Calcutta High Court (Appellete Side)
The State Of West Bengal vs Sri Nepal Krishna Roy & Ors on 3 December, 2014
Author: Jayanta Kumar Biswas
Bench: Ishan Chandra Das, Jayanta Kumar Biswas
In The High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Jayanta Kumar Biswas
and
The Hon'ble Mr Justice Ishan Chandra Das
A.S.T.No.407 of 2014
The State of West Bengal
v.
Sri Nepal Krishna Roy & Ors.
and
A.S.T.No.408 of 2014
The State of West Bengal
v.
Sibani Ghosh & Ors.
Mr.Kalyan Kumar Bandopadhyay, Sr. Advocate, with Mr.Abhratosh Majumdar,
Government Pleader, Mr.Manjit Singh, Public Prosecutor and Mr.T.M. Siddiqui,
Mr.Bhashkar Prasad Vaishya, Mr.Sabyasachi Mondal, Mr.S. Bandopadhyay and
Mr.Shuvro Lahiri, Advocates, for the State. Mr.Bikash Ranjan Bhattacharyya, Sr.
Advocate, with Mr.Tapash Ghosh, Mr.Uday Sankar Chatterjee, Mr.Tanmay
Chowdhury and Mr.S.S. Chatterjee, advocates, for Nepal & Ors. Mr.Phiroze
Edulji, Advocate, with Mr.Rajdeep Biswas, Mr.Ajay Chaubey, Mr.Avinash
Kankani, Mr. A. Mukherjee, Mr. S. Sinha Roy and Mr. Deepak Prahladka,
Advocates, for Swarswati & Sibani.
Heard on : September 26 & 29, October 28, 29 & 30 and November 7, 10, 12, 13 & 17,
2014.
Judgment on : December 3, 2014.
Jayanta Kumar Biswas, J.− The State of West Bengal is the appellant in
both the ASTs, which are against a common judgement dated September 24,
2014 whereby a single Judge disposed of two WPs No.33223(W) of 2013(Sri Nepal
Krishna Roy & Ors. v. The State of West Bengal & Ors.) dated November 6, 2013
and No.19538(W) of 2014(Sibani Ghosh v. The State of West Bengal & Ors.) dated
July 8, 2014. Both the WPs were filed under Article 226 of the Constitution of
India.
2. The single Judge judgement ended in the following order:−
"In view of the above, the SIT and the Parui Police Station is directed to
hand over and co-operate with the investigation by the CBI. The CBI shall
investigate all aspects of the case relating to the killing of Sagar Ghosh and file
the report from time to time to the concerned Court having jurisdiction. With
utmost expedition, the Court having jurisdiction shall pass necessary orders from
time to time on the basis of the reports filed by the CBI depending upon the
outcome of the investigation. The petitioners of both the writ petitions are
permitted to move the said Court for necessary directions if the circumstances so
demands."
3. The relevant facts stated in the two WPs and the affidavits and police
reports filed in them, and revealed by the case diary materials and the charge-
sheet filed in the criminal court are the following.
4. One Hriday Ghosh, son of one Sagar Chandra Ghosh, of village Bandh-
nabagram, police station Panrui, district Birbhum filed nomination as a TMC
party candidate in the 2013 West Bengal Panchayat Elections. Hriday, however,
was not allotted the TMC party symbol, because another TMC party candidate
filing nomination for the same Sansad was allotted the TMC party symbol. As a
result, Hriday was treated as an independent candidate and he decided to remain
in the fray as such.
5. One Anubrata Mondal was the Birbhum District President of the TMC
party. Anubrata and one Bikash and others gave speeches at a public meeting
held on July 17, 2013. In his speech Anubrata instigated the people hearing him
to burn the houses of the independent candidates and bomb the police, if the
police protected such candidates. He gave the instigative speech in the presence
of a State Cabinet Minister and it was recorded by the press and easily available.
6. On July 18, 2013 house of one independent candidate was burnt.
Hriday applied to the District Magistrate for police protection for himself and the
members of his family. On the night of July 21, 2013 between 10.30 and 11
Hriday's house was attacked. The attackers opened fire and seriously injured
Hriday's father Sagar. The officer in charge of Panrui police station registered an
FIR No.79/13 dated July 22, 2013 under ss.448/326/307/34 IPC and ss.25/27
Arms Act.
7. In the FIR the following were mentioned. The offences were committed
on July 21, 2013 at about 22.45 hrs by (1) Sajal Roy alias Suvo, son of late
Samapada Roy;(2) Bhagirath Ghosh, son of Jagabandhu Ghosh; (3) Nepal Roy,
son of late Satyakinkar Roy; (4) Manas Roy, son of Nepal Roy; (5) Nabakrishna
Roy, son of Sankhajit Roy, (6) Priyaranjan Ghosh, son of Sankhajit Ghosh and
others all of Bandhnabagram, police station Panrui, district Birbhum.
8. The FIR reveals the following. The information of the incident was
received at the police station on July 22, 2013 at about 04.05hrs. Swarswati
Ghosh, Sagar's wife, was the informant. Swarswati's written complaint was
treated as the FIR. SI Dwija Raj Sahana was directed to take up the investigation.
The FIR was signed by Swarswati, and one SI Sampad Mukherjee signed it qua
the officer in charge of the police station. It was despatched to the court on July
22, 2013 at 10 a.m.
9. The thing mentioned in the FIR as Swarswati's written complaint was
actually the written information of the incident given to the officer in charge of
the police station under Swarswati's signature. The document reveals that
Hriday's wife Sibani was the scribe thereof, and that Swarswati and Sibani both
were eyewitnesses to the incident.
10. On the night of July 21, 2013 itself Nepal, Manas, Nabakrishna and
Priyaranjan(a juvenile), four out of the six accused named in the FIR, were
arrested at 5.05a.m., 5.20a.m., 5.15a.m. and 5.30a.m. respectively by Dwija Raj,
who also prepared seizure lists that were signed by Swarswati and Sibani. Sagar
was taken to Bolpur Sub-divisional Hospital that referred him to Burdwan
Medical College Hospital. On July 23, 2013 Sagar succumbed to his bullet
injuries. Under the circumstances, s.302 IPC was added to the case.
11. A letter in Sibani's name dated July 23, 2013 was sent to the
Birbhum SP marking copies to the CM, the DGP, etc. It was written that the 41
persons named with their fathers' names and villages and many others were
involved in Sagar's murder. Anubrata and Bikash giving speeches at the meeting
on July 17, 2013 were among the named 41. But while Sajal and Bhagirath (two
out of the six named in the FIR) were among the named 41; Nepal, Manas,
Nabakrishna and Priyaranjan (the other four named in the FIR) were not among
them.
12. The following is the drift of the letter dated July 23, 2013:−
On July 17, 2013 Anubrata gave a speech in a public meeting in Kasba
village instigating people to burn the houses of and bomb the independent
candidates. After the speech, under the leadership of one Sk. Mostafa, the
persons named in the letter attempted to attack and threatened to murder
Hriday. Anubrata and Bikash were directly and indirectly involved in the matter.
Hriday requested the District Magistrate for protection. On July 21, 2013 the
people named in the letter attacked the house, opened fire, injured Sagar, burst
bombs and left the house. The attackers were armed with deadly weapons. The
police, though were informed, came quite late and took Sibani's relatives Nepal,
Manas, Nabakrishna and Priyaranjan to police station for interrogation. Then at
about 5a.m. a person in uniform saying that he was the Panrui police station
second officer obtained Sibani's signature on two blank white papers at gunpoint
and obtained Swarswati's signature on white paper by force. When Sibani and
her people went to Panrui police station for lodging FIR, the officer in charge and
other officers told Sibani and her people that Sibani and her people had already
lodged the FIR against Nepal, Manas, Nabakrishna and Priyaranjan; and that no
further FIR would be registered. Sibani and her people surprisingly found that
though the four persons were present in Sibani and her people's room and not
connected with the incident, under the direction of Anubrata and Bikash, the
officer in charge made them accused in the case for shielding the actual
offenders. The Panrui police station officers were responsible for not entertaining
complaint Sibani and her people made and for shielding the actual offenders. If
after making necessary investigation it was not ensured that the persons named
in the letter were punished for murdering Sibani's father-in-law in a calculated
manner, Sibani and her people would have no alternative but to commit suicide
or flee the village.
13. By an order dated September 6, 2013 in a CRM No.11915 of 2013
(Nepal Krishna Roy & Ors. v. The State of West Bengal) this court granted Nepal,
Manas and Nabakrishna bail. Then the three jointly filed the WP No.33223 (W) of
2013 dated November 6, 2013 under Article 226 of the Constitution of India.
14. They prayed for the following principal relief:−
"a) A writ of and/or in the nature of Mandamus do issue commanding the
respondent authorities concerned, each one of them, their men, agents, servants,
subordinates and/or assigns to forthwith handover the instant case, being Panrui Police Station Case No.79 of 2013 dated 22nd day of July, 2013 under sections 448/326/307/34 of the Indian Penal Code, 1860, added section 302 of the Indian Penal Code, 1860 and sections 25/27 of the Arms Act, corresponding to G.R. No.638/CR/13 to the Criminal Investigation Department, West Bengal for further and proper investigation without any delay whatsoever."
15. Case stated by them in paras.15 and 22 of the WP is as follows:− "15.Your petitioners state that just to protect the actual culprits/offenders, the present petitioners have been implicated as accused persons though they are in no way connected with the said offence and, as such, the question of involvement of the present petitioners does not and cannot arise at all.
22.Your petitioners state that considering the whole aspect of the matter and for free and fare investigation and to bring the actual culprits/offenders into the picture, the instant case should be investigated by an independent Investigating Agency like Criminal Investigation Department, West Bengal."
16. By an order dated November 26, 2013 Swarswati was added to the WP as a respondent. Then by an order dated December 23, 2013, passed recording the State's no objection, the investigation of the case was handed over to the CID. The WP was, however, kept pending and orders were being passed regarding the manner and progress of the CID investigation. By an order dated February 14, 2014 the DGP was directed to constitute a SIT on the grounds that the CID was not making satisfactory investigation; and by a second February 14, 2014 order a SIT constituted by the DGP pursuant to the first order of that same day was directed to investigate the case. It was ordered that the DGP would monitor the SIT functioning under the court's supervision. The SIT comprised the CID Head (an Addl.DGP), a CID IG, a CID DSP and a CID Inspector.
17. Nepal & Ors, the petitioners in the WP, filed a supplementary affidavit dated March 3, 2014 stating under what circumstances the SIT had partly recorded their s.161 statements, and claiming that they wanted their statements to be recorded under s.164. In compliance with the second February 14, 2014 order the DGP submitted status reports dated March 3, 2014, April 7, 2014 and April 10, 2014.
18. In report dated March 3, 2014 the DGP said as follows:− "The SIT would be carrying out further investigation on the following lines:
1.Though prima facie the role of OC and first IO has been found suspect, it needs to be probed further thoroughly to ascertain the omissions and commissions on his part.
2.To examine the role and the negligence on the part of Medical Officers of Bolpur SD Hospital and Burdwan Hospital.
3.To intensify efforts to arrest the two main accused namely Subbho and Bhagi and through their interrogation unearth the role of other abettors in the crime. As the name of Sk Asgar s/o Mustafa Paikar has also been corroborated, his whereabouts must also be intensively searched for his arrest. The fourth accused Sk Yunus, whose name has also been corroborated, has already been arrested by CID and is in custody.
4.To take steps to identify the properties of the main absconding accused persons and move for its attachment after getting them proclaimed as absconders U/s82 Cr.P.C.
5.To pursue for reports from FSL and use other scientific methods of investigation including Polygraph Test to collect evidence related to the commission of crime.
6.To attend to other points mentioned in the plan of investigation as contained in the endorsed report to SIT."
19. In report dated April 7, 2014 the DGP said as follows:− "Further points of investigation are mentioned below:
a)To examine Anubrata Mondal and Bikas Roy Choudhary in connection with their public speeches as well as this incident of murder in the light of the statements of Smt. Shibani Ghosh.
b)To further investigate on other points revealed in the statement of Smt. Shibani Ghosh.
c)To probe about the movement of all accused persons named by Smt. Shibani Ghosh on the day of incident and particularly around the time of the incident.
d)The O.C. and I.O. has to be examined in detail about the bombing incidents after the public speech of Anubrata Mondal as well as about their frequent visit and threatening of victim's family.
e)To probe political angle as alleged in this incident and also to ascertain immediate political rivalry, if any, before the incident.
f)To pursue for execution of Proclamation and Attachment order against the absconding accused persons.
g)To continue search for the accused persons to secure their arrest and recovery of weapon of offence. Their custodial interrogation is extremely important to unearth the conspiracy angle and the actual motive for the murder.
h)To pursue for reports on the exhibits recovered from PO and sent to FSL.
i)To conduct further investigation on the points mentioned in the enclosed status report and any other points which may come up during investigation."
20. In report dated April 10, 2014 the DGP said as follows:− "From the report of the S.P., it is evident that based on a letter from the D.M., Birbhum dated 22.7.2013, the S.I. of Panrui P.S. has submitted a prayer to Ld. C.J.M. Suri for granting permission to investigate in the matter with a view to submit prosecution u/s189/405/1(b) IPC. However, the Ld. C.J.M., Suri after considering the prayer had directed to start a case u/s436/117/332/353/117/189/505/1(b) IPC. Accordingly, the then O/C, Panrui P.S. had registered Panrui P.S. Case No.80/13 dtd.26.07.2013 on the basis of a suo-moto complaint.
During the course of the investigation, the I.O. has examined about 12 witnesses and the accused. I have gone through case records as well as the accused statement. It is seen that the accused Anubrata Mondal was examined by I.O. on 03.08.2013 wherein he has admitted to have made the insinuated statements as alleged in the F.I.R. also made attempts to get the video C.D. examined forensically."
21. By an order dated April 10, 2014 in the WP the DGP was directed to appear in person on April 11, 2014. The relevant part of the order is quoted below:− "I can take judicial notice of the fact, bearing in mind recent developments, that the accused Anubrata Mondal is having the blessings of the Hon'ble Chief Minister of the State and it can reasonably be inferred that the DGP or the Members of the SIT have dared not to touch the accused because of the political clout he enjoys. Investigation has not proceeded in the right direction and there is no doubt on this score."
22. Feeling aggrieved by the order dated April 10, 2014 the State filed an appeal; and against an interim stay order of the Division Bench, Hriday affirmed and filed an SLP in the Supreme Court on behalf of Swarswati. By an order dated April 28, 2014 the Supreme Court dismissed the SLP. The DGP submitted the fourth status report dated May 1, 2014 producing therewith a SIT report dated April 30, 2014 stating the details of the further investigation.
23. In report dated May 1, 2014 the DGP said as follows:− "As per order of the Hon'ble High Court, Calcutta dated 11.04.2014, a direction had been made to submit further investigation report to the Hon'ble High Court.
Accordingly, the investigation report dated 30/04/2014 submitted by the head of Special Investigation Team (SIT) and ADG CID is submitted herewith for favour of kind perusal. The report contains details of the investigation conducted so far, by the SIT, after it took over the investigation of this case.
I have monitored the investigation of this case on regular basis. The SIT has also been submitting weekly reports on the progress of investigation. They have been instructed to meticulously follow up all leads and conclude the investigation expeditiously."
24. The Division Bench disposed of the appeal by a judgement dated May 6, 2014. It set aside the single Judge observations against the Chief Minister. By an order dated June 17, 2014 in the WP the respondents therein were directed to file their respective oppositions to the WP. Accordingly, Hriday affirmed and filed an opposition dated July 1, 2014 on behalf of Swarswati and the CID DSP in the SIT affirmed and filed an opposition dated July 2, 2014 on behalf of the first four respondents in the WP.
25. In the last report dated July 7, 2014 the DGP said as follows:− "Further investigation report dated 05/07/2014 submitted by the head of Special Investigation Team (SIT) and ADG CID is submitted herewith for favour of kind perusal. The report contains details of the investigation conducted by the SIT, after its last report submitted on 30/04/2014 over the investigation of this case.
I have monitored the investigation of this case on regular basis. The investigation is largely complete and the SIT is ready to submit the Report in Final Form Before the Ld. Magistrate."
26. At this stage Hriday affirmed and filed the WP No.19538(W) of 2014 dated July 8, 2014 under Article 226 on behalf of Sibani; and its para.1 runs thus:− "1.This is a Mandamus Writ Petition under Article 226 of the Constitution of India, seeking transfer of a written information dated July 23, 2013 to the Superintendent of Police, Birbhum and copy communicated to the Director General and Inspector General of Police West Bengal to any other appropriate investigating agency for dealing with the same in accordance with law."
27. After considering the DGP reports dated April 10, 2014 and July 7, 2014 the single Judge passed an order dated July 8, 2014 in the WP of Nepal & Ors. The relevant part of the order is quoted below:− "A perusal of the report submitted on 10th April, 2014 and the report submitted today it reveals certain incriminating facts justifying immediate steps to be taken against the person named therein. There is no attempt shown to this Court that any action has been taken and this Court, therefore, feels that the presence of the Director General of Police, West Bengal before this Court to explain the conduct is necessary."
28. The CID Inspector in the SIT submitted a charge-sheet dated July 14, 2014 in the Court of the Chief Judicial Magistrate, Suri, Birbhum. He stated that after completion of the investigation of the case he was forwarding the report under s.173(2). He prayed for discharge of Nepal, Manas, Nabakrishna and Priyaranjan and sent five accused on bail, two accused in custody and an absconder (one Sk. Asgar) up for trial under ss.147/149/448/302/34 IPC and s.27 Arms Act.
29. By a common order dated July 22, 2014 in the two WPs the single Judge gave the respondents in Sibani's WP opportunity to file their respective oppositions to the WP and direction for hearing of the two WPs together. The CID DSP in the SIT affirmed and filed an opposition dated July 30, 2014 on behalf of the first two respondents in Sibani's WP, and Hriday affirmed and filed a reply dated August 7, 2014 on behalf of Sibani.
30. By a common order dated August 19, 2014 in the two WPs the single Judge directed the DGP to appear in person. The DGP appeared in person on September 4, 2014 with an affidavit dated September 3, 2014 stating why the charge-sheet had been submitted. He was questioned by the single Judge. Under the circumstances, the Judge gave the impugned judgement dated September 24, 2014.
31. After narrating the facts and referring to the submissions, the Judge framed the following three issues:− "1.The High Court can entrust the investigation upon an independent agency in exercise of power conferred under Article 226 of the Constitution of India, 2.The High Court can monitor the investigation after the charge-sheet is filed before the Magistrate, 3. Whether there can be more than two First Information Report for the same offence."
32. Although the Judge did not specifically answer the three framed issues, a reading of the judgement reveals the following answers: −
1. "It admits no debate on a proposition of law that the High Court can direct the investigation by CBI or any other specialised agency after arriving to a definite conclusion that the same is justified but such exercise of power should not be done in a routine manner." 2. "Ordinarily the Court should not direct the investigation by an independent agency including the CBI after the filing of the charge-sheet but the same cannot act as a deterrent in entrusting investigation to CBI to secure the justice between the parties and to instil confidence in the public mind." 3. "...there cannot be two FIR for the same offence unless it is a cross case."
33. The following is the drift of the single Judge findings:− "It is inconceivable that the subsequent complaint has not been registered as FIR till date." No attempt was made to get Hriday's statement recorded under s.164. In its report dated March 3, 2014 the SIT consciously omitted involvement of "two high profile political executives" even though the s.164 statements disclosed their involvement. "...despite categorical and impeceable statements" apparent from the video footage of Anubrata's speech produced in court by two TV channels, "reluctance was shown to investigate the matter in proper and right direction." "It is surprising that the head of the SIT"
referring to "a high-tension political rivalry between" two groups of a political party "in his report dated April 30, 2014" gave a "clean chit to the said political leader as he simply denied his involvement in the murder." "The SIT totally overlooked the speech delivered on July 17, 2013." The investigation was "one- sided" and it was made "ignoring vital and important" facts "with the definite object to protect the said political leader." The investigation was extraneously influenced and made "to shed and shelter some of the abettor of the said offence." Though the DGP was not to disclose his report to anyone, over the course of argument advocate for the State referred to excerpts from the report. The SIT even sought opinion form from the Birbhum PP. Opinion obtained from the GP led to filing of the charge-sheet. "The confidence entrusted upon the DGP has been shattered as his action during the investigation was all along influenced by the Government. The entire investigation is tainted with the extraneous influence, more particularly, by high profile political executive giving a protective umbrella to the abettor of the offence."
34. Mr. Bandyopadhyay has appeared for the State in both the ASTs;Mr. Bhattacharya has appeared for Nepal, Manas and Nabakrishna, the three petitioners in WP No.33223(W) of 2013;and Mr. Edulzi has appeared for Swarswati, the ninth respondent in WP No.33223(W) of 2013, and Sibani, the petitioner in WP No.19538 (W) of 2014. Both the ASTs have been heard together; and they have been heard on several occasions, because, for the reasons stated in the respective orders, the hearing had to be adjourned until the next dates.
35. The first question that arose over the course of hearing was whether the single Judge directed the CBI to re-investigate the case or make a further investigation. Mr. Bandyopadhyay, Mr. Bhattacharya and Mr. Edulzi all submitted that a reading of the single Judge judgement and order whereby the Judge did not set aside the investigation and the charge-sheet submitted in consequence thereof, led them all to the conclusion that the Judge directed the CBI to make a post charge-sheet further investigation, not to re-investigate.
36. Armed with a large number of decisions, Mr. Bandyopadhyay started arguing every possible aspect of the power under Article 226 to deal with investigation of a criminal case and transfer an investigation to the CBI. Responding to the court's request to argue on specific issues involved in the ASTs, he ultimately limited the scope of his argument. Similarly, Mr. Bhattacharya and Mr. Edulzi, also armed with a large number of decisions, voluminous written notes, etc., ultimately limited their argument to the real issue involved in the two ASTs.
37. The principal question for decision in the two ASTs is whether the single Judge order for a post charge-sheet further investigation of the case is justified.
38. Referring to the WP by Nepal & Ors, Mr. Bandyopadhyay has submitted as follows. The WP was by three accused in the criminal case for handing the ongoing investigation of the case over to the CID. Though the on bail accused were not entitled to choose an investigating agency, the State agreed to handover the investigation of the case to the CID. Accordingly, the order dated December 23, 2013 was passed. After the order nothing remained to be decided in the WP. There was no reason to keep it, not a PIL, pending. It had outlived its usefulness long before the single Judge gave the impugned judgement. Hence the post charge-sheet further investigation order could not be passed in it.
39. Taking up Sibani's WP, he has submitted as follows. It was Hriday, a politician and a wanted accused in quite a number of criminal cases, who was behind the incredible letter dated July 23, 2013. Sibani was the writer of the letter in name only. Swarswati was added to the WP of Nepal & Ors on November 26, 2013. From then Hriday was aware of the case. He took the case to the Supreme Court. He never wanted a CBI investigation; did not go to the Magistrate with complaint. In State's opposition dated July 2, 2014 it was stated that the investigation was at the stage of report in final form. After this he affirmed and filed the WP dated July 8, 2014 in Sibani's name for a mandamus directing registration of the FIR of the same incident on the basis of the information in letter dated July 23, 2013, − a relief not granted. Hence the further investigation order could not be made in it.
40. Raising the questions of pleadings and procedure, he has made the following submissions. The orders passed in the two WPs will reveal that they were passed because of a hunch whipped up by the media that Anubrata's instigative speech caused the incident and because he was not being arrested, not because of any case stated in the two WPs and the related affidavits, or the facts revealed by the never perused case diary materials. All the police officers involved in the case and the advocates appearing for them and the State continuously faced unknown court made case. An impermissible procedure was adopted for supervising the investigation and collecting evidence to somehow link the police, political leaders and the Government with the criminals.
41. And as to the single Judge order, he has submitted that though the single Judge did not say why a post charge-sheet further investigation of the case was necessary, a reading of the judgement reveals that the Judge passed the order for the following baseless and unsustainable reasons:−
1.Public opinion in media; 2.Hriday's s.161 statement; 3.High-profile political executive extraneous influence over the investigation; 4.Sibani's s.164 statement; 5.Orders passed in the first WP from time to time; 6.Anubrata's non- arrest; 7.Filing of the charge-sheet without obtaining the court's leave; 8.Not sending Anubrata up for trial; and 9.Sharing of the DGP reports with the State advocates.
42. His final submissions are these. The Judge could order a post charge- sheet further investigation only if there was any deficiency in the SIT investigation. The Judge did not indicate what was the deficiency. The judgement gives a person of reasonable prudence the impression that the Judge ordered further investigation simply because Anubrata was not arrested and sent up for trial as an accused in the case. This could not be a ground for ordering a further investigation of the case; for the court cannot engage an investigating agency for hounding a person.
43. He has relied on the following decisions:− Abhinandan Jha & Ors. v. Dinesh Mishra, AIR 1968 SC 117; V. C. Shukla v. St. (Delhi Admn.), 1980 Supp SCC 249; Director CBI & Ors. v. Niyamavedi & Ors., (1995) 3 SCC 601; Common Cause etc. v. UOI & Ors., (1999) 6 SCC 667; T.T. Antony v. State of Kerala & Ors., (2001) 6 SCC 181; Secretary, etc. & Ors. v. Sahngoo Ram Arya & Anr., (2002) 5 SCC 521; M.C. Abraham & Anr. v. St. of Maharashtra & Ors., (2003) 2 SCC 649; Divine Retreat Centre v. St. of Kerala & Ors., (2008) 3 SCC 542; D. Venkatasubramaniam & Ors. v. M.K. Mohan Krishnamachari & Anr., (2009) 10 SCC 488; State of WB & Ors. v. Committee etc. & Ors., (2010) 3 SCC 571; Kunga Nima Lepcha & Ors. v. St. of Sikkim & Ors., (2010) 4 SCC 513; St. of UP & Ors. v. Rakesh Kumar Keshari & Ors., (2011) 5 SCC 341; Vinay Tyagi v. Irshad Ali & Ors., (2013) 5 SCC 762; Doliben Kantilal Patel v. St. of Gujarat & Ors., (2013) 9 SCC 447; Manohar Lal Sharma v. Principal Secretary & Ors., (2014) 2 SCC 532; and dated September 25, 2014 in AST 352 of 2014 (Tapas Pal v. Biplab Kr. Chowdhury & Ors.).
44. Mr. Bhattacharya has submitted as follows. The case stated in their WP paras.4-8, 15-19 and 22 and the prayers made therein will reveal that Nepal & Ors prayed for a fair investigation of the case by an independent investigating agency. Hence the order directing the CID to investigate the case could not and did not end the scope of the WP. The orders passed in the WP were not interlocutory, but they all were final orders. The State having accepted them all, is not entitled today to question their correctness or the correctness of the single Judge judgement and order contending absence of pleading. The Judge rightly ordered a post charge-sheet further investigation, because the conspiracy aspect was not investigated at all. Even though the Judge has not specified the deficiencies in the investigation, in view of the provisions of s.102CPC, the Division Bench is empowered to sustain the order, because the deficiencies in the investigation are evident.
45. As to the deficiencies in the investigation, Mr. Bhattacharya has submitted as follows. Pleadings and materials revealed that the written information on the basis whereof the FIR was registered was obtained by the police at gunpoint. The letter dated July 23, 2013 in the name of Sibani was an indication of a larger conspiracy. It is quite unbelievable that a rustic woman such as Sibani was able to see and recognise at night 41 persons of several different villages taking part in the attack. The persons were named with their fathers' names. Nepal & Ors and also Hriday gave statements that one Nimai was involved. Nepal & Ors also stated that a car of one Monoj Ghosh was used for commission of the offence. No step was taken for recording dying declaration. These indicating a larger conspiracy were not investigated. Hence the single Judge rightly ordered a further investigation by the CBI, not by the SIT that could not or did not investigate the aspects. The principles stated in Pratim Kumar Singharay v. UOI, 2013(3) CHN (Cal) 172 and Bharati Tamang v. UOI & Ors., 2014 CrLJ 156 are applicable to the case.
46. According to Mr. Edulzi, the single Judge ordered a post charge-sheet further investigation of the case for the following reasons:− 1. Leakage of the DGP status reports; 2. Failure to get Hriday's statement recorded under s.164; 3. Political executives' interference in the investigation; and 4. Legal opinion sought by the DGP during investigation. His submissions are that the Judge transferred the further investigation to the CBI, because the SIT investigation was found to be tainted with interference; and that even if the single Judge did not specifically record the reasons for ordering a further investigation by the CBI, in view of the deficiencies in the investigation, the Division Bench can and should maintain the order. Regarding the expression "political executive," he has handed the court the decision in State(Delhi Admn.) v. V.C.Shukla & Anr., AIR 1980 SC 1382.
47. As to the deficiencies in the investigation, Mr. Edulzi has submitted as follows. The FIR was a false one. This case was stated in the WP. The AO and the charge-sheet supported this WP case. The aspect was not investigated. Though specific allegations were made against Sampad and Dwija Raj, no investigation was made for ascertaining their involvement in the commission of the crime. The district police and the SIT were making parallel investigations. The sources of the fire arms, bullets, bombs, etc. were not investigated. No step was taken for recovery of the offence weapons. Photos of not arrested accused were shown to Sibani. An unknown identification method was followed. Sibani named some persons in her letter dated July 23, 2013. The same persons were named by Hriday in his s.161 statement. The DGP misled the court that except the four named in his report, no other person was named by anyone except Sibani. The Magistrates recording the s.164 statements were not cited in the charge-sheet as witness. This shows that the investigation was tainted. In status report polygraph test aspect was mentioned. It was avoided intentionally. Nimai and Gopinath, two important witnesses, were not examined. An accused in custody was shown as a proclaimed offender. This shows the DGP's non-application of mind. The DGP shared his reports with the State advocates, although he had been asked not to do that.
48. In reply, Mr. Bandyopadhyay saying that there is no doubt about the power of the Division Bench to maintain the order giving new reasons has repeatedly submitted that the State doing everything for making a fair investigation of the case is ready to accept an order directing a post charge-sheet further investigation, if the Division Bench indicates the deficiencies in the investigation made. As to influence, he has submitted that the nine- member SIT headed by an Addl.DGP and who all were under the direct supervision of the DGP, has received a severe demoralising blow from the single Judge who has not stated which political person or persons influenced them all and in what manner.
49. The principles stated by the Supreme Court in the cited decisions and applying which the decisions were given are unexceptionable and this court is bound by all of them. The issues in the ASTs are also to be decided keeping them in mind. But it seems that no particular principle in any of the decisions is discisively applicable to the issues in these ASTs. Hence it is hoped that the opinion of this court that it is not necessary to deal with the cited decisions shall not give anyone an impression that this court is either disrespectful to the decisions or unappreciative of the very forceful arguments made by the advocates.
50. Nepal & Ors (three FIR named on bail accused) filed their WP for transferring the investigation of the case to the CID. The incident took place on the night of July 21, 2013 and on that same night they all were arrested. The WP was dated November 6, 2013 and by an order dated December 23, 2013, passed recording the State's no objection, the investigation was transferred to the CID. Though Nepal & Ors did not seek a larger relief, the WP was kept pending and under an order dated February 14, 2014 passed therein the DGP constituted a SIT. The State filed opposition dated July 2, 2014 stating that the SIT was at the stage of forwarding the s.173(2) report.
51. Hriday affirmed and filed the WP dated July 8, 2014 in Sibani's name, and it was for a mandamus commanding the police to register an FIR on the basis of the information of the same incident given by the letter dated July 23, 2013 in Sibani's name and to investigate the case. In the WP para.5(x) it was stated that Nepal & Ors filed the WP in collusion with Anubrata, Bikash and their (Nepal & Ors) two advocates for protecting the real offenders.
52. The SIT investigation sought to be supervised by the court actually came to be monitored by it, and after completion of the investigation the investigating officer submitted the charge-sheet dated July 14, 2014. The single Judge did not quash the charge-sheet and the investigation. Hence today the questions of maintainability of the two WPs and the correctness of the orders passed in them between December 23, 2013 and September 24, 2014 have become academic.
53. The single Judge did not say whether he was ordering a re- investigation or a further investigation of the case. A re-investigation denotes a fresh investigation as distinct from a further investigation. A re-investigation can be ordered only after quashing the already completed investigation ending in a report forwarded to the criminal court under s.173(2). The confusion led to repeated reading of the judgement and it has been already noted that everyone has understood the single Judge order as one for a post charge-sheet further investigation by a different agency. And that seems to be the real position.
54. The use of the expression "political executive" by the single Judge has created a lot of confusion. The respondents' case that the Judge used it interchargeably with the expression "political leader" does not fit in with the context. The Judge said, "The entire investigation is tainted with the extraneous influence, more particularly, by high profile political executive giving a protective umbrella to the abettor of the offence." The Judge, however, did not say on what basis the finding was recorded.
55. The expression "political executive" was defined by Asirvetham in his book 'Political Theory,' 9th ed., p.352 to mean:− "Turning from the nominal to the political executive we find at least four distinct forms, viz., the English, the American, the Swiss and the French. In England, the Prime Minister and the Cabinet constitute the political executive. They can remain in office only so long as they command the confidence of Parliament. They are members of one or the other house of the legislature and play a leading part in initiating legislation. They are also administrative heads of departments and, in that capacity, are responsible to Parliament not only for policy but also for the details of administration. They work together as a team and, in their relation to Parliament, stand or fall together."
56. If the meaning of the expression is used in the context of a State issue, it must refer to the Chief Minister and the Cabinet. Having regard to the gravity of what the expression denotes, it is imperative that the court should be extremely cautious and careful before recording a finding such as the one the Judge recorded; it can be recorded only when there is a clear issue, the political executive is heard, and the issue is clearly proved against it. Nothing proved before the Judge that in this case the nine-member SIT was influenced by the political executive.
57. The possibility of a political influence in the context of accusations against the police and political leaders was relevant at the date the court transferred the investigation to the CID as wanted by three accused. It was Anubrata's non-arrest that led to the SIT formation. The court intended and tried to supervise the investigation, but it came to be monitored. Hence during progress of the investigation and thereafter only an established case of political influence could be a ground to ask the CBI to step in. There was no material that anyone influenced the investigation. It is not known wherefrom the Judge concluded that the SIT investigation was all along politically influenced to save Anubrata.
58. An investigation is bound to produce result according to the aim and ability of the officer or agency making the investigation. Failure of the officer or agency to find evidence against some accused cannot be a ground to order a post charge-sheet further investigation. The officer or agency is not to target anyone, but to see through the incident and discover the chain of events. If the events reveal role of anyone in the commission of the crime, nothing can prevent their prosecution. If the investigation ending in the s.173(2) report has not revealed any case against some accused, a hunch cannot be the basis to order a further investigation; for that will amount to a person targeted re-investigation.
59. Anubrata's non-arrest during investigation and his non-inclusion in the charge-sheet as an accused sent up for trial could not be the reasons for a post charge-sheet further investigation order. Only the available evidence could involve him in the case as the instigator of the crime, not any amount of perception, wish, demand, or desire of the persons shocked and terrified by his instigative speech on July 17, 2013 for which he is facing a separate prosecution. Nothing can be a substitute for evidence and one is not to be arrested or sent up for trial for rendering satisfactory justice. People seeking satisfactory justice today will prove nothing at the trial of the case tomorrow.
60. One of the reasons for the single Judge order is that the DGP sharing his reports with State advocates allowed the investigating officer, a SIT member, to forward the s.173(2) report to the criminal court without obtaining the permission of the court, but acting on opinion obtained from the Government Pleader. The question is even if the DGP did not do the right thing, whether his commissions and omissions could be the reasons for ordering a post charge- sheet further investigation of the case by the CBI. The answer must be an emphatic no; for the mentioned things could not be and were not any deficiency in the investigation maintained by the Judge.
61. The finding of the single Judge that by allowing himself to be continuously influenced by the Government during the investigation of the case, the DGP committed a breach of trust is a very serious finding. The question is on the basis of what evidence the Judge recorded the finding. There is no evidence. The next question is if the finding was based on evidence, whether it was permissible to maintain the investigation. The clear answer is no. But even after recording the finding that it was an entirely tainted investigation, the Judge did not quash the investigation; rather ordered a post charge-sheet further investigation by a different agency. The findings and the order are irreconcilable.
62. It is, therefore, evident that the single Judge ordered a further investigation of the criminal case for reasons which could not be any reasons for ordering a post s.173(2) report further investigation of a criminal case. The reasons, provided they were based on established facts (not the case here), could be relevant for ordering a pre s.173(2) report further investigation, or a post s.173(2) report re-investigation. An order for a post s.173(2) report further investigation or re-investigation of a case whose investigation came to be monitored by the court itself cannot be an ordinary thing; for the court too owes an explanation for the situation requiring the order.
63. The single Judge, instead of leaving the question of any necessity of a post charge-sheet further investigation of the case to the criminal court, proceeded to examine it and ordered it without specifying what were the deficiencies in the already made and completed investigation ending in the charge-sheet. It is evident from the judgement that the single Judge order is the result of the great influence the previous orders passed in the WP of Nepal & Ors cast on him.
64. The orders dated February 14, 2014 in the WP of Nepal & Ors were that the court would supervise the SIT investigation and the DGP would monitor it, when it ought to have been the reverse. The role reversal created an unrealistic situation that left the court dissatisfied with the investigation; for it expected and wanted the SIT to follow and back its hunches. There can be hardly any hunch based role reversal, but may leave the involved injured and frustrated. And one convinced against one's will is of the same opinion still.
65. The question now is whether the single Judge order should be maintained by the Division Bench, if it accepts the respondents' case that there are serious deficiencies in the investigation.
66. Here the offences, if any, were committed on July 21, 2013 and the investigation of the case was made by a SIT constituted by the DGP pursuant to order of court that received as many as five status reports from the DGP over the course of the investigation. On the facts, today it seems just and proper to examine whether it was or is a case for ordering a post charge-sheet further investigation of the case for the reasons stated by the respondents over the course of argument; for more investigation related uncertainties around the case shall defeat only the purpose of justice.
67. The respondents' case is that since there are reasons to say that the evident conspiracy angle of the case had not been investigated at all, it was and still is a case for a post charge-sheet further investigation order. Only the case diary materials, on the basis whereof the five DGP reports submitted during pendency of the WPs were prepared, can provide the answer to the issue raised by the respondents.
68. In their WP dated November 6, 2013 Nepal & Ors said, "...immediately after the said occurrence, the widow of the deceased, viz. Smt. Swarswati Ghosh, was picked up by the Panrui Police Station at the instance of some leaders of a particular political party and she was forced to put her signature on some blank papers." They further said, "...the widow of said Sagar Ghosh was compelled to put her signatures on some blank papers and according to the wise and desire of the actual offenders/culprits, the written complaint was lodged..."
69. The case in the letter dated July 23, 2013 in Sibani's name was that on the night of July 21, 2013 at about 5 a.m. a person in uniform saying that he was the Panrui police station second officer obtained Sibani's signature on two blank white papers at gunpoint and obtained Swarswati's signature on white paper by force. The case in the WP dated July 8, 2014 is that on the night of July 21, 2013 at about 3.30 a.m. Sampad and Diwja Raj forced Sibani to write a false complaint and made Swarswati sign blank papers at gunpoint; and that the complaint led to the FIR. The FIR reveals that it was registered at 4.05 a.m.
70. Certain facts in relation to Nepal & Ors revealed by the investigation are these. Sajal is the son of a late elder brother of Nepal and Nabakrishna (two brothers) and they all used to stay in the same premises; and Bhagirath is an uncle of Priyaranjan and they also used to stay in the same premises. Manas is a son of Nepal. They all were the victim's neighbours and there were personal enmities and political conflicts between the families.
71. In their examination during investigation what Swarswati and Sibani said about the FIR is there in the case diary and what investigation the SIT made in view of the allegations was stated in the detailed further investigation reports submitted in court with the DGP status reports. And a perusal of all the things leads to the conclusion that investigation was made by the SIT for ascertaining the element of truth in the allegations. Hence it is wrong to say that the probability of a police-politician-criminal conspiracy leading to a false FIR was not investigated.
72. The police papers reveal the following facts. The district police examined 27(twenty-seven) witnesses; the CID 18(eighteen) and the SIT 67(sixty- seven). Except a police constable witness all the witnesses examined by the district police and the CID were examined twice over by the SIT. The SIT examined 33(thirty-three) persons(including Anubrata and Bikash) named in the letter dated July 23, 2013 in Sibani's name. Statements of 7 (seven) witnesses were recorded under s.164.
73. During investigation the district police arrested 4(four):− Nepal, Manas, Nabakrishan and Priyaranjan(all named in the FIR) on the night of July 21, 2013; the CID arrested 5(five):− Sk. Yunus @ Saheb(on February 8, 2014), Jagannath Das, Jaladhar Das, Sk. Mastafa and Prio Mukherjee (all on February 10, 2014); and Bhagirath Ghosh @ Bhagi and Sajal Kanti Roy @ Subrata Roy @ Subha (both named in the FIR) surrendered themselves in court on April 24, 2014 and May 21, 2014 respectively.
74. Nepal, Manas and Nabakrishna were granted bail on September 6, 2013, Priyaranjan (a juvenile) was released on bail (date not available) and Sk. Yunus, Jagannath, Jaladhar, Sk. Mostafa and Priyo were released on bail on May 12, 2014. Bhagirath and Sajal were in custody. The SIT examined the last witness on June 2, 2014. In report dated July 8, 2014 the DGP said that the SIT was at the stage of submitting report in final form.
75. The investigating officer forwarded the s.173(2) report dated July 14, 2014 to the criminal court competent to take cognizance. He prayed for discharge of Nepal, Manas, Nabakrishana and Priyaranjan on the grounds that the investigation did not reveal their involvement and sent five on bail, two in custody and an absconder (one Sk Asgar) up for trial under ss.147/148/149/448/302/34 IPC and s.27 Arms Act. And as to Anubrata, the report is that the extensive investigation did not reveal a case to involve him in the incident.
76. The SIT constituted by the DGP on February 14, 2014 comprised the CID Head, a CID IG, a CID DSP and a CID Inspector. It was headed by the CID Head, an Addl.DGP and its functioning was monitored by the State DGP. Four more CID officers were co-opted into it. The CID Head submitted 5 (five) detailed further investigation reports to the DGP and annexing those reports the DGP submitted 5(five) status reports in court. Parts of the five DGP status reports have been quoted hereinbefore.
77. The reports and the case diary materials reveal the following facts. The SIT interrogated the accused on bail and the accused in custody. It examined a large number of persons including persons named in the letter dated July 23, 2013 in Sibani's name. It examined SI Sampad Mukherjee, SI Diwja Raj Sahana and other police officers, constables and police personnel. Acting on disclosure statements during custodial interrogation of the arrested accused, it raided the places it was taken to by the accused for recovery of offence weapons. It investigated the accusation of conspiracy between the police, political leaders and criminals.
78. It is, therefore, not correct to say that the SIT did not investigate the conspiracy angle, involvement of the police and political leaders, the FIR related allegations, and the use and sources of the offence weapons. The court cannot order the SIT or the CBI to investigate these or any of them once again in the name of a further investigation. In the opinion of the SIT it was not necessary to get statements of all witnesses recorded under s.164 (s.164 is to be done or not, only at the discretion of the officer); to examine everyone named in the letter dated July 23, 2013; to arrest Anubrata and interrogate him in police custody; and to examine everyone named by Nepal & Ors. These are no grounds to order a post charge-sheet further investigation of the case.
79. The s.173(2) report forwarded to the criminal court began the most important chapter of the case. The investigation ending in the report did not end the case. The trial of the case, already delayed substantially benefiting only the real offenders and the persons out to use the incident for their own benefits, may unfurl facts that may be stranger than fiction. The criminal court possesses enough power to catch and punish the real offenders (even if they have escaped the investigation net), if substantive evidence is given in proof of commission of offence by them. A hunch of the court whipped up by people demanding justice cannot be the basis to order a post s.173(2) report further investigation of the case.
80. The foregoing discussion leads to the following conclusions. The single Judge ordered a post charge-sheet further investigation of the case not for any real deficiencies in the SIT investigation, but for reasons (based on no materials) that, even if were based on materials, could be no reasons for ordering a post charge-sheet further investigation, but a re-investigation. The things pointed out by the respondents are, in reality, no deficiency in the investigation for a post charge-sheet further investigation of the case, and hence they are no reasons for maintaining the single Judge order.
81. For these reasons, the single Judge judgement and order dated September 24, 2014 is set aside, the ASTs are allowed and both the WPs are disposed of saying that the criminal court shall be free to deal with the criminal case according to law remaining impervious to everything this court has said in and in connection with the two WPs uptil now. No costs. Certified xerox.
(Jayanta Kumar Biswas, J) Ishan Chandra Das, J.− I agree.
(Ishan Chandra Das, J)