Calcutta High Court (Appellete Side)
Deb Kumar Samanta vs The State Of West Bengal & Ors on 15 March, 2019
Author: Debangsu Basak
Bench: Debangsu Basak
1 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present :
The Hon'ble Justice Debangsu Basak.
WP 15620 (W) of 2017 With WP 102(W) of 2017 With WP 11612(W) of 2013 With CAN 4055 of 2018 Deb Kumar Samanta.
Versus The State of West Bengal & Ors.
For Petitioner :- Mr. Ashok Kumar Banerjee, Sr. Adv., Mr. Bhaskar Prosad Banerjee, Mr. Sandip Bhattacharya, Mr. Sourav Chatterjee, Mr. Parashar Baidya, Mr. Dipto Banerjee .
For State :- Mr. Samrat Sen, ld. Asst. A.A.G,
[WP 15620 (W) of 2017] Mr. Amitava Mitra.
For State :- Mr. Samrat Sen, ld. Asst. A.A.G,
[WP 11612 (W) of 2013] Mr. Naba Kr. Das.
For State :- Mr. Amis Kr. Ganguly,
[WP 102 (W) of 2017]
Heard On :- January 10, 2018, March 5,
2019 and March 15, 2019.
Judgment on :- March 15, 2019.
2
Three writ petitions are taken up for analogous hearing. There is an
application made in one of the writ petitions which is also taken up for consideration.
The petitioner seeks replacement of the investigating agency with that of the Central Bureau of Investigation.
The petitioner claims that, the investigation into the death his son of has been done in a perfunctory manner. The death remains unexplained despite the filing of the charge sheet. The fact that, the post mortem report find that, the lungs of the deceased contained sand and when it is claimed in the charge sheet that, the death of the deceased was due to drowning at a swimming pool raises suspicion as to the quality of investigate. The presence of the sand in lungs of the deceased remains unexplained in the charge sheet. Sand was not available in the near vicinity of the pool. Presence of the sand in the lungs of the deceased remains unexplained. According to the petitioner, there is a nexus between the death of the petitioner with that of another death of Asish Bhagat. Such death is being investigated into by the CBI pursuant to the judgment and order dated November 9, 2017 passed in WP 11590(W) of 2013.
Learned senior Advocate appearing for the petitioner submits that, the State did not prefer any appeal against the judgment and order dated November 9, 2017 passed in WP 11590(W) of 2013. Therefore, for all practical purposes, it would be prudent on the part of the Court to direct the investigation to be conducted by the same agency as that of Ram Narayan Bhagat (supra). He submits that, significantly, in the facts of the present case, the viscera remnants 3 are missing in respect of which the petitioner filed the writ petition being WP No.102 (W) of 2017. He points out that, the original video cassette of the post mortem report is missing for which the petitioner filed WP No.15620(W) of 2017. In such factual background, he submits that, it is essential that, the investigating agency is changed and that, CBI is directed to take up the investigation.
Learned Assistant Additional Advocate General appearing on behalf of the State in WP No.15620(W) of 2017 submits that, although the original video cassette remains misplaced, the authorities including the petitioner were made over copies of such video cassette. Therefore, he submits that, the explanation for the same to be missing is sufficient. Evidence is required to be considered at trial. At this stage, the Writ Court need not interfere therewith.
Learned Advocate appearing on behalf of the State in WP No.102(W) of 2017 submits that, the Court need not rush into directing change of investigating authority. It is warranted only in exceptional circumstances. The facts of the present case do not require any change of investigating agency. In support of his contentions, he relies upon AIR 1959 Supreme Court 707 ( The State of Madhya Pradesh Versus Mubarak Ali), (2008) 2 Supreme Court Cases 409 (Sakiri Vasu Versus State of Uttar Pradesh and Ors.) and (2016) 3 Supreme Court Cases 135 (Pooja Pal Versus Union of India & Ors.).4
Learned senior Advocate appearing for the petitioner relies upon AIR 2008 Supreme Court 690 (State of Rajasthan Versus Ganeshi Lal) and submits that, being a precedent to be binding on the Court, the factual situation must be the same. Any deviation in the factual situation will make a world of difference between conclusions in two cases.
As noted above, three writ petitions and are connected application are being considered.
It is the claim of the petitioner that the deceased is a swimmer. He was a trainer of swimmers. Such a person is unlikely to die out of drowning in a swimming pool. The petitioner claims that, on September 2, 2012, his son went for swimming after disclosing to his mother that, he would disclose some confidential information relating to the death of one Anuj @ Asish Bhagat and Koushik Roy. Those two persons died in a road accident. The investigation into the death of one of the two persons, namely, Asish Bhagat, now stands handed over to the Central Bureau of Investigation pursuant to an order of the High Court. It is claimed by the petitioner that, when the son of the petitioner was not returning, the wife of the petitioner tried to contact his son over phone. His son did not pick up the phone. However, the wife of the petitioner made another call at about 9.57 p.m. on the mobile phone of the deceased when a person unknown to her received the call and claimed to be the son of the petitioner. Such call was subsequently disconnected. Thereafter, within few minutes, the mother of the deceased received a call from the mobile of the deceased and some unknown person informed the mother of the deceased that, the deceased was 5 sick and she was requested to come to the swimming pool. On reaching the swimming pool, the wife of the petitioner found the deceased dead.
An investigation was carried out into the unnatural death of the deceased. The police have filed a charge sheet. The post mortem report finds that, there are injuries on the body of the deceased which is ante mortem in nature, apparently caused by blunt weapons. The post mortem report also speaks of detection of alcohol. The charge sheet says that, the deceased consumed alcohol and died due to drowning at the swimming pool. The post mortem report records presence of sand in the lungs of the deceased. The presence of sand in the lungs of the deceased is not explained in the charge sheet. The death by drowning as claimed in the charge sheet happened at a swimming pool. Presence of sand in or about locality of the swimming pool is not explained in the charge sheet. This is an area which requires further consideration. The presence of external injuries on the body of the deceased have not been adequately explained in the charge sheet. The charge sheet does not contain any material to suggest that, after a person consuming alcohol and apparently hitting the side of the swimming pool, he is likely to die due to drown threat with sand being found in the lungs of such a person. These chain of events in the charge sheet as it stands today, raises more questions with regard to the death than it seeks to answer. These aspects need to be investigated into.
There are two other aspects with regard to the conduct of the investigation. One of such aspect is the destruction of the remnants of the viscera report without the order of the Court and other is the non-availability of 6 the original video cassette. Again the explanation sought to be advanced on behalf of the State with regard to these aspects, are sketchy at best. They allow inferences to be drawn, which may not be conducive for an appropriate trial in the administration of criminal justice.
Mubarak Ali (supra) is a case relating to the Prevention of Corruption Act, 1947. In the facts of that case, an officer other than the designated officer sought to make an investigation. It is held that, such officer should get an order of magistrate empowering him to do so before he proceeds to investigate. The order granting permission should disclose the reasons for giving the permission. The facts scenario in the present case is absolutely different.
Sakiri Vasu (supra) is of the view that, a constitutional Court has the power to direct investigation by the CBI. However, the same should be done only in rare and exceptional cases. In the fact of that case, two investigations were undertaken by the police. Their Lordships held that, in the fact of that case, the High Court was justified in rejecting the prayer for CBI enquiry.
Pooja Pal (supra) later in point of time than Sakiri Vasu (supra). It considers the issue where it is permissible for the Constitutional Court to direct fresh investigation / reinvestigation and further investigation. In the facts of that case, despite pendency of the trial and the availability of the power of the Court under Section 311 and 391 of the Code of Criminal Procedure read with Section 165 of the Evidence Act, Their Lordships directed CBI enquiry.
Their Lordships were of the view that, there was overwhelming and imperative necessity to rule out of all possibility of denial of justice to the parties and more 7 importantly to instill and sustain the confidence of the community at large, CBI was directed to undertake de novo investigation.
Ganeshi Lal (supra) is of the view that, different of facts in two matters, can make a world of difference between the conclusion in two cases. It contains the Court against placing reliance on a precedence blindly.
As noted above, the charge sheet filed raises more questions than answers with regard to the death. It will lead to failure of justice, in the event, the parties are asked to go to trial on the basis of such a charge sheet. It will shake public confidence in the justice delivery system. The Court is informed that, the trial is yet to commence. Again as noted above, the death of Anuj @ Asish Bhagat is under investigation by the CBI. The claim of the petitioner that, there is some nexus between the two deaths requires investigation.
In the facts of the present case, therefore, it would be appropriate to direct the Joint Director, CBI to depute a competent person of the rank not less than the rank of Superintendent of Police to undertake the investigation, in accordance with law. The earlier investigating authority is requested to make over all necessary documents and materials to the new investigating agency, in accordance with law. The new investigating agency will also investigate into the loss of the video cassette and the disposal of the viscera remnants, in accordance with law.
It will submit its report to the jurisdictional Court, in accordance with law as expeditiously as possible. The new investigating agency is at liberty to 8 undertake the investigation from such stage as it deems appropriate. It will record its reasons for the same.
WP 15620 (W) of 2017, WP 102(W) of 2017, WP 11612(W) of 2013 and CAN 4055 of 2018 are disposed of accordingly.
No order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( Debangsu Basak, J. ) ns.