Cross-appellant in COT 59/2008:
Mr. Partha Sarathi Sengupta,
(connected with MAT 713/2008)
Mr. Debanjan Mandal,
Mr. Darvapriya Mukherjee,
Mr. Sanjiv Kumar Trivedi.
For the Appellant No.1 in MAT 714/2008:
Mr. Abhrajit Mitra,
Mr. Kishore Dutta,
Mr. Debanjan Mandal,
Mr. Sandip Dasgupta,
Mr. Jishnu Chowdhury,
Mr. Sabyasachi Banerjee,
Mr. Sanjiv Kumar Trivedi.
For the State-respondents & the Appellants in MAT 744/2008:
Mr. Balai Chandra Roy,
Mr. Sandip Srimani,
Mr. Tirthankar Ghosh,
Mr. Rajdeep Biswas.
For the CBI-Respondent:
Mr. Farook Razack,
Mr. Santanu Kumar Mitra,
Mr. M. Malhotra.
Heard on: 21.12.09, 22.12.09, 08.02.10, 09.02.10, 10.02.10, 11.02.10, 12.02.10, 15.02.10, 17.02.10, 18.02.10, 19.02.10, 22,02,10, 23.02.10, 24.02.10, 25.02.10, 26.02.10, 01.03.10, 02.03.10, 04.03.10, 08.03.10, 09.03.10, 10.03.10, 17.03.10 & 18.03.10.
Judgment on: 18th May, 2010.
Bhaskar Bhattacharya, J.
All these Mandamus Appeals were taken up together as in all these appeals, the different appellants have challenged the selfsame order passed by a learned Single Judge of this Court by which His Lordship allowed a writ- application in which prayer was made for a direction that the criminal investigation involved in the writ-application should be conducted by CBI and not by CID as per direction of the government.
Being dissatisfied with the aforesaid direction given by the learned Single Judge along with some other findings, all these appeals have been preferred by not only the different respondents of the writ-application but also the writ- petitioners whose grievance is that the learned Single Judge in addition to the aforesaid directions ought to have passed directions for initiating criminal proceedings against the respondents in the writ-petition in accordance with the decision of the Supreme Court in the case of Sm. Lata Singh vs. State of U.P and another reported in AIR 2006 SC 2522.
The respondent Nos.1 and 2 of these appeals (except MAT No.713 of 2008) filed a writ-application before a learned Single Judge of this Court thereby praying for the following relief:
“a) A writ in the nature of Mandamus directing that the investigation in connection with the unnatural death of Rizwanur Rahman of 7B, Tiljala Lane, P.S. Karaya, Kolkata-700019, for which UD case No.183 of 2007 has been started and the allegations made by the petitioners in this petition against Sri Ajay Kumar, DC, DD I; Sri Sukanti Chakraborty, Assistant Commissioner of Police (Anti-Rowdy Section) Lal Bazaar and Krishnendu Das, Sub-Inspector, Anti-Rowdy Section be forthwith be handed over and be conducted by the Central Bureau of Investigation and with a further direction to the Central Bureau of Investigation to submit a report of such investigations before the Hon’ble Court and on perusal of such report the Hon’ble Court may be pleased to pass appropriate order/orders as this Hon’ble Court may deem fit and proper;
b) A writ in the nature of Certiorari do issue directing the Respondents to produce all records in respect of the allegations made by the petitioners in the petition so that the same may be perused and appropriate Orders be passed so that conscionable justice be done;
c) A Declaration do issue declaring that the acts and/or actions as complained in the petition against Respondent Nos.4 to 9 are ultra vires Article 21 of The Constitution of India;
d) Rule NISI in terms of prayers (a), (b) and (c) above;
e) An order directing that the investigation in connection with the unnatural death of Rizwanur Rahman of 7B, Tiljala Lane, P.S. Karaya, Kolkata1-700019, for which UD Case NO.183 of 2007 has been started and the allegations made by the petitioners in this petition against Sri Ajay Kumar, DC, DD; Sri Sukanti Chakraborty, Assistant Commissioner of Police (Anti-Rowdy Section ), Lal Bazaar and Krishnendu Das, Sub- Inspector, Anti-Rowdy Section be forthwith be handed over and be conducted by the Central Bureau of Investigation;
f) An Order do issue directing the respondents to give police protection to the petitioners;
g) Ad-interim Order in terms of prayer (e) and (f) above;
h) And other or further Order or Orders as Your Lordships may deem fit and proper;”
The case made out by the writ-petitioners may be epitomized thus:
(i) One Rizwanur Rahaman, since deceased, the son of the Petitioner no. 1 and the younger brother of the petitioner No.2, (hereinafter referred to as the deceased) was killed on 21st September, 2007 by the hired men of the respondent Nos.3, 4, 5, 6, 7, 8 and 9 at the instance of Sri Ashok Kumar Todi, the respondent No.12.
(ii) The deceased was aged about 29 years and was a Computer Graphic Engineer. The said deceased was working at Arena Multi Media situated at 60A, Chowringhee Road, Kolkata and was residing with the petitioners at the address mentioned in the cause title of the writ-application.
(iii) The said deceased boy married one Priyanka Todi, the daughter of Ashok Kumar Todi, the respondent No.12, under the Special Marriage Act, 1954 on 18th August, 2007 in the marriage registration office of Ms. Shipra Ghosh. On 18th August, 2007 the marriage was solemnized in presence of three witnesses viz. Sadique Hussain of Magura, P.O. Mahestala, Dist. Sough 24-Parganas; Sri Atanu Chatterjee of Brahmin Para, P.O. Akra, Dist. 24-Parganas (S) and Sri Anadi Chakraborty of Akra P.O. Jagganath Nagar, Dist. 24-Parganas (S). Necessary declaration was given by the Marriage Officer for Entally, Beniapukur, Tangra, Topsia, P.S. under Section 11 of the said Act of 1954 on August 18, 2007 declaring that the marriage was solemnized between the deceased boy and Priyanka Todi.
(iv) On August 31, 2007, Priyanka Todi left her father’s house situated in Salt Lake and started her conjugal life in her husband’s home i.e. the deceased boy’s home at the address given in the cause title. The couple informed the Police Commissioner, Deputy Commissioner of Police (South), the Superintendent of Police 24-Parganas (S), the Officer-in-Charge, Karaya Police Station and the Officer-in-Charge, Bidhan Nagar Police Station about such marriage by a letter dated 31st August, 2007 along with a copy of the marriage registration certificate.
(v) On 31st August, 2007 Priyanka informed her father about her marriage with the deceased boy and also about the fact of her residing with her husband in her in-laws’ house. In the evening around 6.30 pm on that day, the respondent Nos.12 and 13 and also another gentleman, who is the brother of respondent No.12, came to the petitioners’ residence and persuaded the deceased boy and the petitioners to send back Priyanka to their house at Salt Lake but Priyanka did not agree to the request of her father and relatives. For the whole night of 31st August, 2007 the father and accompanying relatives tried to persuade Priyanka. In that night, Priyanka’s brother and sister also came and tried to persuade her to go back. On the same night, the respondent No.12 lodged some complaint to the Karaya P.S. and consequently, two officers of the Karaya P.S. viz. Mr. Jayanta Mukherji and one Mr. Pulak Datta came to the residence of the petitioners and started creating mental pressure on the deceased boy and Priyanka for going back to her father’s residence. But Priyanka did not give in.
(vi) On 1st September, 2007, early in the morning, the respondent Nos.12 and 13 along with their relatives left the residence of the petitioners and at the time of leaving the place, the respondent No.12 gave threats to the deceased boy and petitioners that if Priyanka did not return back to her parents, the deceased boy would face serious consequences and no stone would remain unturned by the respondent No.12 for the purpose of putting the deceased boy and his relatives including the petitioners behind the bars.
(vii) On 1st September, 2007 around 2:30 pm, one Sri Krishnendu Das, Sub- Inspector, Anti-Rowdy Section, Kolkata Police, came to the residence of the petitioners along with one more officer and wanted to see the marriage registration certificate from the deceased boy. When such marriage registration certificate was shown to him, Krishnendu Das asked the deceased boy and Priyanka to go to Lal Bazaar and make a statement in writing to his superior officer and really forced both deceased boy and Priyanka to come along with him immediately. Accordingly, both the deceased boy and Priyanka went to Lal Bazaar along with Sri Krishnendu Das accompanied by the petitioner No.2 and his three uncles viz. Jalisur Rahaman, Mohitur Rahaman and Saidur Rahaman. Sri Krishnendu Das took the couple to Sri Sukanti Chakrobarty, Assistant Commissioner of Police (Anti-Rowdy Section) who asked Priyanka to return to her father for a few days, in presence of the petitioner No.2 and the three uncles of the deceased boy, but Priyanka refused to accept such proposal. When Priyanka refused such proposal, Sri Sukanti Chakraborty became furious and started creating pressure upon both the deceased boy and Priyanka and gave threats that if Priyanka did not go back to her father, the deceased boy would face severe consequences and the law would be twisted against him.
(viii) Some people on 3rd September, 2007 arrived at the residence of the petitioners around 7 pm and told petitioner No.2 that if Priyanka was not sent back to her parents, the deceased boy would be kidnapped and murdered.
(ix) On 4th September, 2007, Mr. Gyanwant Singh, the Deputy Commissioner (HQ) called both the deceased boy and Priyanka at Lal Bazaar and on that day, at 4 pm the deceased boy and Priyanka along with the petitioner No.2 and the deceased boy’s two uncles viz. Jalisur Rahaman and Taj Mohammad Khan went to Lal Bazaar and met Sri Gyanwant Singh when it was found that the parents of Priyanka had already arrived at the chamber of the DC (HQ). The DC (HQ), Sri Singh, spoke to Priyanka in presence of her parents when Priyanka told the DC (HQ) that her parents were mentally torturing her. Sri Singh ultimately created mental pressure on both the deceased boy and Priyanka so that Priyanka returned to her parents’ house but again Priyanka said that she would not go back to her parents’ house. Sri Gyanwant Singh then directed the deceased boy, Priyanka, the petitioner No.2 and his uncles to meet Sri Sukanti Chakraborty, who again gave threats to the deceased boy in presence of the girl’s parents. The respondent No.12 pulled out a number of stamp papers containing certain statements which the deceased boy and his accompanying relatives were not allowed to read and the respondent No.12 then forced the deceased boy to sign on the said stamp papers in the presence of Sri Sukanti Chakraborty and other officers of the Anti-Rowdy Section. When the deceased boy and Priyanka protested against such pressure for putting signature by the deceased boy, Priyanka’s mother again threatened the deceased boy with dire consequences. However, they failed to obtain the signature of the deceased boy on the said stamp papers.
(x) On 7th September, 2007 Priyanka’s aunt came to the residence of the petitioners around 11 am and told Priyanka that the respondent No.12 was in hospital and requested her to go back parents’ house but Priyanka refused to go.
(xi) On 8th September, 2007 Krishnendu Das came to the residence of the petitioners and told both Priyanka and the deceased boy that they were summoned by the Deputy Commissioner of Police, Detective Department and they should go immediately along with him. Around 3:30 pm the deceased boy and Priyanka went over to Lal Bazaar and met Sri Ajoy Kumar, Deputy Commissioner, Detective Department along with petitioner No.2 and his two uncles. The moment both the deceased boy and Priyanka along with the petitioner No.2 entered into the office chamber of Sri Ajoy Kumar, Sri Ajoy Kumar started shouting and said that if Priyanka did not go back to her parents’ house, the deceased boy would be immediately arrested and Priyanka would be sent to her parents’ house. The deceased boy immediately protested against such action of the DC, DD. After such protest, Sri Ajay Kumar became more furious and said that he would give two options. According to him, either Priyanka should go back to her parents’ house for seven days, or the deceased boy would be arrested on a complaint of charges of abduction and stealing valuables and Priyanka would be handed over to her parents. Before giving such threats, Sri Ajay Kumar called both Sri Sukanti Chakraborty and Krishnendu Das in his chamber. All the three officer viz. Sri Ajay Kumar, Sri Sukanti Chakraborty and Krishnendu Das started shouting on top of their voice on the face of the deceased boy. The entire incident happened in presence of the petitioner No.2.
(xii) After hearing so much loud threat, the deceased boy became nervous and at that juncture, Sri Ajay Kumar and Sri Sukanti Chakraborty told the deceased boy in the presence of the petitioner No.2 that Priyanka was his legal wife and the deceased boy could approach the law. The deceased boy accepted the first proposal that Priyanka would go back to her parents’ house for seven days. After hearing such statement of the deceased boy, Ajay Kumar told the deceased boy and Priyanka to go to the Anti-Rowdy Section along with the two officers of that section and when Priyanka, the deceased boy and the petitioner No.2 went to the Anti-Rowdy Section they found that Anil Sarogi, the uncle of Priyanka, was present there. Anil Sarogi wrote on a plain white paper that he was taking Priyanka to her parents’ place for seven days.
(xiii) The petitioner No.2 was told by the deceased boy that on 8th September, 2007 night Priyanka called the deceased boy and said that she was at her parents’ place.
(xiv) On 9th September, 2007 Priyanka called the deceased boy over telephone and said that the deceased boy must wait for more than seven days as her father was going to Tirupati and other holy places and the deceased boy said that he could wait as long as her parents want him to, provided, they speak to him and take some concrete decisions and the deceased boy agreed to refrain from taking any legal action.
(xv) On 11th September, 2007 Priyanka talked with the deceased boy for the last time.
(xvi) On 18th September, 2007, Sadique Hussain, who was one of the witnesses to the marriage, lodged a complaint with Human Rights Commission pointing out therein that on 17th September, 2007 someone from Lal Bazaar over telephone gave him threat that he should come to Lal Bazaar immediately when Sadique Hussain replied that without any written notice he was not under any obligation to go to Lal Bazaar. It was again pointed out that from 1:30 pm one officer viz. Krishnendu was giving threats to Sadique that if Sadique did not come to Lal Bazaar he would be picked up in the night and Krishnendu over telephone abused him in filthy language. The phone call was coming from two telephone numbers viz. 2250-5177 and 2214-4765.
(xvii) On 21st September, 2007 the dead body of the deceased boy was found between Dum Dum and Bidhan Nagar Road Stations on the railway tracks with injuries and the head smashed.
(xviii) On 22nd September, 2007 the petitioner No.2 lodged a written complaint with the Karaya P.S., bringing on record the factum of murder of the deceased boy.
(xix) From the factual matrix of the instant case, it is crystal clear that although the deceased boy and Priyanka married under the Special Marriage Act, 1954 and both of them started conjugal life at the residence of the petitioners after giving intimation regarding the marriage to the concerned police authorities, right from 31st August, 2007 night up to 8th September, 2007, time and again, the police authorities interfered with their conjugal life without giving any written notice and or valid legal cause and called the deceased boy and Priyanka at Lal Bazaar without any authority of law and time and again, gave threats so that Priyanka would go back to her parents.
(xx) Law did not permit the police authorities to call the deceased boy and Priyanka through Sri Gyanwant Singh, Sri Ajay Kumar, Sri Sukanti Chakraborty and Sri Krishnendu Das at Lal Bazaar and create pressure on them so that Priyanka would go back to her parents’ house. (xxi) On 31st August, 2007, Ashok Kumar Todi lodged complaint with the Karaya P.S., within whose jurisdiction the residence of the petitioners’ fall. The officers of the Karaya P.S. came to the residence of the petitioners on 31st August, 2007 night itself. It would be presumed that on the basis of a complaint lodged by Sri Ashok Todi, the OC of the Karaya P.S. came to the petitioners’ residence and it would be presumed that if any cognizable offence was committed by the deceased boy, for that reason the officers of the Karaya P.S. came to the petitioners’ residence. In that case, there was no jurisdiction or authority of law at all to call the deceased boy and Priyanka by the aforesaid officers of Lal Bazaar. The deceased boy was never informed regarding lodging of any criminal case for which the deceased boy was called by the police authorities of Lal Bazaar as stated hereinabove. Such recourse was taken only to create pressure and mental torture upon the deceased boy and obviously such resort was taken by the said officers to satisfy Ashok Kumar Todi for some extraneous reasons. (xxii) Time and again, the deceased boy was threatened by Sri Ashok Kumar Todi that he would be killed if Priyanka did not go back and the officers, indicated above, gave threats that the deceased boy would face severe consequences unless Priyanka went back to her parents. (xxiii) The factual matrix of the case stated hereinabove give a clear impression to the petitioners that the deceased boy was killed by hired killers engaged by Sri Ajay Kumar, Sri Sukanti Chakraborty and Sri Krishnendu Das at the instance of Ashok Kumar Todi who is one of the richest and most influential persons of Kolkata having a large industry. (xxiv) The factum of the death of the deceased boy came to the newspapers on 22nd September, 2007 and there was public fury at the Park Circus area. Such an unfortunate incident not only hit the sentiment of the locality but also the entire Kolkata.
(xxv) On 23rd September, 2007, Sri Prasun Mukherjee, Commissioner of Police, Kolkata, called a Press Conference and declared that the deceased boy had committed suicide even before the postmortem of the deceased boy was completed. Sri Prasun Mukherjee described the reaction of the Todi family as natural and also questioned about the desirability of a matrimonial relationship like that between the deceased boy and Priyanka in which the financial and social status did not match. At the media conference, Sri Prasun Mukherjee said, “Rizwanur’s death is a case of suicide and it is very transparent”. He further said, “After taking care of the daughter for 23 years if the family finds one morning that she has left them to start a new life with an unknown youth, parents cannot accept it. The reaction of the Todi family was natural”. He further said, “the Todi family reacted because Rizwanur’s social and financial status did not match their’s”. When the press persons asked him, whether in a case of a marriage police could intervene, Sri Prasun Mukherjee replied that, “Who would intervene, the PWD?” The statements made by him in the Press Conference came out in all News Dailies on 24th September, 2007.
(xxvi) The statements of Sri Prasun Mukherjee, the Commissioner of Police clearly indicated that the respondents herein had formed their opinion that the death of the deceased boy was as a result of suicide and therefore, if any investigation was carried out by the respondents herein including any officers of the State Government, it would be a mockery of justice. The chain of events including the statements of the Commissioner of Police clearly indicated that they were supporting all actions of Ashok Kumar Todi and if any investigation was carried on by any officer of the State Government including the officers of the Criminal Investigation Department of the State of West Bengal it would not be a fair investigation at all and under the guise of the investigation, they would be upholding the acts and/or actions of the aforesaid police officers, the reaction of the Todi family and it would be an attempt to establish that the death of the deceased boy was as a result of suicide and not a murder. (xxvii) Under Section 154(1) of the Code of Criminal Procedure, 1973 any person can give an information in case of cognizable cases to an Officer-in-Charge of a Police Station and such information shall be signed by the persons giving it and the substance thereof shall be entered in a book to be kept by such officer in such form. This is said to be a First Information Report (FIR).
(xxviii) Under Section 156(1) of the Cr.P.C. any Officer-in-Charge of a Police Station may without the order of a Magistrate investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter 12.
(xxix) Procedure for investigation has been given under Section 157 of the Cr.P.C. and the investigation would be done by the Officer-in- Charge or by an officer subordinate to the Officer-in-Charge who will be deputed by the Officer-in-Charge of the Police Station. (xxx) Only in a case of refusal by the Officer-in-Charge of a police station to record the information referred to in sub-section (1) of Section 154 any person can send the information to the Superintendent of Police concerned, who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by the Code, and such officer shall have all the powers of an Officer-in-Charge of a police station in relation to that offence. From a conjoint reading of Sections 154,156 and 157 it is thus crystal clear that an Officer-in-Charge of a police station is having jurisdiction to investigate into the complaints in connection with the cognizable offence and only when there is a refusal on the part of the O.C. to record an F.I.R. under Section 154 of the Cr.P.C., the Superintendent of Police gets the jurisdiction to investigate into cognizable offences. In the instant case there was no refusal on the part of the local P.S. to lodge F.I.R. on the basis of the complaint of Todi, and therefore, all the steps as taken by the officers as stated hereinabove were dehors the provision of the Cr.P.C. and in complete breach of Sections 156 and 157 of the Cr.P.C.
(xxxi) Regulation 4 of Chapter III of Police Regulation of Calcutta provides that Deputy Commissioner and Assistant Commissioners shall take keen and active interest in the prosecution of cases of all kinds and shall carefully discuss important cases, particularly, cases triable by Courts of Sessions, with the Investigating Officers and may obtain the opinion of the Public Prosecutor or Police Prosecutor.
(xxxii) The aforesaid provision makes it very clear that the officers whose names are given hereinabove have also acted beyond the scope of Regulation 4 of Chapter III of the Police Regulation of Calcutta.
(xxxiii) Regulation 2 of Chapter VIII of the Police Regulation, Calcutta, speaks about set-up of the Detective Department. Regulation 2 and Regulation 3 of Chapter VIII do not authorize the DC, DD to call the deceased boy and Priyanka even if a complaint is lodged against the deceased boy for committing an offence of abduction and/or kidnapping by the deceased boy.
(xxxiv) The chain of events which culminated in the Press Conference by Sri Prasun Mukherjee, Commissioner of Police, clearly indicated that the police authorities including all the respondents were acting as agent of the respondent Nos.12 and 13 and as a result thereof the deceased boy was murdered.
(xxxv) The entire acts or actions as mentioned above are violative of the rights of the deceased boy as well as that of the petitioners as protected under Article 21 of the Constitution of India. Since, the respondent Nos.4 to 10 called the deceased boy to Lal Bazaar for creating pressure on the deceased boy to return Priyanka, such actions of the said respondents are wholly without jurisdiction, uncalled for, arbitrary and as such, violative of the rights of the deceased boy and the petitioners under Article 14 of the Constitution of India.
(xxxvi) Since there is a complaint regarding acts or actions on the part of the respondents herein and the police personnel are involved in the killing of the deceased boy, an investigation is needed by an independent agency. (xxxvii) The investigation of death of the deceased boy has been undertaken by the Criminal Investigation Department of the State of West Bengal. CID is also a limb like the Kolkata Police of the State of West Bengal and therefore, no fair investigation would be done by the CID against such police officers of the Kolkata Police.
(xxxviii) To restore the confidence of the petitioners and since there is an unauthorized actions by the police authorities of the State of West Bengal, an investigation by an independent agency is essentially needed for bringing the truth with regard to the killing or murder of the deceased boy. (xxxix) The petitioners have been informed by the Government Railway Police, Dum Dum, that a case of unnatural death being UD/183 dated 21.09.2007 has been started by the Government Railway Police. Hence, the writ- application.
The writ-petitioners subsequently filed a supplementary affidavit thereby drawing attention of the Court to some additional facts and subsequent events, which occurred after the filing of the writ-application and the Court accepted such supplementary affidavit as part of the writ-application. The sum and substance of the said supplementary affidavit are quoted below:
(a) Pursuant to filing of the writ petition and the hearing held before the Hon’ble Justice Soumitra Pal on 1st October, 2007, the petitioners came across a white T-shirt manufactured by the Company of Sri Ashok Todi (the respondent No.12 in the instant writ petition) and his brother Sri Anil Saraogi (the respondent No.13 herein) under the brand name of ‘Lux Cozi’ which had the words ‘Kolkata Police’ and ‘War against Drugs, from darkness to Light’ printed on its from pocket and the words ‘Lux Cozi’ printed on its left sleeve. The petitioner craves leave to produce such T-shirt at the time of hearing for ready reference.
(b) Pursuant to coming across the aforesaid T-shirt, the petitioners upon enquiry came to know that the respondent No.12’s Company had supplied about 800 such T-shirts free of cost to the Kolkata Police for an anti-drug rally held on 26th June, 2007 and such T-shirts were distributed amongst officers of the rank of inspector and above. The petitioners further came to know that the Respondent No.12’s Company had sponsored the rally and the Detective Department of Kolkata Police had taken a lead role in such rally and its officers were also recipients of such T-shirt. It is pertinent to mention at this juncture that Sri Ajay Kumar, being the respondent No.5 herein, is the present Deputy Commissioner of Police, Detective Department-I while Sri Gyanwant Singh, Deputy Commissioner of Police (HQ), being the Respondent No.7 herein, who at the relevant point of time was In charge of the Detective Department of Kolkata Police. The petitioners also came to know that pursuant to the purported killing of Riswanur Rahaman, being the son of the petitioner No.1 and brother of the petitioner No.2, and the role played by the respondent Police authorities in such death coming to the knowledge of the public, the aforesaid Cozi T-shirts were being recalled from the officers of Kolkata Police amongst whom it was distributed under Orders from superior officers of Kolkata Police.
(c) The aforesaid fact of distribution of T-shirts by the Company of respondent NO.12 to the officers of Kolkata Police for free was also reported in the 2nd October, 2007 edition of the English Daily ‘The Hindustan Times’.
(d) It is sufficiently clear from the aforesaid fact of the Respondent No.12 distributing such large number of T-shirts free of cost to the Kolkata police officers and the same being accepted by the Kolkata police including the Detective Department of Kolkata police that the respondent Kolkata police authorities were beneficiaries of undue favours given by the respondent No.12 and as such, an unholy nexus existed and still exists between the respondent Nos.12 and 13 with the respondent Kolkata police officers.
(e) The fact of an unholy nexus existing between the respondent Kolkata Police Officers and the respondent Nos.12 and 13 is further established from the act or actions of the Kolkata police authorities to recall the T-shirts distributed for free by the respondent No.12 immediately after the news of death of the deceased boy has become public and the same is nothing but a desperate attempt by the Kolkata police authorities to cover-up the unholy nexus between the respondent Nos.12 and the Kolkata Police authorities which includes the respondent police officers.
(f) It will not be out of place to arrive at the conclusion that the respondent Kolkata Police officers being beneficiaries of the favours doled out by the respondent No.12 had harassed the deceased boy, Priyanka, the petitioners and the relatives of the deceased boy at the behest of the respondent No.12 without having any legal cause and jurisdiction and were ultimately responsible for the killing of the deceased boy.
(g) On Thursday, the 27th September, 2007, Sri Kalyan Bandopadhay, Ld. Senior Counsel representing the petitioners in the instant matter, mentioned the matter before the Hon’ble Justice Soumitra Pal at the first sitting of the Court when the Hon’ble Court was pleased to direct Sri Agniswar Dutta Gupta, the Ld. Advocate-on-Record for the petitioners to serve copies of the Writ Petition along with all its annexures upon the respondents and the matter was directed to appear on the next day.
(h) Accordingly, copies of the Writ Petition were served upon the Ld. Government Pleader around 3 p.m. on that day and copies of the Writ Petition were also served upon the Kolkata Police authorities by 3 p.m.
(i) Around 4.45 p.m. on that day the Hon’ble Chief Minister of West Bengal, Sri Buddhadeb Bhattacharya announced before the Press at Writers’ Building that he has taken a decision to appoint a retired judge viz. Hon’ble Justice Aloke Chakraborty to enquire into the matter under the Commissions of Inquiry Act, 1952.
(j) Such declaration was made by the Hon’ble Chief Minister on that day without issuing a Notification under Sec.3 of the said Act. Such a decision was not a decision of the State Government.
(k) The aforesaid Declaration was made only with a view to nullify the prayers made by the writ petitioners in this writ petition for a direction of this Hon’ble Court for investigation by the CBI.
(l) Any enquiry under the said Commissions of Inquiry Act, 1952 cannot be the substitute of a CBI investigation within the meaning and ambit of the Code of Criminal Procedure, 1973. Any Report of such a Commission is only recommendary in character and it has no binding force. Such a Report has no evidentiary value either before a Civil or a Criminal Court. Every such Enquiry takes a lot of time and it has been sought to be made only with a view to frustrate the prayer of the writ petitioners for CBI investigation.
(m) It now appears that Sri Snehashish Ganguly, Ex-Ranji Trophy Cricketer and Assistant Secretary of Cricket Association of Bengal who is also the elder brother of Sri Sourav Ganguly, Ex-Captain of the Indian Cricket Team, had introduced Sri Ashok Todi to Sri Prasun Mukherjee, Commissioner of Police, Kolkata, who is also the President of Cricket Association of Bengal, for the purpose of resolving the problem of Sri Ashok Todi regarding the marriage of his daughter Priyanka with the deceased boy and her staying at her in-laws place. Sri Prasun Mukherjee directed Sri Ashok Todi to meet Sri Ajay Kumar, Deputy Commissioner, Detective Department-I in this regard. Thus it is evident that Sri Ashok Todi utilized the influence of an influential personality in the field of cricket by reason of the attachment of Sri Prasun Mukherjee as President of Cricket Association of Bengal.
(n) The aforesaid fact was also reported on 3rd October, 2007 by several newspapers circulating in Kolkata.
(o) From the factual matrix of the instant case it would be evident that Sri Ashok Todi’s influence in any shape led to the respondent Nos.2 to 9 summoning the couple to Lal Bazaar and for that reason, the aforesaid Officers created mental pressure on the deceased boy which culminated in severe mental torture upon the deceased boy and the said Officers were after the life of the deceased boy and by reason of the direct and/or indirect hands of the said Officers, Rizwanur Rahaman was killed on 21st September, 2007.
A learned Single Judge of this Court on October 16, 2007 passed an interim order by passing inter alia the following direction:
“Hence, considering the facts and circumstances of the case, I am of the opinion, prima facie, a case has been made out for passing an interim order. Therefore, let there be an interim order directing the CBI to investigate into the cause of unnatural death of Rizwanur and the CBI shall file a report in a sealed cover before this Court within two months from the date of service of authenticated copy of this order……”
Pursuant to such interim order, the CBI enquired into the matter and after getting an order of extension of the time to file such report, ultimately, submitted a report before the learned Single Judge.
After the submission of the report by the CBI, prayers were made not only on behalf of the writ-petitioners but also by the respondents including the State for furnishing them a copy of the report of the CBI to enable them file their respective counter-affidavits to the writ-petition. Such prayer was, however, opposed by the learned Counsel for the CBI. The learned Single Judge by his order dated February 28, 2008 rejected the prayer of supply the copy of the report. The learned Single Judge, however, extended the time to file affidavit-in- opposition to the writ-application and ordered that the issue of supplying the copy of the report would be kept open for decision at the time of final hearing of the writ-application.
The State-respondents and the respondent Nos.3, 5, 7, 8, 9, 12 and 13 filed separate sets of affidavit-in-oppositions.
The defences of the State-respondents i.e. the respondents Nos.1, 2, 4, 6, 10, 11, 14 and 15 were as follows:
1. (a) By a letter dated September 21, 2007, Rukbanur Rahaman, gave a written information before the Officer-in-Charge, Karaya Police Station of the unnatural death of his younger brother, Rizwanur Rahaman, of 7B, Tiljal Lane, Kolkata-17, whose body was found near Dum Dum Station by G.R.P. The said letter was received by the Karaya Police Station on September 22, 2007 at 10:30 hours. On receipt of the letter dated September 22, 2007, which did not disclose any offence far less a cognizable offence, G.D. Entry No.2264 was recorded at 10:30 hours. Since the place of occurrence was within the territorial jurisdiction of G.R.P.S. Dum Dum and in view of the fact that Dum Dum G.R.P.S. had already started investigation in an unnatural death case, the said letter was forwarded to Officer-in-Charge, G.R.P.S., Dum Dum.
(b) Prior to receipt of the aforesaid letter of Sri Rukbanur Rahaman, one letter dated September 21, 2007 addressed to the Officer-in-Charge, G.R.P.S., Dum Dum was received by the Karaya Police Station. The said letter dated September 21, 2007 from the Kolkata Nagarik Sammelan, 65 Ward Committee was recorded vide G.D. Entry No.2212, dated September 21, 2007 at 23:20 hours. This letter from Kolkata Nagarik Sammelan as also the letter of Rukbanur Rahaman, were sent to the Officer-in-Charge, Dum Dum GRP for necessary action on September 22, 2007.
(c) Already on the unnatural death of one unknown male person (since identified as Rizwanur Rahaman by the relatives of the dead), GRPS, Dum Dum had started unnatural death case on the basis of place of occurrence vide Dum Dum G.R.P.S. U/D case No.183/2007 dated September 21, 2007 at 11:05 hours vide Dum Dum GRPS GDE No.1071 dated September 21, 2007. Therefore, the letter with regard to the unnatural death of Rizwanur Rahaman was sent by the Officer-in-Charge, Karaya Police Station to Dum Dum GRP as per order of D.C., South Suburban Division. It may be stated that the nature of information given in the aforesaid letters does not disclose commission of any offence, far less a cognizable offence.
2. a) The aforesaid letter dated September 21, 2007, sent to the Officer-in-
Charge, Dum Dum GRPS, had been received by the Dum Dum GRPS on September 22, 2007 and the same was endorsed to Sub-Inspector A. Manna, who was asked to enquire into the matters and do the needful. At the material point of time, that is, on and from September 22, 2007, Sri Manna was carrying on investigation of the U/D Case No.183/07 dated September 21, 2007 and hence, he was endorsed with the said two letters.
This refers to Dum Dum GRPS, GDE No.1150 dated September 22, 2007 and GDE No.1151 dated September 22, 2007.
3. Subsequently, the aforesaid U/D case was taken over by the Criminal Investigation Department (hereinafter referred to as C.I.D. for short) on September 24, 2007. C.I.D. carried out investigation and examined several witnesses including Ashok Kumar Todi and his family members and also some of the police officers of the Kolkata Police. Before the investigation could be completed, the case records were handed over to the Central Bureau of Investigation as per direction of the Hon’ble High Court.
4. The first investigation of a reported case of unnatural death and the First Information Reports as contemplated under Section 154 of the Code of Criminal Procedure is quite distinct and separate. Since the C.I.D. could not complete its investigation under Section 174 of the Code of Criminal Procedure, further action as required under Section 154 of the Code of Criminal Procedure could not be contemplated and taken.
5. i) This Hon’ble Court had passed a limited order on CBI to investigate into the cause of death of Rizwanur Rahaman. CBI had acquired jurisdiction to enquire into the cause of death only from the order of this Hon’ble Court passed on October 16, 2007.
ii) This Hon’ble Court did not enable the CBI, on the authority of the order of this Hon’ble Court, to lodge any information under Section 154 of the Code of Criminal Procedure and certainly the Hon’ble Court did not give CBI liberty to record suo motu a case of murder for which apparently there was no factual basis at that stage.
iii) Since CBI had of its own recorded a First Information of a cognizable offence, namely, murder, the Code of Criminal Procedure required CBI to follow the provisions of the Code independently of the order of the Hon’ble High Court. This power of CBI did not emanate from the order of this Hon’ble Court.
iv) CBI has no power to investigate a specific offence as it has done by lodging a suo motu FIR of murder allegedly committed within the State of West Bengal without the consent specifically granted by the State. Hence CBI has no power to investigate the specific offence. All that it could do was to comply with the order of this Hon’ble Court and ascertain the limited issue of the cause of death of Rizwanur Rahaman.
v) The investigation of a murder case suo motu instituted by CBI is not in compliance of the order of this Hon’ble Court and report consequent thereto as filed in the Hon’ble Court is ultra vires the order of this Hon’ble Court and is a nullity.
vi) The CBI in gross violation of the order of this Hon’ble Court conducted investigation and the report filed in this Hon’ble Court is not a report under Section 173 of the Code of Criminal Procedure, particularly because in the report they have recommended disciplinary action against several State Police Officers. The entire report is violative of the order of this Hon’ble Court as also the procedure prescribed under Chapter XII of the Code of Criminal Procedure. It is well settled that a report of investigation carried out under the Code has to be in conformity with Section 169 or 173 of the Code. The ordering portion that has been read out by the Hon’ble Justice Dipankar Datta itself indicate that it is an amalgam of a disciplinary enquiry, criminal investigation of offence, but all done in disobedience of the order of this Hon’ble Court. It is submitted that this Hon’ble Court will reject the report which is a nullity.
6. The prima facie observation of Justice Soumitra Pal in the order dated October 16, 2007, holding that the investigation carried by Criminal Investigation Department (CID) is illegal, is not correct. The Respondent no. 3, in his personal capacity filed an affidavit-in- opposition to the writ-application thereby denying the material allegations made against him and his defence is summed up thus:
a) He has been unnecessarily impleaded in the proceeding with a vexatious and mala fide motive. The writ-petitioners have recklessly made allegations against him.
b) Anyhow, the said petition did not disclose any cause of action against him and his name should be struck off from the cause title of the writ-petition and the same should be dismissed as against him.
c) The writ-petitioners had no authority or locus standi to institute the writ-application.
d) On the date of institution of the writ-petition, the Criminal Investigation Department (CID) which is not under the Kolkata Police was investigating into the unnatural death case. Neither the respondent No.3 nor the Kolkata Police had any role with the investigation and he had been unnecessarily impleaded.
e) On 8th January, 2008 the report of CBI was filed in the Hon’ble Court in a sealed cover. Copy of the report has not been circulated. He was examined by CBI officers on 6th November, 2007. He found that CBI officers were making notes during his examination but such recording was neither shown to him nor read out to him and his signature was not obtained thereon. At this stage, he was unable to make any comments on what have been recorded by the CBI officers and he reserves his right to do so as and when such recording is disclosed.
f) He filed the affidavit pursuant to the direction given by this Hon’ble Court on 28th February, 2008 and without prejudice and would deal only with the allegations contained in paragraphs 25 and 26 of the writ-application and paragraphs 6, 8 and 15 of the supplementary affidavit as directed by the Court.
g) With reference to paragraph 25 of the said petition, he submitted that no reliance can be placed on newspaper reports. His statements had been distorted and quoted out of context in order to create an incorrect impression as also to create prejudice against the Kolkata Police at large. He has, because of such newspaper reports, suffered huge loss of reputation and reserves his right to institute appropriate proceedings for such defamation as well as for interference with the administration of justice. No conclusive opinion as to cause of death was given by him at the press conference. His views were what he thought could be a possibility and that is why he said “apparent”. This could not and was never intended to be of any formal, official or legal relevance or significance. Further, the statements made in the paragraphs under reference are based on alleged records; such records appear to be newspaper reports and are inadmissible in evidence. He denied and disputed the veracity and correctness of the relevant newspaper reports annexed to the said petition. Save as aforesaid, all allegations contained in the said paragraph under reference were denied and disputed as if those were set out in seriatim and denied specifically.
h) With reference to paragraph 26 of the said petition, he denied that any statement made by him indicated that the Kolkata Police authorities had formed an opinion that the death of Rizwanur was a suicide or that investigation carried out by the officers of the concerned respondent or officers of the State Government would be a mockery of justice as alleged or at all. As it is, Kolkata Police was never the agency investigating the death of Rizwanur. It was denied that at any point of time he had made any statement or given any indication that any action of Ashok Todi was being supported by the Kolkata Police or by him as alleged or at all. It was denied that if investigation was carried out by the officers of the State Government it would not be a fair investigation or that any action of Todi would be upheld in the guise of such investigation or that any attempt would be made to establish the death of Rizwanur as a suicide and not murder as alleged or at all. Save as aforesaid, all allegations contained in the said paragraph under reference were denied and disputed as if the same were set out in seriatim and denied specifically.
i) On 23rd September, 2007 he gave press interview to diffuse the tension which had already built up in the area in which Rizwanur resided. On 22nd September, 2007, serious law and order problem including rioting and burning of police vehicle and mobs taking law in their own hands took place within Karaya P.S. area chiefly due to rumours spread in the locality. He considered that if press briefing was not given regarding the events, the same could result in a situation going out of control.
j) The situation was likely to become worse. In order to diffuse the tension, and prevent escalation and to bring matters under control, he gave the press interview. It is pertinent to mention that after the press interview there was no law and order problem or rioting in that area. He also considered that the actions taken by the Kolkata Police needed clarification to avoid confusion and misconception in public mind.
k) It is a matter of record and also reported by the press and media that inquest was carried out on 21st September, 2007. It is a routine practice to start postmortem only after the submission of inquest report. Postmortem in this case was carried out at N.R.S. Hospital on 22nd September, 2007. Thereafter the dead body was released on the same day. Kolkata Police arranged for transportation of the dead body from the morgue to the house of the deceased and thereafter burial on 22nd September, 2007.
l) No enquiry into the cause of death by Kolkata Police had been ordered or was pending on 23rd September, 2007. The cause of death in this case for Dum Dum GRPS to enquire, because the death took place within their territorial jurisdiction. CID is not under Kolkata Police. Both GRPS and CID are independent organisations and not under Kolkata Police. On 23rd September, 2007, he was not aware of any pending enquiry by CID. From the press reports it appears that State Government directed CID enquiry on 24th September, 2007. It was also denied that his press interview of 23rd September, 2007 was made with intent to prejudice the enquiry into the cause of death. He had no such intention whatsoever. His intention was to diffuse the tension and eliminate the possibility of law and order situation in Karaya getting worse and spreading into the adjoining areas under Kolkata Police. This Hon’ble Court has by order dated 16th October, 2007 directed CBI enquiry. Any comment made by him at press interview on 23rd September, 2007 could not possibly influence CBI enquiry. It cannot be anybody’s case that any comment was made by him to influence enquiry by CBI which is an independent organisation under the Central Government. In any event, and without prejudice to above, it was submitted that the question whether his alleged comment in the press interview was likely to prejudice any enquiry into the cause of death was no longer of any relevance or importance because enquiry was ordered to be carried out by CBI.
m) With reference to paragraphs 6 and 8 of the supplementary affidavit, he stated that none of the allegations made therein is against him. As to the T-Shirts episode referred to in the paragraphs under reference, he stated that an anti- drug abuse campaign was organised by the Kolkata Police and all other Police Units in the State of West Bengal on 26th June annually (International Anti- Drug Day). Various seminars, rallies, competitions etc. were organised by each organisation on this day to promote awareness of the ill effects of consumption of narcotic drugs. The programmes were attended by prominent citizens from all walks of life and members of a large number of NGOs working in this field. In the Kolkata Police, this programme is traditionally organised by the Detective Department as the nodal unit. As the Commissioner of Police, for the anti-drug rally for the year 2007, he had attended the main function at Madhusudan Mancha, as the Chief Guest. The details of various organisations supporting and/or sponsoring various parts of the campaign were not known to him personally. On receipt of a copy of the supplementary affidavit, he caused an enquiry into the matter and came to learn that about ten organisations including Apollo Tyres, Allahabad Bank, Britania Industries Ltd., Rupa, UCO Bank etc. had provided sponsorships for the event including providing T-Shirts and caps. Such T-Shirts and caps printed with anti-drug slogans were distributed among the participants of the event. Lux Cozi was one of the sponsors of T-Shirts. It was denied that any favour at any point of time was doled out to the sponsors of T-Shirts and all allegations to the contrary were denied and disputed. These T-Shirts were meant for distribution amongst all the participants at the rally including private citizens and members of NGOs. A very small number of T-Shirts were distributed among police personnel involved in organizing the event. It was absurd to state that a nexus could be created by the respondent Nos.12 and 13 with the Kolkata Police by virtue of sponsoring T-Shirts for the anti-drug rally. He was not aware of any of the T-Shirts allegedly sponsored by the respondent No.12 being recalled from the officers of the Kolkata Police.
n) With reference to paragraph 15 of the supplementary affidavit, he denied that he was introduced to Ashok Kumar Todi by Snehashish Ganguly or at all. He denied that he had met or instructed Ashok Todi to meet Ajoy Kumar, the then DC, DD(1). Snehasish Ganguly met him in his office on 7th September, 2007 having taken a prior appointment with him. He came with a person whom he introduced as Pradip Todi and described him as his family friend. The meeting was extremely brief. Pradip Todi told him about a complaint which he had lodged with the Detective Department regarding Rizwanur and Priyanka. He did not give any indication that he would help him nor did he do so. Further, in course of such meeting, he neither instructed Pradip Todi to meet Ajoy Kumar nor did he give any indication of whatsoever nature that he would be using his personal influence for his benefit. The question of exercising personal or any influence in matters like the instant one did not and could not arise. He also did not issue any instruction to Ajoy Kumar, the then DC, DD(1) regarding this matter. He had no interaction with any of his officers in connection with the present case at any point of time prior to the demise of Rizwanur. He had no personal involvement of whatsoever nature with the case. Save as aforesaid, all allegations contained in the said paragraph under reference were denied and disputed as if those were set out in seriatim and denied specifically.
Ajay Kumar, the respondent No.5 in his personal capacity filed affidavit- in-opposition thereby denying the material allegations made in the writ- application and his defence was as follows:
(i) The writ-petitioners had no locus standi to maintain the petition and the said petition was speculative in nature and was per se misconceived and made with mala fide motive. The said writ-application did not disclose any cause of action against him and that he was unnecessarily impleaded.
(ii) On 8th January, 2008 the report of CBI was filed in the Hon’ble Court in a sealed cover. Copy of the report had not been circulated. He was examined by CBI officers on 30th October, 2007. He found that the CBI officers were making notes during his examination but such recording was neither shown to him nor was read out to him nor was any of his signature obtained thereon. At that stage, he was unable to make any comment on what had been recorded by the CBI officers and he reserved his right to do so as and when such recording would be disclosed.
(iii) The report of the CBI after it was submitted in Court had been considered by the Hon’ble Judge taking up the present matter. After considering the report, some parts were made known by the Hon’ble Judge at the time of hearing of the writ-petition on 28th February, 2008 wherefrom it appeared that the CBI had recommended charges against him for commission of offences under the Indian Penal Code as also recommendation of departmental action. The findings of CBI were wholly without jurisdiction, ultra vires the Delhi Special Police Establishment Act, null and void and completely beyond the activities required to be carried out by the CBI in terms of the order dated 16th October, 2007.
(iv) Inasmuch as the report of the CBI had been taken into consideration by this Hon’ble Court and formed part of the record of the present proceeding which was being relied upon by the writ-petitioners, those should be made available to him before the matter was heard finally. Only after the CBI report was made available to him and opportunity was granted to him to deal with the same, further steps might not be taken in the proceeding.
(v) He had been advised that inasmuch as CBI had apparently recommended charges against him for commission of offences under the Indian Penal Code, he was entitled to the protection against self- incrimination. His fundamental right under the Constitution would be under jeopardy if he was constrained to deal with the allegations in the petition without any knowledge of the allegations as against him in the CBI report. He, however, did not admit any of the allegations made in the said petition which was against him and he reserved his right to deal with those as and when he would get a real opportunity to do so.
Gyanwant Singh, the respondent No.7, Sukanti Chakraborty, the respondent No.8 and Krishnendu Das, the respondent No.9 similarly gave separate short affidavits-in-opposition in tune with those made in the affidavit- in-opposition of the respondent No.5.
The respondent No.12, Ashok Kumar Todi, filed affidavit-in-opposition to the writ-application and his defence was, inter alia, as follows:
a) The CBI had been directed by the Hon’ble Court by order dated 16th October, 2007 to investigate the cause of unnatural death of Rizwanur Rahaman and to file a report before the Hon’ble Court within two months from the date of service of copy of the order. Consequent to such order passed in the instant writ-petition, the CBI has submitted a report to this Hon’ble Court. The Hon’ble Court should direct the CBI to make over a copy of the said report to him.
b) In any event, the purported investigation carried out by the CBI is contrary to the provisions of the Delhi Special Police Establishments Act and the question of investigation by CBI without prior consent of a State Government is under consideration by a Larger Bench of the Hon’ble Supreme Court of India.
c) The purported investigation carried out by the CBI is illegal and contrary to the provisions of law and contrary to the order passed by the Hon’ble Court on 16th October, 2007 in the writ-petition. The purported investigation is motivated, biased, arbitrary and alleged conclusions made therein as has been disclosed by this Hon’ble Court in course of hearing of the writ- petition are perverse, incorrect and baseless. The Hon’ble Court may, therefore, be pleased to reject the said report of CBI and not to pass any order on the basis thereof.
d) The answering respondent No.12 had filed an independent application being CAN No.36 of 2008 in the instant writ-petition. In the said application, it was prayed that a copy of the report of CBI should be made over to the answering respondent. In view of the facts and circumstances of this case, it is just and necessary that a copy of the report of CBI should be made over to the answering respondent, otherwise, the answering respondent was unable to file an effective opposition to the allegations made in the writ-petition. Once copy of the report of the CBI would be made over to the answering respondent, he reserved his right to challenge the purported findings as contained in the said report.
e) The answering respondent has been informed by his learned Advocate who was present at the hearing on 28th February, 2008 that the Hon’ble Mr. Justice Dipankar Datta had been pleased to read out excerpts from the report of the CBI. It is gathered from such observations of the Hon’ble Court that allegations and serious charges have been levelled against the answering respondent for alleged commission of offences punishable under the Indian Penal Code. The answering respondent has not committed any offence as has been alleged against him. For the ends of justice, and in order to enable the answering respondent to file effective affidavit, and to make fruitful submissions, a copy of the report of CBI should be directed to be handed over to the answering respondent.
f) Once copy of the report of the CBI was received by the answering respondent, he would be able to ascertain whether all the statements that have been given by him to the CBI had duly been recorded and considered, particularly, with regard to involvement of the family members of the deceased. The answering respondent was apprehensive that the CBI might have filed a report, which was completely biased and incorrect without taking into consideration the entire facts of the matter.
1. The answering respondent has no knowledge as to the averment made in paragraph 1 of the said writ-petition, which is a matter within the special knowledge of the petitioners.
2. With regard to the averments made in paragraph 2 of the said writ-petition, the answering respondent denied that Rizwanur Rahaman has been allegedly killed on 21.9.2007 by the alleged hired men of the respondent Nos.3 to 9 or at his instance as alleged or at all. The said allegation is stated to be a matter true to the knowledge of the petitioner No.2. The said allegation has been made recklessly without any regard for the truth and is malicious and defamatory in nature and he reserved his further submission and action in this behalf.
3. With regard to the averments made in paragraph 4 of the writ-petition, it is denied and disputed that the said deceased boy allegedly married his daughter Priyanka Todi under the Special Marriage Act, 1954 on 18.8.2007 in the Marriage Registration Office of Ms. Sipra Ghosh as alleged or at all.
4. With regard to the averments made in paragraph 5 of the said petition, it was denied and disputed that after leaving his house in Salt Lake, his daughter Priyanka Todi allegedly started her conjugal life in her husband’s home, i.e. of the deceased boy’s home in the address given in the cause title as alleged. The answering respondent had no knowledge that the couple had allegedly informed the Police Commissioner, Deputy Commissioner of Police, Sough 24- Parganas, the Officer-in-Charge, Karaya Police Station and the Officer-in- Charge, Bidhan Nagar Police Station in respect of the alleged marriage by an alleged letter dated 31.8.2007 along with a copy of the alleged marriage registration certificate as alleged or at all.
5. With regard to the averments made in paragraph 6 of the said petition it was denied and disputed that on 31.8.2007 Priyanka allegedly informed him in respect of her alleged marriage with the deceased boy as alleged or at all. It was denied and disputed that his daughter had allegedly informed him about the factum of residing with her husband in her in-laws house as alleged or at all. He, on 31.8.2007, had gone to meet his daughter at No.7B, Tiljala Lane where she had been taken. Save as aforesaid the respondent No.12 denied each of the allegations contained in the paragraph under reference. It was not within his knowledge that two officers of Karaya Police Station viz. Mr. Jayanta Mukherjee and one Pulak allegedly came to the residence of the petitioners or allegedly started creating mental pressure on the deceased boy or Priyanka, so that Priyanka went back to her parents’ residence as alleged or at all.
6. With regard to the averments made in paragraph 7 of the said petition, he denied and disputed each of the allegations made therein including the one that he held out threats or there was any alleged threat to the deceased boy or the petitioners by him or to the effect that if Priyanka did not return to her parents, then the deceased boy would face “all serious consequences” as alleged or at all. It was also denied that he further threatened that no stone would remain unturned by him for the purpose of putting the deceased boy and his relative including the petitioners behind the bars as alleged or at all.
7. With regard to the averments made in paragraph 8 of the said petition, he had no knowledge that on 1.9.2007 at around 2:30 p.m., one Krishnendu Das, the then Sub-Inspector, Anti-Rowdy Section, Kolkata Police, allegedly came to the house of the petitioners along with others or allegedly wanted to see the marriage registration certificate from the deceased boy or at all. He had no knowledge that both the deceased boy or Priyanka allegedly went to Lal Bazar along with Sri Krishnendu Das alleged accompanied by the petitioner No.2 or his 3 uncles as alleged or at all. He had no knowledge that the said Krishnendu Das allegedly took the couple to Sri Sukanti Chakraborty, the then Assistant Commissioner of Police, Anti-Rowdy Section, who alleged asked Priyanka to return to him for a few days in presence of the petitioner No.2 or the three uncles of the deceased boy or Priyanka allegedly refused to accept such proposal as alleged or at all.
8. With regard to the averments made in paragraph 9 of the said petition, he had no knowledge that some alleged people on 3.9.2007 allegedly arrived at the residence of the petitioners or allegedly told the petitioner No.2 that if Priyanka was not sent back to her parents the deceased boy would be kidnapped and murdered as alleged or at all. It was denied that he had any connection with the said “some people” as referred to therein or that he had anything to do with the alleged threat allegedly held out by them as imputed therein
9. With regard to the averments made in paragraph 10 of the said petition, it was denied and disputed that on 1.9.2007 Mr. Gyanwant Singh, the then Deputy Commissioner, Head Quarter, allegedly called both the deceased boy and Priyanka or that on that day, at about 4 p.m., the deceased boy and Priyanka along with the petitioner No.2 and the deceased boy’s two uncles allegedly went to Lal Bazar or allegedly met Sri Gyanwant Singh as alleged or at all. It was emphatically denied and disputed that he was sitting in the chamber of D.C. Headquarter, at that point of time as alleged or at all. It was denied and disputed that he was present at the chamber of D.C. Headquarter, as alleged or at all. It was denied and disputed that the DC (HQ) spoke to Priyanka in the presence of her parents or that Priyanka in their presence told the D.C. Headquarter that her parents were mentally torturing her as alleged or at all. It was denied and disputed that Sri Singh ultimately created pressure on the deceased boy or Priyanka so that Priyanka returned to her parents’ house as alleged or at all. It was denied and disputed that Priyanka allegedly said that she would not go back to her parents’ house. It was denied and disputed that Sri Gyanwant Singh then allegedly directed the deceased boy or Priyanka or the petitioner No.2 or his uncles to meet Sri Sukanti Chakraborty as alleged or at all. It was denied and disputed that Sri Sukanti Chakraborty again allegedly held out threats to the deceased boy as alleged or at all. It was denied that he pulled out a number of stamp papers containing certain statements or the deceased boy or his accompanying relatives were not allowed to read the same as alleged or at all. It was denied that he had forced the deceased boy to sign on any stamp paper as alleged or at all. The deceased boy and or Priyanka had no occasion to protest against “such signature by the deceased boy under coercion” as alleged or at all. It was denied that Priyanka’s mother threatened the deceased boy with dire consequences as alleged or at all. As no attempt was made by him to obtain any signature of the deceased boy on the alleged stamp paper, the question of failing to obtain signature as alleged did not arise.
10. With regard to the averments made in paragraph 11 of the petition, it was denied and disputed that on 7.9.2007 Priyanka’s aunt allegedly came to the residence of the petitioners around 11 a.m. as alleged or that she told Priyanka that her father was in hospital or allegedly requested her to go back to her parents’ house or Priyanka allegedly refused to go as alleged or at all.
11. With regard to the averments made in paragraph 12 of the petition, it was denied and disputed that on 8.9.2007 Sri Krishnendu Das allegedly came to the residence of the petitioners or allegedly told the said couple that they were summoned by the Deputy Commissioner of Police, Detective Department, or that they should go immediately as alleged or at all. It was denied and disputed that around 3.30 p.m. the deceased boy or Priyanka allegedly went to Lal Bazar or allegedly met Sri Ajoy Kumar, Deputy Commissioner, Detective Department, along with the petitioner No.2 or his two uncles as alleged. It was denied and disputed that the moment both the deceased boy and Priyanka, along with the petitioner No.2 allegedly entered the office chamber, Sri Ajoy Kumar started to shout or allegedly said that if Priyanka did not go back to her parents’ house, the deceased boy would be immediately arrested or Priyanka would be sent to her parents’ house as alleged. It was denied and disputed that the deceased immediately allegedly protested to such action of the DC (DD) as alleged. It was denied and disputed that after the protest, Sri Ajoy Kumar allegedly became more furious or allegedly said he would give two options as alleged or at all. It was denied and disputed that Ajoy Kumar allegedly said either Priyanka must go back to her parents’ house for 7 days, otherwise, the deceased boy would be arrested on charges of abduction and stealing valuables or Priyanka would be handed over to her parents as alleged. It was denied and disputed that before holding out the alleged threats, Sri Ajoy Kumar allegedly called both Sri Sukanti Chakraborty and Krishnendu Das in his chamber as alleged. It was denied and disputed that all the three officers allegedly started shouting on top of their voice on the face of the deceased boy as alleged. It was denied and disputed that after hearing so much shouting, the deceased boy allegedly became nervous or at that juncture, Sri Ajoy Kumar and Sri Sukanti Chakraborty allegedly told the deceased boy in the presence of the petitioner No.2 that Priyanka was his legal wife and that the deceased boy could approach the law as alleged. It was denied and disputed that the deceased boy allegedly accepted the first proposal that Priyanka would go back to her parents’ house for seven days as alleged. It was denied and disputed that after hearing the alleged statements of the deceased boy, Ajoy Kumar allegedly told the deceased boy or Priyanka to go to the Anti-Rowdy Section along with the two officers of that section or that Priyanka or the deceased boy or the petitioner No.2 went to the Anti- Rowdy Section or they allegedly found that Anil Sarogi, the uncle of Priyanka, was present there as alleged.
12. With regard to the averments made in paragraph 14 of the said petition, it was denied and disputed that Priyanka allegedly called the deceased boy over telephone or allegedly said that the deceased boy must wait for more than seven days as he was going to Tirupati and other holy places or that the deceased boy allegedly said that he could wait as long as her parents wanted her provided they spoke to him or took some concrete decisions or Priyanka allegedly asked the deceased boy to refrain from taking any legal action as alleged.
13. With regard to the averments made in paragraph 15 of the said petition, it was denied and disputed that on 11th September, 2007 Priyanka allegedly talked to the deceased boy for allegedly the last time as alleged.
14. With regard to the averments made in paragraph 16 of the said petition, he had no knowledge that on 18th September, 2007, Sadique Hussain who was alleged one of the witnesses to the marriage allegedly lodged a complaint with Human Rights Commission pointing out therein that on 17th September, 2007 someone from Lal Bazar over telephone allegedly held out threats to Sri Sadique Hussain that he should go to Lal Bazar immediately or that Sadique Hussain allegedly replied that without any written notice, he was not under any obligation to go to Lal Bazar as alleged.
15. With regard to the averments made in paragraph 18 of the said petition, it was denied that the alleged written complaint lodged by the petitioner No.2 disclosed factum of murder as alleged or at all. It was further denied and disputed that the said written complaint disclosed commission of cognizable offence. The alleged written complaint also did not disclose the commission of any cognizable offence.
16. With regard to the averments made in paragraph 22 of the said petition, it was denied and disputed that the deceased boy was threatened by him that he would be killed if Priyanka did not go back as alleged or at all. It was denied and disputed that the police officers held out threats that the deceased boy would face severe consequences unless Priyanka went back to her parents as alleged.
17. With regard to the averments made in paragraphs 1 to 7 of the supplementary affidavit, save and except what appeared expressly from records and what was expressly admitted, he denied each of allegations contained therein and put the deponent to the strict proof of the said allegations.
18. With reference to the allegations contained in paragraph 10 of the supplementary affidavit he emphatically denied that the respondent police officers were the beneficiaries of any favour doled out by him as alleged or that because of the same or otherwise, they had allegedly harassed the deceased boy or Priyanka or the petitioners or the relatives of the deceased boy or that the same was done at his behest or without having any legal cause and jurisdiction or were ultimately responsible for the killing of the deceased boy as alleged or at all. The said allegations are without any basis and had been made maliciously to cause prejudice.
19. With regard to the averments made in paragraph 15 of the supplementary affidavit, it was denied and disputed that Sri Snehashish Ganguly had introduced him to Sri Prasun Mukherjee, Commissioner of Police, Kolkata, for the purpose of resolving his problem regarding the alleged marriage of his daughter, Priyanka, with the deceased boy or her staying at in-laws’ place as alleged or at all. It was denied and disputed that Sri Prasun Mukherjee directed him to meet Sri Ajoy Kumar, Deputy Commissioner, Detective Department-I, in this regard or that it was evident that he utilized the influence of an influential personality in the field of cricket by reason of the attachment of Sri Prasun Mukherjee as President of Cricket Association of Bengal as alleged or at all.
Anil Sarogi, the respondent no. 13 filed affidavit-in-opposition thereby denying the material allegation made in the writ-application and his defence may be summed up thus:
(a) In terms of the order passed by the Hon’ble Mr. Justice Soumitra Pal dated 16th October, 2007 the Central Bureau of Investigation (CBI in short) was directed to investigate into the cause of unnatural death of Rizwanur Rahaman and the CBI was directed to file a report in a sealed cover before this Hon’ble Court within two months from the date of service of authenticated copy of the order. The said order directing investigation by the CBI is contrary to the provisions of the Delhi Special Police Establishments Act or any other law now in force. The investigation sought to be carried out by the CBI was therefore illegal and contrary to the provisions of law. The purported investigation conducted by the CBI was also, contrary to the order dated 16th October, 2007 passed by this Hon’ble High Court, and was motivated, biased, arbitrary and the alleged conclusions made therein as had been disclosed by this Hon’ble Court in course of hearing are perverse, incorrect and without any basis whatsoever. This Hon’ble Court may, therefore, be pleased to reject the said report and should not pass any further order thereon or on the basis thereof.
(b) The respondent No.13 had filed an application being CAN 120 of 2008 in the present writ-petition whereby it was prayed that the copy of the report of the CBI should be made over to him and he reiterated his prayer for supply of copy of the report of the CBI. In fact, without a copy of the said report he was unable to give any effective opposition to the allegations made in the writ petition. He reserved his right to challenge the findings of the said report after a copy of the same was made over to him.
(c) In course of hearing of the said petition on 28th February, 2008 the Hon’ble Mr. Justice Dipankar Datta was, inter alia, pleased to read out excerpts from the report of the CBI. He had thus come to know from the observations made by the Hon’ble Court that serious charges have been allegedly levelled against him with regard to the commission of alleged offences punishable under various sections of the Indian Penal Code. He denied that he had committed any offence as alleged or at all. It is, therefore, just and proper that a copy of the report of the CBI should be made over to him before any effective affidavit could be filed by him.
(d) In course of the inquiry by the CBI his statement and that of other witnesses had been recorded by the CBI wherefrom and where under implication of family members of Late Rizwanur Rahaman had been recorded or brought to its notice. From the excerpts read out by the Hon’ble Court it seemed that no investigation into the said information was considered, conducted or recorded by the CBI.
(e) In view of the peculiar facts and circumstances of this case, particularly consequent to order dated 16th October, 2007 passed by the Hon’ble Mr. Justice Soumitra Pal, it was necessary for meeting the ends of justice that a copy of the report of the CBI should be made over to him and he should be granted further opportunity to challenge or deal with the said report.
(f) He denied that he had any occasion to make any persuasion with regard to Priyanka returning to her father’s house as alleged or that he was at the residence of the writ-petitioners on the morning of 1st September, 2007 or threatened the deceased as alleged.
(g) He admitted that on 8th September, 2007 around evening he had gone to Lal Bazaar at the request of Mr. Pradip Todi and at his request and on the insistence of the deceased boy and his relatives he wrote the letter being Annexure “P-3”.
(h) With regard to the allegations made in paragraphs 13 to 19 of the said petition, he had no knowledge as to what the petitioner No.2 was told by the deceased boy as alleged or at all.
(i) With regard to the allegations made in paragraph 21 of the said petition save and except what appears from records, all allegations levelled against him were denied and disputed.
(j) With regard to the allegations made in paragraph 23 of the said petition, the same were denied and disputed and the petitioners are put to the strict proof thereof.
(k) With regard to the allegations made in paragraphs 27-30 of the said petition, it was submitted that those are legal submissions and he reserved his right to make appropriate submission at the time of hearing.
(l) The allegations made in paragraph 31 of the said petition were denied and it was disputed that the police authorities including all the respondents were acting as his agent and agent of respondent No.12 as alleged or at all. It was denied and disputed that the said boy had been murdered as alleged or at all.
(m) The allegations made in paragraphs 32-36 of the said petition were denied and it was disputed that there had been violation of any rights of the deceased or the petitioners as enshrined under Article 21 of the Constitution and/or there is any need of investigation in the unnatural death of the son of the petitioner No.1 by an independent body and/or no fair investigation would be done by the CID against such police officers and/or to instill confidence amongst the petitioners, an investigation by an independent agency was essentially needed for bringing to the fore the truth with respect to the unnatural death of the deceased boy as alleged.
(n) With regard to the allegations made in paragraph 37 of the said application he denied and disputed the same. The grounds set out therein were not tenable either in law or on facts and deserved no consideration by this Hon’ble Court. He further reserved his right to make legal submissions in this regard at the time of hearing of this application, if necessary.
(o) With regard to the allegations made in paragraphs 1 to 7 of the supplementary affidavit, save and except what appear expressly from records and what was expressly admitted herein he denied and disputed each of allegations contained therein and put the deponent to the strict proof of the said allegations.
(p) With regard to the allegations made in paragraph 8 of the said supplementary affidavit, it was not within his knowledge that the respondent No.12 had allegedly doled out any favour to any of the police personnel as alleged or at all. He denied that he had any nexus with respondent Kolkata Police Officers as alleged or at all.
(q) With regard to the allegations made in paragraph 9 of the said supplementary affidavit, it was denied that there was any nexus, unholy or otherwise, exiting between respondent No.12 or 13 and the respondent police officers as alleged or at all. The said allegations are defamatory and he reserved right to take such legal action as may be available against the deponent.
The learned Single Judge, as it appears from the order impugned, after noting the submissions of the learned counsel for the parties framed the following issues for determination:
“(i) Should the writ petition fail owing to the petitioners not taking recourse to efficacious alternative remedy provided by the Code?
(ii) Should the writ petition fail because it does not disclose any cause of action, because adjudication of the issues would involve resolving hotly disputed facts and because of defective verification of pleadings, as contended by Mr. Pal?
(iii) Whether ‘Kolkata Police’s inaction’ vis-a-vis the complaint lodged by the couple and ‘Kolkata Police in action’ vis-a-vis complaints of Pradeep Todi impugned herein justified? Is respondent no.3 responsible in any manner?
(iv) Did any of the city police officers (respondents 5, 7, 8 and 9) act ultra vires in discharge of official duties?
(v) Whether investigation conducted by the State police agencies was in accordance with law?
(vi) Whether the facts and circumstances presented before the Court called for entrusting the CBI with investigation of cause of death of Riz?
(vii) Whether the CBI acted ultra vires in registering an FIR for alleged offence of murder and conducted investigation on the basis thereof in a manner not authorised by law?
(viii) Are the parties entitled to have a copy of the report of the CBI filed in Court?
(ix) Is the CBI justified in expressing views in relation to recommending to the State initiation of disciplinary proceedings for major penalty against some of the respondents?
(x) Whether the CBI should be allowed to proceed further on the basis of materials collected by it in course of investigation?
(xi) To what relief, if any, are the petitioners entitled?” The learned Single Judge, ultimately, answered the issue nos. (i), (ii), (v),
(viii), (ix) in negative and the issue nos. (iii), (iv), (vi), (vii) and (x) in affirmative and thus, allowed the writ-application by observing that the State was at liberty to initiate such action as it deemed fit and proper against any of or all the respondent Nos.3, 5, 7, 8, 9, 12 and 13 in accordance with law by granting liberty to the CBI to submit its report in the Criminal Court.
Being dissatisfied, the respondents of the writ-petition have filed separate appeals and at the same time, the writ-petitioners have also filed an appeal thereby praying for a direction upon the State to start criminal proceeding against the concerned police officers and the father and uncle of Priyanka for interfering with the conjugal life of Rizwanur and Priyanka by following the direction of the Supreme Court in the case of Lata Singh (supra). All these appeals were heard together and we propose to dispose of all these appeals by this common judgment.
Mr. Kapoor, the learned Senior Advocate appearing on behalf of Ashok Kumar Todi, the appellant in one of these appeals, criticized the order impugned from various angles. According to Mr. Kapoor, the writ-application itself was not maintainable as the writ-petitioners did not approach the other efficacious alternative remedies available to them under the law.
Mr. Kapoor further contended that the learned Single Judge erred in law in disposing of the writ-application by relying upon the report submitted by the CBI without furnishing the copy of the same to his client. According to Mr Kapoor, a Writ-Court while disposing of a writ-application cannot rely upon any document without disclosing the contents thereof to the parties to the proceedings. Mr Kapoor submits that the CBI did not claim that the said document was one containing any material which, if disclosed, will be prejudicial to the security of the State and thus, Mr. Kapoor continues, by relying upon the said document and at the same time, by not giving any opportunity to his client to make submission regarding contents thereof, the learned Single Judge has violated the principles of natural justice causing irreparable injury to his client and for the aforesaid irregularity, the order impugned has been vitiated.
Mr. Kapoor further contends that while passing direction for enquiry by the CBI, the learned Single Judge erred in law in not following the well-settled principles which are required to be followed in considering a case of this type. Mr. Kapoor contends no valid ground has been made out for deviating from the procedure provided in the Code of Criminal Procedure for investigation and the learned Single Judge even did not verify the course adopted by the CID in its investigation to justify the decision of investigation by CBI.
Lastly, Mr. Kapoor contends that even the finding of the learned Single Judge that the investigation of the CID was not proper is based on incorrect interpretation of the provisions of Sections 174 and 175 of the Code. Mr. Kapoor, therefore, prays for setting aside the order impugned and dismissal of the writ- application. In support of his contentions, Mr. Kapoor relied upon the following decisions:
1. State of Haryana & Ors. vs. Bhajanlal & Ors. reported in (1992) Suppl. SCC 335;
2. Gangadhar Janardan Mhatre vs. State of Maharashtra & Ors. reported in (2004) 7 SCC 768;
3. All India Institute of Medical Sciences Employees Union (Regd.) vs. Union of India & Ors. reported in (1996) 11 SCC 582;
4. Minu Kumari & Anr. vs. State of Bihar & Ors. reported in (2006) 4 SCC 667;
5. Common Cause, A Registered Society vs. Union of India & Ors. reported in (1999) 6 SCC 667;
6. National Council for Civil Liberties vs. Union of India & Ors. reported in (2007) 6 SCC 506;
7. Sakiri Vasu vs. State of Uttar Pradesh & Ors. reported in (2008) 2 SCC 409;
8. Central Bureau of Investigation vs. Rani Shankar Srivastava & Ors. reported in (2006) 7 SCC 188;
9. Divine Retreat Centre vs. State of Kerala & Ors. reported in (2008) 3 SCC 542;
10. State of West Bengal vs. Anwar Ali Sarkar reported in AIR (1952) SCC 75;
11. Hari Singh vs. State of Uttar Pradesh reported in (2006) 5 SCC 733;
12. Aleque Padamsee & Ors. vs. Union of India & Ors. reported in (2007) 6 SCC 171;
13. A.R. Antulay vs. R.S. Nayak & Anr. reportedin (1988) 2 SCC 602;
14. Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. vs. Sahngoo Ram Arya & Anr. reported in (2002) 5 SCC 521.
Regarding Alternative Remedy:
1.In Re : Mettu Pentayya & Ors. reported in AIR 1960 AP 542;
2. Pedda Narayan & Ors. vs. State of A.P. reported in (1975) 4 SCC 153;
3. Mrs. Shakila Khadder & Ors. vs. State of Kerala & Ors. reported in (1975) 4 SCC 122;
4. George & Ors. vs. State of Kerala & Ors. reported in (1998) 4 SCC 605;
5. Lalita Kumari vs. Government of U.P. & Ors. reported in (1008) 14 SCC 337. Regarding Initial Order Bar:
1. Naresh Kanar Chand Khatri vs. State of Gujarat & Ors. reported in (2008) 8 SCC 300;
2. State of Karnataka vs. Arun Kumar Agarwal & Ors. reported in (2000)1 SCC 210.
Overstepping by C.B.I.:
1. Bandhua Mukti Morcha vs. Union of India & Ors. reported in (1984) 3 SCC 161;
2. Sashi Kant vs. C.B.I. & Ors. reported in (2007) 1 SCC 633;
3. Vineet Narayan & Ors. vs. Union of India & Anr. reported in (1998) 1 SCC 226;
4. D. Benkata Subramaniam & Ors. vs. M.K. Mohan Krisshnamachari & Anr.reported in (2009) 10 SCC 448;
Illegal Investigation:
1. Nandini Satpathi vs. P.L. Dani & Anr. reported in (1978) 2 SCC 424;
2. Miranda vs. State of Arizona reported in 384 U.S. 436;
3. Tukaram G. Goakar vs. K.N. Shukla & Ors. reported in AIR 1968 SC 1050;
4. State (Net of Delhi) & Ors. vs. Navjot Sandhu reported in (2005) 11 SCC 600;
5. Aloke Nath Dutta & Ors. vs. State of West Bengal (2007) 12 SCC 230.
Mr. Mitra, the learned Senior Advocate appearing on behalf of Anil Sarogi, the appellant in one of these appeals, adopted the aforesaid arguments advanced by Mr. Kapoor and added by contending that the learned Single Judge went beyond the pleading of the writ-application and granted relief to the writ- petitioners which were not even prayed for by them. According to Mr. Mitra, a Writ-Court should not enter into or grant any relief in respect of any matter, of which there is no foundation in the pleading. In other words, according to Mr. Mitra, no Court should deal with any disputed question of facts not borne out by the pleading or grant any relief on the basis of such facts, unless the pleading and the relief claimed in the proceedings are suitably amended thereby giving sufficient notice to the opponents of the proposed field of dispute. Mr. Mitra contends that the learned Single Judge erred in law in granting relief in favour of the writ-petitioners against his client although there is no specific allegation of commitment of any crime against his client in the writ-application. Mr. Mitra, therefore, prays for setting aside the order impugned so far his client is concerned. In support of his contentions, Mr. Mitra relies upon the following decisions:
1. S.S. Sharma & Ors. vs. Union of India & Ors. reported in (1981) 1 SCC 397;
2. Pramodh Verma & Ors. vs. State of Uttar Pradesh & Ors. reported in (1984) 4 SCC 251;
3. Peoples Union for Civil Liberties & Ors. vs. Union of India & Anr. reported in (2005) 5 SCC 363;
4. Biecco Lawrie Limited & Anr. vs. State of West Bengal & Anr. reported in (2009) 10 SCC 32.
Mr. Sen, the learned Senior Advocate appearing on behalf of Sri Pradip Kumar Todi, not party to the writ-application, who has preferred one of these appeals with leave to prefer this appeal, has adopted the submissions of Mr. Kapoor and Mr. Mitra and in addition to those points, has further emphasized on the fact that although the writ-petitioners, have in one place taken the name of his client, had not cared to implead him and the learned Single Judge although taken note of different allegations made against his client as would appear from the various places of the order impugned, yet, did not feel the necessity of giving notice of the litigation to his client and thus, erred in law in accepting the report of the CBI against his client without giving any opportunity of defending himself. Mr. Sen contends that the aforesaid deviation from the basic principles of natural justice has vitiated the entire judgment impugned in this appeal and the aforesaid illegality committed by the learned Single Judge is itself sufficient for setting aside the same so far his client is concerned. Mr. Sen, therefore, prays for setting aside the order impugned and allowing the appeal filed by his client. In support of his contention, Mr. Sen relies upon the following decisions:
1. S. Govinda Menon vs. Union of India reported in AIR 1967 SC 1274;
2. Canara Bank & Ors. vs. Debasis Das & Ors. reported in (2003) 4 SCC 557;
3. Mangilal vs. State of M.P. reported in (2004) 2 SCC 447;
4. Sahara India (Firm), Lucknow vs. Commissioner of Income Tax, Central-I & Anr. reportedin (2008) 14 SCC 151;
5. D. Venkata Subramaniam & Ors. vs. M.K. Mohan Krishnamachari & Anr.reported in (2009) 10 SCC 488;
6. Institute of Chartered Accountants of India vs. L.K> Ratna & Ors. reported in (1986) 4 SCC 537.
Mr. Kishore Dutta and Mr. Jishnu Chowdhury, the learned Advocates appearing on behalf of Sri Ajay Kumar, Sri Sukanti Chakraborty and Sri Krishnendu Das, the three other appellants of these appeals, adopted the arguments of Mr. Kapoor, Mr. Mitra and contended that the case made out against their clients was not the one where the crime alleged should be investigated by CBI nor was there any justification of accepting the recommendation of the CBI which according to them was beyond the scope of the order passed by Justice Pal. They contend that their clients having been indicted as the accused persons in the criminal proceedings have the right not to disclose any defence in this writ-application and the learned Single Judge erred in law in drawing adverse inference against them for not giving full-fledged affidavit-in- opposition. The learned Counsel, therefore, pray for dismissal of the writ- application. In support of his contention, Mr. Dutta relied upon the following decisions:
1. Nandini Satpati vs. P.L. Dani reported in AIR 1978 SC 1025;
2. Raja Narayanlal Bansilal vs. Maneck Phiroz Mistry reported in AIR 1961 SC 29;
3. Aloke Nath Dutta vs. State of West Bengal reported in 2007(12) SCC 230;
4. Bhagwan Das Behi vs. Union of India reported in 1975 Cr. LJ. 946 (AP),
5. M. P. Sharma & Ors. vs. Satish Chandra reported in AIR 1954 SC 300.
Mr. Balai Chandra Roy, the learned Advocate General appearing on behalf of the State-respondents, has criticized the order impugned by contending that the learned Single Judge totally misinterpreted the provisions of the Code of Criminal Procedure relating to investigation of the cognizable offence and that of inquest. According to Mr. Roy, in this case, the complaint lodged by the brother of the deceased did not disclose commission of any cognizable offence and as such, the CID authority did not commit any illegality in proceeding with a preliminary enquiry as to the unnatural death of the deceased without registering an FIR. According to Mr. Roy, the mere statement in the complaint that the maker thereof apprehended “the hands of Todis” in the death of the deceased did not disclose commission of any cognizable offence provided in the Indian Penal Code and thus, there was no necessity of registering a case of murder on the basis of such written complaint.
Mr. Roy contends that the inquest provided in Section 174 of the Code does not come to an end with the postmortem examination or the handing over of the body for cremation.
According to Mr. Roy, the writ-application filed within three days of the taking up of investigation by the CID did not make out any case of investigation by CBI.
Mr. Roy contends that even if it is assumed for the sake of argument that three or four high officials of the Kolkata Police were siding with the Todis, that fact is not sufficient for transferring the investigation from the CID which has no connection with the Kolkata Police. Mr. Roy submits that unless there is any allegation against the “State” in the matter of investigation, there was no justification of even entertaining the writ-application in question. Mr. Roy submits that the principles laid down by the Apex Court regarding the transfer of investigation to CBI have not been followed in this case by the learned Single Judge. Mr. Roy has placed before us the true copies of the investigations done by the CID till October 16, 2007 when pursuant to the interim order passed by the learned Single Judge, the investigation was taken over by the CBI and has given the copies of those proceedings to all the contesting parties before us and prayed for relying upon such proceedings conducted by the CID to justify its process of investigation. By referring to those copies, Mr. Roy points out that the CID in course of those 22 days had examined as many as 116 witnesses including all the respondents against whom allegations were made by the writ-petitioners as also the complainants and the other persons supporting the claim of the writ- petitioners. By referring to the questions put to those persons examined, Mr. Roy tried to justify his stance that in this case, in the absence of any negligence on the part of the CID in investigating the alleged offence, there was no justification of transferring the investigation to the CBI. Mr. Roy contends that without looking into the action taken by the CID in proceeding with the preliminary investigation, the learned Single Judge erred in law in holding that the investigation handled by the CID was not in conformity with the law.
Mr. Roy further submits that although his clients had not preferred any appeal against the interlocutory order asking the CBI to investigate and report, they are entitled to contend before us that the investigation done by the CBI was not in accordance with the scope of the interim order granted by the learned Single Judge. In other words, Mr. Roy contends that the fact that the learned Single Judge while passing the final order has directed the CBI to submit the report before the Criminal Court itself indicates that the scope of the interim order was wrongly interpreted as if at the stage of the passing the interim order, the full relief was granted subject to the final decision in the writ-application. Mr Roy submits that the interim order was just a direction upon the CBI to investigate about the unnatural death of Rizwanur and to report the same to the learned Single Judge. Mr. Roy contends that the said interim order did not authorize the CBI to make full-fledged investigation within the meaning of the Code of Criminal Procedure. Mr. Roy, therefore, contends that being a report to the Court itself by virtue of the interim order, all the parties to the proceedings were entitled to a copy of the same and they had right to give objection thereto and the learned Single Judge definitely committed a grave error of law in treating the said report as a final report of investigation in accordance with the Code with a direction to submit the same before the Criminal Court in the form of charge sheet. Mr. Roy, therefore, prays for dismissal of the writ-application and for a direction upon the CID to resume the investigation from the stage it handed over the papers to the CBI.
In support of his contentions, Mr. Roy relies upon the following decisions:
1. Biecco Lawrie Limited & Anr. vs. State of West Bengal & Anr. reported in (2009) 10 SCC 32;
2. Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant & Ors. reported in (2001) 1 SCC 182;
3. Pedda Narayana & Ors. vs. State of Andhara Pradesh reported in (1975) 4 SCC 153;
4. Suresh Rai & Ors. vs. State of Bihar reported in (2000) 4 SCC 84;
5. Mayor & C, of West Minister vs. London & North Western Railway Company reported in House of Lords 1905 AC 426;
6. Barium Chemicals Ltd. & Anr. vs. Company Law Board & Ors. reported in AIR 1967 SC 295;
7. Kamala Vahooji vs. Collector, Bombay (Lord Macmillan) reported in AIR 1937 Privy Council 265;
8. Supreme Court Employees Welfare Association vs. Union of India & Anr.reported in (1989) 4 SCC 187;
9. Shri Sitaram Sugar Company Limited & Anr. vs. Union of Inid a& Ors. reported in (1990) 3 SCC 223;
10. King Emperor vs. Khwaja Nazir Ahmad reported in 1945 PC 18 = 71 IA 203;
11. State of West Bengal & Ors. vs. The Committee For Protection of Democratic Rights, West Bengal & Ors. reported in 2010 (1) Supreme 707; Mr. Bandyopadhyay, the learned Senior Advocate appearing on behalf of the writ-petitioners/respondents in these appeals has opposed all the contentions raised by the learned counsel for the different appellants and has not only supported the order impugned but has also advanced argument in support of the appeal preferred by his clients against the order impugned wherein his grievance is that the learned Single Judge ought to have passed direction against the Police- respondents for initiating criminal proceedings for interfering with the conjugal life of Rizwanur and Priyanka by placing strong reliance upon the decision of the Apex Court in the case of Lata Singh (supra). Mr. Bandyopadhyay has virtually reargued the matter before us on behalf of the writ-petitioners by placing all the decisions, which were relied upon on behalf of his clients before the learned Single Judge.
According to Mr. Bandyopadhyay, the learned Single Judge was quite justified in accepting the contention of the CBI that the report submitted by it should not be given at that stage because it was yet to be submitted before the learned Criminal Court. Mr. Bandyopadhyay, however, disputed the contentions of the learned counsel for the appellants that the learned Single Judge himself had gone through the report and was thus, influenced by it. Mr. Bandyopadhyay submits that the learned Single Judge in open Court merely read out the recommendations of the CBI but did not go through the entire report and according to him, the non-disclosure of the contents of the report was no ground for not filing affidavit-in-opposition denying the grave allegations levelled against the errant police official and the other respondents. Mr. Bandyopadhyay by referring to the various orders passed in the writ proceedings submits that in spite of giving repeated opportunities to the appellants before us, they decided not to give full-fledged affidavit to the writ-application and the supplementary affidavit in support of the same. Mr. Bandyopadhyay contends that Article 20(2) of the Constitution of India does not prohibit filing of affidavit against the allegations made by the writ-petitioners nor does such provision protect the appellants from the consequence of not traversing the allegations against them in the writ-application.
Mr. Bandyopadhyay next contends that a Writ-Court is competent to decide whether a “State” within the meaning of Article 12 of the Constitution of India has violated the rights conferred under Article 21 of the Constitution and thus, by answering the said issue in favour of his clients on the basis of materials on records, the learned Single Judge did not commit any illegality; rather, as a Writ-Court dealing with the application under Article 226 of the Constitution, the learned Single Judge was duty-bound to answer the issue raised.
Mr. Bandyopadhyay next contends that it would appear from the notices issued by the CID to the witnesses that they were called to assist for the inquest as would appear from the fact that the notice was issued under Section 175 of the Code of Criminal Procedure. According to Mr. Bandyopadhyay, after the postmortem examination of the dead body was over and the body had already been buried, there was no justification of any inquest as that chapter had been closed. By referring to the aforesaid fact, Mr. Bandopadhay submitted that it was apparent that the CID was pressurized to delay the investigation and to give a final report by declaring the same as a case of accident or suicide to protect the high police officials and the family of Priyanka who were closely connected with the police.
According to Mr. Bandyopadhyay, the police officials have not answered the main question involved in this litigation as to whether any criminal case was registered against Rizwanur and whether he was called by issuing notice under the provisions of the Code. Mr. Bandyopadhyay contends that if no criminal case was registered against Rizwanur, the police authorities acted arbitrarily and with mala fide intention in repeatedly calling him in Lal Bazar for the purpose of breaking the matrimonial relationship between the couple at the instance of the Todi family who did not accept the tie and in such a situation, his clients had genuine apprehension to presume that they will not get proper justice if the investigation is done by the state machinery.
Mr. Bandyopadhyay further contends that the fact that immediately after the incident the State Government set up a commission of Judicial Enquiry itself suggests that the allegation was grave but the moment the learned Single Judge ordered investigation by the CBI, the order of Judicial Enquiry was withdrawn and the State decided not to prefer any appeal against the order of investigation by CBI. It is unfair, according to Mr. Bandyopadhyay, for the State to oppose the investigation by the CBI.
Mr. Bandyopadhyay, therefore, prays for dismissal of the appeals preferred by the respondents of the writ-petition and for allowing the appeal preferred by his clients for passing a direction upon the State to register a case against all the respondents by following the directions of the Apex Court in the case of Lata Singh (supra).
In support of his contention, Mr. Bandyopadhyay relied upon the following decisions:
Regarding Central Bureau of Investigation:
1. State of West Bengal vs. Sampatlal reported in AIR 1985 SC 1952; 2.
C.B.I. vs. State of Rajasthan & Ors. reported in 2001(3) SCC 333;
3. Gudalure M.J. Cherian & Ors. vs. Union of India & Ors. reported in 1992(1) SCC 397;
4. R.S. Sodhi vs. State of U.P. & Ors. reported in AIR 1994 SC 38;
5. Mohammed Anis vs. Union of India reported in (1994) Suppl. (1) 145;
6. State of Bihar vs. Ranchi Zila Samta Party & Anr. reported in 1996(3) SCC 682;
7. Central Bureau of Investigation vs. State of Gujarat reported in AIR 2007 SC 2522;
8. Association for Protection of Democratic Rights vs. State of West Bengal & Ors. reported in (2007) 4 CHN 842;
9. Committee for Protection of Democratic Rights & Anr. vs. State of West Bengal reported in (2001) 2 CHN 98;
10. State of West Bengal & Ors. vs. Jawahar Singh & Ors. reported in 2008(1) CHN 559;
Regarding Alternative Remedy:
1. Kharak Singh vs. State of U.P. reported in AIR 1963 SC 1295;
2. Century Spinning & Manufacturing Co. Ltd. Anr. vs. The Ulhasnagar Municipal Council & Anr. reported in AIR 1971 SC 1295;
3. Whirlpool Corporation vs. Registrar of Trade Marks reported in 1998(8) SCC 1;
4. M/s. Platinum Entertainment & Anr. vs. City Industrial Development Corporation & Anr. reported in 2007 AIR SCW 2010;
5. B.C.C.P. Mazdoor Sangh & Anr. vs. N.T.P.C. & Ors. reported in 2007 AIR SCW 6879;
6. ABL International Ltd. vs. Export Credit Guarantee Corporation of India Ltd. reported in 2004(3) SCC 553;
7. Tribhvandas Pursotamdas Thakker vs. Ratilal Motilal Patel reported in AIR 1968 SC 372;
8. Sanjana M. Wig vs. Hindusthan Petrol Corporation Ltd. reported in AIR 2005 SC 3454
9. In re: L. Chnadra Kumar reported in 1997(3) SCC 261
10. M.P. State Agro Industries Development Corporation Ltd. & Anr. vs. Jahan Khan reportedin 2008(1) SLR 5;
Power of High Court Under Article 226
11. Dwarika Nath vs. Income Tax Officer, Special Circle D reported in AIR 1966 SC 81;
12. Controller and Auditor General of India vs. K.S. Jagannathan reported in 1986(2) SCC 679;
13. Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust vs. V.R. Rudani reported in AIR 1989 SC 1607;
Inherent Power:
14. Zandu Pharmaceutical Works Ltd. & Ors. vs. Mohd. Sharaful Haque & Ors.
Anr. reported in 2005 (1) SCC 122;
Article 144:
15. Dr. Dinesh Kumar & Ors. vs. Motilal Nehru Medical College, Allahabad & Ors. reported in 1990(4) SCC 627;
Interim Order:
16. BPL Ltd. & Ors. vs. R. Sudhakar & Ors. reportedin 2004 (7) SCC 219 Res Judicata:
17. Y.B. Patil & Ors. vs. Y. L. Patil reported in 1976(4) SCC 66;
18. Ashoke Kumar Srivastava vs. National Insurance Co. Ltd. reportedin 1998(2) LLJ 699;
19. Ajay Mohan & Ors. vs. H.N. Rai & Ors. reportedin 2008(2) SCC 507; Locus Standi:
20. Jasbhai Motibhai Desai vs. Roshan Kumar reported in 1976(1) SCC 671;
21. Fertiliser Corporation Kamagar Union (Regd.) Sindri & Ors. vs. Union of India & Ors. reported in AIR 1981 SC 344;
22. Mehsana District Central Cooperative Bank Ltd. & Ors. vs. Arvind Bhai B.
Patel & Ors. reported in AIR 2004 SC 1576
23. Binny Ltd. vs. Sadasivan reported in AIR 2005 SC 3202; Personal Liberty:
24. Maneka Gandhi vs. Union of India reported in AIR 1978 SC 597;
25. Soubhagya vs. Chief Secretary, State of Karnataka reported in 2001 Cr.L.J.238;
Right to Love & Marry:
26. Lata Singh vs. State of U.P. reported in AIR 2006 SC 2522;
27. Samsher Alam @ Sheru & Anr. vs. State of U.P. & Ors. reported in 2002 Cr.L.J. 3588;
28. Smt. Pooja Arya & Anr. vs. State of U.P. & Ors. reported in AIR 2006 All.60;
29. Directorate of Revenue & Anr. vs. Mohammed Nisar Molla reported in 2008(2) SCC 370;
Investigation:
30. Mohindro vs. State of Punjab reported in (2001) 9 SCC 581;
31. Shashikant vs. Central Bureau of Investigation & Ors. reported in 2007(1) SCC 630;
32. Md. Yousuf vs. Smt. Afaq Jahan & Anr. reported in AIR 2006 SC 705;
33. H.N. Rishbud vs. State of Delhi reported in AIR 1956 SC 196;
34. Hemanta Dhasmana vs. Central Bureau of Investigation & Ors. reported in 2001(7) SCC 536;
35. Union of India vs. Prakash P. Hinduja & Anr. reported in 2003(6) SCC 195;
36. Hasib vs. State of Bihar & Ors. reported in AIR 1972 SC 283;
37. State of Hariyana & Ors. vs. Ch. Bhajan Lal & Ors. reported in AIR 1992 SC 604
38. K.P. Rao vs. Public Prosecutor, A.P. reported in 1975(2) SCC 570;
39. K. Veeraswami vs. Union of India reported in 1991(3) SCC 655;
40. Directorate of Enforcement vs. Deepak Mahajan reported in AIR 1994 SC 1775;
Preliminary Enquiry:
41. P. Raghuthaman vs. State of Kerala reported in 2002 Cr.L.J. 337;
42. Kuldip Singh vs. State reported in 1994 Cr.L.J. 2502;
43. Vidya Stokes vs. State of H.P. reportedin 1994 Cr.L.J. 1833;
44. Kotak Mahindra Bank Ltd. vs. Nobiletto Finalease & Investment Pvt. Ltd.reported in 2005 Cr.L.J. 3500
45. Giridhari Lal Kanak vs. State & Ors. reported in 2002 Cr.L.J. 2113;
46. Munna Lal vs. State reported in 1967 Cr.L.J. 1272;
SHOULD HAVE REGISTERED U/S.302 OF I.P.C.:
47. Patel Lilabhai Ambalal & Ors. vs. Patel Kanubhai Mafatlal & Ors. reported in 1989 Cr.L.J. 1898.
Mr. Pal, the learned Senior Advocate appearing on behalf of the respondent No.3 to the appeal preferred by the writ-petitioners and the cross- objector, has opposed the contention of Mr. Bandyopadhyay and has contended that in the writ-application there being no allegation against his client of committing any offence nor there being any prayer for indicting his client in a criminal case, the prayer made by the writ-petitioners in their appeal is at least not maintainable against his client. Mr. Pal contends that in the case of Lata Singh (supra) no new law has been laid down and a criminal case can be initiated in accordance with law only if there is ingredient of any offence prescribed by law. Mr. Pal submits that his client has by filing affidavit already disputed the allegations that the Todis were linked with the Kolkata Police and has explained their role in the advancement of the programme of the Kolkata Police. According to Mr. Pal, the appeal filed by the writ-petitioners should be dismissed. In support of the cross-objection, Mr. Pal contends that the recommendation of the CBI for initiation of proceedings was without jurisdiction as the order appointing CBI to give a report to the Court did not authorize the CBI to make such recommendation. At any rate, Mr. Pal continues, there is no scope of passing any direction upon the employer of his client in this writ-application.
Mr. Sengupta, the learned counsel appearing on behalf of Sri Gyanwant Singh, a respondent in the appeal filed by the writ-petitioner and a cross- objector, has adopted the submissions of Mr. Kapoor and Mr. Mitra and supplemented those by contending that the learned Single Judge erred in law in holding that his client violated Article 21 of the Constitution of India and also in accepting the recommendation of the CBI regarding disciplinary action against his client. According to Mr. Sengupta, on the basis of the order impugned, the employer of his client has already issued notice of departmental proceedings. Mr. Sengupta contends that his client, as an accused person in a criminal proceeding, has a right not to disclose any defence when in the writ-application, he has been indicted as one of the accused persons and thus, the learned Single Judge erred in law in holding against his client without disclosing any detailed charge levelled against him. Mr. Sengupta submits that the allegations made in the writ-application against his client does not disclose ingredients of any offence provided in the Indian Penal Code and at the same time, there was no justification of initiating any departmental proceedings against his client by virtue of the order impugned. At any rate, Mr. Sengupta contends that a Writ- Court cannot pass a direction for initiation of departmental proceedings against a person at the instance of a third party without making the employer a party and that too, before his client has been found to be guilty in the appropriate criminal proceedings. Mr. Sengupta further contends that in a writ-application, the entire burden is upon the writ-petitioner to prove his case and notwithstanding the fact that no affidavit-in-opposition was given by the respondents, a writ-application cannot succeed on that ground alone unless sufficient evidence is adduced in support of the allegations contained in the writ-application. Mr. Sengupta, therefore, prays for setting aside the order impugned so far his client is concerned. In support of his contention, Mr. Sengupta relies upon the following decisions:
1. Mrinal Kanti Das Burman vs. State of West Bengal reported in 1976(1) CLJ 570;
2. Bharat Singh Dallu Nathu Ram Ram Phal vs. State of West Bengal reported in AIR 1988 SC 2181= 1988(4) SCC 534;
3. Governing Body of Dayanand Anglo Vedic College vs. Padmanabha Padhy reported in 1988 (1) SCC 653;
4. ABN Amro Bank N.V. vs. Union Bank of India & Ors. reported in 2009 (3) CLT 294.
The learned Counsel appearing on behalf of the other appellants opposed the contentions of Mr. Bandyopadhyay not only in support of the appeal preferred by his clients but also with regards to the submissions made as the respondents in the appeals preferred by their clients.
Therefore, the questions that fall for determination in these appeals are whether the learned Single Judge was justified in passing the order impugned or whether His Lordship should have in addition to the order impugned, also passed direction for indicting the two police officers in the criminal proceedings on the basis of the allegations made in the writ-application.
After hearing the learned counsel for the parties and after going through the materials on record we find that the scope of the writ-application was very limited. The question involved in the writ-application was whether it had been established from the materials on record that there was genuine apprehension in the mind of the writ-petitioners that there might not be fair investigation at the instance of the CID in respect of the unnatural death of Rizwanur because of the alleged involvement of the high police officials of the Kolkata Police in the post marital dispute between Todis in one hand and the deceased and his wife on the other, justifying investigation by the CBI.
In this litigation, there is no scope of entering into any question as to whether any offence had been at all committed. There is also no scope of any investigation as to whether it was a case of suicide, abetted at any body’s instance or a case of murder or an accidental death.
It is now settled law that if a citizen, who is a de facto complainant in a criminal case alleging murder of his relation, prays before a High Court for a direction of investigation of the said alleged offence by the CBI, such prayer should not be granted on mere asking.
The Constitutional Bench of the Apex Court in a recent case of the State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal reported in 2010 STPL (Web) 129 SC= 2010(2) WBLR (SC) 1, has made the following observations pointing out the situations where the prayer for investigation by the CBI should be allowed:
“In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such powers should be exercised, but time and again it has been reiterated that such an order is not to be passed as a matter of routine order merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. vs. Sahngoo Ram Arya & Anr. (2002 5 SCC 521, this court had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to the conclusion that such material does disclose it prima facie case calling for an investigation by the CBI or any other similar agency. We respectfully concur with these observations.”
Bearing in mind the aforesaid observations, we now propose to consider whether the learned Single Judge followed the aforesaid principles in allowing the writ-application.
At this stage, we are also quite alive to the position of law that as an Appellate Court, we have all the power of the learned First Court and as indicated in the Writ-Rules framed by this High Court, in the absence of any specific provision to the contrary, the procedure provided in the Code of Civil Procedure in this regard should be applicable. Therefore, even if there is some mistake or error committed by the learned First Court in disposing of the proceedings, this Appellate Court, based on the materials on record, can, instead of remanding the matter, dispose of the proceedings on merit.
Before we proceed to enter into the merit, we propose to deal with the scope of the interim order dated October 16, 2007 passed by the learned Single Judge appointing the CBI to investigate and report to His Lordship against which none of the parties preferred any appeal. Therefore, there is no scope of setting aside the said interlocutory “appealable order” in this appeal preferred against the final order passed in the proceedings. But the learned Single Judge, while finally disposing of the proceedings, having directed the CBI to submit the report pursuant to the said interim order in the Criminal Court in the form of charge sheet and having approved some of the recommendations made by the CBI, which is prejudicial to some of the appellants, we are required to consider whether within the scope of investigation of the CBI by virtue of the interim order, the report given by the CBI can be used as charge sheet or whether the CBI was authorized to make such recommendation of punishment to the employer of the some of the respondents, when there is specific service rules for taking action in the departmental proceedings prescribed in this regard.
For the above purpose, we shall restrict our scrutiny only to the effect of the actual order dated October 16, 2007, which we have already quoted earlier, but will not enter into the question whether the passing of such order was justified at that stage, as none of the parties, although it was appealable, appealed against such order.
It appears that His Lordship, being prima facie satisfied with the case of the writ-petitioners, passed an interim order “directing the CBI to investigate into the cause of unnatural death of Rizwanur” with further direction that “the CBI shall file a report in a sealed cover before this Court within two months from the date of service of authenticated copy” of the said order. By the said order, His Lordship passed no injunction restraining the CID from proceeding with the investigation in accordance with the Code of Criminal Procedure any further nor was any direction given to the CID to handover all the papers relating to the investigations done so far by the CID to the CBI. Therefore, by the said order dated October 16, 2007 the learned Single Judge simply appointed the CBI as His Lordship’s “special officer” to investigate into cause of the unnatural death of the deceased and to give a report in a sealed cover for the purpose of ascertaining the prima facie truth of the allegations levelled by the writ-petitioners.
When a Court passes this type of an interim order and a report is consequently given, it is imperative for the Court to give the copy of the report to the party against whom the report has been submitted to enable such affected party to give objection to such report before the Court decides to take into consideration such report. In the case before us, when the report was submitted before the learned Single Judge, viz. Dipankar Datta, J. (the interim order dated October 16, 2007 was passed by S. Pal, J.), on the objection of the CBI, His Lordship after going through the recommendations made therein and noting those in the order sheet, kept the question of supply of the copy of the report open for final decision at the time of hearing. Ultimately, however, while allowing the writ-application, His Lordship held that the parties were not entitled to the copy at that stage by accepting the submissions of Mr. Roy, the then learned advocate appearing on behalf of the CBI, that after the submission of such report in the form of the charge sheet in the Criminal Court, the accused would definitely get the copies of the same.
On a plain reading of the order dated October 16, 2007 we are of the opinion that the said order merely authorized the CBI to investigate into cause of the unnatural death of the deceased and to report to His Lordship but that order neither stopped due investigation into the alleged crime by the CID in accordance with the provision of the Code of Criminal Procedure nor did it authorize the CBI to investigate into the alleged crime as the substitute of the CID. It appears that the State, in spite of its specific defence taken in the affidavit-in-opposition that such interim order did not authorize the CBI to take up investigation in place of CID, for the reason best known to it, seemed to have accepted the position, as if, that order had snatched from the hand of the CID the power of investigation in accordance with the Code of Criminal Procedure and consequently, the CID handed over the papers relating to the investigation so long done by it to the CBI and did not investigate any further.
Once the recommendations given in the report have been taken note of and at the same time, the CBI has been permitted to submit such report as charge sheet in the Criminal Court and the State has been given liberty to act according to its discretion on the basis of such recommendations as the final outcome of the writ-application, we are of the firm view that the order impugned cannot be sustained as the principles of natural justice has been grossly violated in taking note of the adverse reports and the recommendation and giving liberty to the State to consider the report for the purpose of disciplinary action in accordance with its discretion without giving opportunity to the parties affected to raise objection against such report.
Similarly, the learned Single Judge erred in law in directing the CBI to place the report before the Criminal Court while allowing the writ-application as if the investigation done by the CBI was by virtue of an order conferring jurisdiction upon it to investigate the alleged crime after denuding the CID of its power of investigation. We have already pointed out that the order appointing the CBI to investigate was for the purpose of giving report to the learned Single Judge and not to investigate for the alleged offence in accordance with law in place of CID. Thus, by virtue of an interim order appointing CBI as “special officer” for a particular purpose if any investigation was done by it, the conclusion of such investigation cannot form the charge sheet in the criminal trial. We cannot lose sight of the fact that only by virtue of the final order passed in the writ- application impugned in these appeals the authority of the CID to investigate has been taken away.
Therefore, the order impugned is liable to be set aside on the abovementioned two grounds alone. However, for that reason, the writ- application should not be dismissed and instead of remanding the matter back, we, as an Appellate Court, propose to dispose of the writ-application based on materials on record.
We have already pointed out that so far as Sri Pradip Kumar Todi is concerned, although his name was mentioned in the writ-application and the learned Single Judge also refereed to various allegations in the body of the order impugned, yet, no notice of the proceedings was served upon him nor was he formally made party and on that ground, we allowed the application for leave to appeal filed by him and invited Mr. Sen, his learned Senior Advocate to argue on merit as to whether it was a fit case for investigation by the CBI. Mr. Sen, however, contended that such defect cannot be cured in this appeal and the writ- petitioners should file fresh writ-applications making his client a party after we hold that the writ-application is not maintainable for the want of necessary party.
We are afraid we are not impressed by such too technical a submission. If a proceeding is found to be defective for want of necessary party and that necessary party himself appeals before the Appellate Court with leave to prefer appeal and the Appellate Court allows such prayer and proposes to give opportunity of hearing to the left-out party, such party cannot have any further grievance. We have taken into consideration the defence of Sri Prdip Kumar Todi as reflected in his application for leave to appeal and stay and the memorandum of appeal.
We, therefore, propose to dispose of the writ-application on merit in accordance with law as laid down in the case of the State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal for considering whether in this case an order should be passed for investigation by the CBI in place of CID.
In the process, we have taken note of the papers relating to investigations done by the CID till October 16, 2007, the copy of which has been served by Mr. Roy, the learned Advocate General, upon all the parties in this appeal. However, we have not gone through the report submitted by the CBI as, in our opinion, for the purpose of deciding the writ-application, we are not required to rely upon the report on the alleged cause of death of the deceased. Such course of action will unnecessarily extend the scope of the writ-application, which, in our opinion, should be disposed of based on prima facie satisfaction of this Court as pointed out in the case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. vs. Sahngoo Ram Arya & Anr. (2002 5 SCC 521).
On going through the affidavits filed by the parties, we find that Sri Ashok Kumar Todi and his brother are among the sponsors of the programme earlier conducted by the Kolkata Police as admitted by the respondent No.3 of the writ- application in his affidavit. The respondent No.3 has further admitted that he was introduced to Sri Pradip Kumar Todi through the added respondent viz. Snehasis Ganguly. The respondent No.3, however, denied to have assured Sri Todi to help in the matter or to introduce to any other official of the Kolkata Police.
It further appears that Rizwanur and Priyanka were called at Lal Bazar on three different occasions. It is beyond any question that the dispute after marriage had taken place within the territorial limit of the Karaya Police Station or at the most, in the Salt Lake area, the residence of the Sri Ashok Todi wherefrom Priyanka left for her matrimonial home. Therefore, apparently, the police officers stationed at Lal Bazar, in ordinary circumstance, had no occasion to intervene in the matter. Of course, it was alleged that Sri Pradip Todi lodged a complaint at Lal Bazar for abduction against Rizwanur. The State-respondents in their affidavit did not disclose whether any criminal case was registered on the basis of such complaint. It is not even the case of the State-respondents that any investigation started in connection with such case of abduction or that the deceased was summoned at Lal Bazar in connection with such case. It has been well established that Priyanka was major and that she was unwilling to go back to her father after she left her paternal house. Therefore, prima facie, the allegation of abduction was a false one, if at all, made in writing before the Lal Bazar and it was the duty of the police, in such situation, to take step against the complainant for making such false complaint when the Karaya police had already verified the marriage certificate and the age of Priyanka by that time and it was apparent that Priyanka was not willing to go back to her father.
It is further alleged that the mother of Priyanka was also present in Lal Bazar to convince Priyanka to return but she refused. Ultimately, on the third day of appearance before Lal Bazar, a written agreement was executed with undertaking to return Priyanka within a seven day on the alleged plea of illness of Ashok Todi. Curiously enough, after getting custody of Priyanka on the basis of such agreement, Ashok Todi immediately came round and took Priyanka outside Kolkata and forgot to honour the promise of returning Priyanka within seven days. The Police Authority also did not enforce the agreement although the same was entered at their intervention at Lal Bazar even after expiry of seven days and thus, any reasonable and prudent man will presume that with the assistance of Police who had no business to intervene, the matrimonial bond was separated with definite knowledge of not honouring the promise of reunion of Priyanka with Rizwanur. A true copy of the said agreement is quoted below:
“I Anil Saraogi uncle of Priyanka Todi aged about 23 years daughter of Ashok Todi of CG 335, Salt lake City, Kolkata – 91 do hereby take charge of my niece Priyanka Todi since her father has been admitted in Apollo Hospital, Bypass and his condition is precarious. I shall again produce her after 7 days at 7/B, Tiljala Lane, Kolkata – 19. During her stay in her house her sustenance, safety and security will be looked into properly.
Thanking you, I agree (illegible) for 7 days
Yours faithfully, from today at my parent’s
Sd/-Anil Saraogi place.
8/1 Alipore, Sd/- Priyanka Todi 8/9/07
Kolkata -27. Received copy and I have no
8/9/07. objection.
Sd/- Rizwanur Rahman
Illegible”
Ultimately, Priyanka, after being taken into custody by her paternal side pursuant to such agreement, stopped speaking to Rizwanur even by mobile phone after 9th September, 2007 and she was not permitted to talk to him when tried to be contacted through other family members of Ashok Todi. On the thirteenth day of their separation through the intervention of police, Rizwanur was found dead by the side of railway track near Ultadanga Railway Station.
It appears from records, that after the dead body of Rizwanur was found out, there were huge protests from various quarters, particularly alleging involvement of police in breaking the matrimonial tie of an adult couple, as a result, the respondent No.3, the then Police Commissioner of Kolkata had to give a public statement for controlling the tension which had arisen. It further appears that the statement of the respondent No.3, in a press conference added fuel to the fire. The statements of the respondent No.3 as it appears from the extracts taken from the Kolkata TV handed over by the said TV Channel to the learned Single Judge in the original writ proceeding are quoted below:
” ****** In this case it has been learnt that on 18 August these people had gone and registered their marriage. Which happens in several cases. On 31 August they left their home. And the girl left her home. However, the members of the Girls family didn’t find any clue about the girl and thought that the girl went missing. In the night the girl wrang (sic rang) up at her home and said that she has come to such and such place, I won’t come back home. From now she will stay with Rizwanur Rahman whom she had married. After hearing the tale from their daughter the family members couldn’t believe her. Later on they contacted with the boy and rushed to their home at Tiljala.
******* In the next morning the girls relative came to Lalbazaar and lodged a complaint of missing. But verbally they requested police not to make the matter public as it will hamper the reputation of the family and the girl. For that the police did not do anything formally. But both of them were called to Lalbazaar and were asked that is the girl a major. In such cases the majority of the girl is seen. Once a girl is a major, it is totally upto her choice what she will do. It is very clear. Usually what we do is when a girl is called missing by her relatives usually they think the girl has been abducted against her will, being influenced it seems to be true. Because the family which has nurtured the girl for 18 or 25 to 26 years fails to think that in a night time the girl would become a member of another family. So they wanted to make us convinced. In this case our duty is to find out the whereabouts of the persons linked. Though in this case the boy and the girl were located as they had an address in Kolkata. And we always try to do this, once we trace the girl or the boy particularly if a girl is missing our responsibility is found (sic to find) them out. Even a major girl can be abducted, against her will, or blackmailing, everything can happen variedly. In that case we call both the parties and try to understand in what background she had left. Once it is understood then it is made clear to the family that your girl has not been harmed. Your girl is safe. She has not been taken against her will or anything and if she is a major then it is up to her what she would do. We cannot interfere in the matter. That is what happened in this case.
Number one is in the first day the boy and the girl had same point of view. So they were released according to their will. According to us as she was a major her choice was respected. She was allowed to go back. She went back.
******* On 4th September, the family members of the girl asked us to give them a scope to talk to the girl and the boy. Accordingly we called both of them and they came to us voluntarily.
******* However, on 8th the girl’s family members said that they want to lodge a formal complaint of abduction. They said that the girl can’t stay like this. She has been influenced. And they lodged a complaint that that their daughter had been kept forcefully without her intention. In this background of which they were again called.
******* It is very unfortunate that he had decided to commit suicide. Suicide in the sense that he had sent SMS to his friends which we come to know through several newspapers.
******* However, in the morning at around 10.30 am it is impossible that one person is being killed and put to the tracks.
*******”.
From the facts narrated above, it is prima facie established that the Todi family had connection with high police officials of the Kolkata Police either because they were the sponsors of different programme organized by the Kolkata Police or for their connection with Sri Snehasis Ganguly, the added respondent, who had acquaintance with the then Police Commissioner, as admitted by the said respondent No.3, in his affidavit made in his personal capacity. In such circumstances, in the absence of any material placed by the State-respondents showing that the deceased boy was called at Lal Bazar repeatedly pursuant to the complaint of abduction, it was prima facie apparent, that he was not called pursuant to any investigation for the alleged complaint by Pradip Todi but only for the purpose of helping Ashok Todi in getting back his daughter by any means even against the wish of Priyanka. The written agreement was the outcome of such pressure given by the Police Authority upon the couple.
That the aforesaid acts of the Kolkata Police in helping Ashok Todi followed by the unnatural death of the deceased embarrassed the State Government will appear from the fact that the State Government was compelled to declare a judicial enquiry on the incident of death of the deceased by a retired Judge of this High Court. Subsequently, however, after the passing of the interim order passed by the learned Single Judge directing investigation by CBI and report to His Lordship, the State Government recalled that order of setting up of commission of judicial enquiry in view of the interim order.
We, thus, find that the State Government also felt that it was an exceptional situation where it became necessary to provide credibility and instil confidence in the state-actions and that the incident might have national ramifications and consequently, the Government decided to set up an enquiry commission by a retired High Court Judge.
We have already pointed out that the scope of the interim order passed by the learned Single Judge was unduly widened at the instance of the State at one point of time, as if, by the interim order the power of investigation by the CID was taken away and the CID stopped making investigation any further, although, subsequently, in the affidavit-in-opposition and at the time of hearing of the writ- application, the State-respondents took the right stance as regards the interpretation of the interim order.
Before this Appellate Court, the learned Advocate General, appearing for the State-respondents, however, vigorously contended that even if some of the police officers of the Kolkata Police were found to be not impartial, for that reason, this Court should not pass a direction for investigation by the CBI by setting aside the order of investigation by the CID passed by the State Government unless it is shown that the State was in anyway found to be favouring the Todi family or protecting any errant police official. The learned Advocate General, by referring to the papers relating to the investigations done by the CID till the passing of the interim order, tried to impress upon us that the CID examined all the persons against whom allegations were made and in no way, tried to protect any of the indicted persons. Therefore, according to the learned Advocate General, in this case, there was no justification of passing direction of investigation by the CBI instead of CID, which has no connection with the Kolkata Police in anyway.
We now propose to deal with the question whether the State was in this case impartial in all respect justifying the prayer of dismissing the writ- application.
From the materials on record, we find that the action of the State in dealing with the case was indecisive and rather vacillating from time to time. Immediately after the incident, at first, the State Government on September 24, 2007 decided to pass order of investigation by the CID instead of GRPS, Dum Dum, who had already commenced investigation on September 21, 2007 as the dead body was found by the side of the Railway tracks within its jurisdiction. Subsequently, after the writ-application was filed, the State Government notwithstanding the fact that investigation had already started at the instance of the CID, decided to set up a Judicial Enquiry by a retired Judge of this Court after considering the gravity of the situation. At this stage, we should bear in mind that an enquiry under the Commission of Inquiry Act is ordered only in respect of a “definite matter of public importance’ as indicated in Section 3 of the Commission of Inquiry Act and thus, the State Government itself considered the matter to be a matter of public importance. Thereafter, when the learned Single Judge of this court on October 16, 2007 passed an order directing the CBI to investigate the cause of death of the deceased and report to His Lordship within a specified period, the State Government decided to recall the order of Judicial Enquiry earlier notified on the ground that in view of the interim order passed in this writ-application, there was no necessity of continuing with the said judicial inquiry. The State Government even did not prefer any appeal against the order passed by the learned Single Judge in tune with its stance of recalling the order of Judicial Enquiry. Subsequently, however, in the affidavit-in-opposition filed by the State, the following defence was taken:
“It is submitted that the First Investigation of a Reported Case of Unnatural Death and the First Information Reports as contemplated under Section 154 of the Code of Criminal Procedure is quite distinct and separate. Since the C.I.D. could not complete its investigation under Section 174 of the Code of Criminal Procedure, further action as required under Section 154 of the Code of Criminal Procedure could not be contemplated and taken. In this respect I crave leave to make appropriate submissions at the hearing.
i) It is respectfully submitted that this Hon’ble Court had passed a limited order on CBI to investigate into the cause of death of Rizwanur Rahaman. CBI had acquired jurisdiction to enquire into the cause of death only from the order of this Hon’ble Court passed on 16.10.2007.
ii) This Hon’ble Court did not enable the CBI, on the authority of the order of this Hon’ble Court, to lodge any information under Section 154 of the Code of Criminal Procedure and certainly the Hon’ble Court did not give CBI liberty to record suo motu a case of murder for which apparently there was no factual basis at that stage.
iii) Since CBI had of its own recorded First Information of a cognizable offence, namely, murder, the code of Criminal Procedure required CBI to follow the provisions of the Code independently of the order of the Hon’ble High Court. This power of CBI did not emanate from the order of this Hon’ble Court.
iv) It may be pointed out that CBI has no power to investigate a specific offence as it has done by lodging a suo motu FIR of murder allegedly committed within the State of West Bengal without the consent specifically granted by the State.
Hence CBI has no power to investigate the specific offence. All that it could do is to comply with the order of this Hon’ble Court and ascertain the limited issue of the cause of death of Rizwanur Rahaman.”
We fail to appreciate why the CID stopped further investigation on and from October 16, 2007 and handed over all the original papers relating to the investigation so long done by it to the CBI after only retaining a copy thereof notwithstanding its specific defence that the learned Single Judge did not authorize the CBI to investigate the matters which the CID had lawfully undertaken and was in progress. In the affidavit-in-opposition no reason has been assigned as to what prevented the CID from investigating further when no injunction order was passed restraining it from proceeding with its investigation nor was any direction given upon it to handover all original necessary papers relating to investigation so far done.
We further find from the materials on record that two sets of learned Advocates appeared on behalf of the police officers who were also made parties in their personal capacity. In their official capacity, however, the learned government advocate appeared on their behalf being led by the learned Advocate General. We are, however, surprised to find that the State-Respondents including those police officers in their official capacity by filing an application being CAN 97 of 2008 prayed for extension of time for filing affidavit-in-opposition to the writ- application on the ground that unless they got the copy of the report submitted by the CBI, it was not possible for them to give full-fledged affidavit-in-opposition. We can appreciate the anxiety of the police officers who had been indicted by the CBI in its report regarding the contents of the same against them but there is no justification on the part of the State-respondents in their official capacity, not to give affidavit-in-opposition to the allegations contained in the writ-application which had no relation to the report submitted by the CBI relating to the cause of death of the deceased.
Since the State was represented by the Home Secretary, it was his duty to disclose in the affidavit-in-opposition whether any criminal case was registered against the deceased in the Lal Bazar on the allegation of abduction or whether he was repeatedly called at Lal Bazar in pursuance of the investigation relating to any such criminal case. For giving such information, the Home Secretary was not required to wait for the copy of the report of the CBI. We do not find any reason why the State should avoid filing of full-fledged affidavit-in-opposition for not getting the copy of the report of the CBI. The report of the CBI related to the allegations against some of the police officers relating to the cause of death of the deceased and in affidavit-in-opposition, the State was required to deny, if any, not the contents of such report but the allegations contained in the writ- application and the supplementary affidavit which formed part of the writ- application. The State should fairly place before the Court the facts available from the official records available.
In paragraph 4(c) of the CAN 97 of 2008 filed on January 8, 2008 the State-respondents have asserted that as neither the report of CBI nor the report of CID was available, the State was not in a position to give detailed affidavit. We have already pointed out that there was no justification of suspending the investigation at the instance of the CID after the order dated October 16, 2007 nor was there any reason why the contents of the papers relating to the investigation were not available to the Home Secretary till January 2008. We have pointed out that the contents of the investigation done by CID till October 16, 2007 were made available to us but were not disclosed before the learned Single Judge. It appeared that the State-respondents were sailing in the same boat with the indicted police officers in their personal capacity before the learned Single Judge in defending the writ-application.
From the aforesaid reluctant conduct of the State to proceed with the investigation of the case in spite of existence of no impediment in its way, and in defending the writ-application, as indicated above, we are convinced that it is a fit case where the investigation should be done by the CBI as the circumstances involved squarely fall within the conditions mentioned by the Apex Court in the case of the State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal (supra). Moreover, we have already pointed out that the State itself considering the gravity of the allegations directed Judicial Enquiry, which has since been recalled in view of the interim order of the learned Single Judge. In our opinion, in the facts of this case, “it becomes necessary to provide credibility and instil confidence in investigation”, “the incident has national ramifications” and such an order is “necessary for doing complete justice and enforcing the fundamental rights”. We have already pointed out that the State Government itself was satisfied with the gravity of the allegation and ordered Judicial Inquiry which is ordered only in case of a “definite matter of public importance” and no reason is assigned on behalf of the State-respondent why it now proposes to oppose the prayer of investigation by the CBI when by this time, the Constitution Bench of the Apex Court has already held in the case of State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal (supra) that the consent of the State Government is not necessary for ordering investigation by CBI.
Before this Court, although, the learned Advocate General appearing on behalf of the State-respondents, tried to convince us that the CID continued with the investigation with alacrity and nobody was spared, we are not convinced by such submission. It appeared from the papers relating to investigation, that although the investigation commenced for inquest in terms of Section 174 of the Code immediately after the discovery of the dead body of the deceased on September 21, 2007 no final report was given under till October 16, 2007. On that day, for the reason best known to the CID, it stopped further investigation and handed over all original papers relating to the investigation to the CBI notwithstanding the fact that by the interim order no direction was given to the CID to stop the process of investigation. No explanation is available from the materials on record to justify such conduct of the CID.
It appears that even after expiry of 23 days of investigation, the CID was unable to submit the inquest report. The learned Advocate General appearing for the State, however, tried to convince us that as in the report of the postmortem, the doctor withheld his final opinion so long he did not get the viscera report and such report was available only on October 16, 2007, the final report could not be given. We are not convinced by such explanation. On a plain reading of Section 174 of the Code, it is apparent that the scope of inquest report is limited to ascertaining whether the deceased died under suspected circumstances and what was the apparent cause of death. However, the other factors as to who assaulted him or how he was assaulted are all beyond the province of the said section. In this case after examining 119 witnesses on different aspects, the officer concerned was unable to submit his report. The aforesaid conduct reflects reluctance on the part of the CID to conclude the investigation and it was eager to avoid further investigation by any means and for that reason, for no just cause, it stopped further investigation by handing over all papers to the CBI although there was no injunction against the CID in proceeding with the investigation and in submitting the inquest report.
The learned counsel for the parties made elaborate arguments before us on the question whether the CID committed gross irregularity in proceedings with investigation without recording an FIR on the basis of the complaint of the writ- petitioner No. 2 on the death of his brother made before the Officer-in-Charge of the Karaya Police Station.
It is by this time well settled by the Apex Court of this country that Section 154 of the Code does not require that the information as to commission of a cognizable offence must necessarily be given by a person having personal knowledge of the incident and the informant need not be an eyewitness to the incident and such information may be based on hearsay (see: Hallu and others vs. State of M.P. reported in AIR 1974 SC 1936). As pointed out in the case of Kari Chaudhury vs. Sita Devi reported in (2002) 1 SCC 714, very often, the names of the culprits are not even mentioned in the FIR and they surface only at the stage of the investigation. The following observations in that case will show that in a particular case, even there may be investigation on a second FIR, after the first FIR has been proved to be false on investigation:
“Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it.”
In the case before us, on September 21, 2007 the writ-petitioner No.2 lodged a written complaint before the Karaya Police Station giving information of the death of the victim with further allegation that Ashok Kumar Todi in the past gave the deceased threats with dire consequences and he suspected the hands of Ashok Todi in the death of the victim. The question is whether such complaint amounts to information of commission of a cognizable offence. In order to appreciate the question we quote below the exact contents of the complaint lodged:
” Re: unnatural death of Rizwanur Rahman of 7B, Tiljala Lane, Kolkata-17. My younger brother Rizwanur Rahman has an unnatural death and his body was found near Dum Dum Station by G.R.P.
My said brother was married with Priyanka Todi, daughter of Ashok Todi of CG-235, Salt Lake City, Kolkata-91.
That several times said Ashoke Todi threatened my brother with dire consequence.
That we suspect the hands of said Ashoke Kr. Todi behind the death of my brother.”
On a plain reading of the complaint, we find that the said complaint brought to the notice of the Officer-in-Charge of the police station in writing the fact that the dead body of the brother of the informant was found near Dum Dum station and although he was not eyewitness, yet, he suspected the hands of Ashok Todi in such death based on the past conduct of Ashok Todi in threatening the victim with dire consequences.
At this stage, we find it apposite to refer to the following observations of the Supreme Court in the case of Parkash Singh Badal vs. State of Punjab reported in AIR 2007 SC 1274 while interpreting Section 154 of the Code:
“At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154 (1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof. In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
72. It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “reasonable complaint” and “credible information” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word “information” without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that ‘every complaint or information’ preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act X of 1872) which thereafter read that ‘every complaint’ preferred to an officer in charge of a police station shall be reduced in writing. The word ‘complaint’ which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word ‘information’ was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the Code. An overall reading of all the Codes makes it clear that the condition which is sine-qua-non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence.
73. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.”
It is, therefore, clear that a police officer in charge of a police station is bound to register a case if a person even based on his hearsay information, makes out a case of commission of a cognizable offence in a situation where he is yet unable to give the name of the culprit. In the case before us, the writ- petitioner No.2 based on his personal knowledge of past conduct of Ashok Kumar Todi towards the deceased alleged the hands of Ashok in the death of his brother although such information ultimately on investigation may be found to be untrue, yet, there was no justification in refusing to register a case on that basis. It is not necessary to use the word “murder’ in the complaint, but the allegation of “the hands of Ashok behind the death” based on his past threatening of dire consequences towards the deceased is nothing but the allegation of murder and cannot be termed as one disclosing “no cognizable offence”. The word “suspect” according to the Oxford Advanced Learner’s Dictionary of Current English by A.S. Hornby (fourth edition) means, inter alia, “have an idea of the existence, presence or truth of something; believe”. Similarly, to “suspect somebody of something or doing something” has been defined therein as “feel that somebody is guilty of something without certain proof”. We have already pointed out that to constitute an FIR it is not necessary that the information given must be supported by evidence. A case is liable to be registered even where the informant is unable to give the name of the culprit or the name so given is based on hearsay; we find no reason why in this case the information of death with “the hands of a person behind the death” should not be treated as that of a murder when such information is based on personal belief of the informant on the basis of the previous conduct of the alleged culprit towards the victim. For instance, if a person makes a complaint before the police station alleging that the dead body of his father has been found lying in a field nearby, and due to the previous threats given by X, an influential person of the locality, to his father with dire consequences if his father did not sell a particular land to him, he suspected the “hands of X in the death of his father”, the police, in our opinion, is bound to register a murder case by treating the said complaint as FIR. It is preposterous to suggest that from the above complaint, commission of cognizable offence has not been made out because the allegation was based on suspicion and the phrase “hands behind the death” did not disclose any offence prescribed by the Indian Penal Code.
According to Concise Oxford Dictionary, First Edition, the word “hand” means, inter alia, “share in action” with the illustration “have a hand in”.
According to Oxford Advanced Learner’s Dictionary of Current English, edited by A.S. Hornby, Fourth Edition 1989, the phrase “have/take a hand in something” means “participate in something; be partly responsible for something” and the following illustration is given in that context:
“I bet he had a hand in it.”
According to Chambers 21st Century Dictionary, 2006 Reprint of First Public Edition, “hand”, inter alia, means “a part or influence in an activity”.
In the Webster’s Encyclopedic Unabridged Dictionary of the English Language, 1989 Edition, the phrase “have a hand in” means “to have a share in; participate in” with the following illustration:
“It is impossible that she could have had a hand in this notorious crime”. Thus, the phrase “hand behind the death” used in the written complaint before police was sufficient to convey the information of murder of the victim by the participation or share or influence in the action leading to his death based on belief of the informant due to the earlier conduct of Ashok Kumar Todi threatening the victim with dire consequences.
Therefore, in this case, the CID erroneously asserted that the complaint before the Karaya Police Station did not disclose any cognizable offence and consequently, proceeded with the preliminary investigation for the 23 days by registering the same as a case of unnatural death. Such conduct of the CID is also one among others indicated above to conclude that there was genuine apprehension in the mind of the writ-petitioners that proper investigation will not be done by the CID to protect some influential persons.
We, therefore, conclude that it is a fit case of investigation by the CBI. We are also not impressed by the submission of Mr. Mitra, the learned Senior Advocate appearing for one of the appellants, that the writ-application should fail, as the same did not contain sufficient averments or the appropriate relief. We have quoted the prayers made in the writ-application and the averments made therein, in substance, which, in our opinion, coupled with the supplementary affidavit in support of the writ-application gives sufficient materials to order investigation by CBI as a final relief if we consider the defence of the respondents.
In view of our findings that the interim order dated October 16, 2007 did not authorize the CBI to investigate in terms of the Chapter XII of the Code in place of the CID, we decide to altogether ignore the investigation and the consequent report submitted by the CBI and quash the direction of the learned Single Judge giving liberty to the CBI to submit such report in the form of charge sheet in the Criminal Court. We have already pointed out that the CBI was really appointed as a “special officer” for investigation into the alleged cause of unnatural death and to give a report to the learned Single Judge as an interim measure and as such, the said investigation conducted by the CBI cannot be treated to be an investigation within the meaning of the Code of Criminal Procedure. If the initial order of this Court did not vest the CBI to investigate in accordance with chapter XII of the Code of Criminal Procedure, the Court is unable to accept the investigation done by the CBI as the one done in accordance with law and the consequent report as a charge sheet in the criminal trial. Similarly, there was no scope of any alleged recommendation to take disciplinary measures against the Police Officers by virtue of the interim order and accordingly, the direction given by the learned Single Judge giving liberty to the State to apply its discretion is quashed.
Departmental proceedings against the Government Servant can be taken only in accordance with the Rules framed under the Constitution in this regard and within the narrow compass of this writ-application where the question is whether the investigation as to the alleged crime should be done by the CBI or the regular agency provided in the Code, there was no scope of passing such direction.
We find substance in the contention of the respondents of the writ- application that in this type of a petition where the grievance of the writ- petitioners is that the alleged crime should be investigated by the CBI instead of the local police, there was no justification of framing a specific issue as to whether the acts of the respondents amounted to violation of Article 21 of the Constitution of India and to answer the said issue from the materials on record. We have already pointed out that in this type of a case, where the prayer is for transfer of investigation of an alleged offence to the CBI, the Writ-Court should arrive at only a prima facie conclusion as to the existence of the circumstances justifying grant of such prayer. However, if the alleged violation of Article 21 also amounts to an offence according to the penal laws of the country, a Writ-Court cannot conclusively decide such question by ignoring the provision of the Code of Criminal Procedure for trial of such offence. The Code gives special protection of the accused in such trial and the procedure of such trial is different from the one provided for the disposal of a writ-application.
For instance, if a police officer, by application of third-degree method, kills an accused person while such person is in police custody or outrages her modesty, such act on the part of the police officer definitely amounts to violation of the right of a citizen under Article 21 of the Constitution of India. Nevertheless, a citizen aggrieved by such act is not entitled to file an application under Article 226 of the Constitution thereby asking the High Court to decide whether there was any such violation at the instance of the police officer and pray for direction upon the State for taking disciplinary action against him or inflicting punishment in accordance with the penal law of the land, based on such finding. The position, however, will be different when a police officer will be found to be guilty in a concluded criminal trial in such circumstances and in such a situation, an aggrieved citizen has a right to pray for other consequential relief against the guilty police officer or the State for the proved violation of Article 21.
Lastly, we do not find any merit in the contention that the writ- application should be dismissed for existence of other alternative remedy available to the writ-petitioners. The writ-petitioners having principally prayed for investigation by CBI instead of CID, it is only the High Court or the Supreme Court which can grant such relief and thus, there is no other efficacious alternative remedy of the writ-petitioners.
We also do not find any merit in the appeal filed by the writ-petitioners for passing direction at this stage for initiating a criminal case against all the police officers pursuant to the decision of the Supreme Court in the case of Lata Singh (supra).
In the case of Lata Singh (supra), a writ-application under Article 32 of the Constitution of India was filed by a lady who prayed for quashing of various criminal cases initiated by her brothers against her husband and his relations as her brothers were unable to accept the inter caste marriage between their sister and her husband and had started various false litigations against Lata’s husband and in-laws for the purpose of harassing them. In that context, the Apex Court at paragraph 17 made the following observations, which were strongly relied upon by Mr. Bandyopadhyay:
“The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter- caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter- religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter- religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.”
If on investigations, the respondents in the writ-application or any other persons are found to have committed any of the acts mentioned above, trial of the offence will take place in accordance with law. In the case of Lata Singh (supra), the Apex Court has merely elucidated the existing penal provisions and a person can be tried only in accordance with law if such person does any act, which is punishable under the law. The said decision, however, does authorize the police to initiate any criminal case against a person so long any such allegation is not made against such person in accordance with law. At this stage, there is no scope of passing any specific direction at our instance before due investigation on the allegations made by the writ-petitioners, has commenced.
We, therefore, set aside the order impugned in these appeals and on the basis of our own finding recorded above hold that it is a fit case of investigation by the CBI and direct the CBI to start investigation afresh in accordance with law pursuant to our direction contained herein by treating the complaint of the writ- petitioner No.2 dated 21st September, 2007 as F.I.R. and registering a case of murder. Investigation be completed preferably within four months from today.
We make it clear that we have otherwise not gone into the question as to whether any offence has at all been committed and our observations contained in this order are made only for the purpose of our finding as to whether prima facie case has been made for direction of the investigation by the CBI in view of the special facts of this case.
All the appeals are, thus, disposed of by allowing the writ-application to the extent indicated above.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.)
I agree.
(Prasenjit Mandal, J.)
(Later)
After this order is passed, Mr. Kar, the learned Advocate appearing on behalf of Sri Ashok Kumar Todi, Sri Pradip Kumar Todi and Sri Anil Sarogi, prays for stay of operation of our order. Mr. Srimani, the learned Advocate appearing on behalf of the State and the learned Advocates appearing on behalf of the other respondents of the writ-application also pray for similar stay of operation of our order.
In view of what have been stated above, we find no reason to stay our order by which we have merely directed investigation by the CBI instead of CID in accordance with Chapter XII of the Code of Criminal Procedure and accordingly, the prayer for stay of operation of our order is, thus, refused.
Photostat certified copies of this judgment, if applied for, be given to all the parties in the appeals by tomorrow.
(Bhaskar Bhattacharya, J.)
(Prasenjit Mandal, J.)