Calcutta High Court (Appellete Side)
Pratima Dutta vs The State Of West Bengal & Ors on 18 May, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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18.05.2017.
sd. 19 W.P. No. 12526 (W) of 2012
with
CAN 4816 of 2017
Pratima Dutta vs. The State of West Bengal & Ors.
Mr. B.R. Bhattacharya, Ld. Sr. Adv.,
Mr. S.C. Chatterjee
Ms. M. Sinha .... For the petitioner.
Mr. P.K. Roy
Ms. S. Sarkar
Mr. J. Roy .... For the State.
Mr. B. Adhikari
Mr. M. Jana .... For the Applicant.
Re: CAN 4816 of 2017
This is an application filed by the applicant with a prayer for adding him as a party
to this writ application.
The subject matter involved in this writ application is the legality and propriety of
the investigation conducted by an officer of the Criminal Investigation Department, Govt.
of West Bengal, in connection with Bally P.S. Case No. 205 of 2011 in the matter of an
unnatural death of one Tapan Dutta since deceased. The writ application is filed by the
widow of the aforesaid deceased with a prayer for investigation of the matter by the
Central Bureau of Investigation. The applicant is one of the accused persons in the trial
bearing Sessions Trial No. 88 of 2011 pending before the Court of learned Additional
District & Sessions Judge, Fast Track Court, Howrah.
It will not be out of context to place on record that the above trial is arising out of
the charge sheet bearing no. 406 of 2011 filed in connection with the above F.I.R bearing
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Bally P.S. Case No. 205 of 2011. It was commenced against five accused persons including
the applicant showing two other accused persons as absconders.
It will also not be out of context to place on record that the above trial came to an
end by virtue of a judgment and order of acquittal of the accused persons dated April 10,
2017. By a common judgment and order dated April 10, 2017 passed in C.R.A No. 688 of
2016 with G.A. No. 3 of 2015, the above judgment and order of acquittal were set aside
and the matter was remanded back to the trial court for adjudication in terms of the
direction given in the above judgment.
The above judgment and order dated April 10, 2017 was under challenge in Special
Leave to Appeal (CRL) Nos. 3661-3662 of 2017 at the instance of one of the accused in the
aforesaid trial before the Hon'ble Supreme Court. The above appeals were dismissed by
the Hon'ble Supreme Court by an order dated May 8, 2017 as follows:
"Upon haring the counsel the Court made the following
ORDER
Heard the learned counsel for the petitioner and perused the relevant material. Exemption from filing certified copy of the impugned order is granted. Person to file lengthy list of dates is granted.
We do not find any legal and valid ground for interference. The Special Leave Petitions are dismissed. We make it clear that all contentions available in law with regard to the issue of further investigation by the CBI raised in the Writ Petition which is pending before the High Court are open to the argued."
Thereafter, the instant writ application has been taken up for hearing. During hearing of this wit application, one of the accused, namely, Sri Sasti Gayen, son of late Gopal Chandra Gayen filed an application bearing CAN 4437 of 2017 in this writ application for his addition as a party respondent to this writ proceedings. The above application was dismissed by an order dated May 11, 2017.
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Now coming back to this application, this is filed by another accused persons in the trial bearing Sessions Trial No. 88 of 2012, namely Sri Asit Gayen, son of late Gopal Chandra Gayen, out of the five accused persons in the aforesaid trial.
It is submitted by Mr. Bijoy Adhikari, learned advocate appearing for the applicant that according to the settled principles of law, a person who is likely to be affected by virtue of an order passed in a proceeding should be made a party to that proceeding. According to Mr Adhikary, that right is enshrined under Articles 14 and 21 of the Constitution of India. It is also submitted by Mr. Adhikari that the procedure followed in the investigation by the Criminal Investigation Department, West Bengal that the applicant had no access to the records relating to the procedure followed by the Criminal Investigation Department, West Bengal in conducting the investigation. Therefore, the allegations made with regard to the validity of the above procedure should be properly dealt with by the applicant in order to ensure his right of hearing. It is further submitted by Mr. Adhikari that this application cannot be rejected on the ground that a similar application filed by another accused persons was rejected on an earlier occasion. According to Mr. Adhikari, the settled principles of law which have been highlighted by him, might not have been pointed out by the learned advocate appearing on behalf of the applicant in the earlier similar application.
It is necessary to point out that at the very outset it is submitted by Mr. Adhikari that since the judgment and order of acquittal passed in the trial under reference were quashed and set aside by this Court, there is apprehension of being influenced by that order while dealing with the writ application.
Reliance is placed by Mr. Adhikari on the decisions in judgement dated December 17, 2002 in S. Amarjit Singh Kalra (Dead) by L.Rs. & Ors. -vs- Pramod Gupta (Dead) by L.Rs. & Ors., Babu v. State of Kerala, reported in (2010) 9 S.C.C. 189, Mumbai Intrnational Airport (P) Ltd. -Vs- Regency Convention Centre & Hotels Pvt. Ltd. & Ors., reported in 4 (2010) 7 S.C.C. 417, in judgement dated December 17, 2008 in Raghu Raj Singh Rousha - vs- M/s. Shivam Sundaram Promoters (P) Ltd. & Anr., in judgement dated June 30, 2014 in Bal Manohar Jalan vs. Sunil Paswan and another, in order dated July 13, 2016 passed in C.R.R. 3460 of 2014, in judgement dated October 01, 2012 in Manharibhai Muljibhai Kakadia & Anr. -vs- Saileshbhai Mohanbhai Patel & Ors., in judgement dated October 29, 1954 in Dhakeswari Cotton Mills Ltd. -Vs- Commissioner of Income Tax, West Bengal, in judgement dated September 14, 2006 in Antonio S.C. Pereira -vs- Ricardina Noronha (D) by L.Rs., in judgement dated February 19, 1974 in Nawabkhan Abbaskhan -vs- The State of Gujarat, in judgement dated in judgement dated October 18, 2012 in Kishore Samrite - vs- State of U.P. & Ors., in judgement dated December 07, 2007 in Sakiri Vasu -vs- State of U.P and Ors., Prestige Lights Ltd. -vs- State Bank of India, reported in (2007) 8 S.C.C. 449, in judgement dated May 16, 1989 in Union of India and Anr. -Vs- Raghubir Singh (Dead) by L.Rs. Etc., in judgment dated December 19, 1980 in Khatri and Ors. -vs- State of Bihar and Ors., in judgement dated December 02, 1971 in Rajindra Nath Mahato -vs- T. Ganguly, Dy. Superintendent & Anr., in judgement dated March 04, 2016 in Anant Prakash Sinha @ Anant Sinha -vs- State of Haryana & Anr., in judgement dated November 20, 2015 in Brij Bihari Singh -vs- Bihar State Financial Corporation & Ors., in order dated January 04, 2017 in State of W.B -Vs- Subhas Bhowmik @ Baban & Ors., in judgement dated August 11, 2016 in Asraf Biswas -Vs- The State of West Bengal, in judgement dated June 09, 2015 in Joy Jacob -Vs- State, in order dated January 22, 1999 in Gulzar Singh -Vs- Sub-Divisional Magistrate & Ors.
It is submitted by Mr. Bikash Ranjan Bhattacharrya, learned senior advocate appearing on behalf of the writ petitioner that the validity of the investigation conducted by the Criminal Investigation Department is under challenge in this writ application. According to Mr. Bhattacharrya, an accused has no right to interfere with the investigation against him. According to Mr. Bhattacharrya, it is not a principle of law as enshrined in 5 the provisions of Articles 14 and 21 of the Constitution of India that at the investigation stage, an accused person has right to participate in a proceeding as the validity and propriety of which is under challenge in the writ application.
It is submitted by Mr. P. K. Roy, learned State advocate that the State is the prosecutor in the trial under reference. Therefore, the State can only restrict submission with regard to the settled principles of law and learned advocate appearing on behalf of the State respondents can only assist the Court with regard to the settled principles of law as an officer of the Court. According to him, no order should be passed in any proceeding without giving an opportunity of hearing to the person who may be affected at the end of such proceeding.
We have heard the learned advocates appearing for the respective parties at length and we have considered the facts and circumstances involved in this application. Admittedly, the subject matter of challenge in this writ application is the validity and propriety of the investigation in connection with the F.I.R bearing Bally P.S. Case No. 205 of 2011 dated May 6, 2011 in connection with the unnatural death of one Tapan Dutta. This writ application is filed by the widow of the aforesaid deceased person. Needless to point out, the widow of the aforesaid deceased person comes within the purview of the definition of section 2(wa) Cr.P.C.
Now in order to deal with right of a person to participate in a proceeding, it has been decided by the Hon'ble Supreme Court in its celebrated judgment delivered in the matter of Udit Narayan Singh Malpaharia vs. Additional Member, Board of Revenue, Bihar and Anr. reported in AIR 1963 SC 786 that a necessary party is one without whom no order can be passed effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on 6 the question involved in the proceeding and the relevant portion of the above decision is quoted below:
" To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled:
it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding."
While considering submissions made by Mr. Adhikari on behalf of the applicant, we do not find that an accused in a trial has right to participate in a proceeding under Article 226 of the Constitution of India initiated at the instance of the victim challenging the validity and/or propriety of the investigation conducted by the investigating agency which leads to filing of a charge sheet by such agency and framing of charge against some accused persons by the trial court.
The above proposition has already been considered by us in connection with the application bearing CAN 4437 of 2017 which was filed by another accused Sri Sasti Gayen, son of late Gopal Chandra Gayen while rejecting the above application. We have no hesitation to observe at this stage that the present applicant is similarly circumstanced with the aforesaid Sri Sasti Gayen. Therefore, the observations made at the time of rejecting the above application are squarely applicable in respect of this applicant and the relevant portion of the above order dated May 11, 2017 is quoted below:
"So far as the peculiar facts and circumstances of this case is concerned, i.e. pendency of the trial under reference against the applicant, amongst other accused persons, after setting aside the judgment and order of his acquittal, amongst other, he has every right to participate in the trial to take care his defence in the above trial in accordance with law. The hearing of this writ application at this stage of post framing of charges in the above trial against the applicant, amongst other accused persons, does not make any difference in respect of the above law. It will not be out of context to observe here that no proceeding was initiated at the instance of the applicant for quashing of the charge sheet issued against him at any stage of the trial or in the appeal arising out of the judgment and order of that trial. Necessary order an be passed in this writ application 7 without his presence. Or in other words, his presence in this writ application is not necessary for a complete and final decision on the question involved in this writ proceeding.
With regard to the question of observation made by the Hon'ble Supreme Court while dismissing the |Special Leave to Appeal (CRL) Nos. 3661-3662 of 2017 by order dated April 10, 2017, we find that after paying due consideration to the contentions of the above Special Leave Petition including the prayer for an interim relief for staying the hearing of the instant writ application, the Hon'ble Supreme Court was not inclined to interfere with the hearing of this writ application but was pleased to make it clear that all contentions available in law with regard to the issue of further investigation by the CBI raised in the writ petition, which is pending before the High Court, are open to be argued. That is not an observation with regard to the right of the applicant to participate in this writ proceeding where the validity and the propriety of the investigation by the Investigating Agency is under challenge and the appropriate party to deal with all allegations raised by the writ petitioner is the State respondents and the learned State advocate is present before us to take care of the above interest of the Investigating Agency by whom the charge sheet and the supplementary charge sheet thereto have been submitted in connection with the trial under reference. Validity of any action of the applicant is not under challenge in this writ application.
With the above discussions and observations, this application stands dismissed."
While considering the judgment which have been relied upon by Mr. Adhikari in support of this application, we find that in none of the aforesaid judgments, the necessity of making an accused party in a proceeding under Article 226 of the Constitution of India where the validity of the investigation by the investigating agency is under challenge has been dealt with. In the matter of S. Amarjit Sing Kalra, the subject matter of consideration was dismissal of a writ application in limini without considering the same on its merit. In the matter of Babu(supra), the subject matter of consideration was whether any accused person is bound to prove his innocence or it was the duty on the part of the prosecution to prove its case. In the matter of Mumbai International Airport Pvt. Ltd., the exception to the general rule of Order 1 Rule 10(2) of the CPC was under consideration. In Raghu Raj Singh Rousha (supra), the subject matter of consideration of the Apex Court was validity of an enquiry under section 202 Cr.P.C. In Bal Manohar Jalan (supra), the subject matter of consideration was rejection of a Narazi petition (Protest cum proof petition) without 8 giving opportunity of hearing to the accused where the accused had already been discharged. The decision of this Court in CRR3460 of 2014 was the right of the opposite party to participate in a proceeding under the provisions of Section 411(2) Cr.P.C. Necessary to point out that the procedure of investigation is dealt with in Chapter XII Cr.P.C while section 401 finds its place in Chapter XV of the Code of Civil Procedure. In Manharibhai Muljibhai Kakadia & Anr. (supra), the subject matter of consideration was based on the provisions of sections 200 to 203 read with the requirement of section 401(2) Cr.P.C. We have already made our observation with regard to the provision of section 401 Cr.P.C in connection with the case. In the decision of Dhakeswari Cotton Mills Ltd (supra), the subject matter involved was the validity of action of an Income Tax officer in passing his order against the assessee. In the judgment of Antonio S.C. Pereira (supra), the appellant was the custodian of property and according to the observation of the Apex Court opportunity of hearing should have been given to the custodian of property while passing the order dealing with such property. In the decision of Nawabkhan Abbaskhan (supra), the fact was re-entering of the accused in the forbidden area during the currency of an order. The decision of Gulzar Singh (supra), relates to opportunity of hearing to a person whose schedule cast certificate was cancelled without affording any opportunity of hearing to him. Similarly, the decision of Kishore Samrite (supra), Sakiri Vasu(supra), Prestige Lights Ltd (supra), Raghubir Singh (supra), Khatri and Others (supra), Rajindra Nath Mahato (supra), Anant Prakash Sinha (supra), Brij Bihari Singh (Supra) do not help the applicant in view of the distinguishable facts and circumstances involved in the above matters which were considered in the light of the relevant settled principles of law in the respective matters.
Our attention has also been brought towards order dated January 4, 2017 passed in connection with CA 3 of 2015 and CRA 688 of 2016 to submit that the above order was 9 under challenge before the Supreme Court and the Hon'ble Supreme Court passed an order that a modification with the instant writ petition is heard out after hearing the trial.
In our opinion, that order does not help the applicant in view of the admitted fact that the appeals have already been disposed of as recorded hereinabove. The subject matter involved in the decision of Asraf Biswas vs. State of West Bengal passed on August 11, 2016 by this Bench has no bearing and application for addition of party. Similarly, the order dated June 9, 2015 passed in CRA 01 of 2015, the subject matter of challenge for consideration was the right of the accused person in the light of the provision of section 374(2) Cr.P.C.
Therefore, at the cost of repetition, let it be recorded hear that none of the decisions cited by Mr. Adhikari in support of this application helps the petitioner for allowing this application.
In view of the discussions and observation made hereinabove, this application stands dismissed.
There will be, however, no order as to costs.
Re: WP 12526 (W) of 2012 Heard in part.
Further hearing of this writ application stands adjourned for this day. Let this matter appear in the daily supplementary cause list tomorrow and retain its position.
( Debasish Kar Gupta, J. ) ( Md. Mumtaz Khan, J. ) 10