Calcutta High Court (Appellete Side)
No.1 Cra 541 Of 2017 vs Cra 549 Of 2017 on 17 September, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
z 1
17.09.
1 2019 W. P. No. 18308 (W) of 2019
AB
&
Court
In connection with
S.DE
No.1 CRA 541 of 2017
And
CRA 549 of 2017
Courts on its own Motion :
In re : Quality of Investigation, Prosecution & Adjudication Mr. S. G. Mukherjee, Ld. PP ...for the State. Sessions Case No.17 of 2014 in the Court of the learned Chief Judge, City Sessions Court, Calcutta was one registered for offences punishable under Sections 366B/370/372/120B of the Indian Penal Code and Sections 4/17 of the POCSO Act, 2012 and under Section 14(c) of the Foreigners Act against two persons, namely, Bhagyadhar Dhivar and Abdul Gaffar. The judgment delivered by the Court of Sessions in that case is a telltale testimony of the grave injustice that has been done through the process of inadequate investigation and resultant prosecution and conviction of only two persons, who were parts of a long chain of accused persons whose actions, which amount to commission of offences under different provisions of the penal laws, were spoken to vividly by the victim in Court as part of her evidence.
The said judgment was noticed by the Bench consisting of us (Thottathil B. Radhakrishnan, C.J and Arijit Banerjee, J.) while dealing with an application for suspension of sentence in one among the two appeals filed against the said order of conviction. z 2 After studying the judgment in the aforesaid sessions case and after looking into the material papers in the case file including the evidence recorded in the said sessions case at trial, we minuted an order and directed the registry to register this matter as a Suo Motu Rule.
That order was given to the registry on 16.9.2019 and has hence been placed as a Suo Motu matter for consideration further in exercise of authority under Articles 226 and 227 of the Constitution of India and Section 482 Cr.P.C.
The order minuted by this Bench that has led to the registration of the Suo Motu matter is extracted hereunder for continuity.
"During the course of hearing of CRAN 2145 of 2018 in CRA 541 of 2018 with CRA 549 of 2017, we were shocked to notice the wholly unsatisfactory quality of investigation, prosecution, adjudication and resultant order, as have been carried out and handed down at the conclusion of trial in Sessions Trial no. 01 (06) of 2014 in Sessions Case no. 17 of 2014 in the Court of the Chief Judge, City Sessions Court, Calcutta. That judgment delivered on 07.08.2017, was rendered on the conclusion of the trial of only two persons, Bhagyadhar Dhibar and Abdul Gaffar. CRA 541 of 2017 is the appeal of Bhagyadhar Dhibar and CRA 549 of 2017 is the appeal of Abdul Gaffar.
We have perused the case records of Sessions Case No. 17 of 2014 of the Court of the Chief Judge of City Sessions Court.
The facts and the material evidence on record which have been discussed by the Court below in its judgment, alarmingly disclose that the investigation, prosecution and the consequential trial and the order of court has resulted in manifest miscarriage of justice and nothing but travesty of justice, qua the z 3 victim and Rule of law, in terms of due process of law, particularly the legal principles attendant to victimology. We say so, particularly because the story that unravelled through the material evidence on record essentially inculpates different persons at different stages, with their names being mentioned and their identity disclosed.
Having regard to the large format and spectrum of trafficking of women including minor girls across the borders of the States in India as well as across the borders of India and the neighboring nations, the vigil of the investigator that is called for in such cases is found to be, unfortunately, totally absent in the case in hand.
Before the investigator was a victim who had her clear version of how her husband, a Bangladeshi national and her father-in-law had brought her to India and passed her on from person to person for being utilized as an object of inhuman sexual satisfaction. The names of such different persons are reflected in the judgment in the Sessions Case.
Hence, we are of the strong prima facie view that the investigation and laying of the final report only as against the accused persons in Sessions Case no. 17 of 2014 of the Court of the Chief Judge, City Sessions Court, Calcutta has resulted in manifest miscarriage of justice.
Her clear evidence of repeated sexual assaults of aggravated nature is recorded even in the judgment. We cannot comprehend as to how the investigation proceeded in such manner and mode that the final report ended up in such manner that the Court of Session took cognizance of offences, only as against the husband and the owner of one of the hotels where the victim girl underwent a multiple chain of trafficking and ruthless sexual exploitation.
Therefore, in exercise of suo motu powers under Articles 226 and 227 of the Constitution of India and Section 482 of the Cr.P.C, we hereby direct the registration of a suo motu case under those provisions. The entire records of the Sessions Case no. 17 of 2014 of the Court of the Chief Judge, City Sessions Court, Calcutta which are available as per the lower court records in CRA 549 of 2017 and CRA z 4 541 of 2017 are hereby called for, for such purpose. We also notice, on the basis of submissions of the Ld. Public Prosecutor that different persons were initially arrayed including those who are yet to be traced.
The department is directed to carry out the aforesaid direction and number such matter as a W.P. (suo motu) and list it on the judicial side, with requisite files and materials, after taking order on the Administrative side from the Hon'ble the Chief Justice regarding the allocation of that matter."
On the matter being allocated by the Chief Justice to be placed before this Bench, it has come up today. Mr. S. G. Mukherjee, learned Public Prosecutor is present. He appears on behalf of the State of West Bengal. The office will serve on him a copy of the judgment delivered on 7.8.2017 by the Court of Chief Judge, City Sessions Court, Calcutta in Sessions Case No.17 of 2014. The Public Prosecutor will be at liberty to peruse by himself or his authorized co-advocates the case file including the lower court records as would be available in this Court as part of the records of CRA 541 of 2017 and/or CRA 549 of 2017 to get familiarized with the relevant facts.
As minuted in the order, which has generated this Suo Motu matter, we are dealing with a case where the victim girl has apparently undergone a multiple chain of trafficking and ruthless sexual exploitation. Learned Public Prosecutor will look into the matter and suggest immediate measures for taking up due investigation through a Special Investigation Team and/or antihuman trafficking task force and place further materials as may be necessary to streamline the z 5 investigation in the matter keeping aside the finality of the order of conviction that has been handed down against the two persons, who were put to trial and who stand convicted ; their appeals are pending before this Court.
Let this matter appear on 24th September, 2019. Let a plain copy of this order, duly countersigned by the Assistant Registrar (Court), be handed over to the State upon compliance of requisite formalities.
(Thottathil B. Radhakrishnan, C.J.) ( Arijit Banerjee, J.)