Calcutta High Court (Appellete Side)
Anindya Sundar Das vs Union Of India And Others on 25 March, 2022
March 25, 2022
Sl. No. 1-6
Court No.1
(PA - RB/SS)
WPA (P) 130 of 2022
The Court on its own Motion
In re: The Brutal Incident of Bogtui Village,
Rampurhat, Birbhum
With
WPA (P) 124 of 2022
Anindya Sundar Das
vs.
Union of India and others
With
WPA (P) 125 of 2022
Tarunjyoti Tewari
vs.
Union of India and others
With
WPA (P) 126 of 2022
Priti Kar
vs.
The State of West Bengal and others
With
WPA (P) 129 of 2022
Sayanti Sengupta
vs.
The State of West Bengal and others
With
WPA (P) 133 of 2022
Priyanka Tibrewal
vs.
The State of West Bengal and others
Mr. Sabyasachi Chatterjee,
Mr. Pintu Kakar,
Mr. Akashdeep Mukherjee,
Ms. Debolina Sarkar,
Mr. Ranjil Mukherjee,
Mr. Sayan Banerjee,
2
WPA (P) 130 of 2022 & ors
Mr. Samim Ahammed,
Mr. Arka Maiti,
Mr. Aniruddha Singh,
Ms. Gulsanwara Pervin, Advocates
... for the intervenor
in WPA (P) 130 of 2022
Mr. Phiroze Edulji,
Mr. Rajdeep Biswas,
Mr. Nilendu Bhattacharya,
Mr. A. K. Upadhyay,
Mr. Debapriya Samanta,
Mr. Dipankar Dandapath,
Mr. Idratanu Das Mahapatra,
Mr. Mrinal Das,
Mr. Raja Adhikari,
Mr. Abhijit Roy,
Mr. Sanjeeb Sen, Advocates
... for the petitioner
in WPA (P) 124 of 2022
Mr. Nilanjan Bhattacharjee,
Mr. Kumar Jyoti Tewari,
Mr. Brajesh Jha,
Mr. Ajit Kumar Mishra,
Mr. Uttam Basak,
Mr. Rajdeep Mazumdar,
Mr. Arijit Majumdar,
Mr. Lokenath Chatterjee,
Mr. Ayon Paul,
Mr. Moyukh Mukherjee,
Mr. Aniruddha Tewari,
Mr. Saket Sharma,
Mr. Sukanta Ghosh, Advocates
... for the petitioner
in WPA (P) 125 of 2022
Mr. Koustav Bagchi,
Mr. Debayan Ghosh, Advocate
... for the petitioner
in WPA (P) 126 of 2022
Mr. Rabi Shankar Chattopadhyay,
Mr. Uday Shankar Chattopadhyay,
Mr. Santanu Maji,
Mr. Jamiruddin Khan,
Mr. S. Chattopadhyay,
Mr. Imteaz Ahmed, Advocates
... for the petitioner
in WPA (P) 129 of 2022
Ms. Priyanka Tibrewal,
... petitioner-in-person
in WPA (P) 133 of 2022
Mr. S. N. Mookherjee, ld. AG
Mr. Samrat Sen, ld. AAAG
Mr. Anirban Ray, ld. GP
Mr. Md. T. M. Siddiqui,
3
WPA (P) 130 of 2022 & ors
Mr. D. Ghosh,
Mr. N. Chatterjee, Advocates
... for the State
Mr. Y. J. Dastoor, ld. ASG
Mr. Vipul Kundalia,
Ms. Amrita Pandey, Advocate
... for the Union of India
in WPA (P) 124 of 2022
Mr. Y. J. Dastoor, ld. ASG
Mr. Debasish Tandon, Advocate
... for NIA
in WPA (P) 124 of 2022
Mr. Dhiraj Trivedi, ld. Asst. Solicitor General
Mr. Shailendra Kumar Mishra,
Mr. Rishav Kumar Thakur, Advocates
... for the CBI
in WPA (P) 125 of 2022
Mr. Billwadal Bhattacharyya, ld. Asst. Solicitor General
Mr. Debu Chowdhury, Advocate
... for the CBI
in WPA (P) 126 & 129 of 2022
A very shocking and unfortunate incident has taken
place at village Bogtui, on the outskirts of Birbhum's
Rampurhat. At late night on 21st of March, 2022, some
miscreants have put on fire 10 houses of the village, in
which at least 8 persons which include a child, women,
and newly married couple have been burnt alive. Apart
from the fact that charred bodies of 8 persons have been
found from those houses in the village, some villagers are
also injured who have been hospitalized.
The media reports state that Bogtui is a village with
over 2000 population and after the incident the residents
of the village have left their houses on account of fear and
terror. It has been reported that the killings was the
result of the outrage amongst the close aids and
supporters of Bhadu Sk, the deputy chief of ruling party
4
WPA (P) 130 of 2022 & ors
run Barishul Gram Panchayat who was killed by
assassinator belong to the rival camps, due to bombs
hurled on Monday night, and, therefore, the incident is
the retaliatory action to Bhadu Sk's killing. Some of the
reports also state that the poor villagers became the
victim of rivalry between two groups of the ruling party
and that incident was caused by goons supported by the
political party in power. At this stage, it is not possible to
draw any conclusion about truthfulness or falsity of these
allegations because investigation is yet to take place but
these reports and allegations cannot be completely
ignored.
On registering the suo motu petition by this Court as
many as 5 PILs have also been filed making serious
allegations. It has been alleged that the incident had
taken place at the instance of the hooligans associated
with the ruling party and that even the fire brigade
personnel were stopped from entering the village.
Apprehension has been expressed that though SIT has
been formed but the investigation will be done only to
cover up the issue instead of finding the culprits or to
unearth the truth. Serious apprehension has been
expressed that the investigation has been camouflaged by
the investigating agency and the evidence will be
destroyed and that the independent investigation by the
local police is not possible on account of the involvement
of high profile persons connected to one of the political
5
WPA (P) 130 of 2022 & ors
party and that in order to cover up the incident one of the
leaders of the ruling party has already stated the incident
took place due to short circuit as a television had blasted.
A strong apprehension has been expressed about
likelihood of tampering the evidence and influencing the
witnesses by raising the plea that the incident is the
result of a political vendetta.
The object of registering this suo motu petition is to
ensure fair investigation and to trace out the persons
responsible for the incident and to see that they are
punished adequately. This Court on 23rd of March, 2022
had issued certain directions in this petition to preserve
the evidence and had further directed the learned
Advocate General to provide the case diary / report of
investigation to this Court and the same has been
produced.
Submission of learned Counsel for the petitioners is
that the investigating agencies are not properly carrying
out the investigation and till yesterday no action was
taken and only after the intervention by this Court some
activity has been shown. It is also submitted that
whereabout of one of the minor witnesses is not known
and the police is not recording the statements of the
family members of the deceased and that out of fear and
terror all the villagers of not only the concerned village
but also nearby villages have fled away and it is
necessary that justice be done to the victims of the family
6
WPA (P) 130 of 2022 & ors
and the faith of the society in the system is restored,
therefore, an independent agency be appointed to carry
out the investigation. In support of their submission they
have placed reliance upon various judgments of this
Court as well as Hon'ble Supreme Court.
Learned Advocate General has submitted that all the
directions which were issued by this Court on 23rd of
March, 2022 have been complied with and protection to
the witnesses has been provided but it will take some
time to restore confidence in the villagers so that they can
come back to their houses. He has advanced the
argument that the writ petitions have been filed without
proper verification and that oral arguments without the
pleadings have been advanced before this Court and that
the investigation is being properly carried out and SIT has
been formed and arrests have been made, therefore, at
this stage no case is made out for transferring the
investigation to the CBI.
We have heard the learned Counsel for the parties
and perused the records.
Before entering into the issue, we deem it proper to
examine the scope of judicial intervention and consider
circumstances when the investigation can be transferred
to the CBI.
Hon'ble Supreme Court in the matter of Gudalure
M.J. Cherian and Others vs. Union of India and
Others reported in (1992) 1 SCC 397 in a case of alleged
7
WPA (P) 130 of 2022 & ors
rape of two nuns at Gajraula in Uttar Pradesh where after
filing of charge-sheet, a prayer for transfer of
investigation to the CBI was made, has held that in a
given situation to do justice between the parties and to
instill confidence in the public mind, it may become
necessary to ask the CBI to investigate a crime. It only
shows the efficiency and the independence of the agency.
The Hon'ble Supreme Court in that case had directed the
CBI to take up the investigation.
In the matter of R.S. Sodhi v. State of U.P. and
Others reported in AIR 1994 SC 38, in a case where
allegations were leveled against the local police and it was
held that the investigation by State police would lack
credibility and that it would be desirable to entrust the
investigation to an independent agency like the CBI 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
investigation credible. In the facts of the case, it was
observed that however faithfully the local police may
carry out the investigation, the same would lack
credibility since the allegations were against them.
In the matter of Punjab and Haryana High Court
Bar Association, Chandigarh vs. State of Punjab and
Others reported in AIR 1994 SC 1023, in a case where a
practicing lawyer, his wife and child were abducted and
murdered and the lawyers' fraternity was not satisfied
8
WPA (P) 130 of 2022 & ors
with the police investigation though the investigation was
already completed, Hon'ble Supreme Court, considering
the facts of the case, in order to do complete justice in the
matter and to instill confidence in the public mind had
directed fresh investigation through specialized agency,
i.e., CBI.
In the matter of State of West Bengal and Others
vs. Committee for Protection of Democratic Rights,
West Bengal and Others reported in AIR 2010 SC 1476,
considering the scope of power of the Court to direct
investigation by the CBI, it is held that direction to the
CBI can be given by the Writ Court even in absence of
consent of the State and such direction is not
incompatible with federal structure or doctrine of
separation of power. It has further been observed that
being protectors of civil liberties of the citizens, the
Supreme Court and High Courts have not only the power
and jurisdiction but also an obligation to protect the
fundamental rights guaranteed by Part III in general and
under Article 21 of the Constitution in particular,
zealously and vigilantly. It has been held that such power
should be exercised sparingly, cautiously and in
exceptional situations. It has been also held that the
extraordinary power can be exercised when it becomes
necessary to provide credibility and instill confidence in
investigations or where the incident may have national
and international ramifications or where such an order
9
WPA (P) 130 of 2022 & ors
may be necessary for doing complete justice and
enforcing the fundamental right.
In the matter of Rubabbuddin Sheikh vs. State of
Gujarat and Others reported in AIR 2010 SC 3175, the
Hon'ble Supreme Court has held that in order to do
complete justice, even after filing of charge-sheet, Court
can direct to hand over investigation to the CBI more so,
when high profile officials of the State are involved in
crime and investigation is not made in proper direction.
In the matter of Ashok Kumar Todi vs. Kishwar
Jahan and Others reported in AIR 2011 SC 1254, in the
case of unnatural death, where the mother and brother of
the deceased were suspecting murder at the hands of the
in-laws of the deceased and the State CID was interested
in protracting the investigation, considering the
circumstances of the case and the fact that the
complainants had expressed doubt about fair
investigation under the CID, the Hon'ble Supreme Court
had found investigation by CBI to be proper.
In respect of the incident of deaths by police firing
in Nandigram, this Court had registered the suo motu
petition and in order to ensure fair investigation and
avoid possibility of loss/destroying of the relevant
evidence, had directed the investigation by the Special
Team deputed by the Director of CBI. (Association for
Protection of Domestic Rights vs. State of West
Bengal and Others; 2007 SCC OnLine Cal 672).
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WPA (P) 130 of 2022 & ors
Counsel for the petitioners have also brought to the
notice of this Court, the Division Bench judgment in the
matter of Bar Association of High Court at Calcutta
reported in (2011) 4 CHN 736 (Cal) wherein considering
the circumstances of the case and being prima facie
satisfied that the local committee of CPI(M) was involved
in the incident the Court had directed the investigation
by the CBI.
Learned Advocate General has advanced argument
to distinguish the cases relied upon by the Counsel for
the petitioners by submitting that only in the cases
relating to the police firing, etc. where involvement of
police is found, the power to transfer the case to the CBI
should be exercised but on perusal of the judgments
noted above, we find that such power can be also
exercised where it becomes necessary to provide
credibility to the investigation and instill confidence in
society or where the incident may have national
ramification or where such an order may be necessary for
doing complete justice and enforcing the fundamental
right. In this view of the matter, we are of the opinion
that the prayer made by the petitioners cannot be turned
down on the basis of the judgments in the matter of K.V.
Rajendran vs. Superintendent of Police, CBCID, South
Zone, Chennai and Others reported in (2013) 12 SCC
480, in the matter of Mohd. Haroon and Others vs.
Union of India and Another reported in (2014) 5 SCC
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WPA (P) 130 of 2022 & ors
252, in the matter of Sujatha Ravi Kiran vs. State of
Kerala and Others reported in (2016) 7 SCC 597 and in
the matter of Shree Shree Ram Janki Ji Asthan
Tapovan Mandir and Another vs. State of Jharkhand
and Others reported in (2019) 6 SCC 777 relied upon by
the learned Advocate General.
Having examined the present case in the light of the
aforesaid judicial pronouncement and limited scope of
judicial intervention, we find that the undisputed
shocking incident of burning of at least 8 persons
including a child and as many as 6 women has shaken
the conscience of the society. It has a nationwide
ramification and all the national media reports are
flooded with the news of this unfortunate incident.
We have already taken note of serious apprehension
expressed before this Court about fair investigation in the
hands of local police or SIT by raising the plea that the
incident is the result of political group rivalry and
counter-blast of the murder of an Upa-Pradhan belonging
to a particular group of the ruling party and submission
that the attempt is being made to destroy the evidence
and cover up the incident. In the communication dated
22.03.2022, Hon'ble Chief Minister has mentioned the fact that murdered Upa-Pradhan was an important TMC Party functionary. Though after the incident by the order dated 22.03.2022 the Director General and Inspector General of Police, West Bengal has formed three member 12 WPA (P) 130 of 2022 & ors Special Investigation Team and this team is headed by Shri Ghyanwant Singh, IPS, Additional Director General of Police, CID, West Bengal but his independence and impartiality has been doubted by submitting that there was an allegation of murder of one Rizwanur Rahaman against him in the year 2007, therefore, he was kept out of work till 2014 and that ED had also summoned him in relation to a coal smuggling scam of rupees one thousand three hundred crores. Though learned Advocate General has submitted that in respect of the allegation of murder no charge sheet was filed against him but it remains undisputed that such an allegation was made against him.
The case diary of the incident has been produced before us. We have minutely examined it. We find that though the SIT was constituted on 22.03.2022 but till now there is no effective contribution of the SIT in the investigation. It has been submitted that in spite of the fact that the police station is very near to the spot of incident, the police did not reach on time and persons trapped inside the houses were kept on burning. Counsel for the petitioners have pointed out the procedure which was required to be followed in investigation by using tower damping technology to ascertain the presence of accused on the spot, manner of collection of samples and seizures, the videography of the collection of sample, recording of the evidence of the witness under Section 13 WPA (P) 130 of 2022 & ors 161 and 164 of the Cr.P.C., recording of dying declaration, etc. On minute examination of the case diary, we are of the opinion that the investigation as expected, keeping in view the gravity of the offence, has not been done. We are not mentioning the details of lacuna noticed in investigation as it may prejudice the rights of the parties. We also find that this is one such exceptional case where requisite direction is required.
It is pertinent to mention here that expeditious steps are required to be taken to hand over the investigation to an independent investigating agency because there is an allegation of an attempt to wipe off the evidence.
We take note of the fact that learned Additional Solicitor General has stated that CBI has no difficulty in doing the investigation.
Having regard to the aforesaid we are of the opinion that facts and circumstances of the case demand that in the interest of justice and to instill confidence in the society and to have fair investigation to dig out the truth it is necessary to hand over the investigation to the CBI. Accordingly, we direct the State Government to forthwith hand over the investigation of the case to CBI. We also direct the State authorities to extend full cooperation to CBI in carrying out the further investigation.
In view of this order the State police authorities or SIT formed by the State will not carry out any further 14 WPA (P) 130 of 2022 & ors investigation in the matter from the time the same is handed over to CBI.
CBI will not only be handed over the case papers but also the accused and suspects who were arrested in the matter and in custody.
Hence, we direct the CBI to forthwith take over the investigation in the case and submit the progress report before us on the next date of hearing.
We make it clear that any factual observation made in this order is only tentative for the purpose of deciding the issue of transfer of investigation to the CBI and will not be treated as binding in any other proceeding. List on 07th of April, 2022.
[Prakash Shrivastava, C.J.] [Rajarshi Bharadwaj, J.] Later, After pronouncement of the order, an oral prayer has been raised by the learned Advocate General to stay of the operation of the order. We find no reason to grant the prayer. Hence, the prayer is rejected.
[Prakash Shrivastava, C.J.] [Rajarshi Bharadwaj, J.]