Calcutta High Court (Appellete Side)
Ashok Kumar Todi vs Kishwar Jahan & Ors on 19 September, 2008
Author: Surinder Singh Nijjar
Bench: Surinder Singh Nijjar
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Surinder Singh Nijjar, Chief Justice
And
The Hon'ble Justice Maharaj Sinha
CAN No. 7812 of 2008
MAT No. 703 of 2008
Ashok Kumar Todi
Versus
Kishwar Jahan & Ors.
with
CAN No.7813 of 2008
MAT No. 704 of 2008
Anil Saraogi
Versus
Kishwar Jahan & Ors.
with
CAN No.7950 of 2008
MAT No.714 of 2008
Ajoy Kumar & Ors.
Versus
Kishwar Jahan & Ors.
with
MAT No. 744 of 2008
State of West Bengal & Ors.
Versus
Kishwar Jahan & Ors.
For the Appellant/s : Mr. Pradip Ghosh,
(In MAT No. 703/08) Mr. Sekher Basu,
Mr. Subrata Basu,
Mr. D. N. Mittra,
Mr. Amit Basu,
Mr. Joymalya Bagchi,
Mr. Sandipan Ganguly,
Mr. Ayan Chakraborty,
Mr. Sourav Bhagat.
(In MAT No. 704/08) Mr. Anindya Mitra,
Mr. Joydip Kar,
Mr. Joymalya Bagchi,
Mr. Ayan Chakraborty,
Mr. Sourav Bhagat.
(In MAT No. 714/08) Mr. Samaraditya Pal,
Mr. A. Mitra,
Ms. Vineeta Meharia,
Mr. Debanjan Mondal,
Mr. S. Trivedi.
(In MAT No. 744/08) Mr. Balai Chandra Roy,
Mr. Sandip Srimani.
For the Respondents : Mr. Kalyan Bandopadhyay,
(In MAT No. 703/08, 704/08 Mr. Agniswar Dutta Gupta,
714/08 & 744/08) Ms. Chaitali Bhattacharyya.
For the State Mr. Balai Chandra Roy,
(In MAT No. 703/08, Mr. Sandip Srimani,
704/08 & 714/08) Mr. Tirthankar Ghosh,
Mr. Rajdeep Biswas,
For the C.B.I. : Mr. Ranjan Roy.
Heard on : 03.09.08, 04.09.08, 09.09.08 &
10.09.2008
Order on : 19.09.2008
SURINDER SINGH NIJJAR, C.J.
We have heard learned counsel for the parties at great length. Very elaborate submissions have been made by learned counsel for the parties which, in our opinion, would be relevant at the final hearing of the appeal. But learned counsel were emphatic that the same were necessary, even at this admission stage of the appeal. We, therefore, proceeded to hear learned counsel in the morning session for a number of days, which are noted above. However, for the purposes of this order, it would not be necessary to enter into any elaborate discussion on the merits of the submissions made. We may, however, indicate briefly the reasons for the order.
Priyanka Todi (hereinafter referred to as Priyanka) is the daughter of Ashok Kumar Todi, respondent no.12 in the writ petition/appellant in MAT No. 703 of 2008. She got married under the Special Marriages Act, 1954 to Rizwanur Rahaman, son of late Eezaur Rahman. Priyanka and her family are Hindu, whereas Rizwanur and his family are Muslim. The allegations in the writ petition are that the marriage was not approved or liked by the family of Priyanka. Therefore, her father and her uncle Anil Saraogi (appellant in MAT No. 704 of 2008) continuously threatened Rizwanur to ensure that Priyanka returned to her parents. It seems that the efforts of the father, as well as her uncle, did not succeed. It is also the case of the petitioners that the father being a very successful businessman was capable of influencing the Police Department. The couple is said to have written letters to the Commissioner of Police on 30th August, 2007 indicating that Mr. Ashok Kumar Todi, father of Priyanka, would threaten the couple with dire consequences or create pressure or send anti-social elements or gundas to kidnap them. They, therefore, sought police protection. It is also the case of the writ petitioners that the police instead of giving protection, started to harass the boy. On 8th September, 2007, the couple was separated under pressure from the police. Dead body of Rizwanur was found on 21st September, 2007 on rail tracks between Sealdah and Bidhannagar Station. A written complaint was lodged by the brother of Rizwanur (petitioner no.2) with the local Police Station alleging that he suspected the hands of respondent no.12 (Ashok Todi) behind the death of his brother's unnatural death.
The Trial Court notices that the death of Rizwanur hurt the sentiments of the public at large and led to disruption of public life. This prompted the then Commissioner of Kolkata Police, Prasun Mukherjee (respondent no. 3) to hold a press conference. According to the petitioners, he declared that Rizwanur had committed suicide and this was transparent, although, the post-mortem report was yet to be received.
Dissatisfied with the state of affairs, the mother (petitioner no. 1) and brother (petitioner no. 2) of Rizwanur filed a writ petition alleging therein that time and again the deceased boy was threatened by Ashok Todi that he would be killed. The officers whose names have been mentioned in the writ petition were stated to have held out threats that the deceased boy would face severe consequences unless Priyanka went back to her parents. It would be appropriate at this stage to notice some of the averments in the writ petition; it is pleaded as under :-
"23. The factual matrix of the case as stated hereinabove give a clear impression to the petitioners that the deceased boy was killed by hired killers engaged by Ajay Kumar, Sri Sukanti Chakraborti and Sri Krishnendu Das at the instance of Ashok Todi who is one of the richest and most influential persons of Calcutta having a large industry.
24. The factum of the death of the deceased boy came to the newspaper on 2nd September, 2007 and there was public fury at the Park Circus area. Such an unfortunate incident not only hits the sentiment of the locality but also hits the sentiment of entire Kolkata.
25. On 23rd September, 2007 Sri Prasun Mukherjee, Commissioner of Police, Kolkata called a Press Conference and declared that the deceased boy committed suicide even before the post-mortem of the deceased boy was completed. Sri Prasun Mukherjee described the reaction of the Todi family as natural and also questioned the desirability of a relationship like that between the deceased boy and Priyanka in which the financial and social status does not match. At the media conference Sri Prasun Mukherjee said "Rizwanur's death is a case of suicide and it is very transparent." He further said, "After taking care of the daughter for 23 years if the family finds one morning that she has left them to start a new life with an unknown youth, parents cannot accept it. The reaction of the Todi family was natural." He further said, "the Todi family reacted because Rizwanur's social and financial status did not match there's." When the Press persons asked them in a case of a marriage whether police would intervene Sri Prasun Mukherjee replied that, "Who would intervene, the PWD ?" The statements made by him in the Press Conference came out in all dailies on 24th September, 2007.
A copy of such daily is annexed hereto and marked as Annexure "P-6".
26. The statements of Sri Prasun Mukherjee, the Commissioner of Police clearly indicates that the respondents herein have formed their opinion that the death of the deceased boy was a suicide therefore if any investigation is carried out by the Respondents herein including any Officers of the State Government it would be a mockery of justice. The chain of events including the statement of the Commissioner of Police clearly indicates that they are supporting all actions of Ashok Todi and if any investigation is carried on by any officer of the State Government vis-à-vis the Officers of the Criminal Investigation Department of the State of West Bengal it would not be a fair investigation at all and under the guise of the investigation they would be upholding the acts and/or actions of the aforesaid police officers, reaction of the Todi family and it would be an attempt to establish that the death of the deceased boy was a suicide and not a murder."
On the basis of the aforesaid allegations, the petitioners invoked the writ jurisdiction of the Court with the following prayers :-
"(a) A Writ in the nature of Mandamus directing that the investigation in connection with the unnatural death of Rizwanur Rahaman of 7B, Tiljala Lane, P.S. Karaya, Kolkata- 700 019, for which UD Case No. 183 of 2007 has been started and the allegations made by the petitioners in this petition against Sri Ajay Kumar, DC, DD I; Sri Sukanti Chakraborty, Assistant Commissioner of Police (Anti-Rowdy Section), Lal Bazaar and Krishnendu Das, Sub-
Inspector, Anti-Rowdy Section be forthwith be handed over and be conducted by the Central Bureau of Investigation and with a further direction to the Central Bureau of Investigation to submit a report of such investigations before the Hon'ble Court and on perusal of such report the Hon'ble Court may pleased to pass appropriate order/orders as this Hon'ble Court may deem fit and proper;
(b) A Writ in the nature of Certiorari do issue directing the Respondents to produce all records in respect of the allegations made by the petitioners in the petitions so that the same may be perused and appropriate Orders be passed so that conscionable justice be done;
(c) A declaration do issue declaring that the acts and/or actins as complained in the petition against Respondent Nos. 4 to 9 are ultra vires Article 21 of the Constitution of India; ...."
After hearing learned counsel for the parties, Justice Soumitra Pal by his order dated 16th October, 2007 directed as follows :-
"........During argument it was submitted on behalf of the State that the CID is conducting an inquiry. Persons have been summoned. It appears from the summons dated 10th October, 2007 that an investigation is being done in terms of section 175 of the Code. Section 175 should be read in conjunction with section 174. Enquiry under section 174 is permissible till inquest. Therefore, in my prima facie view, the investigation carried out by the CID is not in accordance with the provisions of the Code. Hence, considering the facts and circumstances of the case, I am of the opinion, prima facie, a case has been made out for passing an interim order. Therefore, let there be an interim order directing the CBI to investigate into the cause of unnatural death of Rizwanur Rahaman and the CBI shall file a report in a sealed cover before this Court within two months from the date of service of authenticated copy of this order..........."
This order was not challenged by any of the parties. We may also mention here, a fact which is recorded in the supplementary affidavit of the petitioners, that the Chief Minister had appointed a retired Judge of this Court to hold an enquiry under the Commissions of Enquiry Act, 1952. Since the order passed by Justice Soumitra Pal had not been challenged, ultimately the writ petition came up for final hearing before Justice Dipankar Datta. His lordship heard the matter on 17 occasions. After elaborately discussing the entire issues raised, his Lordship allowed the writ petition and granted liberty to the Central Bureau of Investigation (hereinafter referred to as CBI) to proceed in accordance with law for filing charge- sheet before the competent Court under Section 173(2) of the Code of Criminal Procedure. The Trial Court had also directed that CBI could not have made any recommendation for initiation of departmental proceedings against respondent nos.5, 7, 8 and 9.
We may also notice here that after the pronouncement of the judgment by the Trial Court, a prayer was made by the petitioners for stay of the judgment which has been accepted. It has been directed as follows :-
"Learned Advocate General, Mr. Banerjee, learned Senior Counsel and Mr. Basu, learned Counsel appearing for the State, the respondents 3,5,7,8 and 9, and the respondents 12 and 13 respectively have prayed for stay of operation of the judgment and order. Such prayer is opposed by Mr. Bandopadhyay, learned Senior Counsel for the petitioners.
Since implementation of the order might have the effect of depriving some of the respondents of their right to personal liberty, for the ends of justice this Court considers it fit and proper and accordingly grants stay as prayed for. The operation of the order shall remain stayed for three weeks from date.
(DIPANKAR DATTA, J.)"
The present appeals have been filed against the aforesaid judgment by the father and the uncle of Priyanka as also by the affected police officers. An appeal has also been filed by the State of West Bengal.
All learned counsel for the appellants had submitted that CBI has conducted the enquiry contrary to the directions issued by Justice S. Pal. According to learned counsel, the enquiry envisaged by Justice S. Pal was limited in scope to the provisions contained in Section 174/175 of Criminal Procedure Code. The CBI was not authorised to conduct a regular investigation. For conducting an enquiry under Section 174, it was not necessary to register the FIR. The enquiry ought to have been limited only with regard to the apparent cause of death. This was to be done on an examination of the dead body. Thereafter, report was to be submitted which would describe any wounds, fractures, bruises and other marks of injury found on the body. The report could also state in what manner or by what weapon or instrument such marks appeared to have been inflicted. It has also been emphasized by learned counsel that Justice S. Pal could not have directed investigation by the CBI without first concluding that the police or the State agencies have failed to investigate the crime. In the present case, no such opinion could be recorded as due investigation had been conducted. On the basis of the investigation it has been found that Rizwanur had committed suicide. Learned counsel also emphasized that appellants have been deprived of the rights to challenge the FIR as also the report of the CBI as the same have not been disclosed to them by the Trial Court. It is also the case of the appellants that in case the proceedings are permitted to continue, the appellants would not be in a position to exercise their constitutional rights. Since the Trial Court had failed to disclose the contents of the FIR as also the CBI report, the proceedings were clearly in violation of rules of natural justice. In case the C.B.I. is now permitted to file a charge-sheet before the criminal Court, it would entirely change the nature of the proceedings. The appellants would be left with no effective remedy to challenge either the FIR or the conduct of the investigation by CBI. Learned counsel for the appellants also emphasized that appellants are entitled to a fair trial. This would be impossible in view of the positive findings recorded by the Trial Court. It has been held that the police officers have acted unconstitutionally. These observations are clearly bound to affect the subordinate judiciary where the criminal proceedings would be held.
We have considered the submissions made by learned counsel. As noticed above, all learned counsel have claimed that a fair trial would not be possible in view of the findings recorded by the Trial Court. We, therefore, refrain from making any observations that may be construed as a final expression of an opinion on the merits of the submissions made. We may, however, notice that at this stage it would not be possible to conclude that CBI enquiry directed by Justice S. Pal was without any justification. It must be noticed that even the Chief Minister had appointed a retired Judge of this Court to hold an enquiry under the Commissions of Enquiry Act, 1952. Therefore, an investigation by the CBI, an independent entity, cannot be said to be unwarranted. The averments made in the writ petition clearly indicate the apprehensions of the petitioners with regard to the impartiality of the investigation conducted by the police or the Criminal Investigation Department. Justice S. Pal in the order dated 16th October, 2007 has also observed that the mother and the brother can make a prayer for an investigation by the CBI. We may extract here the observations made by Justice S. Pal :-
"The death of a son in the prime of his youth has caused a void and a wound to the mother which time can never heal. It is a shock and a loss - grievous and irreparable - of unimaginable magnitude. The death has permanently deprived her of a right to happy life with her son, since deceased, which is an inalienable part under Article 21 of the Constitution of India. The shock bereavement and grievance of the brother is also to be noted. Therefore, the petitioners have a constitutional right to move the instant petition and the petition is thus maintainable."
As noticed above, the directions issued by Justice S. Pal was not challenged by the appellants at any stage. Therefore, it is a little difficult to accept at this stage that the investigation by the CBI was not justified.
As to whether the CBI has acted beyond its jurisdiction by recording a FIR would have to be seen at the final stage. At present, it is to be noticed that the Trial Court after an elaborate discussions into the submissions has come to the conclusion that the investigation has been conducted in accordance with the established procedure. In fact, the Trial Court has come to the conclusion that recording of an FIR is a sine qua non for investigation into cognizable offences. It is accepted by all concerned that an offence under Section 306 of Indian Penal Code is cognizable. These findings of the Trial Court are based on judgments of the Supreme Court. In view of the above, we are unable to agree with learned counsel for the appellants at this interim stage that the investigation conducted by the CBI was unlawful or without jurisdiction. Even, otherwise, it has been held by the Supreme Court that mere irregularity in the investigation procedure would not invalidate the trial. We have refrained from discussing the relevance or otherwise of the judgments cited by learned counsel, since the merits of the appeals shall be considered at the final hearing. We have, however, taken into consideration the principles of law laid down therein.
We are also unable to accept the submissions of learned counsel that the stay granted by the Trial Court ought to continue or be extended till the hearing of the appeal or the disposal thereof on merits. In our opinion, the Trial Court stayed the proceedings for a period of three weeks to enable the appellants to file the present appeal. Once the appeals have been placed before the Appeal Court for hearing, it is for the Appeal Court to decide as to whether the facts and circumstances of the case warrant that interim relief ought to be granted. In our opinion, no irreparable loss would be caused to the appellants, in case, the interim relief granted by the Trial Court is not extended. We may also notice here the observations made by the Trial Court which would show that the decision in writ petition would have no bearing whatsoever in the criminal proceedings. The learned Single Judge has observed :-
"Observations made and/or findings recorded in this order are wholly for the purpose of a decision on this writ petition and the same shall not influence or prejudice the adjudicator of future criminal proceedings, if initiated according to law."
These observations make it amply clear that any future criminal proceedings against the appellants would be wholly independent of the observations made by the Trial Court. In our opinion, any apprehensions of the appellants are wholly misconceived.
We may also notice here that the Constitution of India guarantees equality of status to all citizens of India. The status of an individual is not to be determined on the social, economic or political standing of the individual in any particular community. Article 14 of the Constitution of India clearly provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. We are also conscious of the fundamental rights guaranteed to all persons under Articles 20 & 21 of the Constitution of India. These Articles provide that every person has a right to live a life free from fear. This includes the right of two adults of freedom to marry a person of their choice. The legal standing of an individual in Court is not determined by the social status of the parties. Acceptance of such a proposition would be clear violation of Article 14 of the Constitution of India. This Article recognizes the great equality principle enunciated by Sir Edward Coke in answer to the statement of James I, that it would be treason to affirm that the King of England was under the law. The great jurist stated the principle thus: "The King is under no man, but under God and the law." Since then, it has been accepted as a cardinal principle of law that social, economic or political standing of any individual does not entitle them to any special treatment under the law.
We are clearly conscious of the conflicting rights of the mother and brother of the deceased Rizwanur and the appellants. In our opinion, the larger public interest far outweighs any personal interest of any of the appellants.
The appeal is admitted. There shall be no interim relief or further stay of the operative portion of the judgment under appeal.
Appellants are directed to prepare requisite number of paper books within six weeks from date. Liberty to mention for early hearing of the appeals.
Urgent xerox certified copy of this order, if applied for, be supplied to learned counsel for both parties, expeditiously after compliance with due formalities.
( Surinder Singh Nijjar, C.J.) ( Maharaj Sinha, J.) Later :
At this stage, prayer is made for continuation of the interim stay granted by the Trial Court. The prayer is declined.
( Surinder Singh Nijjar, C.J.) ( Maharaj Sinha, J.) Whether the order/judgment should be sent to the reporters for reporting ?
(Yes/No)
Whether the reporters be allowed to
see the judgment ? (Yes/No)