Calcutta High Court (Appellete Side)
Manuja Bibi vs Central Bureau Of Investigation on 2 September, 2022
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH
CRR 1811 of 2019
Manuja Bibi
-vs.-
Central Bureau of Investigation, SC-II, New Delhi & Ors.
Mr. Bikash Ranjan Bhattacharya, Sr. Adv.
Mr. Rabi Sankar Chottopadhyay,
Mr. Uday Sankar Chottopadhyay,
Mr. Suman Sankar Chottopadhyay,
Mr. Santanu Maji,
Mr. Arabinda Maji
...for the petitioner
Mr. Ankit Agarwala,
Ms. Altoriya Mukherjee,
Mr. Robin Basu,
...for the Opposite Party Nos.3 and 4
Mr. Shekhar Kumar Basu, Sr. Adv.
Mr. Anirban Dutta,
Mr. Sayantan Sinha
...for the opposite party nos.5 and 6
Mr. Ayan Bhattacherjee,
Mr. Sharequl Haque
...for the Opposite Party nos. 2, 7 and 8
Ms. Rajashee Venket Kundalia
...for the CBI.
Heard on : 31.01.2022, 15.02.2022, 22.02.2022,
28.02.2022, 30.03.2022, 06.04.2022,
19.04.2022, 04.05.2022, 06.05.2022,
10.06.2022 &15.06.2022.
2
Judgment on : 02.09.2022
Tirthankar Ghosh, J:-
The present revisional application has been preferred challenging the
order dated 02.08.2017 passed by the learned Chief Judicial Magistrate,
Hooghly, in connection with G.R. Case no. 101/2013 corresponding to FIR
No.2(S)82013-SUC. V/SC-II/CBI/New Delhi arising out of the Dhaniakhali
police station case no. 08/2013 dated 19.01.2013 under Sections
304(A)/324/342/218/34 of the Indian Penal Code against 6 of the accused
persons and Section 218 of Indian Penal Code against another accused i.e.
Sub-inspector Ashim Mondal.
The background of the case narrated in the revisional application is that
the present petitioner lodged a complaint with Dhaniakhali police station in
respect of custodial death of her husband namely, Kazi Nasiruddin of village -
Joyrambati, Police Station- Dhaniakhali, District- Hooghly on 18.01.2013
which was registered as Dhaniakhali Police station case no. 8/2013 dated
19.01.2013. The said case was transferred to Central Bureau of Investigation
(hereinafter referred to as 'CBI') pursuant to an order of the Hon'ble High
Court, Calcutta in W.P. No. 3800(W) of 2013 (Pratim Kumar Singha Roy -Vs. -
Union of India and others). The relevant part of the order is set out as follows:
"The State investigating agency has failed to conduct the investigation
in a fair and impartial manner and has abrogated and derelicted its
basic sovereign duty to investigate the crime in the following
respects:-
3
(a) The real justification and necessity of arrest of the victim on
18.01.2013 by the police personnel of Dhanikhali police station from
Madanmohan Tala has not been investigated at all. The facile and
apparently absurd explanation that the arrest was effected as the
victim did not disclose his identity has been accepted by the CID as
gospel truth. No investigation has been made as to the breach of duty
of the police personnel attached to Dhaniakhali P.S. in complying with
the mandatory directives laid down in D.K. Basu (Supra) in the
matter of informing the relations of the arrestee as to the facture of his
arrest and keeping the same under wraps till his custodial death.
(b) First information report with regard to the death of the victim was
registered under Section 304 of the Penal Code, 1860 (culpable
homicide not amounting to murder) (i.e. murder) instead of Section 302
of the Penal Code, 1860 clearly betraying a compassionate approach
of the investigating agency towards the accused persons who are
brothers in uniform. CID has also not made any effort to implicate the
accused persons by adding the aforesaid graver offence in the cause
of its investigation of the crime.
(c) The explanation of Officer-in-Charge of Dhaniakhali police station
with regard to manner of treatment of the victim in police custody is
wholly contradicted by the post mortem report and the final opinion as
to the cause of death. Post mortem report reveals marks of injury on
the body of the deceased whereas arrest memo states that he had no
visible marks of injury on his person at the time of his arrest. Final
opinion as to the cause of death is due to "head injury and ante
mortem in nature". The explanation of the Officer-in-Charge that the
victim was only slapped. Such explanation is therefore wholly
unbelievable in the face of such medical opinion. This give rise to a
strong suspicion as to his role in the alleged crime. In spite of that, no
investigation by way of further interrogation of the Officer-in-Charge
4
or otherwise was undertaken by the CID in this regard. The effort of
the Officer-in-Charge is to obfuscate the actual incident and to
mislead the investigating agency was tamely accepted by the latter
and no steps have been taken by the investigating agency to thwart
the same.
(d) No investigation relating to the previous animosity between the
local MLA Smt. Ashima Patra and the victim has been made by CID.
At the time of the apparently frivolous arrest of the victim, Smt. Patra
had telephoned the Officer-in-Charge of Dhaniakhali police station.
Though her innocuous explanation that such telephonic exchange was
in respect of a dispute relating to a neighbour is not borne out on
contemporous materials, CID refrained from investigation the real
motive for the said telephonic conversation at such a crucial juncture.
(e) No investigation as to the circumstances and/or reason for the
second telephonic exchange between the Officer-in-Charge and the
local MLA immediately after the custodial death of the victim has been
made by the CID. The latter has completely shut its eyes to the
conspiracy angle in this case involving the Officer-in-Charge and the
local MLA particularly in the light of the allegations of previous enmity
and the telephonic exchanges between themselves in the course of the
alleged incident.
(f) Furthermore, the statement of the Officer-in-Charge of the police
station recorded by CID on 09.02.2013 is completely silent as to the
aforesaid telephonic exchanges. Such suppression on the part of the
Officer-in-Charge makes it apparent that he did not reveal the whole
truth with regard to the incident. Still then, the CID chose not to
interrogate him further or conduct any other steps for the revelation of
truth in the matter, particularly, as to the role of the said Officer-in-
Charge and the local MLA in the custodial death of the victim.
5
In R.S. Sodhi, Advocate v. State of U.P. reported in 1994 SCC (Cri)
248 the Apex Court while dealing with a case of murder involving
police personnel held as follows:-
"We have perused the events that have taken place since the incident
but we are refraining from entering upon the details thereof lest it may
prejudice any party but we think that since the accusations are
directed against the local police personnel it would be desirable to
entrust the investigation to an independent agency like the Central
Bureau of Investigation so that all concerned including the relatives of
the deceased may feel assured that an independent agency is looking
into the matter and that would lend the final outcome of the
investigation credibility. However faithfully the local police may carry
out the investigation, the same will lack credibility since the
allegations are against them. It is only with that in mind that we
having though in both advisable and desirable as well as the interest
of justice to entrust the investigation to the Central Bureau of
Investigation forthwith and we do hope that it would complete the
investigation at an early date so that those involved in the
occurrences, one way or the other, may be brought to book."
In Rubabbuddin Sheikh v. State of Gujarat (2010) 2 SCC 200 The
Supreme Court held as follows:
"It is also well known that when police officials of the State were
involved in the crime and in fact they are investigating the case, it
would be proper and interest of justice would be better served if the
investigation is directed to be carried out by the CBI Authorities, in
that case CBI Authorities would be an appropriate authority to
investigate the case.
In Ramesh Kumari v. State (NCT of Delhi), this Court at para 8
observed: (SCC p 681)
6
"8. ......We are also of the view that since there is allegation against
the police personnel, the interest of justice would be better served if
the case is registered and investigated by an independent agency like
CBI."
In State of West Bengal v. The Committee For Protection of
Democratic Rights, West Bengal (2010) 3 SCC 571 the Apex Court
held that there is ample power in this Court under Article 226 of the
Constitution to direct an investigation to be conducted by Central
Bureau of Investigation to provide "credibility and instill confidence in
investigations" or where the incident may have national or
international ramifications or where such an order is necessary for
doing complete justice and enforcing fundamental rights.
Applying the ratio of the aforesaid decisions to the factual matrix of
grave and palpable dereliction of duty to fairly investigate the crime in
the face of involvement of high police functionary and local politician
we feel it prudent to transfer the investigation to an independent
agency like CBI to instill confidence and credibility to such
investigational procedure.
Finally, it has been pleaded before us that the accused persons
and/or the potential suspects have not been added as a party
respondents.
It is settled law that the process of investigation and/or selection of
an independent agency to investigate a crime does not involve
principles of natural justice.
We, therefore, feel that in view of the nature of the order that we
propose to pass it was not necessary to hear the accused persons or
other potential suspects.
7
In Narmada Bai v. State of Gujarat reported in (2011) 5 SCC 79 it
has been held as follows:-
"It is trite law that the accused persons do not have a say in the
matter of appointment of an investigation agency. The accused
persons cannot choose as to which investigation agency must
investigate the alleged offence committed by them."
Similar is the view in the case of Central Bureau of
Investigation v. Rajesh Gandhi reported in (1996) 11 SCC
253 (Para 8).
For the aforesaid reasons, we feel that for the purpose of fair and
impartial investigation and to ensure credibility and public confidence
to such investigation process, the investigation in the instant case
being Dhaniakhali P.S. Case No. 8/13 dated 19.01.2013, be
transferred to Central Bureau of Investigation. CBI is directed to take
charge of investigation within 7 days of communication of this order.
Respondent No. 5 is directed to ensure that CID, West Bengal hands
over all papers relating to investigation of the aforesaid case to CBI
within the aforesaid time. CBI shall thereafter conduct a free and fair
investigation in all aspects of matter bearing in mind the deficiencies
in investigation as indicated by us in the foregoing paragraphs and
take it to its logical conclusion."
The allegations made in the complaint on 19.01.2013 was that the
petitioner/complainant's husband purchased one TATA 107 vehicle in the
month of January, 2013 as he was involved in the business of transporting
goods. On 18.01.2013 he left his home with a sum of Rs.70,000/- for the
purpose of installation of body of the said vehicle. It has been alleged that at
the relevant point of time he was wearing three gold rings weighing 2 bhories,
8
one gold chain of 2.5 bhories and carrying one mobile phone and 3 bank ATM
cards. At about 9.30 pm an acquaintance reported to her and informed that
Kazi Nasiruddin was purchasing from a shop at Madan Mohantala at
Dhaniakhali after parking his vehicle and at that point of time police personnel
of Dhaniakhali Police Station arrived and started arguing with him. They
assaulted the deceased and took him to the police station where he was
stripped of his clothes and was mercilessly beaten by the police who had killed
him.
The main thrust of contention in this revisional application is that
although the CBI investigated the case and the learned Judicial Magistrate
after considering the materials under Section 207 of the Code of Criminal
Procedure framed charges under Section 304A/324/342/218/34 of the Indian
Penal Code, but on perusal of the documents relied upon by the prosecution
the complainant contends that a case either under Section 302 of the Indian
Penal Code or under Section 304 of the Indian Penal Code has been made out.
To that effect the contention of the Investigating Officer in his report under
Section 173 Cr.P.C. (hereinafter referred as the 'report') are referred by the
petitioner. At page 23 of the report it has been stated that "thereafter a Police
vehicle came there and deceased was forced into the Vehicle by beating". At
page 25 of the report it has been contended that "The shirt buttons of Kazi
Nasiruddin were open and it appeared from CCTV images that he had been
beaten brutally. In the CCTV footages the deceased was seen feeling uneasy
and was checking the blood from his ear and cheeks."At page 28 of the report it
9
has been contended that "At about 11.10 PM, OC Barun Ghosh called Sabed
Ali from his mobile phone and asked him to reach the police station
immediately. Sabed Ali @ Poltu reached the police station within few minutes
and found Kazi Nasiruddin unconscious. Kazi Nasiruddin was wearing nothing
in the lower portion of the body and only baniyan was on his body. OC Barun
Ghosh asked Sabeb Ali to hold deceased as he became unconscious. Sabed Ali
tried his best so that Kazi Nasiruddin could gain his consciousness but in
vain." At page 30 of the report it has been contended that "There are a number
of injuries on the person of deceased as appearing in the CCTV footage and
Post Mortem Report. However, SI Ashim Mondal prepared false inquest report
showing no injury on the body of deceased Kazi Nasiruddin with the objective
to save his colleagues from prosecution." The injury report has been described
in page 30 as "On 19.01.2013 Dr. SS Paul and Dr. Amit Das conducted the post-
mortem proceedings as per the order of DM Hooghly. The post-mortem
proceedings were also photographed and videographed. The autopsy doctors
observed following injuries on the dead body of the deceased Kazi Nasiruddin:-
i) ½" X 1" bruise at right zygoma.
ii) ½" X ½" bruise at right angle of mouth.
iii) Star shaped abrasion ½" above left eye lid.
iv) ½" bruise below left eye lid.
v) Irregular abrasion 2"X3" below right scapula down to back of trunk"
10
The opinion of doctor reflected at page 31 of the report is "the cause of
death in the case is cardiac failure due to coronary insufficiency. Simultaneously,
the head injuries could be produced by fall due to syncopal attack". The opinion
of the Investigating Officer after narration of such facts is that "the deceased
was very well known to most of the officers of Police Station and had even talked
to the OC on the mobile phone from Madanmohan Tala. The deceased was not
released on bail immediately even after he was identified as per provisions of
Sec. 42(2) Cr.P.C. Thus, the deceased was kept in illegal custody/confinement.
When his condition started deteriorating instead of taking him to the hospital, the
OC of the Police Station, Barun Ghosh tried to contact the friend of deceased
Sabed Ali @ Paltu to come to Police Station to take him to the hospital. Such
conduct from policemen who are expected to protect the life of citizen is extremely
rash and neligent."
The Investigating Officer therefore, concluded that ASI Sanat Kumar
Karmakar and OC Barun Ghosh have committed offences punishable under
Sections 34 read with Sections 304(A), 324, 342 & 218 of the Indian Penal
Code. Constable Amit Dey, Constable Somnath Chatterjee, ASI Kingsuk Biswas
and ASI Provat Chatterjee have committed offences punishable under Section
34 read with Sections 304(A), 324,342 of the Indian Penal Code and SI Ashim
Mondal committed offences under Section 218 of the Indian Penal Code.
In view of the references made in respect of the charge-sheet so
submitted by the CBI an enquiry was directed to be conducted by this Court on
11
28.02.2022 through the rank of an Officer of DIG, In-charge of Special Crime
Branch, CBI, New Delhi. Subsequently report was submitted on 30 th March,
2022 by Santosh Chalke, DIG/SBI/SC.II/New Delhi. In the said report the
following issues are relevant which are set out as follows:
"6. MATERIAL COLLECTED BY THE INVESTIGATING AGENCY
6.2. During the Course of investigation, IO Collected a total number of 24
documents which include copy of FIR, CD file, General Diary Book, Driver Car
Diary of police vehicles, Arrest Register, Injury Report, Forensic Examination
Report, CDRs of Mobile phones of deceased & accused police officials of PS
Dhanikhali. Apart from this, DVR installed inside Police Station Dhanikhali
connected with 04 cameral containing the relevant video footage (without voice)
was also analyzed. Details of the same are asunder :-
S. No. Time Relevant Footage contents
01. 09:07p.m Kazi Nasiruddin was slapped by Ct. Amit Kumar Dey and
Const. Somnath Chatterjee in the Duty Officer's Room.
02. 09:30 p.m Kazi Nasiruddin seen requesting ASI Kingsuk Biswas to
talk with OC for releasing him.
03. 09:40 p.m Kazi Nasiruddin himself took water from bottle.
04. 09:54 p.m Kazi Nasiruddin seen requesting ASI Kingsuk Biswas
again to talk with OC for releasing him.
05. 10.30hrs- Kazi Nasiruddin complained of chest pain to ASI
10.31.25 hrs Rakhohan Pal, Duty officer.
06. 10.32 p.m. (i) Water and Rantac tablet is offered to Kazi Nasiruddin
by Sentry Duty constable Waris Ali but he could not take
as he was not feeling well and tablet fell on the ground.
Subsequntly, deceased also fell down from the wooden
bench on the ground and his head hit the ground.
12
(ii) ASI Pravat Kumar Chatterjee, OC Barun Ghosh, Const.
Amit Dey and Sentry Waris Ali lifted the deceased and
made him to sit on the bench again.
07. 10.40 p.m. Kazi Nasiruddin was given Rantac Tabled with water and
allowed to rest.
6.3. That in the Inquest Report conducted by SI Ashim Mondal at 0115 hrs
on 19.01.2013, no injury was shown on the person of deceased. However,
during the subsequent Inquest Proceedings dated 19.01.2013 conducted by Smt.
Suparna Mazumdar, Executive Magistrate, Sadar, Hooghly, it was found that the
blood was coming out from the right ear and nose. Further, in the column No.5 of
the injury or mark on the body, it is mentioned as under:-
(i) Blackish red patches below the two eyes and small injury on
the right cheek and blood clotting.
(ii) Blackish mark all over the throat, back and buttock.
(iii) Relatives of deceased had opined that the death was caused
due to the beatings by the police.
6.4. That during postmortem proceedings conducted upon deceased Kazi
Nasiruddin by Dr. SS Paul and Dr. Amit Das at District Hospital, Hooghly on
19.01.2013, following external injuries were found on the dead body:-
(i) ½" X 1" bruise at Zygoma.
(ii) ½" X ½" bruise for right angle of mouth.
(iii) Star shaped abrasion ½" above left eyelid.
(iv) ½" bruise below left eye lid.
(v) Irregular abrasion 2" X 3" below right Scapula down to the
back of trunk.
13
The cause of death was opined to be intra-cranial hemorrhage. However,
on further examination, in the Histo-pathological report/chemical analysis report,
the cause of death was opined 'due to head injury'.
6.5. That the opinion dated 03.07.20214 of Joint Medical Board comprising
of Dr. Sudhir K. Gupta, Professor & Head, Department of Forensic Medicine &
Toxicology, AIIMS New Delhi, Dr. Millo Tabin, Additional Professor, Department
of Forensic Medicine & Toxicology, AIIMS, New Delhi, Dr. SS Paul, Medical Officer
ENT, District Hospital Hooghly and Dr. Amit Das Medical Officer, District
Hospital, Hooghly District (West Bengal), did not agree with the findings of the
Forensic Doctors of the local hospital at Hooghly who conducted post-mortem and
concluded that the death was due to Head Injury. Observations of Joint Medical
Board are as under:-
i. That the external injuries found on postmortem are not fatal in
nature and could be produced by blunt force/surface.
ii. The internal examination showed haemorrhagic spots on the right
side of brain.
iii. There was no external injury on the head (scalp) and skull was
intact.
iv. The CCTV footage shows that Kazi Nasiruddin having some
discomfort sitting in the bench and then falling from the bench.
v. Some of the external injuries on the face could be due to fall as a
result of syncope.
vi. The haemorrhagic spots on the right side of the brain and blood clots
in the nose and right ear could be due to fall in syncopal attack.
vii. That the cause of death in this case is cardiac arrest failure due to
coronary insufficiency. Simultaneously, the head injuries could be
produced by fall due to syncopal attack.
After being confronted with the conclusion of the AIIMS Board, the Forensic
Doctors who conducted the Post-mortem also agreed with the findings of Joint
14
Medical Board of AIIMS. The findings of the AIIMS Board led to the conclusion
that a case of death as they did not provide Kazi Nasiruddin with immediate
medical assistance which could have saved his life.
6.6. In view of the facts and circumstances revealed during investigation,
duly supported by scientific/forensic evidence in the form of DVR containing the
relevant video footage as well as the opinion expressed by the Board of doctors
of AIIMS and they Autopsy Doctors of District Hospital, Hoogly, Investigating
Officer came to the conclusion that the cause of death of victim was due to
'Heart Failure'. His life could have been saved if they police officials present at
that time at PS Dhanikhali had provided him medical assistance immediately.
Therefore, in view of the facts and circumstances discussed above, section 304-A
IPC was applied in this case."
In fact the DIG endorsed the view of the Investigating Officer in respect of
the alleged offences under Section 34 read with 304(A)/324/342/218 of the
Indian Penal Code which was duly approved by the competent authority, CBI.
As finding of the Investigating Officer was approved by the DIG, CBI
certain issues are required to be considered by this Court:
a) The deceased was picked up from a market place while he was
purchasing. After quarrel ensued between Constable Amit Dey and
the deceased, the former rang up the police station for deploying
extra police force.
b) At the same time the deceased also called the Officer-in-charge of
the Dhaniakhali Police Station namely, Barun Ghosh and informed
that he was harassed by the police officials of the local police
station.
15
c) Police vehicle arrived at the market place and the deceased was
forced into the vehicle being assaulted and he was taken to police
station along with his newly purchased TATA 107 vehicle.
d) Investigation revealed that the dispute arose between the deceased
and Constable Amit Kumar Dey because of parking of TATA 107
vehicle. The same was informed by ASI Sanat Kumar Karmakar
and Constable Amit Kumar Dey over phone to ASI Kingsuk Biswas
for deploying further forces. The deceased at the relevant point of
time also communicated over his phone to the Officer-in-charge
Barun Ghosh. It has been observed in the report that Constable
Amit Dey and ASI Kingsuk Biswas on instruction of OC Barun
Ghosh left with police jeep along with ASI Provat Chatterjee and
Constable Somnath Chatterjee with Driver Nittyananda Ghosh.
The mobile numbers of each of the police officers communicating
with each other reflects their prompt action. The deceased being
forced into the police jeep while being assaulted is also reflected in
the report.
e) The CCTV footages appearing in the report of the Investigating
Officer as well as DIG, CBI which was also taken into consideration
by the Investigating Officer as well as DIG reflects that the shirt
buttons of the deceased were open and he had been beaten
brutally. The footages also reflect that the deceased was feeling
uneasy and was checking the blood trickling through ear and
16
cheeks. CCTV footages also reflected that Constable Amit Dey and
Constable Somnath Chatterjee slapped the deceased in the duty
officer's room.
f) The DIG in his report has opined that the arrest of Kazi Nasiruddin
was due to sudden provocation and scuffle with Constable Amit
Dey and the summons of arrest under Section 42 of Cr.P.C. was
very flimsy, without any basis as he was known to the police
authorities being involved in three other FIRs at the Dhaniakhali
Police Station. As per the third opinion by the superior officer the
local police violated the provisions of Section 49 of Cr.P.C., Section
50 Cr.P.C., Section 50A Cr.P.C. and Section 51 of Cr.P.C. Fourth
opinion in the report refers to the police officers in furtherance of
their common intention, arrested the victim to further harass him
and negligence on their part led to the death in custody. The other
opinion of the superior officer which is relevant is that the police
officials of Dhaniakhali police station did try to suppress the fact of
injury in the inquest report which was revealed during the inquest
conducted by the Magistrate as well as in the Post Mortem.
According to the superior Officer the death was because of
negligence on the part of the police authorities. However, according
to him Barun Ghosh Officer-in-charge, ASI Sanat Kumar
Karmakar, Constable Amit Dey and Constable Somnath Chatterjee
had beaten the victim/deceased and SI Ashim Mondal prepared
17
incorrect record in the form of inquest report and as such they
have committed offences under the Sections for which the
Investigating Officer has charged.
Ms. Rajashee Venket Kundalia learned Advocate appearing for the CBI
relied upon Jacob Mathew -Vs. - State of Punjab and Haryana reported in
(2005) 6 SCC 1 to establish her contention that the offence herein falls within
the ambit of Section 304A of the Indian Penal Code. The present judgment
relied upon do set out principles and the guidelines in case of medical
negligence. As such factual background of the case relied upon, has hardly any
relevance in respect of the subject matter which is addressed in the present
revisional application. Learned advocate for the CBI also relied upon Suleman
Rehiman Mulani & Anr. -Vs. - State of Maharashtra reported in (1968) 2 SCR
515 wherein the subject matter of 'rash and negligent act' was considered in
the background of driving a vehicle. In Mohammed Aynuddin alias Miyam -Vs.
- State of A.P. reported in (2000) 7 SCC 72, the subject matter relate to a
passenger falling down from a moving vehicle. The driver of the bus was
fastened with the liability. In Rajan -Vs. - Joseph & Ors. reported in (2015) 8
SCC 436, the fact of the case related to an electric shock being received from a
washing machine and the subject matter of 'rash and negligent act' being
considered under Section 304A of the Indian Penal Code. In Rakesh Ranjan
Gupta -Vs. - State of U.P. & Anr. reported in (1999) 1 SCC 188, the
interpretation of Section 304A of the Indian Penal Code fell for consideration
and it was observed by the Hon'ble Supreme Court that if there was delay on
18
the part of the doctor to attend the patient that may be a cause of civil
negligence and not a culpable negligence falling under the provision of Section
304A of the Indian Penal Code.
After relying upon the aforesaid precedents learned advocate for the CBI
emphasized that the proceedings before the learned Magistrate should be
allowed to continue under the relevant provisions for which charge was framed
by the learned Magistrate and there is no scope for interference with the order
dated 02.08.2017.
Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate appearing for
the petitioner on the other hand submitted that there are oral evidence
reflecting torture being inflicted upon the deceased, such oral evidence is to the
extent that there were assault and torture being inflicted upon the deceased, to
hold that the deceased who was illegally arrested, assaulted and tortured
which resulted in his custodial death as a 'rash and negligent' act would be
simply denying justice to the de facto complainant, who from the inception had
to fight for justice for approaching this Court on umpteen occasions.
Mr. Ankit Agarwala learned advocate for the Opposite Party No.3 and 4,
Mr. Sekhar Kumar Basu, learned Senior Advocate appearing for the Opposite
Party No.5 and 6 and Mr. Ayan Bhattacherjee, learned advocate appearing for
the Opposite Party Nos. 2, 7 and 8 opposed the contentions of Mr.
Bhattacharya and submitted that the police officers have been malafidely
implicated in the present case only on public perception and there were no
19
materials to frame charge against them, however, the learned trial Court has
framed charge which calls for interference. Learned Advocates also prayed for
discharge on the ground of sanction which is a subject matter of a separate
revisional application.
In Gouri Shankar Sharma -Vs. - State of U.P. reported in 1990 Supp.
SCC 656 it has been observed as follows:
".....the offence is of a serious nature aggravated by the fact that it
was committed by a person who is supposed to protect the citizens
and not misuse his uniform and authority to brutally assault them
while in his custody. Death in police custody must be seriously
viewed for otherwise we will help take a stride in the direction of
police raj. It must be curbed with a heavy hand. The punishment
should be such as would deter others from indulging in such
behaviour. There can be no room for leniency."
In Prithipal Singh -Vs. - State of Punjab reported in (2012) 1 SCC 10, the
Hon'ble Supreme Court dealt with facts of torture and custodial death and
arrived at a finding that tolerance of police atrocities would amount to
acceptance of systematic subversion and erosion of rule of law. The following
paragraphs are relevant for the purpose of the present of case, which are set
out as follows:
"28. In addition to the protection provided under the
Constitution, the Protection of Human Rights Act, 1993, also
provides for protection of all rights to every individual. It inhibits
illegal detention. Torture and custodial death have always been
20
condemned by the courts in this country. In its 113th Report, the
Law Commission of India recommended the amendment to the
Evidence Act, 1872 (hereinafter called "the Evidence Act"), to provide
that in case of custodial injuries, if there is evidence, the court may
presume that injury was caused by the police having the custody of
that person during that period. Onus to prove the contrary is on the
police authorities. Law requires for adoption of a realistic approach
rather than narrow technical approach in cases of custodial crimes.
(Vide Dilip K. Basu v. State of W.B. [(1997) 6 SCC 642 : AIR 1997
SC 3017] , N.C. Dhoundial v. Union of India [(2004) 2 SCC 579 :
2004 SCC (Cri) 587 : AIR 2004 SC 1272] and Munshi Singh
Gautam v. State of M.P. [(2005) 9 SCC 631 : 2005 SCC (Cri) 1269 :
AIR 2005 SC 402] )
29. This Court in Raghbir Singh v. State of Haryana [(1980) 3
SCC 70 : 1980 SCC (Cri) 526 : AIR 1980 SC 1087] while dealing
with torture in police custody observed: (SCC pp. 71-72, para 2)
"2. We are deeply disturbed by the diabolical recurrence of police
torture resulting in a terrible scare in the minds of common citizens
that their lives and liberty are under a new peril when the guardians
of the law gore human rights to death. The vulnerability of human
rights assumes a traumatic, torturesome poignancy [when] the
violent violation is perpetrated by the police arm of the State whose
function is to protect the citizen and not to commit gruesome offences
against them as has happened in this case. Police lock-up if reports
in newspapers have a streak of credence, are becoming more and
more awesome cells. This development is disastrous to our human
rights awareness and humanist constitutional order."
30. Similarly, in Gauri Shanker Sharma v. State of U.P. [1990
Supp SCC 656 : 1991 SCC (Cri) 67 : AIR 1990 SC 709] this Court
held: (SCC pp. 666-67, paras 15 & 17)
21
"15. ...it is generally difficult in cases of deaths in police custody
to secure evidence against the policemen responsible for resorting to
third-degree methods since they are in charge of police station
records which they do not find difficult to manipulate as in this case.
***
17. ... The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authority to brutally assault them while in his custody. Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency."
31. In Munshi Singh Gautam [(2005) 9 SCC 631 : 2005 SCC (Cri) 1269 : AIR 2005 SC 402] this Court held that peculiar type of cases must be looked at from a prism different from that used for ordinary criminal cases for the reason that in a case where the person is alleged to have died in police custody, it is difficult to get any kind of evidence. The Court observed as under: (SCC pp. 638- 39, paras 6-7) "6. Rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues....
7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are 22 themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case ... often results in miscarriage of justice and makes the justice-delivery system suspect and vulnerable. In the ultimate analysis society suffers and a criminal gets encouraged ... The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilised society governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'khaki' to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crop, the foundations of the criminal justice-delivery system would be shaken and civilisation itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day, for anyone to reckon with."
(See also State of M.P. v. Shyamsunder Trivedi [(1995) 4 SCC 262 : 1995 SCC (Cri) 715] .)
32. In State of U.P. v. Mohd. Naim [AIR 1964 SC 703 : (1964) 1 Cri LJ 549] the State of U.P. filed an appeal before this Court for expunging the following remarks made by the Allahabad High Court:
(AIR p. 705, para 2) 23
"2. ... '...that there is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian police force.
... Where every fish barring perhaps a few, stinks, it is idle to pick out one or two and say that it stinks.'"
This Court held that such general remarks could not be justified nor were they necessary for disposal of the said case. The Court expunged the aforesaid adverse remarks. (See also People's Union for Civil Liberties v. Union of India [(2005) 5 SCC 363 : AIR 2005 SC 2419] .) Burden of proof under Section 106
53. In State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516 : AIR 2000 SC 2988] this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (See also Shambhu Nath Mehra v. State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] , Sucha Singh v. State of Punjab [(2001) 4 SCC 375 : 2001 SCC 24 (Cri) 717 : AIR 2001 SC 1436] and Sahadevan v. State [(2003) 1 SCC 534 : 2003 SCC (Cri) 382 : AIR 2003 SC 215] .)
75. In a case where the person is alleged to have died in police custody, it is difficult to get any kind of evidence.
"6. Rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues...." (Munshi Singh case [(2005) 9 SCC 631 : 2005 SCC (Cri) 1269 : AIR 2005 SC 402] , SCC p. 638, para 6)
86. Police atrocities are always violative of the constitutional mandate, particularly, Article 21 (protection of life and personal liberty) and Article 22 (person arrested must be informed the grounds of detention and produced before the Magistrate within 24 hours). Such provisions ensure that arbitrary arrest and detention are not made. Tolerance of police atrocities, as in the instant case, would amount to acceptance of systematic subversion and erosion of the rule of law. Therefore, illegal regime has to be glossed over with impunity, considering such cases of grave magnitude."
In Gulam Hasan Beigh -Vs. - Mohammad Maqbool Magrey & Ors.
reported in 2022 SCC Online SC 913, the Hon'ble Apex Court while dealing with the stage of framing of charge observed that the Courts should not be persuaded by the medical opinion only and should also take into account the ocular evidence and other materials collected by the Investigating Agency. The relevant paragraphs for the purpose of the present case are set out as follows:
25"31. What did the trial court do in the case on hand? We have no doubt in our mind that the trial court could be said to have conducted a mini trial while marshalling the evidence on record. The trial court thought fit to discharge the accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide under Section 304 of the IPC by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure", the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased. Such approach of the trial court is not correct and cannot be countenanced in law. The post mortem report, by itself, does not constitute substantive evidence. Whether the "cardio respiratory failure" had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses. To put it in other words, whether the cause of death has any nexus with the alleged assault on the deceased by the accused persons could have been determined only after the recoding of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record. The post mortem repot of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence. The post mortem repot can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness-box under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really 26 of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court.
32. The prosecution should have been given opportunity to prove all the relevant facts including the post mortem report through the medical officer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High Court to arrive at the conclusion that since no serious injuries were noted in the post mortem report, the death of the deceased on account of "cardio respiratory failure" cannot be said to be having any nexus with the incident in question.
33. Whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same.
34. We may now proceed to consider the issue on hand from a different angle. It is a settled position of law that in a criminal trial, 27 the prosecution can lead evidence only in accordance with the charge framed by the trial court. Where a higher charge is not framed for which there is evidence, the accused is entitled to assume that he is called upon to defend himself only with regard to the lesser offence for which he has been charged. It is not necessary then for him to meet evidence relating to the offences with which he has not been charged. He is merely to answer the charge as framed. The Code does not require him to meet all evidence led by prosecution. He has only to rebut evidence bearing on the charge. The prosecution case is necessarily limited by the charge. It forms the foundation of the trial which starts with it and the accused can justifiably concentrate on meeting the subject-matter of the charge against him. He need not cross-examine witnesses with regard to offences he is not charged with nor need he give any evidence in defence in respect of such charges.
35. Once the trial court decides to discharge an accused person from the offence punishable under Section 302 of the IPC and proceeds to frame the lesser charge for the offence punishable under Section 304 Part II of the IPC, the prosecution thereafter would not be in a position to lead any evidence beyond the charge as framed. To put it otherwise, the prosecution will be thereafter compelled to proceed as if it has now to establish only the case of culpable homicide and not murder. On the other hand, even if the trial court proceeds to frame charge under Section 302 IPC in accordance with the case put up by the prosecution still it would be open for the accused to persuade the Court at the end of the trial that the case falls only within the ambit of culpable homicide punishable under Section 304 of IPC. In such circumstances, in the facts of the present case, it would be more prudent to permit the prosecution to lead appropriate evidence whatever it is worth in accordance with its 28 original case as put up in the chargesheet. Such approach of the trial court at times may prove to be more rationale and prudent."
A cumulative assessment of the documents relied upon by the prosecution leads this Court to address two issues:
(1) In a case of illegal arrest when the victim/deceased is assaulted by police officials and evidence of blood trickling with bodily injuries followed by custodial death and preparation of fake inquest report is evident - can it be said that the act of police officials are rash and negligent in nature?
(2) Can the term 'ground for presuming' appearing on Section 228 and Section 240 of Code of Criminal Procedure be restricted only to medical evidence?
Having regard to the materials placed on record which includes the report under Section 173 of the Code of Criminal Procedure, the enquiry report submitted by the DIG and the charge framed by the learned Trial Court, I am of the opinion that absolute concentration and emphasis was only on the medical opinion and as such charge was recommended to be framed by the Investigating Officer under Section 304A of the Indian Penal Code and the learned trial Court also framed charge under Section 304A of the Indian Penal Code along with Sections 324/342/34 and Section 218 of the Indian Penal Code. The nature of evidence leading to custodial death were not taken into consideration and were ignored.
29It would not be out of place to state that in the present case the arrest of the deceased was on questionable grounds, the assault at the police station was illegal, the CCTV footage was not continuous, the bodily injury appearing in the post mortem were unexplained, the inquest report was manipulated and the statements under Section 161 of the Code of Criminal Procedure reflected regarding the custodial torture of the deceased at the hands of the police.
Relying upon the principles laid down by the Hon'ble Apex Court in Ghulam Hasan Beigh (supra) I am of the opinion that at this stage when the evidence is to commence the charges should be under Section 304 part II of the Indian Penal Code and not under Section 304A of the Indian Penal Code as at this stage an aggravated culpability is to be presumed from the materials on record under Section 228/240 of the Code of Criminal Procedure.
Thus, the order dated 02.08.2017 passed by the learned Chief Judicial Magistrate, Hooghly is hereby set aside. The Chief Judicial Magistrate, Hooghly is directed to commit the records of the case to the learned Sessions Judge, Hooghly who would either conduct the trial himself or delegate the same to another Sessions Judge of his choice. The trial Court would proceed with the case by framing charges under Section 304 part II, 324/342/218 of the Indian Penal Code read along with Section 34 of the Indian Penal Code against the respective accused persons.
Thus, Criminal Revision no. 1811 of 2019 is allowed.
Pending applications, if any, are consequently disposed of.
Interim order, if any, is hereby made absolute.
30Department is directed to communicate this order to the Learned Chief Judicial Magistrate, Hooghly as also the Learned Sessions Judge, Hooghly who would take steps for expediting the progress of the trial of the instant case.
All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court.
Urgent Xerox certified photocopy of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Tirthankar Ghosh, J.)