Calcutta High Court (Appellete Side)
Purnima Kandu & Anr vs The State Of West Bengal & Ors on 6 April, 2022
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
06.04.2022
Ct. No.13
Sl..No. 24.
sp
W.P.A. 5418 of 2022
Purnima Kandu & Anr.
-Versus-
The State of West Bengal & Ors.
Mr. Koustav Bagchi, Adv.,
Mr. Debayan Ghosh, Adv.,
Ms. Priti Kar, Adv.
...for the petitioners.
Mr. S.N. Mookherjee, Ld. A.G.,
Mr. Samrat Sen, Ld. A.A.A.G.,
Mr. Anirban Ray, Ld. G.P.,
Mr. T.M. Siddiqui, Adv.,
Mr. Debasish Ghosh, Adv.,
Mr. Nilotpal Chatterjee, Adv.
...for the State.
Mr. Y.J. Dastoor, Ld. A.S.G.I.,
Mr. Billwadal Bhattacharyya, Ld. Assistant S.G.I.,
Mr. Phiroze Edulji, Adv.,
Mr. Samrat Goswami, Adv.
...for the CBI.
The order dated April 4, 2022 is mentioned for
correction.
In the last line of the first page of the said order, the
name 'Dipak Kandu, the cousin brother of the deceased',
shall stand corrected to read as 'Dipak Kandu, the nephew
of the deceased'.
In the second line of the second page of the said
order, the names 'Md. Asik and Bhim Tewari' shall stand
corrected to read as 'Md. Asik and Naren Kandu'.
2
In view of the large number of other typographical
errors in the said order, the following order shall replace
the order dated April 4, 2022. The reasoning and the
result remain same.
A second report is received from the Superintendent
of Police. Details of further steps taken since 1st of April,
2022 have been set out in the report. The Case Diary is
also produced today.
It appears that there is some progress in the
investigation. It transpires from the Case Diary and the
report, that as on date, four persons have been arrested.
One Kolebar Singh is stated to have been arrested in
Jharkhand. He was the person accused of having fired
the weapon at the victim. The principal accused Dipak
Kandu, the nephew of the deceased, has been arrested.
Two other accused, Md. Asik and Naren Kandu have also
been arrested. The abovementioned four persons named
in the complaint made by the petitioner no.1 have given
statements under Section 161 of the Code of Criminal
Procedure, 1973.
The investigation is indeed progressing. As of now it
cannot be said that the investigation at the hands of the
State has been slow. However there are some aspects of
the investigation that have stuck out to this Court as
noticeably concerning.
Kolebar Singh is stated to have been arrested in
Jharkhand. The transit remand of the persons from the
3
appropriate Court in Jharkhand appears to have been
omitted in the Case Diary. He is, however, in Police
custody, remanded by the appropriate Court in Purulia.
Further, the photography at the place of occurrence has
been done two days after the incident i.e. on 15th of
March, 2022. It appears to this Court that the same may
have been done after the intervention of the C.I.D., West
Bengal.
It also appears that the person who is stated by the
complainant to have facilitated the crime, i.e., the
Inspector-in-Charge of the Jhalda Police Station, Sanjib
Ghosh, has not been taken into custody as yet, and is still
performing his official duties.
It is also surprising to note that the mobile phone of
the said Sanjib Ghosh has not been seized till date. Vital
data may have been lost.
There is no dispute about the principal motive
behind the killing. The political rivalry between the
deceased and the said Dipak Kandu was commonly
known. Dipak had contested on the ruling political party
ticket against the deceased, who was an INC candidate,
and had lost to the latter. The two political parties had
won five seats each in the Jhalda Municipality Election
and two other seats were won by independent candidates.
The death of the Tapan Kandu would have clearly tilted
the balance of the control of power of the Jhalda
Municipality Board, in favour of the Ruling Party.
4
It may not be out of place to refer to two additional
facts brought to this Court's notice by the petitioner. The
first being that in the complaint dated 14th March, 2022,
the writ petitioner no.1 had indicated the role played by
the Inspector-in-Charge, Sanjib Ghosh, in trying to woo
over the deceased to join the rival political party. It is
stated that Sanjib Ghosh had acted on somebody else's
behalf. It is also stated that not only were requests made,
but at times, there were threats issued. The petitioners
claimed to have audio recordings of such threats,
demands or requests made by the said Inspector-in-
Charge.
The learned Advocate General has, however, said
that some audio recordings are in the custody of the
Investigating Officer.
The second noticeable fact is that the
Superintendent of Police of Purulia District, Mr. S.
Selvamurugan, is stated to have held a Press Conference
yesterday, wherein he has straightaway given a clean chit
to the Inspector-in-Charge, Sanjib Ghosh. This has been
done even though the investigation is still in progress,
and final report is yet to be submitted. It is also
submitted that the said Superintendent of Police has been
summoned and is under investigation in connection with
another investigation of the Enforcement Directorate
commonly referred to as the 'Coal Scam'.
5
Thus, the investigation has progressed, albeit with
glitches. Much more evidence, relevant and of substance,
could have been collected by this time.
Learned Counsel for the petitioners, has placed
reliance upon several decisions of the Hon'ble Supreme
Court, the relevant paragraphs of which have been laid
out below. Reliance was firstly, placed on the case of
Mithilesh Kumar Singh -Vs.- State of Rajasthan & Ors,
report in (2015) 9 SCC 795;
"12. Even so the availability of power and its
exercise are two distinct matters. This Court does
not direct transfer of investigation just for the
asking nor is transfer directed only to satisfy the
ego or vindicate the prestige of a party interested in
such investigation. The decision whether transfer
should or should not be ordered rests on the
Court's satisfaction whether the facts and
circumstances of a given case demand such an
order. No hard-and-fast rule has been or can
possibly be prescribed for universal application to
all cases. Each case will obviously depend upon its
own facts. What is important is that the Court
while exercising its jurisdiction to direct transfer
remains sensitive to the principle that transfers are
not ordered just because a party seeks to lead the
investigator to a given conclusion. It is only when
there is a reasonable apprehension about justice
becoming a victim because of shabby or partisan
investigation that the Court may step in and
exercise its extraordinary powers. The sensibility of
the victims of the crime or their next of kin is not
wholly irrelevant in such situations. After all
transfer of investigation to an outside agency does
not imply that the transferee agency will
necessarily, much less falsely implicate anyone in
the commission of the crime. That is particularly
so when transfer is ordered to an outside agency
perceived to be independent of influences,
pressures and pulls that are commonplace when
State Police investigates matters of some
significance. The confidence of the party seeking
transfer in the outside agency in such cases itself
rests on the independence of that agency from
such or similar other considerations. It follows that
unless the Court sees any design behind the
prayer for transfer, the same must be seen as an
attempt only to ensure that the truth is discovered.
The hallmark of a transfer is the perceived
independence of the transferee more than any
6
other consideration. Discovery of truth is the
ultimate purpose of any investigation and who can
do it better than an agency that is independent.
13. Having said that we need to remind ourselves
that this Court has, in several diverse situations,
exercised the power of transfer. In Inder
Singh v. State of Punjab [(1994) 6 SCC 275 : 1994
SCC (Cri) 1653] this Court transferred the
investigation to CBI even when the investigation
was being monitored by senior officers of the State
Police. So also in R.S. Sodhi v. State of U.P. [1994
Supp (1) SCC 143 : 1994 SCC (Cri) 248]
investigation was transferred even when the State
Police was doing the needful under the supervision
of an officer of the rank of an Inspector General of
Police and the State Government had appointed a
one-member Commission of Inquiry headed by a
sitting Judge of the High Court to enquire into the
matter. This Court held that however faithfully the
police may carry out the investigation the same will
lack credibility since the allegations against the
police force involved in the encounter resulting in
the killing of several persons were very serious. The
transfer to CBI, observed this Court, "would give
reassurance to all those concerned including the
relatives of the deceased that an independent
agency was looking into the matter".
(emphasis supplied)
Reliance has also been placed on the case of R.S.
Sodhi, Advocate -Vs.- State of U.P. & Ors., reported in
1994 Supp (1) SCC 143;
"2. We have examined the facts and circumstances
leading to the filing of the petition and the events
that have taken place after the so-called
encounters. Whether the loss of lives was on
account of a genuine or a fake encounter is a
matter which has to be inquired into and
investigated closely. We, however, refrain from
making any observation in that behalf; we should,
therefore, not be understood even remotely to be
expressing any view thereon one way or the other.
We have perused the events that have taken place
since the incidents but we are refraining from
entering upon the details thereof lest it may
prejudice any party but we think that since the
accusations are directed against the local police
personnel it would be desirable to entrust the
investigation to an independent agency like the
Central Bureau of Investigation so that all
concerned including the relatives of the deceased
may feel assured that an independent agency is
looking into the matter and that would lend the
final outcome of the investigation credibility.
However faithfully the local police may carry out
the investigation, the same will lack credibility
7
since the allegations are against them. It is only
with that in mind that we having thought it both
advisable and desirable as well as in the interest of
justice to entrust the investigation to the Central
Bureau of Investigation forthwith and we do hope
that it would complete the investigation at an early
date so that those involved in the occurrences, one
way or the other, may be brought to book. We
direct accordingly. In so ordering we mean no
reflection on the credibility of either the local police
or the State Government but we have been guided
by the larger requirements of justice. The writ
petition and the review petition stand disposed of
by this order."
(emphasis supplied)
Another case that was cited by the petitioners is
Pooja Pal -Vs.- Union of India & Ors., reported in (2016)
3 SCC 135.
"83. A "speedy trial", albeit the essence of the
fundamental right to life entrenched in Article 21
of the Constitution of India has a companion in
concept in "fair trial", both being inalienable
constituents of an adjudicative process, to
culminate in a judicial decision by a court of law as
the final arbiter. There is indeed a qualitative
difference between right to speedy trial and fair
trial so much so that denial of the former by itself
would not be prejudicial to the accused, when
pitted against the imperative of fair trial. As
fundamentally, justice not only has to be done but
also must appear to have been done, the residuary
jurisdiction of a court to direct further
investigation or reinvestigation by any impartial
agency, probe by the State Police notwithstanding,
has to be essentially invoked if the statutory
agency already in charge of the investigation
appears to have been ineffective or is presumed or
inferred to be not being able to discharge its
functions fairly, meaningfully and fructuously. As
the cause of justice has to reign supreme, a court
of law cannot reduce itself to be a resigned and a
helpless spectator and with the foreseen
consequences apparently unjust, in the face of a
faulty investigation, meekly complete the
formalities to record a foregone conclusion. Justice
then would become a casualty. Though a court's
satisfaction of want of proper, fair, impartial and
effective investigation eroding its credence and
reliability is the precondition for a direction for
further investigation or reinvestigation, submission
of the charge-sheet ipso facto or the pendency of
the trial can by no means be a prohibitive
impediment. The contextual facts and the
attendant circumstances have to be singularly
evaluated and analysed to decide the needfulness
8
of further investigation or reinvestigation to
unravel the truth and mete out justice to the
parties. The prime concern and the endeavour of
the court of law is to secure justice on the basis of
true facts which ought to be unearthed through a
committed, resolved and a competent investigating
agency.
..................
85. As succinctly summarised by this Court in Committee for Protection of Democratic Right [State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : (2010) 2 SCC (Cri) 401] , the extraordinary power of the constitutional courts in directing CBI to conduct investigation in a case must be exercised sparingly, cautiously and in exceptional situations, when it is necessary to provide credibility and instil confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. In our comprehension, each of the determinants is consummate and independent by itself to justify the exercise of such power and is not interdependent on each other.
86. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof.
Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore, cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though well-demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice."
(emphasis supplied) A large number of other decisions were also proposed to be placed, but those are not as relevant. The object and purpose behind transfer of investigation from 9 the State Agencies to that of an independent one, is to ensure a credible, free, fair and transparent investigation.
Considering the dicta laid down in the aforesaid decisions referred to by the petitioners, there is need for instilling faith of the public at large in any investigation, that involves serious crimes. Given the gravity and politically sensitive nature of the crime, the public at large, need to see that the Rule of Law is still alive and functioning. Justice must also be seen to be done. Satisfaction of the de facto complainant, petitioners' family members and persons associated with them also needs to be addressed.
The State Investigative Agencies appear to have done quick work, but there are some glaring omissions in the investigation as pointed out hereinabove.
The proposed transfer of the investigation to the Central Bureau of Investigation (CBI) is necessary in view of the dicta of the Hon'ble Supreme Court laid down in R.S. Sodhi, Advocate (supra) case, that it must be clearly evident and apparent to the common public at large that there is indeed an honest, transparent and just investigation into the crime in question. In the instant case, where the main accused are a police officer and a Councillor of the ruling party, investigation and prosecution by the State Police, would not send a proper message.
10
For inter alia reasons stated hereinabove, this Court is inclined to direct the CBI to immediately take over the entire investigation into the instant case. The Jhalda Police and particularly, the Superintendent of Police, Purulia, shall ensure that the entire Case Records and Diary, as well as evidence and every other material relevant to this case, in the hands of the State Police is transferred and made over to the CBI.
This Court records appreciation for the fair and just stand taken by the learned Advocate General and his team in this matter in placing all facts and documents relevant for decision.
It is expected that the investigation shall be carried out expeditiously, and final report is submitted to the jurisdictional Magistrate, within a period of forty-five days from date.
Liberty is reserved to CBI to apply for extension of time. Reports of the Superintendent of Police, Purulia, are taken on record. The Case Diary, however, is returned to the State.
The writ petition being W.P.A. 5418 of 2022 is disposed of.
Let urgent photostat certified copies of this order, if applied for, be supplied to the parties upon compliance with all necessary formalities.
(Rajasekhar Mantha, J.)