Calcutta High Court (Appellete Side)
Ekram Ali vs The State Of West Bengal & Ors on 16 September, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side.
Present:
The Hon'ble Mr.Justice Jayanta Kumar Biswas.
W.P.No.2961(W) of 2011
Ekram Ali
v.
The State of West Bengal & Ors.
Mr.Tapas Kumar Dey
Mr.Nirupam Sarkar .. for the petitioner.
Mr. Susavan Sengupta. .. for the State.
Heard on: September 16, 2011.
Judgement on: September 16, 2011.
The Court:- The petitioner in this art.226 petition dated February 14, 2011 is
seeking the following principal reliefs:
"(a)A Writ in the nature of Mandamus do issue direction to Respondent No.5 to hand
over the dead body of your petitioner's son within a fortnight;
(b)A Writ in the nature of prohibition do issue directing to respondent no.1 to investigate the matter by the any impartial investigating authority for find out those accused person who has been committed a murder of your petitioner's son namely Obaidur Rahaman @ Channu."
The officer in charge of Bally police station in Howrah received information about death of a person and registered FIR No.246 of 2010 dated July 2, 2010 under ss.302/34 IPC. It was recorded that the occurrence of offence had taken place on July 2, 2010. The petitioner claimed that the dead person was his teenage son. He claimed the dead body. Having failed to receive the body of the deceased and felt dis-satisfied with the progress of the investigation he brought this petition.
Mr.Dey appearing for the petitioner has submitted as follows. when the petitioner identified his deceased son, the police could not refuse to give him the 2 dead body of the deceased. Investigation so far made has failed to make any breakthrough. Therefore, it is necessary to pass an order directing the police to give the petitioner body of the deceased and to investigate the case effectively.
Mr. Sengupta appearing for the State has produced documents forming the part of the case diary maintained by the officer investigating the case.
The records reveal the following facts. Statements of witnesses were recorded under s.161 CrPC. On the basis of an application of the investigating officer dated July 6, 2010 the Chief Judicial Magistrate, Sadar Court, Howrah has ordered DNA test for identifying the deceased. The officer reporting the DNA isolation results has observed as follows:
"Observations: Extremely degraded DNA was recovered from Exhibit:A and Exhibit:B as refractory to no PCR Amplification observed.
In view of above, DNA comparison using the control blood samples (Exhibit:C and Exhibit:D) is not possible at this stage."
Mentioning the DNA isolation results communicated by the officer carrying out the examination, the investigating officer wrote a letter dated June 22, 2011 (at p.35 of the bunch) requesting the Superintendent of the State General Hospital to preserve the dead body.
There is nothing to show that the investigating officer has completed the investigation. Hence the question of submission of report to the Criminal Court concerned has not yet arisen.
In my opinion, the investigating officer ought to have applied to the Criminal Court concerned seeking an order for a fresh DNA isolation examination so that the investigation could be completed without any further delay and the whole thing could be brought to a logical conclusion. I do not think it will be appropriate to monitor the investigation in exercise of power under art.226.
For these reasons, I dispose of the petition ordering as follows.
3The investigating officer shall immediately apply to the Criminal Court concerned seeking an order for a fresh DNA isolation examination. If the Court passes order, then steps shall be taken in terms thereof without any delay, including steps for delivery, if any, of the body of the deceased to the petitioner or any other person entitled to get it.
In any case, the investigating officer shall complete the investigation of the case within three months from date and submit report to the Court concerned. Every one concerned including the authorities of CFSL, Kolkata shall co-operate with the investigating officer. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.) sm.