Calcutta High Court (Appellete Side)
For The vs State Of West on 10 July, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
10.07.2014 W.P. NO. 30188 (W) OF 2013
Mr. Raja Basu Chowdhury
Mr. Sousrav Chatterjee
Mr. Basudeb Biswas
Mr. G. Sau
For the Petitioner.
Mr. Sakya Sen
Mr. A.L. Chatterjee
For the State
Mr. Md. Asraf Ali
Mr. Sankar Banerjee
For the C.B.I.
The son of the writ petitioner died an unnatural death on September 26,
2009. The writ petitioner being aggrieved by the conduct of the investigation
made by the police authorities with regard to such unnatural death and a
report under Section 174 of the Code of Criminal Procedure of the police
authorities applied for making over the investigation to the Central Bureau
of Investigation.
When the writ petition was moved by an order dated October 7, 2013
the Officer-in-Charge, Burdwan Police Station under whose jurisdiction the
incident happened was directed to file a report in respect of the matters
complained of and the anomalies pertaining to the procedure adopted by the
police as pointed out in the petition. The Officer-in-charge, Burdwan Police
Station submitted a report dated November 13, 2013 to the Court.
On consideration of such report by an order dated November 13,
2013, the Court found the report to be perfunctory. The Court proceeded to
hand over the investigation into the unnatural death of the son of the
petitioner to the Criminal Investigation Department. The Criminal
Investigation Department was directed to conduct the investigation afresh
uninfluenced by what the Burdwan Police may have done already. A report
was called for from the Investigation Officer of the Criminal Investigation
Department assigned the task when the matter appeared four weeks
thereafter.
The writ petition was taken up on January 8, 2014. Such order
recorded that the police authorities sought extension of time to complete the
investigation. Such prayer was allowed.
Subsequently, the writ petition was taken up for hearing on March
12, 2014 when the Criminal Investigation Department submitted a report
dated March 9, 2014 to the Court claiming that such report was under
Section 173 (2) of the Code of Criminal Procedure. It was claimed at that
point of time on behalf of the Criminal Investigation Department that a final
report under Section 173 (2) of the Code of Criminal Procedure has already
been filed before the learned Magistrate opining that it was a case of road
accident that led to unfortunate death of the son of the petitioner. A copy of
such report was directed to be made over to the petitioner.
The writ petition was thereafter assigned to me. From time to time,
the matter was heard by me. The matter was adjourned to enable the State
authorities to take instructions on queries of Court.
It was contended on behalf of the petitioner that the report called for
by the Court by the order dated November 13, 2013 was a report under
Section 174 of the Code of Criminal Procedure. The Criminal Investigation
Department conducted an enquiry under Section 174 of the Code of
Criminal Procedure and submitted a report under Section 174 of the Code of
Criminal Procedure to the learned Magistrate. The same would appear from
the intiluation on the report filed before the learned Magistrate.
It was submitted on behalf of the petitioner that there were suspicious
circumstances in the unnatural death of the son of the petitioner. The post-
mortem report disclosed that the injuries were ante-mortem in nature. The
moment the post-mortem report opined that the injuries causing the death
were ante-mortem in nature, it was not open to the investigating authorities
to proceed under Section 174 of the Code of Criminal Procedure but to
invoke the provisions under Section 154 of the Code of Criminal Procedure
onwards and to submit a report under Section 173 of the Code of Criminal
Procedure thereof.
In support of such contentions reliance was placed on the cases
reported in (2008) 3 CHN 857 (Kishwar Jahan and Another Vs. State of West
Bengal & Ors. and (2011) 3 SCC 758 Ashok Kumar Todi Vs. Kishwar Jahan
And Ors.).
The petitioner also relied upon (1985) 2 SCC 537 (Bhagwant Singh
Vs. Commissioner of Police And Another) for the proposition that it laid down
how an enquiry under Chapter XII of the Code of Criminal Procedure, 1973
was to be conducted.
On behalf of the respondent authorities, it was submitted that by
error, they made a wrong submission on March 12, 2014 when they submitted that a final report under Section 173 of the Code of Criminal Procedure was filed before the learned Magistrate. It was submitted that the report was under Section 174 of the Code of Criminal Procedure and not under Section 173 of the Code of Criminal Procedure. It was a bona fide mistake and they should be excused.
It was next contended that the order dated November 13, 2013 did not express any opinion as to how the investigation was to be conducted. It merely directed the Criminal Investigation Department to investigate. The Criminal Investigation Department read the order dated November 13, 2013 to mean that it should do the investigation under Section 174 of the Code of Criminal Procedure afresh. It was also submitted that only after an enquiry under Section 174 of the Code of Criminal Procedure made by the Criminal Investigation Department resulted in the investigating officer of the Central Investigation Department forming an opinion as to the suspicious cause of death, then only the Criminal Investigation Department would invoke the provisions of Sections 154 to 173 of the Code of Criminal Procedure. In the instant case, the enquiry conducted by the Criminal Investigation Department under Section 174 of the Code of Criminal Procedure did not permit formation of an opinion that there was suspicious circumstances causing unnatural death. In such circumstances, according to the State authorities, there was no need for proceedings under Section 154 of the Code of Criminal Procedure resulting in report under Section 174 of the Code of Criminal Procedure.
It was next contended on behalf of the State authorities that the writ petitioner had alternative efficacious remedy available to herself. A report under Section 174 of the Code of Criminal Procedure has already been filed before learned Magistrate. The learned Magistrate was in seisin of the criminal proceedings. It would be appropriate for the High Court to exercise self-restraint and not exercise jurisdiction under Article 226 of the Constitution of India to interfere with the process of investigation and leave the parties to their remedies in the appropriate criminal proceedings.
In support of the contention that the High Court should exercise self- restraint and should not monitor an investigation, reliance was placed on (1998) 8 SCC 661 (Union of India & Ors. Vs. Sushil Kumar Modi & Ors ), (2006)7 SCC 296 (Popular Muthiah Vs. State represented by Inspector of Police ), (2008)2 SCC 409 (Sakiri Vasu Vs. State of Uttar Pradesh & Ors.) and (2011) 12 SCC 328 (T. C. Thangaraj Vs. V. Engammal & Ors.).
I have considered the rival contentions of the parties and the materials on record.
The writ petitioner annexed a copy of a report under Section 174 of the Code of Criminal Procedure in her writ petition. The complaint of the writ petitioner was that the investigation into the unnatural death of her son was not being conducted appropriately by the police authorities. The complaint of the writ petitioner was noted in the first order passed by this court on October 7, 2013. The complainants made by the petitioner persuaded the learned Judge to invite a report from the Officer-in-Charge of the Burdwan Police Station. The report was filed by the Officer-in-Charge of the Burdwan Police Station on November 11, 2013. Such report was found to be perfunctory when such the report dated November 11, 2013 was considered by the Court. Such consideration took place in presence of the learned Advocate representing the State. By the order dated November 13, 2013, the Court after finding such report to be perfunctory directed the Criminal Investigation Department to take over the investigation and conduct the investigation afresh uninfluenced by what Burdwan Police Station may have done already.
When the court was directing an investigation by the Criminal Investigation Department on November 13, 2013, surely it was apprised of the report under Section 174 of the Code of Criminal Procedure. The order dated November 13, 2013 could not be read as suggested on behalf of the State authorities to me when the Criminal Investigation Department will do an enquiry under Section 174 of the Code of Criminal Procedure afresh.
There was already a report under Section 174 of the Code of Criminal Procedure on record, filed by the Burdwan Police Station, which was at page 36 of the writ petition. The writ petitioner was aggrieved by such conduct of the police had approached the Court for handing over the Central Bureau of Investigation. In such context the order dated November 13, 2013 had to be read. It was a misreading of such order to contend that the Criminal Investigation Department will conduct an enquiry under Section 174 of the Code of Criminal Procedure afresh. Therefore, the Criminal Investigation Department was to investigate into a crime under the relevant provisions of Section 154 of the Code of Criminal Procedure onwards and to file a report under Section 173 of the Code of Criminal Procedure and not submit a report under Section 174 of the Code of Criminal Procedure. The order dated November 13, 2013 was clear when directed the Criminal Investigation Department to conduct investigation afresh.
To my mind, the order dated November 13, 2013 required the Criminal Investigation Department to investigate a crime. Therefore, it was incumbent upon the Criminal investigation Department to invoke the provisions of the Section 154 of the Code of Criminal Procedure onwards and to file a report before this Hon'ble Court.
The order dated November 13, 2013 allowed four weeks' time to the Criminal Investigation Department to complete the investigation and to submit a report to the Court. Such order was passed in presence of the State authorities. No appeal was preferred. The Court, therefore, wanted a report from the Criminal Investigation Department to apprise itself as to the conduct of the investigation into the crime directed by such order of the Court.
The Criminal Investigation Department entrusted with the investigation of the crime by the order dated November 13, 2013 proceeded to do an enquiry under Section 174 of the Code of Criminal Procedure over again in support of the earlier report of the Burdwan Police Station under Section 174 of the Code of Criminal Procedure and in spite of the order dated November 13, 2013.
On such enquiry the Criminal Investigation Department did not find any cause of suspicion as to the unnatural death of the son of the petitioner. The post-mortem report opining that the death of the son of the petitioner was ante-mortem in nature was brushed over. The anomaly pointed out by the writ petitioner in the writ petition which permitted the court to pass the first order dated November 7, 2013 was also brushed over by the Criminal Investigation Department.
Subsequently, the writ petition appeared when the State authorities wanted time to complete the investigation. Such time was granted on March 12, 2014 when the writ petition was taken up for hearing. It was submitted on behalf of the Criminal Investigation Department that a final report under Section 173(2) of the Code of Criminal Procedure was filed before the learned Magistrate opining that it was a case of road accident that led to unfortunate death of the son of the petitioner. Such submission was contrary to the records.
The learned counsel for the State now corrected himself by stating that the report filed before the learned Magistrate was under Section 174 of the Code of Criminal Procedure and not under Section 173(2) of the Code of Criminal Procedure.
Therefore, the Criminal Investigation Department has enquired into the unnatural death of the son of the petitioner under Section 174 of the Code of Criminal Procedure.
Sushil Kumar Modi (supra) cited on behalf of the State authorities concerned a monitoring done by the High Court under Article 226 of the Constitution of India in respect of a criminal investigation. In that case, a charge sheet was filed. Sushil Kumar Modi referred to 1996(2) SCC 199 (Vineet Narayan -vs- Union of India). In Vineet Narayan case, it was held that once a charge sheet was filed in a competent court after completion of the investigation, the process of monitoring by the court for the purpose of making the Central Bureau of Investigation and other investigating agencies concerned perform their functions of investigating into the offences concerned into an end. The fact scenario, in the instant case, was different.
The Court directed an investigation and that has not happened till date. The grievance of the writ petitioner was that the State authorities were not conducting the investigation, which they were obliged to do under the law. The Court directed the Criminal Investigation Department to undertake an investigation into a crime by the order dated November 13, 2013. In spite of such order, all that the Criminal Investigation Department could do was conduct of an enquiry under Section 174 of the Code of Criminal Procedure notwithstanding an earlier report under Section 174 of the Code of Criminal Procedure and claimed such enquiry to be an investigation in terms of the order dated November 13, 2013.
Next judgement cited on behalf of the State authorities was Popular Muthiah (supra). One of the issues before the Hon'ble Supreme Court in such case was whether the High Court while exercising its appellate jurisdiction under Section 374(2) of the Code of Criminal Procedure read with Section 386 of the Code of Criminal Procedure could direct further investigation of a case or not. Again the fact scenario herein was different. It was a case of no investigation at all rather than a proceeding coming up on appeal after conclusion of a regular trial consequent upon an investigation.
Sakiri Vasu (supra) relied upon by the State authorities concerned a writ petition filed by a father in relation to a death of his son. The writ petitioner in such case wanted an investigation by the Central Bureau of Investigation. In such context, the Hon'ble Supreme Court stated that it was not for the writ petitioner to specify the agency through which he wanted an investigation to be conducted. In my view, the judgement did not take away the jurisdiction of the court to direct investigation by an appropriate authority when the court felt it necessary to do so.
T.C. Thangaraj (supra) was the last authority cited on behalf of the State authorities. It was a proceeding under Section 482 of the Code of Criminal Procedure which came up for consideration before the High Court and the impugned order passed therein was the subject matter of the special leave petition before the Hon'ble Supreme Court. In such judgment, it was found that the High Court did not exercise constitutional power under Article 226 of the Constitution of India, but exercised power under Section 482 of the Code of Criminal Procedure. On the facts, Their Lordships found that it was not one of those exceptional situations calling for exercise of extra-ordinary power of the High Court to direct investigation into the complaint by the Central Bureau of Investigation. It went to say that in the event the High Court found that the investigation was not being completed by the Inspector of Police, it should have directed the Superintendent of Police to entrust the investigation to an Officer senior to the rank of the Inspector of Police under Section 154(3) of the Code of Criminal Procedure and not to the Central Bureau of Investigation.
The conduct of the Investigating Officer, Criminal Investigation Department entrusted with the investigation of the case at hand left lot to be desired. The Criminal Investigation Department mis-interpreted the order dated November 13, 2013. The order dated November 13, 2013 directed an investigation into a crime by the Criminal Investigation Department. The Investigating Officer went ahead with an enquiry under Section 174 of the Code of Criminal Procedure in spite of a previous report under Section 174 of the Code of Criminal Procedure being on record. The conduct of the Investigating Officer was baffling to say the least.
The Superintendent of Police, Criminal Investigation Department, will entrust the investigation into the unnatural death of the son of the petitioner to a person of a rank higher to the Investigating Officer submitting the report under Section 174 of the Code of Criminal Procedure. Immediately upon communication of this order to him, the Superintendent of Police, Criminal Investigation Department, will personally supervise the investigation. A fresh investigation will be conducted by the Criminal Investigation Department taking into consideration the orders dated October 7, 2013, November 13, 2013 passed by the Court and the materials already collected.
The Superintendent of Police, Criminal Investigation Department will submit a report of such investigation to this court four weeks hence.
Let this matter appear in the list for further order four weeks hence. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis. (Debangsu Basak, J)