Calcutta High Court (Appellete Side)
Gopal Kumar Agarwal vs The Director General Of Police (West ... on 7 February, 2019
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Debangsu Basak.
W.P. 1208 (W) of 2019
Gopal Kumar Agarwal.
Versus
The Director General of Police (West Bengal) & Ors.
For Petitioner :- Mr. Partha Sarathi Sengupta, Sr. Adv.
Mr. Somopriyo Chowdhury
Mr. Samik Chakraborty
Mr. Dibanath Dey
For Respondent No.4 :- Mr. Anindya Kr. Mitra, Sr. Adv.
Mr. Ayan Bhattacharya Mr. Avik Ghatak Mr. Ayan De For the State :- Mr. Sirsanya Bandopadhyay, Jr. Standing Counsel.
Heard On :- February 7, 2019. Judgment on :- February 7, 2019.
The petitioner seeks re-investigation of Ranigunge Police Station Case No.372/2017 by Central Bureau of Investigation (CBI).
Learned senior advocate appearing for the petitioner submits that, an unnatural death case in relation to the death of the sister of the petitioner was recorded by the Police on October 6, 2017. He draws the attention of the Court to the post mortem report dated October 6, 2017 and submits that, the 2 post mortem report states that, there are burn injuries and gunshot injury. The post mortem report is of the view that, the burn injuries were prior to the gun short injury. He draws the attention of the Court to the charge-sheet filed. He submits that, the charge-sheet returns a finding that, the victim died of the gunshot injury and that the burn injuries were subsequent to the gunshot injury. There are other discrepancies between the post mortem report and the charge-sheet. Moreover, he submits that, the charge-sheet records that, further investigation is required. He draws the attention of the Court to the fact that, there are certain close circuit television (C.C.T.V.) records available with the Police authorities which, the investigating authority did not look into before submitting the charge-sheet. The investigating agency ought to have taken the C.C.T.V. footage into consideration prior to arriving at a finding that, the private respondent should be charged for abetment to commit suicide. The inference that, the deceased committed suicide as made in the charge-sheet, is without any basis. He submits that, the charge-sheet gives rise to more questions than it seeks to answer. He relies upon the pleadings in paragraph 22 of the writ petition. He submits that, various discrepancies between the post mortem report, the charge-sheet and the investigation are tabulated therein. The investigation was not carried out properly to instill any sense of confidence in the petitioner. The petitioner is unlikely to receive justice with the present investigating agency continuing with the further investigation. He draws the attention of the Court to the order passed by the Single Judge in the first writ petition and the order of the Division Bench granting bail to the private 3 respondent. He submits that, the initial order of the learned single Judge directing the investigation to be done by the CBI was reversed on appeal. He submits that, such a reversal by the appeal Court does not mean that, at any stage of the investigation subsequent thereto, the petitioner is not entitled to have the writ Court decide as to whether there should be change in the investigating agency or not. He submits that, the constitutional Court can direct change of investigating agency. Such power is not vested with the Magistrate. In support of such contention he relies upon 2016 Volume-IV Supreme Court Cases Page-160 (Dharam Pal Versus State of Haryana & Ors.). He seeks a change of the investigating authority.
Learned senior advocate appearing for the private respondent submits that, the charge-sheet itself states that, further investigation is required. The investigating agency is looking into such aspect of the matter. There is no ground as to why the investigating agency should be changed. The petitioner is trying to harass and prolong the agony of the private respondent. The private respondent was in custody for three months before the bail was granted. Although, the charge-sheet is of the view that, a charge of abetment to commit suicide can be levelled against the private respondent, in the facts of the present case, the private respondent is confident that, such a charge is unfounded. He relies upon 2011 Volume-XIII Supreme Court Cases Page 537 (Disha Versus State of Gujarat & Ors.) and submits that, it lays down the conditions which must be satisfied for a Court to transfer the investigation to the C.B.I or any other special agency. In the facts of the present case, he submits 4 that, none of the conditions stands satisfied. The allegation that, the private respondent is an influential person did not find favour with the Division Bench granting bail to the private respondent. The private respondent is not a high government official. There is no material on record to suggest that, the investigation did not proceed in a proper direction or it is biased. Therefore, the Court should not exercise its jurisdiction in substituting the investigating agency or in granting the prayer of the investigation through the C.B.I. as made by the petitioner.
Learned junior standing counsel appearing for the State submits that, the investigation is progressing in accordance with law. The allegation on the basis of which, the petitioner is seeking substitution of the investigating agency with C.B.I. were made in the first writ petition. There is no material before the Court to arrive at a finding different contrary to that arrived at by the Court in the earlier round of litigation. The Division Bench did not permit the C.B.I. to undertake the investigation. Therefore, the Court should not pass an order as prayed by the petitioner. In support of his contentions, he relies upon 2008 Volume-III Supreme Court Cases Page-542 (Divine Retreat Centre Versus State of Kerala & Ors.), 2010 Volume-III Supreme Court Cases Page- 571 (State of West Bengal & Ors. Versus Committee for Protection of Democratic Rights, West Bengal & Ors.), 2014 Volume-X Supreme Court Cases Page-406 (K. Saravanan Karuppasamy & Anr. Versus State of Tamil Nadu & Ors.) and 2007 Volume-I Supreme Court Cases Page-110 (M.C. Mehta (Taj Corridor Scam) Versus Union of India & Ors.). Relying upon 5 2014 Volume-IV Calcutta High Notes Page-618 (Tapas Paul Versus Biplab Kumar Chowdhury) learned junior standing counsel for the State submits that, the learned Magistrate is competent to look into the allegations made by the petitioner herein. The petitioner has alternative remedy. According to him, the Magistrate can direct investigation by CBI if he thinks it appropriate. In support of such contention, he relies upon 1990 Volume-I Calcutta Law Times Page- 319 (Dr. Ajoy Kumar Basu Versus Union of India & Ors.). He relies upon All India Reporter 1968 Supreme Court Page 117 (Abhinandan Jha & Ors. Versus Dinesh Mishra) and All India Reporter 1985 Supreme Court Page 1285 (Bhagwant Singh Versus Commissioner of Police & Anr.) and submits that, there is no obligation on the Magistrate to accept the charge sheet. The Magistrate in a given case, can direct re-investigation.
As noted above, the petitioner seeks re-investigation with regard to the Ranigunge Police Station Case No.372/17 by CBI. The petitioner is the brother of the deceased. The deceased died on October 6, 2017. A post mortem report dated October 6, 2017 was prepared. The post mortem report notes two injuries on the deceased. One set of injuries is due to the burn that the deceased suffered. The other is a gunshot injury. The post mortem report is of the view that, the burn injuries were prior in point of time then the gunshot injury. The death was due to the gunshot injury. The writ petitioner approached the writ Court seeking an independent agency to take over the investigation. At that point of time the investigation was with the Criminal Investigation Department (CID) of the State Police. Such writ petition being W.P. 6 No. 1241 of 2018 was entertained. The learned single Judge by an order dated August 21, 2018 allowed such writ petition and directed the CBI to undertake the investigation.
An appeal was carried by the State against such order dated August 21, 2018. Such appeal being MAT 964 of 2018 with CAN 6586 of 2018 (Additional Director General of Police -Versus Gopal Kumar Agarwal & Ors.) was disposed of by a judgment and order dated August 27, 2018. The relevant portion of such judgment and order is as follows :-
"Upon perusal of the order impugned, we are of the view that sufficient reasons have not been recorded as to why it is necessary to direct transfer of the investigation from CID to CBI. In our opinion, such an order should not be passed unless there is compelling reason and it is evident that investigation is not being conducted in a proper manner. There is nothing on record for us to arrive at such a conclusion."
The Division Bench directed the CID who was in seisin of the investigation to complete the investigation preferably within two months from date of the order and definitely within three months of the date of the order. The investigating agency being the CID, West Bengal, submitted its report under Section 173 of the Criminal Procedure Code (Charge sheet) on November 19, 2018. The charge sheet states that, further investigation is required and that, 7 the private respondent can be charged for abatement to commit suicide. The death was a suicide. Subsequent to such charge sheet being filed, the Division Bench of this Hon'ble Court considered an application for bail made by the private respondent being CRM 1154 of 2018. While considering such bail, the Division Bench expresses the view that, there are loose ends in the investigation. Those loose ends are required to be explored in course of further investigation. It is of the view that, the investigation which progressed till the date of the order dated December 17, 2018, does not give a clear profile of homicidal death and there is a possibility of homicidal trial. In such circumstances, bail was granted. The relevant portion of the judgment and order dated December 17, 2018 passed in CRM 1154 of 2018 is as follows :-
"We have given our anxious consideration to the rival submissions of the parties. No doubt the victim suffered an unnatural and brutal end. The opinion of the P.M. doctor shows that she had suffered death due to a gun shot injury. While P.M. doctor claimed that burn injuries on her hands preceded the gun shot injury, the opinion of senior scientific officer, State Forensic Science Laboratory at page 619 probabilises suicidal death as the victim suffered burn injuries when she fired at herself owing to accumulation of liquid petroleum gas into the room as she may have opened the knob of the gas cylinder for committing suicide. We also note entries of her diary which was seized 8 in the course of investigation which speaks of an impulsive and restless mind. It is, however, relevant to note that there is no clear expression of any intention to self exterminating in the said entries. Furthermore, opinion of the Professor and Head of the department of Forensic and State Medicine with regard to cause of gun shot injury is inconclusive whether the same is suicidal or homicidal. He, however, stated that the firing was at close range. He further opined examination of the place of occurrence indicates that burn injury was caused by kerosene oil and used match stick and not from LPG gas. Furthermore, no nitrate oxide was found on the fingernails of the victim. Hence, the opinions of the medico-legal experts and the forensic experts with regard to the cause of death of the victim are at variance to one another. The materials collected by the investigating agency does not indicate with conclusive certainty whether it is a case of suicidal death or an homicidal one. Hence, further investigation in the instant case is a foregone conclusion obviating any possibility of commencement of trial in the near future. It is also relevant to note that investigation conducted till date has not disclosed the presence of the petitioner at the place of occurrence. Nothing has been unraveled till date to show that the petitioner had conspired 9 with any other person who had entered the house to commit the crime. These loose ends require to be explored in the course of further investigation. Hence, in the light of the fact that investigation which has progressed till date does not give a clear profile of homicidal death and as further investigation is in progress and there is little possibility of commencement of trial, we are of the opinion that keeping in mind the aforesaid factual backdrop further detention of the petitioner may not serve any purpose."
It is in this background the writ petition was filed on January 16, 2019 where the petitioner is claiming that, the investigation should be done by the CBI.
The charge-sheet filed by the CID is of the view that, further investigation is required. The charge-sheet is dated November 19, 2018. The Division Bench granting bail on December 18, 2018 notices that, further investigations are required and that, there are loose ends in the investigation. The Division Bench notes some of the instances of the loose ends in the investigation.
The question is whether, in the facts of the present case, there is a necessity to direct the substitution of the investigating agency and direct re- investigation or not. As noted above, the requirement for further investigation is acknowledged by the CID also. There is nothing on record to demonstrate the 10 progress subsequent to the charge sheet dated November 19, 2018 and the order of the Division Bench dated December 17, 2018.
Dharam Pal (Supra) is of the view that, a Magistrate can direct further investigation. However, Constitutional Courts are vested with the power of transferring investigation from one agency to another provided the ends of justice so demand and such a ground exist. Such a power is to be exercised sparingly. It is of the following view:-
"24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor.
25. We may further elucidate. The power to order fresh, de novo or reinvestigation being vested with 11 the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic set-up has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that sun rises and sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one."
Disha (supra) is of the view that four conditions should be satisfied before the Court decides to transfer the investigation to the CBI or to any other special agency. The four conditions are that, the Court must be satisfied that the accused is a very powerful and influential person or is a State Authority like 12 any high Police Officer or the investigation did not proceed in a proper direction or is biased.
Divine Retreat Centre (supra) considers the scope, extent and ambit of the inherent power conferred on the High Court under Section 482 of the Cr.P.C, 1973. It is in this context, it considers the exercise of powers of the High Court under Article 226 of the Constitution of India. It is of the following view:-
"41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be concluded but can always insists for the observance of process as provided for in the Code."13
The issue before the Constitution Bench in Committee for Protection of Democratic Rights, West Bengal and Ors. (supra) was whether the High Court in exercise of jurisdiction under Article 226 of the Constitution of India can direct the CBI to investigate a cognizable offence, without the consent of the State or not. It has held that, a High Court can do so without the consent of the State. It lays down that, when the Court is exercising powers under Article 226 of the Constitution, the Court must keep in mind certain self-imposed limitations in exercise of the constitutional powers. The extraordinary power must be exercised sparingly, cautiously and in exceptional situation where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order must be necessary for doing complete justice and enforcing the fundamental rights. Such observations are in paragraph 69 and 70 which are as follows:-
"69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have 14 not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power 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 or merely because a party has levelled some allegations against the local police. This extra-ordinary 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 and international ramifications or where such an order may be necessary for doing complete justice and 15 enforcing the fundamental rights. Otherwise CBI would be flooded with a 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."
K. Saravanan Karuppasamy & Anr. (supra), in the facts of that case, did not find that a case was made out for conduct an investigation by the CBI. M. C. Mehta (Taj Corridor Scam) (supra) is of the view that, the Court is not concerned with the merits of the accusations in the investigation. What is required to be considered is whether the Investigating Authority performed its duties in a proper and on honest manner or not. Tapas Paul (supra) is of the view that, the High Court cannot supervise the investigation or formulate the opinion in the form of a report under Section 173 (2) of the Cr.P.C. as that would impinge on the powers of the Magistrate. It is also of the view that, once the investigation process is set in motion, the provisions of the Cr.P.C. are sufficient to take care of all exigencies. Dr. Ajoy Kumar Basu (supra) is of the view that, Magistrate can direct the investigation by the CBI. In the facts of the present case, the petitioner did not approach the learned Court in which the report under Section 173 was filed. It is before the Writ Court seeking reinvestigation through a different agency. None of the authorities cited at the bar prevents a person from approaching the Writ Court for substitution of the Investigating Agency when a proceeding is pending before the Criminal Court. Rather 16 Dharam Pal (supra) is of the view that, a Magistrate can at best direct the further investigation, while a Constitutional Court can direct further, reinvestigation or de novo investigation depending on the facts of a given case. Existence of statutory alternative remedy is not an absolute power to exercise of jurisdiction under Article 226 of the Constitution of India. Notwithstanding the existence of a statutory alternative remedy, a Writ Court can interfere where it finds that, there is a breach of fundamental rights or the action complained of is without jurisdiction or actions taken are in colourful exercise of powers infringing upon the rights of the parties or where the action is mala fide or the action is in breach of principles of natural justice.
In Bhagwant Singh (supra), the issue was whether the Magistrate can accept a report on completion of the investigation, drop the proceedings or take any other measures or not. In such context, it holds that, the Magistrate is empowered to take such measures as he deems appropriate. Abhinandan Jha and Ors. (supra) considers the issue as to whether a Magistrate can direct the Police to submit a charge sheet when the police after the investigation into the cognizable offence submitted a final report under Section 173 of the Cr.P.C. It answers such issue by holding that, there is no power expressly or impliedly conferred under the Criminal Procedure Code on the Magistrate to call upon the police to submit a charge sheet when they have sent a report under Section 169 of the Code that there is no case made out for sending up an accused for trial.
The authorities noted above are of the view that, Constitutional Courts can direct further, reinvestigation or de novo investigation as it deems 17 appropriate in the fact situation obtaining in the case before it. It is also empowered to change the investigating agency if the facts scenario requires it to do so. It must exercise such powers sparingly. It should not specify the outcome of the investigation. It must be satisfied that any of the requisite conditions exists in a case to invoke its powers. Any of the following conditions need to be satisfied for the Constitutional Court to transfer the investigation or direct reinvestigation:-
(i) the accused is a very powerful and influential person.
(ii) the accused is a State authority such as a high police official.
(iii) the investigation has not been proceeded in a proper direction.
(iv) it has been biased.
(v) to provide credibility and instil confidence in the investigation.
(vi) where such an order is necessary for doing complete justice and enforcing the fundamental rights.
Applying the ratio as noted above to the facts of the present case, it appears that, the Division Bench while granting bail noted various discrepancies in the charge sheet and noted that, further investigations are required. The charge sheet itself notices that, further investigations are required. The charge sheet speaks of C.C. T.V. footage which is yet to be considered. The C.C. T.V. 18 footage can have a material bearing on the inference that a person can draw on the incident.
Learned Junior Standing Counsel appearing on behalf of the State submits that, C.C. T.V. footage did not form the basis of the charge sheet as the report from the Forensic Science Laboratory (FSL) was awaited. The authenticity of the C.C. T.V. footage is yet to be certified by the FSL. True, the report from the FSL is awaited. Then also without considering the C.C. T.V. footage which was available with the Investigating Agency, it should not have inferred that the death was suicidal in nature and not a homicide. The C.C. T.V. footage can throw light on the subject on either side of the divide. There was a direction by the Division Bench that, the Investigating Authority should submit its report within three months from the date of the order. The Investigating Authority, if it found itself to be constrained on time, in terms of the order of the Division Bench could have asked for further time. It did not do so. Viewed from such prospective, charge sheet can be said to be hasty and one which does not consider all the materials available for consideration.
The charge sheet as it stands today raises more questions than answers. The charge sheet explains the death as a suicide. It takes a view that, the gun shot was prior in point of time than the burn injuries. The burn injuries were sustained by the victim due to ignition of the cooking gas from the spark of the gun shot. The post mortem report, however, states that, the burn injuries were prior to the gun shot. The burn injuries are on the selective parts of the body and are limited to the limbs. An accidental fire caused by leakage of 19 cooking gas is likely to affect the entire body rather than be selective in its area of affection. The charge sheet does not explain how the victim could obtain the knowledge and expertise of firing the revolver. The revolver needs to be loaded with bullet, the safety catch cocked for it to fire. These aspects remain sketchy at best. The charge sheet as it stands does not instil much confidence. The investigation did not proceed in a proper direction. A lot of issues remains unanswered. Going to trial with this charge sheet will not ensure to the administration of justice particularly when there are avenues still available to remedy the lacunae.
Further report is yet to be filed by the Investigating Authority in the Court in which the proceedings are pending. Investigating Authority is, therefore, yet to arrive at any finding on the observations recorded in the judgment and order dated October 12, 2018 granting bail to the private respondent. Such aspects as noted in such judgment and order requiring further investigations are yet to be pronounced upon by the Investigating Authority. That apart, there are discrepancies which the petitioner notes in paragraph 22 of the writ petition. When the earlier writ petition was filed, the charge sheet was not before the Writ Court. In paragraph 22 of the writ petition, the petitioner tabulates various points which according to the petitioner highlights the loose ends between the post mortem report and the charge sheet. Therefore, the same materials were not before the Writ Court while the Writ Court was considering whether to direct the investigation to be conducted by the CBI or not. The decision of the Division Bench dated August 27, 2018 on the 20 first writ petition of the writ petitioner has to be read and understood in such context. Such decision cannot cover the period subsequent thereto. The petitioner is also highlighting the events happening subsequent to the judgment and order dated October 27, 2018 in this writ petition.
Therefore, in the facts of the present case, interest of justice would be sub-served by substituting the Investigating Authority with CBI as prayed for by the petitioner. C.B.I. is entrusted with the investigation. It will commence investigation from such stage as it deems appropriate. It will do so at the rank of a person higher than the rank of the last Investigating Officer. It will complete the investigation as expeditiously as possible.
The Joint Director, C.B.I., Kolkata will take necessary measures to implement this order, in accordance with law.
W.P. 1208 (W) of 2019 is disposed of.
No order as to costs.
Learned Junior Standing Counsel appearing on behalf of the State seeks stay of the judgment and order.
Such prayer is considered and refused.
Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.] 21