Calcutta High Court (Appellete Side)
Jamal Sekh vs The State Of West Bengal & Others on 3 September, 2019
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Madhumati Mitra
C.R.R. 1054 of 2016
With
CRAN 458 of 2019
Jamal Sekh
-Versus-
The State of West Bengal & Others.
Advocate for the Petitioner : Mr. Sovanlal Hazra
Mr. Malay Bhattacharya
Mr. Subhrajyoti Ghosh
Advocate for the Opposite Parties : Mr. Sudipto Moitra
Mr. Abhra Mukherjee
Mr. Vijay Verma
Mr. Sauradeep
Advocate for the State : Mr. Rana Mukherjee, Ld. Addl. P.P.
Ms. Debjani Sahu
Heard on : 08.08.2019
Judgment on : 03.09.2019
Madhumati Mitra, J. :
Petitioner Jamal Sekh son of Ibadat has approached before this Court under Section 482 and Section 401 of the Code of Criminal Procedure 1973 challenging the legality and propriety of the impugned order dated 15.12.2015 passed by the Learned Additional Chief Judicial Magistrate, Bolpur, Birbhum in connection with G.R.Case No.320/2010 arising out of Labpur police station Case No.54 of 2010 dated 04.06.2010 under Sections 147/148/149/342/323/324/325/326/307/302/354/427/379 of the Indian Penal Code pending before the Court of the Learned Additional Chief Judicial Magistrate, Bolpur, Birbhum.
By the impugned order the Learned Magistrate refused the prayer of the petitioner to direct the Investigating Officer for further investigation of the case under Sub-Section 8 of Section 173 of the Code of Criminal Procedure 1973.
From the supplementary affidavit submitted by the petitioner as per the direction of this Court, it appears that Labpur P.S., Case No.54 of 2010 is now pending before the Special Court (MLA and MP) Barasat, 24 Parganas (North) and the next before the Trial Court has been fixed on 12.09.2019.
Before dealing with the rival submissions of the parties, it would be appropriate to set out the facts briefly.
Labpur P.S.Case No.54 of 2010 dated 04.06.2010 under Sections 147/148/149/342/323/324/325/326/307/302/354/427/379 I.P.C, under Section 9(b)(ii) of I.E.Act and under Section 25/27 of the Arms Act was started on the basis of an FIR lodged by one Sanowar Sk. son of Ibadat Sk. It was alleged in the said FIR that one Manirul Islam son of Ehsan Ahmed of village Nabagram, P.S. Labpur asked the complainant and his brothers to attend a discussion at his residence over village matter. Accordingly, the complainant and his brothers Dhanu Sk., Katun Sk., Turuk Sk. And Jamal Sk. Visited the residence of said Manirul Islam to attend the said discussion on 03.06.2010 at about 19:00 hours. All on a sudden the said Manirul Islam and his associates as mentioned in the First Information Report being armed with iron rod, lathi, fire arms and explosives attacked the complainant and his brothers. Two brothers of the complainant viz.Turuk and Katun succumbed to their injuries on the spot and Dhanu died at Bolpur Sub-Divisional Hospital. Sk. Jamal sustained grievous injuries. Miscreants ransacked the house of the complainant and his brothers, outraged the modesty of the female members of the residence of the complainant and his brothers and looted the cash and valuable articles from their residence.
Investigation culminated in the submission of charge-sheet against 42 accused persons out of 54 FIR named accused persons for commission of the alleged offences punishable under Sections 147/148/149/342/323/324/325/326/307/302/354/427/379 of the Indian Penal Code. Investigating Officer made prayer for discharge of 22 FIR named accused persons. Investigating Officer prayed for submission of supplementary charge-sheet under 25(i)(a) of Arms Act against Manirul Islam, Shoaib Sk. @ Sairab Sk. and Janmat Sk. for illegal possession of fire arms after obtaining sanction order from District Magistrate. I.O. submitted charge-sheet with prayer to file supplementary charge-sheet on 14.06.2014. Investigation of the Labpur P.S.Case No.54 of 2010 was conducted by six Investigating Officers. The alleged incident took place on 03.06.2010 at Buniadanga village, P.S. Labpur Birbhum. F.I.R. was lodged by one Sanowar Sk. son of Ibadat Sk. on 04.06.2010. In the F.I.R. it was specifically alleged that Manirul Islam and 53 others as named in the FIR being armed with iron rod, lathi, fire arms and explosives attacked complainant and his brothers. Three brothers of the complainant were murdered in the alleged incident. Post mortem reports suggested that the cause of death was anti-mortem, homicidal in nature due to hypo violence/hypo volcanic hemorrhagic neurogenic shock due to multiple injuries.
During investigation the statements of the sons of de facto complainant Sanowar Sk.@Keb viz. Firoj Sk. And Anowar Sk. were recorded under Section 161 of the Code of Criminal Procedure on 04.06.2010. All the witnesses in their statements stated the involvement of Manirul Islam and his associates in the alleged triple murder case. Their statements under Section 161 Cr.P.C. was recorded on 04.06.2010, just on the next day of the commission of alleged incident. After more than one year from the date of commission of the alleged offences, i.e. on 11.07.2011, the statements of the said witnesses were recorded again under Section 164 of the Code of Criminal Procedure and on the basis of the said statements the main accused Manirul Islam and 20 others named in the FIR were discharged. The Investigating Officer on the basis of subsequent statements recorded under Section 164 Cr.P.C. came to the conclusion that accused Manirul Islam who had been projected as principal accused and mastermind of the alleged offences in the First Information Report was not involved in the commission of murder. It appears that fire arms were seized from accused Manirul Islam, Shoaib Sk. and Jan Box during police remand. It appears that the investigation ended in submission of charge sheet on 14.06.2014. More than four years was taken to submit charge sheet. Supplementary charge-sheet has not yet been submitted though Investigating Officer made prayer to file supplementary charge-sheet. During those four years I.O. recorded the statements of only seven persons under Section 161 Cr.P.C. and that too was done on the very next day of the alleged incident.
In the charge-sheet the Investigating Officer has stated that he intended to give importance/rely on the statements made before the Magistrate by the witnesses and the evidence on record and material evidence so far collected. Moreover, he mentioned in charge-sheet that he gathered from secret information that the FIR named accused Manirul Islam was not physically present at the spot during the commission of alleged offence. The source of secret information has not disclosed in the charge-sheet on the basis of which Investigating Officer prompted to give clean chit to the main accused Manirul Islam and his close associates.
The present petitioner Jamal Sk. is one of the brothers of the three persons who had been murdered. On 05.12.2015, the present petitioner prayed for further investigation of the case. Learned Magistrate refused the prayer for further investigation on the ground that cognizance was already taken and the Court became functus officio. In his application for further investigation the petitioner stated that the witnesses were compelled to make statements before the Magistrate out of fear and to save the lives of their family members. The petitioner has narrated the circumstances under which they were compelled to make statement. It was alleged in the petition that the charge-sheet was submitted against the eye witnesses through their names were not mentioned in the F.I.R. and the F.I.R. named accused persons were not charge-sheeted for the commission of murder of the three brothers of the same family. It has been alleged in the said petition that accused Manirul Islam and other accused are influential persons and they are the supporters of the ruling party and taking that advantage they intimidated the Investigating Officers. Principal accused Manirul, his brother and other accused during the investigation terrorized the de facto complainant, the present petitioner and others and compelled them to make statements before the Magistrate to the effect that Manirul, his brother Anarul Islam and others were not involved in the alleged triple murder case. It is the specific contention of the petitioner that at first the de facto complainant and others refused to make statements before the Magistrate and then the accused Manirul and his associates kidnapped the daughter of de facto complainant namely Tumpa Khatoon and his nephew Nebul Sk. when they were returning home from school and confined them in a house. Thereafter, they procured the phone number of the de facto complainant. Accused Manirul Islam threatened the petitioner. The petitioner went to Labpur police station to lodge complaint regarding the incident of kidnap but police did not register the complaint. Petitioner then approached the Superintendent of Police, Birbhum to lodge complaint but where they were advised to withdraw Labpur Police Station Case No. 54/2010. Petitioner did not get any assistance from the police to recover the two kidnapped children. The then Officer-in-charge of Labpur Police Station also advised the petitioner and others to make favourable statements before the Magistrate to the effect that principal accused Manirul was not involved in the alleged murder of three brothers. Because of threat to life of the two children of the family the petitioner and his brothers agreed to make statements in favour of accused Manirul and his associates before the Magistrate. Eight members of the family of the petitioners were produced before the Learned Magistrate and their statements were recorded on 11.07.2011 to 21.07.2011 under Section 164 of the Cr.P.C. According to the petitioner all the statements made before the Learned Magistrate in favour of the accused were involuntary in nature and were result of coercion and threat on the part of the accused Manirul Islam and his associates. It is the specific contention of the petitioner that the whole procedure of investigation of the Labpur Police Station Case No.54 of 2010 was baised and tainted as the police of Birbhum District left no stone unturned to safe guard the principal accused Manirul Islam and his close associates. Petitioner has stated that no information was given to the petitioner upon submission of charge-sheet on 16.06.2014 wherein, the Investigating Officer did not send the principal accused Manirul and his associates for trial. As such the petitioner was denied the chance to file protest petition earlier. It has been submitted by the petitioner that the Magistrate did not apply his judicial mind at the time of taking cognizance. Learned Magistrate at the time of discharging the accused persons failed to appreciate the first information report dated 04.06.2010 and the forwarding report dated 05.06.2010 and 12.08.2010. Petitioner has stated that the forwarding report date 05.06.2010 revealed the rivalry between accused Manirul Islam and the petitioner and his family over some landed property and shares of sand lifting business. The brothers of the petitioner previously associated with accused Manirul Islam. Thereafter they disinterested in his leadership. Accused Manirul Islam planned to murder the present petitioner and his brothers to remove thorns from his way. Forwarding report dated 12.08.2010 of Manirul Islam and Shoaib Ali revealed that Manirul Islam and Shoiab Ali stated to the police that they had huge stock of illegal fire arms and explosives concealed in different parts of the district. It has been submitted by the petitioner that accused persons under the leadership of Manirul Islam continuously terrorized the petitioner and his family members and pressurized them to withdraw the case. In May, 2011 after Assembly Election the ruling party was changed in West Bengal, Manirul Islam became more adamant as he is associated with the present ruling party.
Learned Advocate appearing for the petitioner has vigorously argued that the Learned Magistrate has failed to appreciate that the petitioner filed the protest petition as victim of the incident. He sustained severe injuries and somehow he was escaped. According to his contention, he has every right to a fair investigation. He has further contended that order dated 17.06.2014 contains two parts. One part relates to taking cognizance of the offences against the charge-sheeted accused persons and the other part relates to outright discharging of the FIR named accused persons without affording an opportunity to the petitioner to protest the prayer of the I.O. It is the specific contention of the petitioner that the mode of investigation was totally changed after May, 2011 when the new Government came into power. Petitioner has submitted that he and the de facto complainant did not get any opportunity to file protest petition against the prayer of I.O. to discharge the F.I.R. named accused. Learned Magistrate has committed an error both on law and facts in rejecting his protest petition on 15.12.2015.
Learned Advocate appearing for the opposite party nos.
3,4,6,7,8,9,10,12,13,14,15,16,17,19,20,21,22,23 has submitted that the Learned Magistrate has rightly passed the impugned order. He has contended that after taking of cognizances of the offences the Magistrate has no power to direct further investigation. Learned Counsel appearing for the opposite parties has forcefully submitted that in support of his contention he has placed his reliance on the following decisions:-
"Bikash Rajan Rout Vs. State through the Secretary (Home), Govt. of N.C.T. of Delhi, New Delhi reported in AIR 2019 Supreme Court Case 2002, Athul Rao Vs. State of Karnataka and Another reported in (2019)1 Supreme Court Cases (Cri) 594, Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel and Others reported in AIR 2017 Supreme Court Cases 774."
Learned Additional Public Prosecutor appearing for the State has contended that the materials placed in the case diary indicated that the Investigating Officers of Labpur Police Station Case No.54 of 2010 had totally failed to conduct a fair investigation and the entire investigation was biased and tainted. According to his contention the entire investigation was perfunctory and aimed at to give clean-chit to the real offenders. In support of his contention he has placed his reliance on a decision of one of the Co-ordinate Bench of this Court in C.R.R.4051 of 2016.
Certified copy of the protest petition filed before the Learned Magistrate has been annexed to the present application.
The present application has been filed by the petitioner who is the brother of the three murdered persons. The petitioner himself sustained injuries at the time of commission of alleged incident. The petitioner has challenged the impugned order under Section 482 and 401 of the Code of Criminal Procedure.
The nature of petition filed by the present petitioner before the Learned Court below was a protest or Naraji petition.
Before delving deep into the issue as raised by the present petitioner, I think it would be better to consider the scope of inherent power of the High Court under Section 482 of the Code of Criminal Procedure.
In Central Bureau of Investigation Vs. A Ravishankar Prasad & Others (2009)6 SCC 351 our Apex Court observed:-
"Inherent powers of High Court under Section 482 Cr.P.C. are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of court. These inherent powers can be exercised in the following category of cases: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and
(iii) to otherwise secure the ends of justice. Extraordinary power under Section 482 Cr.P.C. should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the power to prevent injustice and secure ends of justice. India has largely inherited provisions of inherent powers from English jurisprudence, and therefore principles decided by the English courts are of relevance, Crown Court has inherent power to protect its process from abuse. The English courts have also used inherent power to achieve the same objective."
The petitioner has challenged the impugned order dated 15.12.2015, passed by the Learned Magistrate rejecting his protest petition. The petitioner sustained severe injuries in the alleged incident. Cause of death of the three brothers of the petitioner was due hypo violence/hypo volcanic hemorrhagic neurogenic shock due to multiple injuries which was anti mortem and homicidal in nature.
FIR was lodged by one Sanowar Sk., another brother of the petitioner. The alleged incident occurred in the evening of 03.06.2010 at Buniadanga village, P.S.-Labpur, Birbhum. F.I.R. was lodged in the morning on 04.06.2010 at Labpur Police Station.
The case was investigated by six Investigating Officers. The 1st I.O. was S.I. Swargajit Bose, the then Officer in charge of Labpur P.S. It appears from the case diary that he examined 7 witnesses under Section 161 Cr.P.C. On the very next date of the alleged incident and recorded their statements. All seven persons are the members of the family of the deceased and injured. From the case diary, it appears that the place of occurrence was the residence of principal accused Manirul Islam. I.O. also stated that on that date he examined the complainant who fully corroborated his FIR and as such he did not record his statement under Section 161 Cr.P.C. On that date, the I.O. arrested four FIR named accused. The case diary at page 25 dated 04.06.2010, revealed that there was a long standing dispute between the complainant and Manirul Islam and other accused persons. Manirul Islam was a well known person of the area. Investigation revealed that there was rivalry between Manirul and his group and the complainant and his brothers regarding the share of sand lifting. Manirul Islam and his associates planned to eliminate the complainant and his brothers. Case diary dated 04.06.2010, disclosed that cold blooded murder was an outcome of such planning which was brutally executed in the house of Manirul Islam.
Case diary further revealed that on 11.08.2010, principal accused Manirul Islam, Shoaib Sk. were arrested on 11.08.2010 near Prantik area. The statements of said accused Manirul Islam and Shoaib Sk. were recorded by the then I.O. Swargajit Bose, S.I., O/C Labpur P.S. under Section 161 of Cr.P.C. On 12.08.2010, both the accused were forwarded before the Learned Additional Chief Judicial Magistrate, Bolpur. At the time of forwarding the accused, the I.O. prayed for police remand to verify their statements. Learned Magistrate granted nine days police remand. During police remand one D.B.B.L. gun and 05 round 0.12 bore cartridge and one 12 bore D.B.B.L. gun and 05 rounds of bore cartridge were seized as shown and produced by the accused Manirul Islam and Shoiab Sk. on 16.08.2010. From the forwarding report of police remand of accused Manirul Islam and Shoaib Sk. dated 21.08.2010, it appears that the then I.O. (1st I.O.) strongly opposed the prayer for bail of the above named accused as the accused were directly involved; in the murder and a big tension was prevailing at the area due to such sensational cold blooded murder.
From the case diary, it appears that the 1st I.O. was transferred and 2nd I.O., S.I. Subir Bag took up the case for further investigation. On 17.01.2011 he recorded the statements of present petitioner Jamal Sk. who sustained injuries. In his statement under Section 161 Cr.P.C. Jamal Sk. corroborated the allegations against the accused named in the F.I.R. On 28.02.2011 the statement of accused Jan Box Sk. was recorded under Section 161 Cr.P.C. wherefrom, it appears that the accused made statement in support of the allegations contained in the F.I.R. It appears that leading to the statement of accused Jan Box one improvised musket and four 0.12 bore ammunition were recovered on 28.02.2011. Thereafter, on 08.07.2011 the second I.O., S.I. Subir Kr. Bag made prayer before the Learned A.C.J.M. Bolpur for recording the statement of the witnesses under Section 164 Cr.P.C. by the Learned Magistrate.
In paragraphs 6,7,8,9 of the present petition, the present petitioner has narrated the situation which compelled them to make statements before the Learned Magistrate projecting the prime accused and his associates as innocent otherwise their two kidnapped children would have been killed in the hands of miscreants viz. prime accused Manirul Islam and his associates. It is the specific contention of the petitioner that after the election of May, 2011 Manirul Islam and his associates joined to the ruling party. It has been stated by the petitioner that they approached before the police station and the Superintendent of Birbhum for help to save their two kidnapped children, but all in vein. Then finding no other alternative to save the lives of two kidnapped children they made statements under Section 164 Cr.P.C. contradicting their earlier statements before the Magistrate. It has been alleged by the petitioner that the role of the then I.O. and Superintendent of Police Birbhum showed wilful inaction to help the miscreants without protecting them from intimidation and threats against the lives of their two kidnapped children.
From the certified copy of the order passed by the Learned Magistrate on 17.06.2014, it appears that Learned A.C.J.M., Bolpur, received charge-sheet no.81 dated 16.06.2014 under Section 147/148/149/342/323/324/325/326/307/302/354/427/379 of I.P.C. against 42 accused persons. Out of whom accused persons in serial no.33 to 42 have been charge-sheeted on the basis of the statements made by the complainant, petitioner and their family members under Section 164 Cr.P.C. though they are not F.I.R. named. Learned Magistrate discharged 22 FIR named accused persons as they were not sent up for trial. It took more than four years to complete the investigation. Charge sheet was submitted by Shri Debasis Ghosh, the then Officer in charge, Labpur Police Station.
In the charge-sheet the I.O. has stated that he intended to give importance and rely on the statements of witnesses under Section 164 of Cr.P.C. and the evidence on record. He has further added that moreover, it was also gathered on secret information that the FIR named accused person Manirul Islam was not physically present at the spot during commission of offence. Interestingly, the source of secret information has not been disclosed by the I.O. in the charge- sheet. In the charge sheet I.O. made prayer for submitting supplementary charge sheet against accused Manirul Islam, Shoaib Sk., Janmat Sk. for commission of offence under Section 25(i)(a) of the Arms Act after obtaining sanction order from the District Magistrate Birbhum. Till date no such supplementary charge-sheet has been submitted. From the order dated 17.06.2014, it appears that no notice was sent to the de facto complainant at the time of acceptance of final report in respect of twenty two FIR named accused persons.
In this connection, I would like to mention a decision of Hon'ble Supreme Court reported in (1985)2 Supreme Court Cases 537 (Bhagwat Singh versus Commission of Police and Another) the Apex Court held that:
"In a case where the Magistrate to whom a report is forwarded under Section 173(2)(i) decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. Unnecessary delay on account of the difficulty of effecting service of the notice on the informant cannot be a valid objection against this view because in any case the action taken by the police on the first information report has to be communicated to the informant and a copy of the report has to be supplied to him under Section 173(2)(i). Moreover, the difficulty of service of notice on the informant cannot provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."
The Hon'ble Apex Court was pleased to hold further that the injured person or any relative of the deceased who is not an informant, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. The Magistrate may also, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased but not giving of such notice will not have any invalidating effect on the order when may be made by the Magistrate on a consideration of the report.
Impugned order of rejection of protest petition was based on the fact that the cognizance was already taken on police report and as such the Magistrate became functus officio. But the order dated 17.06.2015, on the basis of which cognizance was taken and the order of discharge of the FIR named accused persons was passed without serving notice upon the informant. Order dated 17.06.2015 was passed by Learned Magistrate ignoring the established legal principle and rules of natural justice and without application of mind.
Petitioner has stated that prime accused Manirul Islam was the member of the Forward Block and was suspended from the party and jointed All India Trinamul Congress. It has been specifically highlighted by the petitioner the manner of investigation after May 2011, when the new Government came into power. The glaring defects in the investigation of Labpur Police Station Case No.54 of 2010, has been pointed out by the Learned Additional Public Prosecutor also. This allegation also gets support from the manner of investigation and the materials placed in the case-diary.
It appears from the case diary that on the next date of alleged incident, the statements of the witnesses were recorded by the investigating officer under Section 161 of the Code of Criminal Procedure supporting the allegations contained in the First Information Report. After one year those witnesses made statements before the Magistrate under Section 164 of the Code of Criminal Procedure retracting their earlier statements made before the I.O. under Section 161 of the Code and the trend of those statements made before the Learned Magistrate was to project the main accused and his associates innocent. One cannot close his eyes to the situation where even the injured witness who was present on the spot made statement before the Magistrate retracting his earlier statement before the Investigating Officer. Sudden change of behavior of the eye- witnesses before filing of charge-sheet causes a serious doubt regarding the impartial and fair investigation of the present case. From the case diary, it transpires that Investigating Officer ignored the earlier version of the witnesses and made prayer for discharge of the accused on the basis of subsequent statements of the witnesses. The manner in which the investigation was conducted in the present case raises a question mark on the fairness of the investigation conducted by the Investigating Officers. At the same time another question also arises whether the witnesses faced any hassles or subjected to threat or intimidation which compelled them to make subsequent statements.
In this connection, the petitioner has contended that the witnesses were compelled to make subsequent statements before the Learned Magistrate to save the lives at their two children were kidnapped. In his application, the petitioner has categorically stated that accused Manirul and his associates have political patronage and tainted the entire investigation by manipulation and by his political influence.
The circumstances as narrated by the petitioner in his protest petition and the present petition under which they were compelled to make statements before the Magistrate projecting the prime accused Manirul Islam and his associates had not been involved in the alleged triple murder, is really unfortunate, if the facts are true. I think, it should be the duty of the Court to find out the truth.
Petitioner has stated that they were pressurized and terrorized and also compelled to make statements before the Magistrate as their children were kidnapped. In this connection, Learned Additional Public Prosecutor has vigorously submitted that the investigation is totally biased and tainted as it appears from the materials placed in the case diary In the present case, charge-sheet was submitted under various Sections of the Penal Code including Sections 354/379. There was specific allegation of outrage of modesty of the female members of the family of the murdered persons. But none of the female members was examined by the investigating officers. There was also allegation of theft of valuable articles of the complainant. No investigation was made in this regard though charge-sheet was submitted under Section 354/379 of the Indian Penal Code. Moreover, in the case diary the Investigating Officer made prayer for discharge of accused Manirul Islam and his associates on the ground that there was no injury on the victims from fire arms. Investigating Officer concluded that principal accused Manirul was not involved in the alleged murder as the victims did not sustain any injury from fire arms. Investigating Officer gave emphasis on this point as fire arms were recovered from the possession of accused Manirul and his close associates on the basis of seizure list during their police remand. Investigating Officers perhaps overlooked the allegations made in First Information Report that the accused were being armed with other weapons viz iron rod, lathi, etc. The investigation does not appear to be fair, transparent and judicious. It appears that the conclusion drawn by the Investigating Officer does not depict the true picture. Entries in the case diary and the manner of investigation leave us no doubt that the investigation was not only tainted but also biased.
Right to get fair and just investigation comes within Article 21 of the Constitution of India. If the investigation is biased or tainted then it can be said that the said right of personal liberty as guaranteed under Article 21 of the Constitution has been violated. If the witnesses are compelled to make statements favourable to the accused under the threats and pressures or fear of their lives or lives of their family members then it can be very well said that their valuable right to get justice and their right to life and personal liberty has been infringed.
In this connection, I would like to mention a relevant portion of the judgment of Hon'ble Supreme Court of Mahender Chawla Vs. Union of India reported in 2019(1) E Cr.N (SC) 841. The Hon'ble Court has observed as under:-
"If one is unable to testify in Courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution. The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear and right of witnesses to testify in Courts without fear or pressure."
In the aforesaid judgment, the Hon'ble Supreme Court has held that the 'Witness Protection Scheme, 2018' shall be the 'Law' under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and /or State Legislation on the subject. The objective of the scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination.
The need and justification for the scheme is that the witnesses need to be assured that they will receive support and protection from intimidation and the harm that criminal groups might seek to inflict upon them in order to discourage them from co-operating with the law enforcement agencies and deposing before the Court of Law.
In the decision of State of Punjab Vs. C.B.I. and Others represented by Inspector of Police reported in (2011)3 SCC (Cri) 666 the Hon'ble Supreme Court has observed:-
"The language of sub-section (8) of Section 173 Cr.P.C., therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 Cr.P.C. for fresh investigation or reinvestigation if the High Court is satisfied that such fresh investigation or reinvestigation is necessary to secure the ends of justice."
In the decision of Popular Muthiah Vs. State represented by Inspector of Police reported in (2006)7 SCC 296 the Hon'ble Supreme Court has been pleased to hold as under:-
"The High Court in exercising power under Section 482 Cr.P.C. can direct further investigation of the case against persons who were not charge-sheeted and were not accused at the stage of trial but whom High Court felt should have been included in the challan."
In view of the above discussions, I am of the opinion that further investigation of the case is required and necessary to find out the actual truth. Accordingly, the impugned order dated 15.02.2015 is hereby set aside.
At the same time, I direct that such further investigation should be conducted thoroughly with regard to the allegations contained in the FIR, the allegations made in the present application filed before this Court and in protest petition filed before the Learned Additional Chief Judicial Magistrate, Bolpur by the 1st Investigating Officer, S.I.Swargajit Bose under the supervision of superintendent of police Birbhum. The further investigation will be completed within three months from the date of communication of this order.
Interim order, if any, stands vacated.
Competent Authority under 'Witness Protection Scheme 2018' Birbhum District is requested to render all sorts of protection to the petitioner and his family members which are available under the Scheme.
Let the copies of this order be sent to the Learned Judge Special Court (MLA and MP) Barasat, 24 Parganas (North), Learned Additional Chief Judicial Magistrate, Bolpur, Competent Authority under 'Witness Protection Scheme 2018', Birbhum District, Superintendent of Police Birbhum District, immediately.
In view of the order passed in main application being C.R.R.No.1054 of 2016 the C.R.A.N. being No.458 of 2019 becomes infructuous and stands dismissed.
Copy of the case diary be handed over to the Learned Additional Public Prosecution immediately.
Urgent Photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.
(Madhumati Mitra, J.)