Calcutta High Court (Appellete Side)
Chandrima Roy vs The State Of West Bengal And Ors on 20 July, 2020
Author: Shivakant Prasad
Bench: Shivakant Prasad
Via Video Conferencing
July 20, 2020.
KS
WP 5933 (W) of 2020
Chandrima Roy
-Versus-
The State of West Bengal and Ors.
Mr. Phiroze Edulji
Mr. Brajesh Jha
... for the Petitioner
Mr. Kishore Dutta
Mr. Sayan Sinha
... for the State
On submission of Mr. Phiroze Edulji, learned
advocate appearing for the petitioner, the mistake
cropped up in the name of the petitioner be rectified
and liberty given to correct the cause title.
The writ petitioner Chandrima Roy the widow
of Debendra Kumar Roy is seeking transfer of Raiganj
Police Station Case No.517 of 2020 dated 13.07.2020
under Section 302/34 of the Indian Penal Code to CBI
inter alia, on the ground of inaction on the part of the
respondent police authorities in not conducting a
proper and effective investigation in connection with
the complaint lodged by the petitioner.
2
The case of the petitioner in a nutshell is that
her husband was an M.L.A. who won election from
the ticket of Communist Party and subsequently in
the year 2019 he joined Bharatiya Janata Party and he
was working for the development of people in
Hemtabad area. He was doing work in his
constituency and helping people. He was a man
having good relationship with everyone and people
of the locality loved him for his work. On 13 th July,
2020 at about 1 a.m. at night someone called her
husband and he left house and informed the
petitioner while leaving that he will return after some
time but in the morning she learnt the shocking news
that the hands of her husband were tied and his body
was hanging near to a tea shop situated within 2
kilometers of her house. It is alleged that for the last
few years, this kind of murders are common in West
Bengal and many political parties from Bharatiya
Janata Party, West Bengal were killed and hanged in
same fashion and till date no proper investigation has
been done by the police authority. It is also submitted
that within a few minutes of the incident, the West
Bengal Police twitted in their official twitter account
3
stating that a suicide note has been found from the
pocket of the deceased Debendra Nath Roy and two
persons were named in the F.I.R. The Superintendent
of Police had come to conclude about the theory of
suicide committed by the deceased husband of the
petitioner even before the proper investigation.
According to the petitioner, the deceased husband of
the petitioner has been murdered and hanged as
shown in the photograph annexed to the writ petition
because of the fact that on the very day her husband
had spent quality time with her family and there was
no depression in his mind and though he used to stay
in separate room during night but it is absurd to
believe for any prudent man that a person will leave
his house at 1 a.m. and reach at tea shop which is
situated within 2 kilometers from his house to commit
suicide. The hands of the deceased were tied as
shown in the photograph as if he has committed
suicide near the tea shop. Such apprehension may be
reasonable in the mind of the petitioner but the fact
remains that the police station has registered a specific
case under Section 302/34 of the Indian Penal Code
on the basis of the complaint of the writ petitioner on
4
the same day which is being investigated. So, it
cannot be said that the case was not started instantly
for investigation of homicidal death. Therefore, the
allegations of the petitioner that the police is trying to
substantiate the theory of suicide with the
pre-determined result cannot be viewed at this
preliminary stage of investigation.
I find that the case has been taken over by the
C.I.D., Government of West Bengal on the next day on
14.07.2020 as submitted by Mr. Kishore Dutta,
learned Advocate General who submits that Mr. R. S.
Chetry, Inspector of Police has been endorsed with
the investigation into the matter. It is also revealed
and admitted fact that the inquest has been held on
the same day on 13.07.2020 by the investigating officer
and after the inquest, the dead body was sent to the
Raiganj Medical College Hospital for Post Mortem. It
is further submitted that Dr. Joydeep Khan, Autopsy
Surgeon has held autopsy but the said Post Mortem
Report is not placed on record to reveal any opinion
of the Autopsy Surgon. The dead body has been
admittedly cremated by now but the viscera have
been preserved and sent for forensic report into the
5
matter which is still awaiting. This fact cannot be lost
sight of that the investigation is at the nascent stage
and nothing can be opined at this juncture to conclude
that the deceased died a suicidal or homicidal death.
It is submitted that a suicide note allegedly found
from the pocket of the deceased. The local police
might have opined on the basis of alleged suicidal
note recovered from the pocket of the deceased who
was found hanging on 13.07.2020. The allegation of
Mr. Edulji, the Learned Advocate for the petitioner is
that even before the P.M. report the police opined that
it was a case of suicide and the statement of twitter
handle of West Bengal Police shows that the police is
investigating the case with pre-determined result.
It would be profitable to reproduce the twitter
handle of West Bengal Police as under
"Today morning the dead body of MLA Hemtabad,
Debendra Nath Roy was detected hanging from the verandah
ceiling of a mobile shop at Balia, Deben More Raigunj, Uttar
Dinajpur... (1/3-
A suicide note is recovered from the shirt pocket of the
deceased. Two persons have been named in the note as
responsible for the death.. (2/3) All necessary steps of
investigation such as use of tracker dog, visit of forensic experts
6
are being taken. PM is yet to be
done. People are requested not to jump on speculative, biased
and judgmental conclusions and to wait for the investigation to
complete. (3/3)"
Having perused the above statement in the
twitter handle of West Bengal Police I find that no
opinion has been expressed about the suicide by the
deceased ergo, I am unable to agree with Mr Edulji
about the apprehension in the mind of the petitioner. I
reiterate that the police has already started a specific
case under Section 302/34 IPC. Moreover the F.I.R.
reflects the names of two persons involved into the
crime from whom the deceased owed huge sum.
Therefore, the allegation questioning the conduct of
the police of foul play cannot be viewed through
askance. The contention that the investigation is
going on with a pre-determined result with sole
intention to cover up the issue cannot be accepted at
this nascent stage of the investigation because as I
have discussed above, the C.I.D. has taken over the
investigation, that may be for the purpose of
dispelling the misgiving arising in the mind of the
petitioner or any other person. There is no allegation
7
that after Post Mortem the dead body was not handed
over to the petitioner for the last rites but in fact it was
consigned to the de facto complainant.
Now, it is submitted by Mr. Edulji learned
Advocate for the petitioner that the Post Mortem
Report can be judged by an independent medical
board even at this stage of the investigation as in the
case of Dhaniakhali. It is understood that the Post
Mortem proceedings was videotaped by the Autopsy
Surgeon. So, everything can be viewed by a special
medical board with the head of the Forensic
Department of the State for final opinion. There is no
quarrel on such issue and the investigating agency
should take such steps for constitution of a special
medical board to be headed by Head of the Forensic
Department of the Government of West Bengal.
I fully agree with such suggestion of Mr Edulji
so as to dispel the misgivings in the mind of the
petitioner that at the initial and primary stage of
investigation the police authorities has concluded
about theory of suicide on being influenced by any
leader of the ruling party. It is pointed out by Mr.
Dutta, learned Advocate General that one of the
8
accused namely, Nilay Singha has been arrested but
another accused named in the F.I.R. is yet to be
apprehended as he is on run and the police is taking
all possible steps for the arrest of the accused Md.
Masud Ali. The photographs annexed to the writ
petition prima facie depicts a case of post mortem
hanging or homicidal hanging. I am of the view that
it is difficult to a single assailant to carry out the
homicidal hanging unless the victim becomes
unconscious by injury or by a drug. Medical
jurisprudence points out that homicide should be
suspected, i) where there are signs of violence or
disorder of any object around the scene of crime; ii)
where clothing of the deceased is torn or disarranged;
iii) where there are injuries either offensive or
defensive or the victim has been suffocated to death.
Therefore, in all doubtful cases, circumstantial
evidence is important. If any individual is suspended
upside down for a long time, the death can occur due
to cardiac or respiratory failure or a combination of
both. It must be borne in mind that distinction
between murder and suicide may be impossible by an
examination of the body alone. The detailed
9
investigation of the scene, reconstruction of the
position of the suspended body, examination of the
rope, the knots, the direction of the fibers on the rope
may serve to discover the homicidal hanging. A
person may be murdered and the dead body
suspended to stimulate suicide. A ligature applied to
the neck within two hours of death will produce
ligature mark.
Mr. Dutta further pointed out that there is no
allegation as to the delay in the registration of the
F.I.R. There is no allegation as such against the C.I.D.
agency or against the police who had twitted the
twitter and the contents of the tweet.
It is submitted by Mr Dutta that there is no
particular to show that police authority has at all
concluded that it was a case of suicide in view of the
conduct of the investigation so far made and that as
many as 13 witnesses have been examined including
the de facto complainant by the investigating officer
under Section 161 of the Code of Criminal Procedure.
Therefore, according to Mr. Dutta, C.I.D. has taken
over the investigating very rightly in view of the
10
provisions of Section 36 of the Code of Criminal
Procedure.
On behalf of the petitioner Mr. Edulji has relied
on certain decisions of the Hon'ble Supreme Court in
order to advocate the prayer as made on behalf of the
petitioner for transfer of the investigation to the
special agency for investigation into the case and
relied on a decision in the case of Vinay Tyagi Vs.
Irshad Ali & Ors. reported in 2013 (5) SCC 762
wherein it has been held "that in any appropriate case
when the Court feels that the investigation by the
police authorities is not in the proper direction and
that in order to do complete justice and where the
facts of the case demand, it is always open to the
Court to hand over the investigation to the specialized
agency. This principle of law has already been
reiterated with approval in judgments of the Hon'ble
Supreme Court in the case of Disha Versus State of
Gujarat and Others reported in 2011 Vol.13 SCC 337;
Vineet Narain and Ors. Union of India and Ors.
reported in 1998 Vol 1 SCC 226 in the case of Union
of India & Ors. Vs. Sushil Kr. Modi & Ors.; 1996
Vol.6 Supreme Court Cases 500 and in the case of
11
Rupabuddin Sk. Vs. State of Gujarat & Ors. reported
in 2010 Vol.2 SCC 200"
Reliance also placed in the case of Puja Pal Vs.
Union of India & Ors. reported in 2016 Vol.3 SCC 135
wherein the Hon'ble Supreme Court has observed in
paragraph 49 thus, "49. These notwithstanding, it
would still be, in our opinion, imperative to examine
as to whether for doing complete justice and
enforcing the fundamental rights guaranteed by the
Constitution, the relief of entrustment of the
investigation of the case again to CBI is grantable or
not on its own merits. This is chiefly, in view of the
intrepid, audacious and fiendish intrusion of human
right by the assassins in broad daylight at a public
place, by defiantly violating all canons of law and
making a mockery of the administrative regime
entrusted with the responsibility to maintain an
orderly society. The terrorising impact of this incident
and the barbaric manner of execution of the offence is
also a factor which impels this Court to undertake
such a scrutiny in the interest of public safety, a
paramount duty entrusted to all the institutions of
governance of our democratic polity. This is more so,
where a grisly and intimidatory crime impacting
upon the public confidence in the justice delivery
system as a whole is involved, so as to ensure that
such outrageous crimes do not go incautiously,
unfathomed and unpunished."
12
Mr. Edulji also submits that the Court has to
ensure that the accused persons are punished and that
the authority of the state is not used to shield
themselves and their men and it should be ensured
that they do not wield such powers, which under the
Constitution has to be held only in trust for the public
and society at large. That if any deficiency in
investigation or prosecution is visible or can be
perceived by lifting the veil covering such deficiency,
the Courts have to deal with the same with an iron
hand appropriately within the framework of law, was
underlined. This is what has been observed and
declared by Hon'ble Supreme Court in Zahira
Habibulla Case.
There is no quarrel on the principle of law as
held in the above cited decision but the ratio of
decision has to be applied within the facts and
circumstances of a particular case.
It is also argued that the Hon'ble Supreme
Court has laid down the principles in regard to the
transfer of investigation to special agency with regard
to the investigation of an offence particularly, in the
case of Bharati Tamang Vs. Union of India & Ors.
13
reported in 2013 (15) SCC 578 wherein it has been held
as follows
"41. From the various decisions relied upon by the
petitioner counsel as well as by respondents' counsel, the
following principles can be culled out.
41.1. The test of admissibility of evidence lies in its
relevancy.
41.2. Unless there is an express or implied constitutional
prohibition or other law, evidence placed as a result of even an
illegal search or seizure is not liable to be shut out.
41.3. If deficiency in investigation or prosecution is
visible or can be perceived by lifting the veil which try to hide the
realities or covering the obvious deficiency, Courts have to deal
with the same with an iron hand appropriately within the
framework of law.
41.4. It is as much the duty of the prosecutor as of the
Court to ensure that full and material facts are brought on record
so that there might not be miscarriage of justice.
41.5. In order to ensure that the criminal prosecution is
carried on without any deficiency, in appropriate cases this Court
can even constitute Special Investigation Team and also give
appropriate directions to the Central and State Governments and
other authorities to give all required assistance to such specially
constituted investigating team in order to book the real culprits
and for effective conduct of the prosecution.
41.6. While entrusting the criminal prosecution with
other instrumentalities of State or by constituting a Special
14
Investigation Team, the High Court or this Court can also monitor
such investigation in order to ensure proper conduct of the
prosecution.
41.7. In appropriate cases even if the charge-sheet is
filed it is open for this Court or even for the High Court to direct
investigation of the case to be handed over to CBI or to any
other independent agency in order to do complete justice.
41.8. In exceptional circumstances the Court in order to
prevent miscarriage of criminal justice and if considers necessary
may direct for investigation de novo."
In respectful consideration of the observation
in paragraph 41 noted above it can be concluded that
in appropriate cases even if the charge sheet is filed it
is open for the Hon'ble Supreme Court or for the High
Court to direct the investigation of the case to be
handed over to CBI or to any other independent
agency in order to do complete justice and in
exceptional cases in order to prevent the miscarriage
of criminal justice and if considered necessary, may
direct investigation and to monitor such investigation.
In the given facts of the case as I have discussed above
that the ratio of decision has to be well nigh within
the facts and circumstances of each case as there is no
jacket formula to be applied. As I have discussed in
the foregoing paragraph that the police agency has
15
instantly registered the case on the complaint of the
writ petitioner for investigation into the cause of
homicidal death of the deceased husband of the
petitioner. Moreover, there has been no delay in
undertaking the investigation as on the very date, the
situs of crime scene has been displayed by holding
inquest on the same day and the corpus was sent to
Autopsy Surgeon for post mortem examination and
that has been done by the video tape recording.
Therefore, there should not be any doubt and
suspicion in the mind of any person that the
investigation is doubtful at this particular juncture.
Per contra, Mr. Kishore Dutta, learned
Advocate General appearing for the State has relied
on the decision of Bimal Gurung Vs. Union of India &
Ors. reported in (2018) Vol. 15 SCC 480 and has relied
on the observation made in paragraph 28 of the cited
decision which runs thus:-
"28. The two-Judge Bench of this Court in Dharam
Pal v. State of Haryana [Dharam Pal v. State of
Haryana, (2016) 4 SCC 160 : (2016) 2 SCC (Cri) 259]
while referring to the principles for transferring
investigation has laid down the following in paras 18,
19 and 24: (SCC pp. 168 & 170)
"18. A three-Judge Bench in K.V. Rajendran v. Supt. of
Police [K.V. Rajendran v. Supt. of Police, (2013) 12 SCC
16
480 : (2014) 4 SCC (Cri) 578] reiterating the said
principle stated that: (SCC p. 485, para 13)
'13. ... the power of transferring such investigation must
be in rare and exceptional cases where the court finds it
necessary in order to do justice between the parties and
to instil confidence in the public mind, or where
investigation by the State police lacks credibility and it
is necessary for having "a fair, honest and complete
investigation", and particularly, when it is imperative to
retain public confidence in the impartial working of the
State agencies.'
19. The Court, after referring to earlier decisions, has
laid down as follows: (K.V. Rajendran case [K.V.
Rajendran v. Supt. of Police, (2013) 12 SCC 480 : (2014)
4 SCC (Cri) 578] , SCC p. 487, para 17)
'17. In view of the above, the law can be summarised to
the effect that the Court could exercise its constitutional
powers for transferring an investigation from the State
investigating agency to any other independent
investigating agency like CBI only in rare and
exceptional cases. Such as where high officials of State
authorities are involved, or the accusation itself is
against the top officials of the investigating agency
thereby allowing them to influence the investigation,
and further that it is so necessary to do justice and to
instil confidence in the investigation or where the
investigation is prima facie found to be tainted/biased.'
***
24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor." 17
Now, it is clenched position of law that the power of transferring investigation to special investigating agency is not a matter of routine rather the Hon'ble Supreme Court has emphasized that such a power of the Hon'ble Court is an extraordinary power which should be exercised with great care and sparingly in exceptional circumstances and where high officials of the State authorities are involved and where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation or where the investigation prima facie, is found to be tainted or biased. I find that there is no involvement of any high officials of the State authorities into this matter at this juncture to construe that anybody is trying to influence the investigating authority.
I do not find the investigation, prima facie, being tainted or biased because of the fact I discussed above that the F.I.R. has been rightly addressed by registration of a specific police case under Section 302/34 of the Indian Penal Code by applying obligatory presumption on looking at the photographs and situs of the dead body at the scene 18 of crime, otherwise the police could have registered the case under Section 306/34 I.P.C. instead of Section 302/34 I.P.C. on the basis of note recovered from the pocket of the deceased. Therefore, I do not find any element of biasness on the part of the investigating authority.
Mr. Dutta, learned Advocate General has also relied on a case of Arnab Ranjan Goswami Vs. Union of India reported in 2020 SCC Online SC 462 in which case, the petitioner while invoking Article 32 of the Constitution of India before the Hon'ble Supreme Court of India for transferring of the case specially made against him in series of cases to a special agency, the Hon'ble Supreme Court in paragraph 36 has clearly observed that the transfer of an investigation to the C.B.I. is not a matter of routine. Settled decisions of the Hon'ble Supreme Court emphasized for exercise of an extraordinary power to be used in exceptional circumstances. The Hon'ble Supreme Court has relied on the Constitution Bench decision in the State of West Bengal vs. Committee for Protection of Democratic Rights, West Bengal (CPDR), West Bengal wherein it has been observed in 19 paragraph 70 that the transfer of investigation has to be made considering the special case in extraordinary facts and circumstances of the case.
Moreover in the said decision, it has been specifically observed that the accused person does not have right in regard to the mode or manner in which the investigation should be carried or in regard to the investigating agency. The line of investigation either of the petitioner or of the CFO cannot be controlled or dictated by the persons under investigation/interrogation.
In P. Chidambaram Vs. Directorate of Enforcement reported in (2019) 9 SCC 24 the Hon'ble Apex Court observed that ordinarily the Court should refrain from interfering at a premature stage of investigation as that may derail the investigation and demoralize the investigation or to interfere in the investigation.
Lastly reliance is also placed in case of Director General of Police (West Bengal) & Ors. Vs. Gopal Kumar Agarwal & Anr. in 2020 SCC Online Cal 755 at paragraph 70 to submit that bald allegation of biasness against the investigating agency should not 20 be taken into consideration for the purpose of transfer of the investigation to a special investigating agency. It has been observed that:
"The essence of the case of the writ petitioner is that the State Police authorities are biased in favour of the accused persons and there is malice on their part against the writ petitioner/de facto complainant. No particulars or plausible reason for the State Police to be biased in favour of the accused person has been indicated in the writ petition. A bald assertion of bias is not sufficient. It is a serious allegation and must bed supported by tangible evidence. The mere allegation that defective investigation is indicative of such bias begs the question. Defective investigation, may be due to error of judgment and infirmities or loopholes in the process of investigation, per se would not unfailingly indicate any unholy entente between the investigating agency and the accused person. As many as five investigating officers were involved in the present case. It is highly unlikely that all five were biased against the writ petitioner and in favour of the accused person. The writ petitioner has not attributed bias to any particular investigating officer by identifying him. An omnibus statement that the entire State police administration is biased in favour of the accused person and against the writ petitioner is too far a cry and no acceptable."
In the context of what has been discussed hereinabove taking cue from the above cited decisions, I am of the view that the transfer of investigation to a special agency should not be made in a casual manner.
In the course of argument Mr. Dutta, learned Advocate General has pointed out that the suicide note has been sent to the expert for its examination for 21 the final expert report as to whether the suicidal note was written by the deceased himself or not and further points out that the admitted document bearing the hand writing and signature of the deceased has been obtained from the de facto complainant. In this regard Mr. Edulji, learned advocate for the petitioner raised objection that no such admitted document in the hand writing of the deceased has been received from the de facto complainant as per the instruction received over phone from the de facto complainant. Mr. Kishore Dutta, learned Advocate General has rectified his submission on this count and submits that it is true that the admitted document of the deceased has not been procured from the de facto complainant but the investigating agency has obtained hand writing from the staff of the bank. It is pointed out that the deceased was the Manager of the bank namely, Barabar Ballia SKUF Ltd. Mini Bank where his hand writing was kept. In this regard, in my considered opinion, the Investigating Officer ought to have obtained the admitted document bearing the hand writing and signature of the deceased from the wife of 22 the deceased, the writ petitioner herein and the de facto complainant of the case on whose complaint specific police case was registered. It ought to have been in right direction and suitable instruction should be given to the investigating agency to obtain admitted document from the writ petitioner for expert examination of the alleged suicidal note. Since, the investigation is at nascent stage, it is imperative for the investigating officer to obtain admitted document from the de facto complainant to dispel the misgiving, if any, from any corner and to see to it that there is no loophole left in the investigation process. The investigating officer ought to have, or if he has not yet placed the de facto complainant for her statement under Section 164 of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, he should immediately apply to the learned C.J.M., Raiganj for recording the statement of the de facto complainant/writ petitioner by a Judicial Magistrate. The investigation in every sessions trial offences, is required to be monitored and supervised by the police chief of a district. Since the investigation has been undertaken by the C.I.D. which in my view is 23 also a special agency of investigation in a State, the investigation must be monitored and supervised personally by the chief of the C.I.D. namely, the Additional Director General of C.I.D., West Bengal.
As pointed out by Mr. Edulji that since the video tape recording of the Post Mortem Autopsy Surgeon is already with the investigating agency, Additional Director General of C.I.D., West Bengal be directed to place the P.M. report and video tape record before the specially constituted Medical Board consisting of the Head of the Forensic Department of Calcutta Medical College and Hospital as in West Bengal, Calcutta Medical College and Hospital has Forensic Department which is competent to render final opinion as to the cause of death of the deceased victim.
Bearing in mind, the allegations as made specifically in the F.I.R. against the named accused persons, this Court, therefore, direct the Additional Director General, C.I.D., West Bengal to see to it that Special Medical Board is constituted for its final opinion to be monitored by the Head of the Forensic Department of Calcutta Medical College and Hospital 24 and the Additional Director General, C.I.D. West Bengal will particularly see to it that it is done within a fortnight from the date of this order.
With the above direction and observation made hereinabove, this writ petition is disposed of with a note that I do not find biasness on the part of the investigating agency undertaken by the C.I.D., West Bengal. However, with liberty to the petitioner to advocate and renew her prayer if the investigation is concluded with the submission of the final report otherwise tainted with biasness or any undue influence on the investigating agency.
Since, this writ petition is being disposed of without affording opportunity to the respondents for affidavit in opposition, the contentions made in the writ petition be deemed to be disputed and denied.
Accordingly, the writ petition being, WP 5933 (W) of 2020 is disposed of.
All parties are to act on the official website copies of this order.
(Shivakant Prasad, J.)