Calcutta High Court (Appellete Side)
Samaresh Mridha vs The State Of West Bengal & Ors on 17 May, 2019
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
W.P. No. 1594 (W) of 2013
Samaresh Mridha
-Versus-
The State of West Bengal & Ors.
For the Petitioners : Mr. Jayanta Natryan Chatterjee
Mr. Debashis Banerjee
Mr. Siresendu Sinha Roy
Mrs. Paramita Mukherjee
Mr. Tirthankar Dey
Mr. Nazir Ahmed
Ms. Priyanka Ghosh Chowdhury
Mr. S. Naskar
Mrs. Moumita Mondal
For the State : Mr. Amitesh Banerjee
Ms. Ipsita Banerjee
Mr. Supratim Dhar
Mr. Dhananjay Nayak
For the Private respondents : Mr. Kalyan Kumar Bandyopadhyay
Mr. Abhijit Halder Mr. Arka Kumar Nag Mr. Neil Basu For the C.B.I. : Mr. Md. Asraf Ali Ms. Ayesha Sultana Mr. Somasish Banerjee Hearing concluded on. : 20.02.2019 BEFORE ABHIJIT GANGOPADHYAY Judge Date of Judgment : May 17, 2019 ABHIJIT GANGOPADHYAY, J. :-
1. The petitioner's son was murdered on 12th July, 2011. The First Information Report was lodged on 13th July, 2011 by the uncle of the victim alleging the death as doubtful and unnatural one and request was made for investigation into the matter. Initially the death was considered as a result of motor bike accident of the victim but from the post-mortem report it was established that the death was due to the effect of gun-shot injury, anti mortem in nature.
2. The local Police Station initially started a case under Sections 279 and 304 - A of Indian penal Code and Section 302 of Indian Penal code and Section 25 and Section 27 of Arms Act were added to the case after post-mortem report. The case was registered as Baranagar P.S. case No. 292/11 dated 13.07.11. Subsequently the case was transferred to Criminal Investigation Department, West Bengal (CID, in short, hereafter) on 19.07.2017 for thorough investigation and to trace out the murderer/ murderers.
3. In the writ application the petitioner has alleged that no fruitful investigation was conducted by the CID. The Investigating Officers were transferred several times. On 10th December, 2012 the parents of the deceased sent one representation to the Chief Minister for investigating the matter by CBI as for 15 months after the death of the deceased CID failed to find out or trace the murderer.
4. As the investigation was not really progressing for a long time the petitioner filed the writ application on the ground that due to interference of political influence CID did not conduct the proper investigation in the matter and has not arrested the culprits. The petitioner has alleged that every investigation should progress in a logical manner but in the present case no such progress in any logical manner was found and simply the suspected persons were apparently interrogated and they were not even taken into custody.
5. From the application and the annexures thereto it is found that the parents of the deceased stated that they knew that their son had a love affair with a lady who, the parents came to learn much latter, was a married lady and had a daughter. The name of the lady, as they knew, was Munmun Chowdhury. From a newspaper report after the death of the son of the petitioner the parents came to learn that her actual name was Priyanka Chowdhury, daughter-in-law of one Balaram Chowdhury, a famous person of the city of Kolkata.
6. According to the petitioner and his wife the relationship between their son and the lady touched a low and the relationship was broken. On 12th July, 2011 their son was called to Salt Lake by that lady and while he was returning home from Salt Lake he was murdered. It has been alleged that for last 14 months from taking change of investigation by CID four officers who were looking after the matter had been transferred. Every time the new Officers joined, he started the investigation from the very beginning and the investigation was in the same stage and no development was there.
They have got an impression that some politically powerful persons who is in power is interfering in the investigation. They also wrote a letter to the Chief Minister requesting CBI investigation as they got an impression that despite knowing who murdered their son they were not being arrested by CID and they were being shielded.
7. This writ application was heard on different dates from January 2013.
When it appeared before me for hearing on 06th December, 2018, prayer was made on behalf of the private respondents for filing affidavits-in-opposition and I passed an order accordingly with liberty to the petitioner to use affidavits-in-reply thereto. I was told that the private respondent No. 6. had expired and I directed deletion of her name from the proceeding. Such affidavits-in-opposition and affidavits-in-reply were subsequently filed.
8. Some paragraphs of the affidavit-in-opposition used by the respondent Nos. 1 & 4 i.e. the State of West Bengal and the Inspector General of Police, CID (CID'S affidavit, in short, hereafter) are required to be reproduced. This is required for understanding what was unearthed by CID and what they did with the result of their own investigation.
Paragraph 23 of CID's affidavit :
With reference to the statements made in paragraph 18 of the writ petition save and except what are matters of record and what appears therefrom, all allegations to the contrary are denied and disputed. It is stated that on perusal of the FIR, post mortem report and upon interrogations made by the CID and as well as or from the other material as well circumstantial evidences the following facts came into the picture that:
(a) The deceased son of the petitioner went to Salt Lake on his motor cycle at 9 P.M. on 12.07.2011 to meet Priyanka Chowdhury and he was returning to his house through Belghoria Express way via Rajarhat at about 9.30 pm with motor cycle which is evident from the CCTV footage. It is pertinent to state here that CCTV footage of Box bridge, ALVL bridge and Tank No-8 & 9 were collected and prayer for rendering assistance for analysis (sic) the same to SP North 24 Parganas made prevent (Sic.) by O/C Homicide on 20/08/11 a picture of suspect pillion rider was sketched but none could be traced out in spite of all efforts. He might have been the best witness or assailant. Photograph of a suspect male person was sketched from the C.C.T.V footage of Box bridge, ALVL bridge and Tank No-8, 9 and it was circulated/searched but none could be traced.
(b) That thereafter the I.O collected P.M. Report No. 1256 dated 13/07/11 of deceased son of the petitioner prepared by the Autopsy Surgeon Dr. Nikhilesh Ghosh, Demonstrator, Deptt. Of F.S.M., R.G. Kar Medical College, Kolkata where he opined that "Death was due to the effect of the gun-shot injury as noted anti-mortem and homicidal in nature". Upon perusing the report it has been ascertained that there was (1) One gunshot wound of entry, (2) One hematoma, and 3.5 cm x 2.5 cm, in the soft tissues of scalp over left occipital region of skull. (3) One abrasion 2.5 cm x 2 cm on the back of the left elbow. (4) one subdural hematoma 2.5 cm x 2.5 cm over left occipital region of brain.
(c) That During investigation I.O. of CID, WB tried to collect information regarding any enmity behind the murder of son of the petitioner by examining his relatives and close friends. But nothing could be gathered from any source. The deceased was very gentle and well reputed person in the locality.
(d) I.O. collected CDR of deceased son of the petitioner and analyzed. During analysis it could be ascertained that there was frequent mobile calls between the deceased son of the petitioner and Priyanka Chowdhury and on the date of incident 21 conversations were detected in CDR of both mobile up to the evening. One long call was found with them on 12.07.11 at 21.21 p.m. (Emphasis mine).
(The murder was caused at about 21.30 p.m. on the same day. We will see the explanation of Priyanka as to this long call later).
9. Para: 24(h), From 6th line of CID's affidavit :
(1) Balaram Chowdhury, (2) Joydeep Chowdhury, (3) Priyanka Chowdhury and (4) Prateek Daing Sharma also attended and Polygraph Test was conducted by the expert team of DFS, Gandhinagar Gujarat from 25.11.13 to 30.11.14 (Brain Mapping Test will be taken up based on the result of Polygraph Test) and thereafter the I.O. received a forwarding letter of Dy. Director, Directorate of Forensic Science, Gandhinagar (Gujarat) vide No. DFS/EE/ 013/ F.Psy/ 74 dated 31.12.13 along with Polygraph Test report prepared by A.D. Shukla, Asstt. Director, Forensic Psychology Division, DFS, Gandhinagar where the expert concluded the following opinion.
"The analysis and evaluation of the Polygrams of Prateek Sharma and Priyanka Chowdhury depicts that they are deceptive to the issues pertaining to the crime under investigation. No interrogation by CID in this respect.
(Emphasis mine).
(i) Deceptive responses indicate that Prateek and Priyanka were having an affair. Deceptive responses also indicate that at the night of incident Priyanka had purposefully called the deceased son of the petitioner to meet her.
No interrogation by CID in this respect.
(Emphasis mine).
(j) Deceptive responses of Prateek indicate that he is involved in the conspiracy of eliminating the son of the petitioner and he possessed the knowledge that Priyanka was in a relationship with Junior Mirdha (deceased son of the petitioner) prior to the incident. Deception also indicates that Prateek and Priyanka possessed the knowledge about Junior's incident prior to declaration of Junior's accident. No interrogation by CID in this respect.
(Emphasis mine).
(k) The possibility that Parteek and Priyanka are accomplices in getting rid off of Junior is predictable.
No interrogation by CID in this respect.
(Emphasis mine).
(l) The analysis and evaluation of the ploygram of Balaram Chowdhury and Joydeep Chowdhury depicts that they are truthful to the issues pertaining to the crime under investigation.
(m) I.O. received a letter from the Astt. Director, Directorate of Forensic science, Gandhinagar, Gujrat vide DFS/EE/13/BEOD/28/5020/2013 dated 25.10.13 inviting to attend with the suspects Priyanka Chowdhury and Prateek Daing Sharma for their Brain Mapping Test which was scheduled to be held from 10.02.14 to 15.02.14.
(n) I.O. visited DFS, Gandinagar. Suspects Priyanka Chowdhury and Prateek Daing Sharma also presented at DFS, Gandinagar as per order. Accordingly as per schedule Brain Mapping Test of suspects Priyanka Chowdhury and Prateek Daing Sharma was conducted by the expert of DPS,Gandinagar from 10.02.14 to 15.02.14.
(o) I.O. received duplicate Report of Brain Electrical Oscillation vide No. DFS/EE/13/BEOS/28 dated 24.02.14 prepared by Dr. A.D. Shukla, Asstt. Director, DPS, Gandhinagar through Postal Dak. I perused the report and conclusion of test is as follows:-
"No evidence in form of Sequential Knowledge responses was elicited in the BEOS profile of Mrs. Priyanka Joydeep Chowdhury and Mr. Prateek Daing Sharma across the hypothetical scenarios of having affair with each other, conspiring to kill Junior Mridha or giving contract to get Junior Mirdha eliminated.
Here, based on analysis of BEOS examination it can be opined that Mrs. Priyanka Joydeep Chowdhury and Mr. Prateek Daing Sharma have not participated in the murder of Junior Mridha".
(Just the opposite opinion of the polygraph test after a long gap from the polygraph test).
The CID's affidavit continues : There is no specific guideline of Forensic Psychology division, DPS, Gandhinagar, Gujrat as to which of the suspects who have undergone polygraph would be subjected to brain mapping test. It solely depends on the concerned forensic expert dealing with the case. In general, (I have noted that in the letter of Directorate of Forensic Science, (DFS, in short), the expression used was "However it is suggested that" and not "in general"; CID have changed the words, for reasons best known to them, which creates a different impression in the mind of the reader). based on the result of the Polygraph test if any vital information is recovered from the suspect then only "BRAIN ELECTRICAL OSCILLATION SIGNATURE PROFILE (BEOS)/ BRAIN MAPPING TEST WOULD BE EFFECTIVE AND RESULT ORIENTED (I also have noted that this emphasis in capital letter is of CID, not of DFS, for reasons best known to CID) "as suggested by Shri A.D. Sukhla Asst. Director Forensic Psychology division, DPS, Gandhinagar, Gujrat".
The expert who conducted the polygraph tests of all four suspects & brain mapping of two of them is same i.e. Shri. AD Sukhla, Asst. Director Forensic Psychology division, DPS,Gandhinagar, Gujrat. In course of investigation of the case, I.O has examined available witnesses, interrogated the suspects, engaged source, prepared sketch of suspected pillion rider and searched for the same, conducted polygraph and brain mapping tests of the suspects from DPS,Gandhinagar, Gujrat. However inspite of all possible efforts by the I.O the identity of the culprit/culprits involved in the murder of the victim could not be traced out. Accordingly I.O. submitted Baranagar PS Final Report No. 108/15 dated 30.04.2015 u/s 279/304 (A)/ I.P.C.adding Section 302 I.P.C. read with sec.25(1)(a)/27 Arms act as "True" after completion of investigation keeping open the provision of section 173(8) Cr. P.C. for reopening the case, if any clue may be obtained in further.
I.O. also sent a notice to the complainant regarding result of investigation u/s 173 (2) Cr. P.C.
10. The respondent Nos. 5,7,8,9 and 10 have filed their affidavit- in-opposition to the writ application with almost identical pleading. They have stated in their affidavits-in-opposition that the writ application is not maintainable.
Why it is not maintainable has not been demonstrated before this Court.
They have stated that CID has done everything which was possible for them and left no stones unturned. The writ application is based on newspaper reports published to tarnish the image of the private respondents. There was no love affair between Priyanka Chowdhury, the respondent No. 8 and the deceased; he was only a friend. In paragraph 23 of all such affidavits-in-opposition it has been stated that the writ petitioner filed a Narazi petition and the matter is pending before appropriate criminal Court for hearing and "any interference at this stage by this Hon'ble Court in the resent writ application shall not be just and proper."
11. In respect of the above affidavits-in-opposition the writ petitioner has filed affidavits-in-reply by denying and disputing the contentions made in the affidavits-in-opposition of the private respondent.
12. From sub paragraphs (h),(i), (j), (k), (l), (m), (n) and (o) of paragraph 24 ( in pages 16 to 20) of CID's affidavit it is found that there were deceptive responses of respondent No. 8 and her friend Prateek in polygraph tests. From supplementary affidavit of CID (affirmed on 28th January, 2019) it is found that the respondent No. 8, her friend Prateek Sharma and her husband and father-in-law were called for Polygraph Test from 25.11.2013 to 30.11.13. The report of the Polygraph Test was done in the last week of November 2013 and was received by CID on or about 31.12.2013 as appears from sub paragraph (h) of paragraph 24 of CID's affidavit. Despite knowing such deceptive response CID did not take any step for further interrogation of the concerned persons. From annexure R- 1 of affidavits-in-opposition of all of the private respondents including the respondent No 8 (Priyanka) it is found that after August 2013 (which date of August not mentioned) there was no interrogation of respondent No. 8 by CID. Therefore after the polygraph test in November 2013, where deceptive responses were found, CID maintained total silence and did nothing including interrogation. Perhaps CID never heard the expression "custodial interrogation".
13. There is absolutely no explanation as to why Priyanka (Respondent No. 8) and her friend Prateek were not interrogated even after specific opinion of 'deceptive responses' by DFS after the polygraph test and why CID had to wait till the reverse opinion given in Brain Mapping I have no doubt in my mind now that CID was out to save Priyanka and prateek from investigation and was doing nothing in reality and in actuality for investigating the case and the doubt expressed by the petitioner has real foundation and I hold this is a fit case for transferring the investigation from CID to CBI. Surprising role of CID does not end here.
CID has no answer as to why it did not take any steps to collect the SDR and CDR and tower location of mobile phone Nos. (i) 9836389279 (ii) 8961153974 (iii) 8296447923 and (iv) 9874466651 as was required by Baranagar P.S. from Telecom Barackpore? Why CID did not take any step following the interception reports of Priyanka, her husband Joydeep, her father in law Balaram and her friend Parteek as appears from 'schedule - B' report with clear observation that their "strong complicity is found/transpired in the case against them" and I repeat, CID was out to save Priyanka and Prateek.
The above documents are found in pages 53 to 57 of the Case Diary (Copy) produced before me.
14. Now I consider the explanation of Priyanka as to the long call with Junior Mridha (i.e. the person murdered) on the date of the murder i.e. 12th July, 2011. This long call started at 21.21 p.m. Priyanka in her statement before CID under Section 161 of Code of Criminal Procedure (Cr. P.C.) (at page 119 of the Case Diary) stated that after 9.00 p.m. (while she was getting prepared for attending a party in a hotel) Junior called her and Priyanka had given one short reply and did not disconnect the call and kept her mobile phone 'on', then (in the ground floor of her residence) selected and changed her car from a small one to a big one by instructing her driver and started for the destination (a party in a hotel) and she kept her mobile phone 'on' and did not disconnect it ; after some time she disconnected the call. According to Priyanka for such a long time Priyanka kept her phone 'on' without disconnecting and without any conversation to Junior.
This has been offered as an explanation by Priyanka as to the 'long call' to show that there was no conversation between her and the deceased at that point of time for long period despite the phone was connected to Junior's, is wholly disbelievable. It appears form Case Diary that CID has accepted such an explanation.
I find such explanation is against the normal and rational behaviour of human being and it is clear that Priyanka had a dubious role and unless she was trying to suppress something such an explanation would not have been given.
Such dubious role has been referred in the polygraph test, and CID did nothing.
15. The driver of the car, in which Priyanka was going to the party at the material point of time on that day (12.07.2011), in his statement under Section 161 Cr.P.C. (at page 269 of the Case Diary produced before me) has stated that while Priyanka was going to the party, She was taking to some person and it was some heated exchange.
What is the reason for not exploring this aspect of contradiction as to the conversation on the date and very close to the time of death of Junior just before few minutes of murder has not been explored by CID.
Polygraph test indicated possibility of Parteek and Priyanka were accomplices in getting rid of Junior was predictable. Was CID really investigating the murder?
16. Thus, I see CID played the role of a gullible infant while accepting disbelievable statement of Priyanka and CID was not interested to know what was the conversation of Priyanka with Junior a few minutes before he was murdered. Deceptive response of Priyanka as recorded in the polygraph test report indicated that at the night of the incident Priyanka had purposefully called the deceased to meet her.
Despite having such materials before it CID did nothing to elicit the truth.
Was CID really investigating the murder?
17. On perusal of the Case Diary (copy) I have found that CID has produced a large number of papers. When such production of large member of papers is seen in the backdrop of the above mentioned non-action of CID it naturally has created an impression in my mind that CID has tried to show outwardly by that it seriously investigated the matter, when in fact CID despite having materials before it did not take any effective step to elicit the truth and I find the investigation by CID in this matter is wholly perfunctory.
18. The private respondents being the respondent Nos. 5, 7, 8, 9 and 10 have relied upon the following judgments in support of their submission as to why CBI cannot be directed to investigate the matters. The cases are discussed in brief which are as follows:
(i) (1985) 2 SCC 537 (Bhagwat Singh -versus- Commissioner of Police) : The private respondents have relied upon paragraphs 4& 5 of the said judgment which speaks about two situations that may arise when a report was forwarded by the Officer In Charge of the Police Station to the Magistrate under sub Section 2 (i) of Section 173 of the Code of Criminal Procedure and the powers of the Magistrate on receiving the report. In this matter the question is whether in a case where FIR is lodged after completion of investigation initiated of the basis of the FIR, Police submits a report that no offence appears to have been committed, the Magistrate can accept the report and drop the proceeding without issuing notice to the first informant or to the injured or in case the incident has resulted in death to the relatives of the deceased.
The controversy here related to issuance or not a notice by Magistrate.
This case has no similarity with the present one and has no applicability in the present case.
(ii) AIR (1968) Calcutta 238 : (Sunil Majhi -versus- State) The private respondent have relied upon paragraphs 5,6,12,13 and 14 of this judgment. Here question was whether 'Naraji' petition was a complaint or not. In the present writ application this question is not relevant. Here the question is whether the investigation is to be handed over to CBI or not. Whether the 'Naraji" petition has been filed by the respondent or not is not at all material for the present purpose when the allegation is no proper investigation by CID. Hence, this judgment is also not applicable in this case. When it is found by a writ Court from the materials or record that the investigation is perfunctory, as has been found in the present case, it is of no consequence whether the investigating agency, who made a perfunctory investigation, has filed a final report or not and whether a naraji petition has been filed or not.
(iii) 1990 (1) CLT 319 : (Dr. Ajoy Kumar Basu -versus- Union of India) In this case the learned Judge held that issuance of a mandate on CBI to take up investigation must be preceded by expression of a view by the writ Court to the effect that the investigation has been perfunctory and allegation and the contradiction have to be evaluated thread bare. Prima facie view is not sufficient for the purpose. This case has lost its importance in respect of the present investigation for the judgment reported in (2010) 3 SCC 571.
However in the present writ application the allegation made by the petitioner is very serious in nature and I have discussed hereinabove the statements made in the CID's affidavit-in- opposition and CID's supplementary affidavit. I have already discussed above non-action and outward show by CID in the investigation which I have hold as perfunctory. This is not my prima facie view.
(iv) (1988) 3 SCC 319 : (Laxmi Raj -versus- State of Tamil Nadu). The private respondent have relied upon paragraph 26 of the said judgment which speaks about evidentiary value of the newspaper report. In the case referred it has been held as hearsay and inadmissible in evidence. In the present writ application it is to be kept in mind that the case is not at all made out on the basis of Newspaper report. Even before filing of the writ application in 2013, Priyanka Chowdhury and her in- laws were already interrogated by CID which the petitioners knew and they had an impression that the case was not being property investigated. Thus this judgment in no way helps the said respondents.
(v) AIR (1996) SCC 2184 : (S.Gopal Reddy -versus- State of AP). The petitioner has relied upon paragraph 27 of this judgment which says that evidence of expert is weak evidence. From CID's affidavit in opposition it is found that new leads in the case were generated for exploring the same and for interrogation after the Polygraph Test of Priyanka and her friend Prateek but CID took no steps to interrogate the concerned persons. In such facts and circumstances the question whether an expert's evidence is a weak evidence or not does not arise at all.
(vi) (2010) 8 SCC 110 : (UBI -versus- Satyawati Tondon and others) of The private respondents have relied upon paragraph 45 of the said judgment which relates to alternative remedy. The present writ application is not at all the case where the question of alternative remedy comes.
The writ petitioner found that CID had not investigated the matter properly and prayed for CBI inquiry instead of inquiry by CID. As there is a criminal case pending, the High Court cannot adjudicate the grievance of the writ petitioner is not and cannot be the policy of law. Here it is found that there was no real investigation by C.I.D. which I have discussed above. The question of alternative remedy does not arise in the present facts and circumstances of the case. There is no alternative remedy when there is a prayer before a writ Court for change of an investigating agency for investigation by a new agency.
(vii) (2010) 3 SCC 579 : According to the private respondents this Court can entertain the writ application keeping in mind the caution given by the Supreme Court in paragraphs 70 and 71 of the said judgment. Keeping in mind the said caution and considering the facts and circumstances of the case including the non- action of CID to investigate the matter, I hold that in the facts and circumstances of the case the investigation should be transferred to CBI from CID for providing credibility and instill confidence in investigation and also such an order is necessary for doing complete justice. This Judgment itself will show that under Article 226, in such a case, High Court can direct investigation by CBI.
(viii) (1998) 2 CLJ 155: The private respondent has relied upon paragraphs 18 & 19 of this judgment which show that the Court dealt with reinvestigation by the CBI as ordered by the Court. This case does not lay down any such legal principle for which this Court cannot exercise jurisdiction.
18. In a case reported in 2017 (3) CHN (Cal) 43 (Arkadeb Mukherjee -versus- State) a learned Single Judge of this Court has observed that :
"The ethos of constitutional democracy lies in the preservation and protection of the life of its citizen by the sovereign and, therefore, when a brutal murder of a citizen goes unpunished, it is a blot on the constitutional democracy of the country which needs to be addressed by exploring all avenues and resources of investigation, be it of the Centre or of the State, so as to ensure that the administration of criminal justice is not sullied by inaction, inefficiency or any other inhibiting factors and the confidence of the victims of crime is fortified by transferring the investigation to a specialized Central agency which has the wherewithal, facilities and/or sensitivity....".
19. In the facts of the present case, therefore, it would be appropriate to direct the Joint Director, CBI to depute a competent person of the rank not less than the rank of Superintendent of Police to undertake the investigation, in accordance with law. The earlier investigating authority (CID) is directed to make over all documents and materials to the new investigating agency (CBI) in accordance with law by 4 weeks from date.
CBI will complete the investigation as expeditiously as possible and preferably by 6 (Six) months from the date of receipt of a certified website copy of this judgment and order. Petitioner is directed to serve a certified website copy of this order upon the Joint Director, CBI immediately.
20. The writ application is allowed to the above extent.
21. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
No costs.
(Abhijit Gangopadhyay, J.)