Calcutta High Court (Appellete Side)
Dilip Rakshit vs Union Of India & Ors on 2 September, 2016
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
W.P. No.9206(W) of 2011
Dilip Rakshit..................................Petitioner
Versus
Union of India & Ors.........Respondents
For the Appellant/ :Mr. Bikash Ranjan Bhattacharjee
Petitioner :Mr. Ravi Sankar Chattopadhyay
:Mr. Uday Sankar Chattopadhpypay
:Mr. Suman Sankar Chatterjee
:Mr. Imtayaz Ahmed
:Mr. Santanu Maji
:Mr. Snigdha Saha
:Mr. Souvik Dutta
:Mr. Monojit Chatterjee
For the plaintiffs/
Respondents : Mr. Tapan Kumar Mukherjee
: Mr. Somnath Naskar
Heard on :14.07.2016
Judgment on : 02.09.2016
Debi Prosad Dey, J. :-
The family members of the petitioner, while returning by one Tata Sumo bearing No. WB 16-F 6566 on 6th October, 2008 at about 23.15 hours to Panchra through Tarakeswar- memari road near Chowberia bridge fell in D.V.C. cannel and in all ten members of the petitioners family died by drowning. On the following day one Hafizur Rahaman Mallick lodged a written application before the Officer in charge of Jamalpur police station and on the basis of that written complaint Jamalpur PS case No. 121 of 2008 dated 7th October, 2008 under Sections 279/388/427/304A and Section 304 of the Indian Penal Code was started against respondent no.7, being the driver of that vehicle. The defacto complainant Hafizur Rahaman Mallick is not a relation of the petitioner. The petitioner thereafter submitted a written complainant before Officer in charge of Jamalpur police station on 2nd November, 2008 stating inter-alia that one Sankar Mallick, a teacher of secondary school and owner of the said Tata Sumo vehicle, was a friend of deceased Ashim Kumar Rakshit and Sankar Mallick accordingly allured Ashim Kumar Rakshit and his family members to take the vehicle for visiting various Durga idols. Ashim Kumar Rakshit since deceased thus being pursuaded by Sankar Mallick went on to visit various Durga idols and at that time, he saw that a conversation was going between the driver and Sankar Mallick. The further case of the petitioner is that there was a business relationship between Ashim Rakshit and Sankar Mallick but subsequently the relationship between Sankar Mallick and Ashim Kumar Rakshit became strained on account of some financial issues and that's why the petitioner has strong reason to believe that in fact Sankar Mallick has murdered Ashim Kumar Rakshit and his nine family members by hatching a criminal conspiracy in collusion with respondent no. 7, being driver of the said vehicle.
Despite specific information given by petitioner, the officer in charge, Jamalpur police station did not pay any heed to such request of the petitioner to hand over the investigation to the criminal investigation department or detective department or to any other independent agency.
In terms of such request of the petitioner learned Chief Judicial Magistrate, Burdwan directed the Officer in charge of Jamalpur police station to take up the investigation personally and to submit report in accordance with law.
The sub-inspector of police (investigating officer) ignoring such direction of learned Chief Judicial Magistrate, Burdwan ultimately submitted charge sheet against respondent no.7.
Being aggrieved thereby, the petitioner preferred a criminal revision being CRR No. 2348 of 2009 before this Hon'ble Court and the Hon'ble Court directed the officer in charge of Jamalpur police station to comply with the direction given by Chief Judicial Magistrate, Burdwan on 19th January, 2009.
The further case of the petitioner is that the officer in charge Jamalpur police station did not conduct the investigation properly despite having such direction from the Hon'ble Court and abused the petitioner in filthy languages the petitioner also informed the Superintendent of Police, Burdwan, Criminal Investigation Department, Chairman, Human Rights Commission for looking into the matter but all the efforts of the petitioner went in vein. The petitioner strongly believes that respondent no. 6 Sankar Mallick employed respondent no. 7 in order to murder Ashim Kumar Rakshit and his family members and in terms of their conspiracy, respondent no. 7 intentionally fell the vehicle into the canal but the respondent no. 7 neither sustained any injury on his person nor he died in such occurrence though ten passengers of that vehicle died by drowning.
The petitioner has thus filed this writ application with the prayer that the investigation has not been properly conducted by the investigating agency and accordingly the instant case ought to be handed over to the Central Bureau of Investigation for conducting a proper and thorough investigation in order to unearth the conspiracy that was hatched up by and between respondent no. 6 and 7 in order to commit murder of Ashim Kumar Rakshit and his nine family members.
Annexure P of the writ petition reveals that one Hafuzur Rahaman Mallick was present at the time of such occurrence and he found that one Tata Sumo being no. WB 16-F 6566 was being driven in a rash and negligent manner and ultimately that vehicle dashed on the bridge and the passengers inside the vehicle fell into the water of the canal. All the passengers died by drowning. The defecto complainant called the nearby villagers and recovered the dead bodies and the vehicle from under the water of the canal and reported the matter to the police. Annexure P1 reveals the reporting of the incident by various newspapers. Annexure P2 is the intimation given by the present petitioner to the officer in charge of Jamalpur police station stating inter-alia that Sankar Mallick in order to feed fat his grudge against Ashim Kumar Rakshit has committed murder of Ashim Kumar Rakshit and his family members in collusion with respondent no.
7. The application filed by the petitioner before learned Chief Judicial Magistrate has been annexed with the writ petition vide P3.
The order passed by the Hon'ble High Court in CRR 2348 of 2009 has also been annexed with the writ petition vide annexure P4. Annexure P5 reveals that the notice issued by the officer in charge of Jamalpur police station to Dilip Rakshit, requesting him to attend the police station for investigation in terms of Hon'ble Court's order. Annexure P5 is the letter addressed to Superintendent of Police, Burdwan by the petitioner. Annexure P6 is the photocopy of the charge sheet submitted by officer in charge of Jamalpur police station. Annexure P7 is the letter of the petitioner addressed to the Superintendent of Police, Burdwan and the letter addressed to the Chairman, Human Rights Commission. Annexure P8 is the letter of Special Inspector General of Police, CID, West Bengal addressed to Superintendent of Police, District- Burdwan wherein the IG of police has requested the SP, Burdwan to get the case, filed by the petitioner, supervised by a senior officer.
Respondent no. 3 to 5 have filed affidavit in opposition.
Besides accepting the factual aspect, it has been specifically stated that there was absolutely no latches on the part of the investigating agency and rightly charge sheet under Section 304 IPC amongst other Sections has been filed against respondent no. 7. It has been specifically stated in para 12 that pursuant to the direction given by this Hon'ble Court the investigating officer examined all the witnesses including the petitioner and recorded their statements under Section 161 Cr.P.C. vide pages 164 to 166 in the case diary. It has been vehemently denied that there was latches on the part of the investigating agency in submission of the charge sheet against respondent no. 7. The further case of respondent no. 3 to 5 is that the alleged suspicion of the petitioner has not been corroborated by any material evidence during investigation and mere suspicion of the petitioner has had no impact in the investigation conducted by the officer in charge of Jamalpur police station. The respondents have vehemently objected to handing over the investigation to the Central Bureau of Investigation. Secondly, the respondents have also agitated in their affidavit in opposition that the grievance of the petitioner may safely be addressed within the purview of Criminal Procedure Code and accordingly the instant writ petition is not maintainable since the petitioner has got efficacious relief under Criminal Procedure Code. The petitioner did not agitate anything against the charge sheet filed by the officer in charge of Jamalpur police station in terms of the order passed by the Hon'ble Court and accordingly the case has been committed to the Court of sessions for trial. In the meantime the examination of witness has also been completed pursuant to the leave granted by this Court vide order dated 9th August, 2011. The petitioner did not avail of the alternative remedy available to him and accordingly the instant writ application is not maintainable in law. The petitioner has denied all such contention of the respondents by filing affidavit in reply. the petitioner has specifically stated in his affidavit in reply that the Hon'ble High Court can safely invoke Article 226 of the Constitution of India for issuance of direction for investigation in a criminal case by an independent agency like criminal investigation department in the interest of justice and the instant writ application is maintainable, even if there is provision under the Criminal Procedure Code to redress the grievances of the petitioner. Ultimately the petitioner has stated in para 6 of the affidavit in reply that the family members of Rakshit family will suffer irreparable loss and injury unless this Court directs for further investigation by an independent agency like Criminal Investigation Department.
Learned Advocate for the petitioner has referred the following decisions in order to analysis the power of the Court as contemplated under Section 173(8) of the Code of Criminal Procedure, 1973.
I.1968 CrLj 97(Abhinandan Jha Vs. Dinesh Mishra) II.AIR 1988 SC 1323(Kashmeri Devi Vs. Delhi Administration and Anr.) III.(2009) 9 SCC 610 (Babubai Jamnadas Patel Das Vs. State of Gujarat) IV.AIR 1979 SC1791(Ram Lal Narang Vs. State) V.1999 CRLj 3661 (Bhagwan Samardha Sreepada Vallabha Vs. Venkata Vishwanandha Maharaj) There is absolutely no doubt about the proposition of law laid down by the Hon'ble Supreme Court in the aforesaid decisions. In support of his contention learned Advocate for the petitioner has also referred AIR 2004 SC 2078(Hasanbhai Valibhai Qureshi Vs. State of Gujarat). It has been observed by Hon'ble Supreme Court that when the local police had succumbed to political pressure, delay cannot be a ground to refuse to direct further investigation, if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. In AIR 2009 SC 2932(Kishan Lal Vs. Dharmendra Bafna) it has been observed by the Apex Court that by invoking Article 226 of the Constitution of India the Court can direct a state to get an offence investigated and/or further investigated by different agency. Learned Advocate for the petitioner has also relied on a decision reported in (2010)12 SCC 254 (Babubhai Vs. State of Gujarat) wherein it has been observed that in case of serious irregularities in the investigation, the Court may direct a further investigation under Section 173(8) Cr.P.C. It is submitted on behalf of the petitioner relying on AIR 2010 SC 2971( State of Maharashtra Vs. Farook Mohammed Kasim Mapkar) and (2010) 3 SCC 571( State of West Bengal and others Vs. Committee for Protection of Democratic Rights, West Bengal) that the power under Article 226 of the Constitution of India may safely be exercised for giving direction to undertake the investigation by an independent agency like Central Bureau of Investigation, if it is found that the injured witnesses who were available at the spot were not examined and that the case assumed the character of an extra ordinary case. Learned Advocate for the petitioner has tried to impress upon the Court by referring the factual aspect of the case. It is further submitted that ten members of the family including female and children lost their lives due to such criminal conspiracy of Sankar respondent no. 6 with respondent no. 7 and considering the importance of the case the entire investigation of this case ought to be handed over to the Central Bureau of Investigation. Finally learned Advocate for the petitioner referred to a case reported in [2016] 0 Supreme(SC) 75(Pooja Pal Vs. Union of India). The Apex Court has observed as follows in para 93 and 94.
"The present factual conspectus leaves one with a choice either to let the ongoing trial casually drift towards its conclusion with the possibility of offence going unpunished or to embark upon investigation belated though, spurred by the intervening developments, to unravel the truth, irrespective of the persons involved. As it is, every offence is a crime against the society and is unpardonable, yet there are some species of ghastly, revolting and villainous violations of the invaluable right to life which leave all sensible and right minded persons of the society shell shocked and traumatized in body and soul. Such incidents mercifully rare though are indeed exceptionally agonizing, eliciting resentful condemnation of all and thus warrant an extra-ordinary attention for adequate remedial initiatives to prevent their recurrence. In our considered view, even if such incidents otherwise diabolical and horrendous do not precipitate, national or international ramifications, these undoubtedly transcend beyond the confines of individual tragedies and militatively impact upon the society's civilized existence. If the cause of complete justice and protection of human rights are the situational demands in such contingencies, order for further investigation or reinvestigation, even by an impartial agency as the CBI ought to be a peremptory measure in the overwhelming cause of justice.
Judged in these perspectives, we are of the firm opinion that notwithstanding the pendency of the trial, and the availability of the power of the Courts below under Sections 311 and 391 of the Code read with Section 165 of the Evidence Act, it is of overwhelming and imperative necessity that to rule out any possibility of denial of justice to the parties and more importantly to instill and sustain the confidence of the community at large, the CBI ought to be directed to undertake a de novo investigation in the incident. We take this view, conscious about the parameters precedentially formulated, as in our comprehension in the unique facts and circumstances of the case any contrary view would leave the completed process of crime detection in the case wholly inconsequential and the judicial process impotent. A court of law, to reiterate has to be an involved participant in the quest for truth and justice and is not expected only to officiate a formal ritual in a proceeding farseeing an inevitable end signaling travesty of justice. Mission justice so expectantly and reverently entrusted to the judiciary would then be reduced to a teasing illusion and a sovereign and premier constitutional institution would be rendered a suspect for its existence in public estimation. Considering the live purpose for which judiciary exists, this would indeed be a price which it cannot afford to bear under any circumstance."
The apex Court has thereafter handed over the case to the Central Bureau of Investigation for investigation considering the factual aspect of the case under reference. The husband of the petitioner was murdered in broad day light and while going to the hospital, atleast four police stations intervened on the way but no action was taken by the police and despite having chance of getting eye witnesses, the investigating agency intentionally did not examine them. The apex Court was thus satisfied that the investigation was conducted in such a manner so as to give mileage to the accused and that's why even after completion of the trial the case was again directed to be re-investigated by the Central Bureau of Investigation.
Learned Advocate for the State respondents has distinguished the aforesaid decisions on the ground that the facts and circumstances of the case under reference are not similar to the facts and circumstances as narrated in the forgoing paragraphs. Secondly, the petitioner could not produce any material to justify that the investigation was perfunctorily conducted. Thirdly, the petitioner could have raised objection before the committing Magistrate after filing of the charge sheet by the officer in charge of Jamalpur police station in terms of the order passed by this Hon'ble Court and the actual remedy of the petitioner lies under the provisions of the Criminal Procedure Code. It has been pointed out by learned Advocate for the petitioner that the decision reported in 2016(0) Supreme SC 75(Puja Pal Vs. Union of India) is not applicable in the context of given facts and circumstances of this case, since the petitioners have themselves deleted the prayer for referring the matter to the Central Bureau Of Investigation. Learned Advocate for the State respondent drew the attention of the Court in respect of the order passed by this Court on 9th August, 2011 at the time of admission of the present writ petition, which runs as follows:-
"After hearing Mr. Bhattacharyya, Mr. Mukherjee and Mr. Dey, I am of the view that it will be appropriate to admit this petition.
The question is whether at the present stage of the trial in which prosecution witnesses are being examined before the Court of Session in support of charge framed under s. 304 IPC, further investigation, if any, by the CID is permissible.
Mr. Bhattacharyya has said that the petitioner does not want to proceed against the first and second respondents.
For these reasons, I admit the petition making it clear that though its pendency shall not prevent the Court of Session from proceeding with the ongoing trial, it, however, shall not proceed further from the stage of argument without leave of this Court.
Names of the first and second respondents shall be deleted. The department concerned shall take steps at once.
The respondents shall file opposition within ten days; reply, if any, shall be filed by a week thereafter. To next monthly list for hearing. Certified Xerox."
Pursuant to such order the names of respondent no. 1 and 2 were deleted. Therefore it is crystal clear that the petitioner has waived his prayer in referring the matter to the Central Bureau of Investigation. Learned Advocate for the State respondent has further submitted that the Code of Criminal Procedure is a complete Code and since, the sessions Judge is in seisin of the matter, the petitioner can invoke Section 482/397/401 Cr.P.C. to redress his grievances, if there be any. In support of his contention learned Advocate for the State has referred the following decisions:-
I.(1998)7 SCC 149 II.(2006)7 SCC 296 III.(2004) 4 SCC 158 IV.(2004) 13 SCC 11 V.(2009) 9 SCC 129 VI.(2010) 3 SCC 571.
Relying on the aforesaid decisions learned Advocate for the State respondents has submitted with force that the instant writ application is not maintainable in law in view of the proposition of law laid down by the Hon'ble Apex Court in the aforesaid decisions. The petitioner ought to have taken appropriate step within the purview of Criminal Procedure Code and the Writ Court cannot give a direction for further investigation by invoking the powers under Article 226 of the Constitution of India. Lastly, learned Advocate for the State respondent has relied on a decision reported in (2008) 2 SCC 409 (Sakiri Vasu Vs. State of U.P. and Ors.). It has been observed in that decision that an aggrieved person can claim of the offence he alleges, to be investigated properly but shall not claim that it be investigated by any particular agency of his choice.
Undoubtedly, the Writ Court has got the requisite jurisdiction to direct the Central Bureau of Investigation to take up any investigation but such power of the Courts should only be exercised if the High Court after considering the material on record comes to a conclusion that material discloses primafacie a case calling for investigation by CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.
Therefore, it is incumbent upon the Court concerned to consider the prayer of the petitioner after evaluating the nature and character of the case as well as the documents or material produced by the petitioner in order to justify the submission of the petitioner. It is well settled principle of law that while giving such direction the Court must be satisfied with regard to the factual aspect. The order dated 9th August, 2011 clearly reveals that the petitioner does not want to proceed against Union of India and Central Bureau of Investigation and that's why the names of respondent no. 1 and 2 were deleted at the time of admission of the writ application. By the self- same order this Court observed whether at that stage of the trial in which the prosecution witness were being examined before Court of sessions in terms of the charge framed under Section 304 IPC, further investigation, if any is permitted to be conducted by the Criminal Investigation Department of the State. The specific allegation of the petitioner is against respondent no. 6 Sankar Mallick. Contradictory statements have been made against this Sankar Mallick respondent no. 6. In paragraph 7 of the writ petition Sankar Mallick has been projected to be a teacher as well as business partner of Ashim Kumar Rakshit having monetary transaction between them. Curiously enough, the petitioner could not even give the father's name of Sankar Mallick in the writ application while depicting respondent no. 6. In absence of father's name, it is not possible to identify any Sankar Mallick who had inimical interest against Ashim Kumar Rakshit since deceased. I fail to understand as to what prevented the petitioner from giving the father's name of respondent no. 6 so as to identify a particular person who had business relationship with Ashim Kumar Rakshit, since deceased. In the writ petition, the petitioner has stated that one Tushar Kanti Ghosh is the owner of such Tata Sumo. It is therefore, apparent from such writ application that the petitioner could not identify the said Sankar Mallick and one Tushar Kanti Ghosh is the owner of that Tata Sumo and not the so called Sankar Mallick. The petitioner has also failed to produce any document to show the relationship between respondent no. 6 and Ashim Kumar Rakshit in order to justify that they had business relationship between themselves. No document has also been produced before this Court to justify that respondent no. 7 is a henchman of the said Sankar and in fact respondent no. 7 was engaged by respondent no.6 so as to execute their alleged criminal conspiracy against Ashim Kumar Rakshit. It is apparent from the statements made in the writ petition as well as from the documentary evidences produced by the petitioner that it is the suspicion of the petitioner against one Sankar Mallick, whose identity has not even been established before this Court by the petitioner. Admittedly, the occurrence took place in the dead hours of night on 6th October, 2008 and Hafizur Rahaman Mallick by chance was present at time of such occurrence. There is absolutely nothing on record to justify that very many persons were present at the time of such occurrence and they were not examined by the police. Admittedly, the petitioner could not establish any animosity of respondent no. 7 with Ashim Kumar Rakshit or any of the family members of Ashim Kumar Rakshit.
The petitioner has failed to project a reasonable and strong case to show that the police authorities are favouring respondent no. 7. The petitioner resorted to the revisional jurisdiction of this High Court alleging inaction on the part of the investigating officer. Pursuant to the direction of this Court, the officer in charge of Jamalpur police station has conducted the investigation and submitted charge sheet. The case is now under active consideration of learned sessions Judge at Burdwan. The petitioner could not answer as to how and in what manner the case under reference may now be transferred to the criminal investigation department for taking a further or re-investigation of such case. On that score, the petitioner is duty bound to produce necessary documents and evidence in support of his contention in view of the decision referred to in (1988) 4 SCC 534(para 13). In order to bring home the contentions of the petitioner, it was incumbent upon the petitioner to justify such facts in his pleadings and produce necessary documents to justify the facts which he wants to produce before the writ Court. On that score, the petitioner has miserably failed to show any material which calls for the intervention of this Court. The matter ought to have been agitated by the petitioner before the Court taking cognizance on the basis of the report in final form submitted by the officer in charge of Jamalpur police station. Petitioner has had the liberty to agitate the said matter even after disposal of the matter by the sessions Court before the Hon'ble High Court by resorting to the appropriate Sections of law as contemplated under Criminal Procedure Code. In that view of this case I find no reason to accept such prayer of the petitioner and accordingly the writ petition is dismissed. The interim order of stay, is thus, vacated.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)