Calcutta High Court (Appellete Side)
Central Bureau Of Investigation vs The State Of West Bengal & Ors on 26 February, 2019
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
CRR 2456 of 2018
with
CRAN 3463 of 2018
Central Bureau of Investigation
Versus
The State of West Bengal & Ors.
And
CRR No. 3394 of 2018
Central Bureau of Investigation
Versus
The State of West Bengal & Ors.
For the Petitioner : Mr. Kaushik Chanda
Mrs. Chandreyi Alam
Mr. Amarajit De
For the State : Mr. Kishore Dutta
Mr. Abhrotosh Majumder
Mr. S. G. Mukherjee
Mr. Ranabir Roy Chowdhury
Mr. Ayan Basu
For the Opposite Party No. 2
(in CRR No. 3394 of 2018 : Mr. Avik Ghatak
Heard On : 13.02.2019
C.A.V. On : 13.02.2019
Judgment On : 26.02.2019
SHIVAKANT PRASAD, J.
In the instant two revisional applications, the petitioner Central Bureau of Investigation Economic Offence has assailed the 2 order dated 23rd October, 2017 and subsequent orders dated 30th August, 2018 and 28th September, 2018 passed by the learned Chief Judicial Magistrate, 24-Parganas (South), Alipore, in CGR 3216/17 arising out of the Ballygunge P.S. Case No. 103 of 2017 dated 03.8.2017 under Sections 142, 143, 149, 448, 353, 427/34 of the Indian Penal Code, inter alia, on the grounds that the impugned orders are unreasoned, misconceived, without application of judicial mind and without jurisdiction because the learned Magistrate has acted with material irregularity in passing the said order alien to the case for the purpose of investigation of a particular case under reference.
Mr. Kaushik Chanda learned Additional Solicitor General assisted by Mrs. Chandreyi Alam submitted that RC case being 39/S/2014 (Rose Valley case) is one such case against one of the 44 companies which is still pending before the Special CJM/CBI/ Bhubaneswar before whom first charge-sheet was filed on 07.01.2016 further two supplementary charge-sheets dated 27.4.2017 and 16.5.2018 were filed keeping further investigation of the case open in terms of the provisions enshrined under Section 173(8) of Cr.P.C.
It is contended that the CBI is examining all the avenues including larger conspiracy, role of the Regulators and Money trail in this case in tune with the order dated 09.5.2014 of the Hon'ble 3 Supreme Court of India, in which case CBI investigated into affairs of Rose Valley Group, which has collected around Rs. 17,000 Crores through their illegal money collection business and the CBI is also investigating RC 04(S)/2014 into the affairs of Saradha Group, which has collected around Rs. 2459 Crores from public through their illegal money collection business in which cases the roles of many influential persons of the state surfaced and necessary legal action against them were taken by the CBI.
With the above submission Mr. Chanda adverts my attention to the observation and the direction passed by the Hon'ble Supreme Court on 09.5.2014 in case of Subrata Chattoraj vs. Union of India & Ors. reported in (2014) 8 SCC 768 in paragraphs 36, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 46 which are reproduced hereunder for useful consideration in the matter:
"36. The question is whether the above features call for transfer of the ongoing investigation from the State Police to the CBI. Our answer is in the affirmative. Each one of the aspects set out above in our view calls for investigation by an independent agency like the Central Bureau of Investigation (CBI). That is because apart from the sensitivity of the issues involved especially inter-state ramifications of the scam under investigation, transfer of cases from the State police have been ordered by this Court also with a view to ensure credibility of such investigation in the public perception. Transfers have been ordered by this Court even in cases where the family 4 members of victim killed in a firing incident had expressed apprehensions about the fairness of the investigation and prayed for entrusting the matter to a credible and effective agency like the CBI.
37. Investigation by the State Police in a scam that involves thousands of crores collected from the public allegedly because of the patronage of people occupying high positions in the system will hardly carry conviction especially when even the regulators who were expected to prevent or check such a scam appear to have turned a blind eye to what was going on. The State Police Agency has done well in making seizures, in registering cases, in completing investigation in most of the cases and filing charge-sheets and bringing those who are responsible to book. The question, however, is not whether the State police has faltered. The question is whether what is done by the State police is sufficient to inspire confidence of those who are aggrieved.
38. While we do not consider it necessary to go into the question whether the State police have done all that it ought to have done, we need to point out that money trail has not yet been traced. The collections made from the public far exceed the visible investment that the investigating agencies have till now identified. So also the larger conspiracy angle in the States of Assam, Odisha and West Bengal although under investigation has not made much headway partly because of the inter- state ramifications, which the Investigating Agencies need to examine but are handicapped in examining.
39. M/s Vaidyanathan and Gopal Subramanium, learned counsel for the States of West Bengal and Odisha respectively 5 argued that the CBI itself has in a great measure lost its credibility and is no longer as effective and independent as it may have been in the past. Similar sentiments were expressed by Mr. P.V. Shetty appearing on behalf of some of the investors and some other intervenors, who followed suit to pursue a similar line of argument.
40. There is, in our opinion, no basis of the apprehension expressed by the State Governments. It is true that a lot can be said about the independence of CBI as a premier Investigating Agency but so long as there is nothing substantial affecting its credibility it remains a premier Investigating Agency. Those not satisfied with the performance of the State Police more often than not demand investigation by the CBI for it inspires their confidence. We cannot, therefore, decline transfer of the cases only because of certain stray observations or misplaced apprehensions expressed by those connected with the scam or those likely to be affected by the investigation.
41. We may in this regard gainfully extract the following passage from the decision of this Court in Sanjiv Kumar v. State of Haryana and Others (2005) 5 SCC 517, where this Court has lauded the CBI as an independent agency that is not only capable of but actually shows results:
"15. In the peculiar facts and circumstances of the case, looking at the nature of the allegations made and the mighty people who are alleged to be involved, we are of the opinion that the better option of the two is to entrust the matter to investigation by CBI. We are well aware, as was also told to us during the course of hearing, that the hands of CBI are full and the present 6 one would be an additional load on their head to carry. Yet, the fact remains that CBI as a Central investigating agency enjoys independence and confidence of the people. It can fix its priorities and programme the progress of investigation suitably so as to see that any inevitable delay does not prejudice the investigation of the present case. They can think of acting fast for the purpose of collecting such vital evidence, oral and documentary, which runs the risk of being obliterated by lapse of time. The rest can afford to wait for a while. We hope that the investigation would be entrusted by the Director, CBI to an officer of unquestioned independence and then monitored so as to reach a successful conclusion; the truth is discovered and the guilty dragged into the net of law. Little people of this country, have high hopes from CBI, the prime investigating agency which works and gives results. We hope and trust the sentinels in CBI would justify the confidence of the people and this Court reposed in them."
42. In the circumstances, we are inclined to allow all these petitions and direct transfer of the following cases registered in different police stations in the State of West Bengal and Odisha from the State Police Agency to the Central Bureau of Investigation (CBI):
A. State of West Bengal:
42.1. All cases registered in different police stations of the State against Saradha Group of Companies including Crime No.102 registered in the Bidhannagar Police Station, Kolkata 7 (North) on 6th May, 2013 for offences punishable under Sections 406, 409, 420 and 120Bof the IPC.
42.2. All cases in which the investigation is yet to be completed registered against any other company up to the date of this order.
42.3. The CBI shall be free to conduct further investigation in terms of Section 173 (8) of the Cr.P.C. in relation to any case where a charge-sheet has already been presented before the jurisdictional court against the companies involved in any chit- fund scam.
B. State of Odisha :
42.4. All cases registered against 44 companies mentioned in our order dated 26th March, 2014 passed in Writ Petition (C) No.413 of 2013. The CBI is also permitted to conduct further investigations into all such cases in which charge-sheets have already been filed.
43. We reserve liberty for the Joint Director CBI, In-charge of the States of West Bengal and Odisha to seek further directions in relation to transfer of any other case or cases that may require to be transferred for investigation to CBI for a full and effective investigation into the scam.
44. Transfer of investigation to the Central Bureau of Investigation (CBI) in terms of this order shall not, however, affect the proceedings pending before the Commissions of Enquiry established by the State Government or stall any action that is legally permissible for recovery of the amount for payment to the depositors. Needless to say that the State Police Agencies currently investigating the cases shall provide the 8 fullest cooperation to the CBI including assistance in terms of men and material to enable the latter to conduct and complete the investigation expeditiously.
45. The Enforcement Directorate shall, in the meantime, expedite the investigation initiated by it into the scam and institute appropriate proceedings based on the same in accordance with law.
46. We make it clear that nothing said in this order, shall be taken as a final opinion as to the complicity of those being investigated or others who may be investigated, questioned or interrogated in relation to the scam."
It emerges from the solemn decision of the Hon'ble Supreme Court that investigation into Rose Valley chit fund and Saradha chit fund cases were entrusted to the Central Bureau of Investigation for competent effective comprehensive and credible investigation to unearth larger conspiracy angle and other important aspect by the CBI with liberty to the Joint Director CBI, In-charge of the States of West Bengal and Odisha to seek further directions in relation to transfer of any other case or cases that may require to be transferred for investigation to CBI for a full and effective investigation into the scam permitting the CBI to conduct further investigation into such cases in which charge-sheets have already been filed before the jurisdictional Court against the companies involved in any chit-fund scam and the State Police Agencies investigating the cases were directed to provide the fullest 9 cooperation to the CBI including assistance in terms of men and material to enable the latter to conduct and complete the investigation expeditiously.
It is alleged by learned Additional Solicitor General that inspite of the direction so made upon the State Police Agencies, the CBI is investigating the cases under hostile environment without cooperation from State Police Agencies of West Bengal which compelled the CBI to move the Hon'ble Supreme Court by filing M.A. No. 1720 of 2018.
Before dealing with the grounds for revision in this case it would be apt to take note of the order passed by the Hon'ble Supreme Court on 16.7.2018 in M.A. No. 1720 of 2018 arising out of the WP (C) No. 401 of 2013 which is reproduced hereunder :
"Considering its seriousness this Court vide judgment dated 9th May, 2014 in Subrata vs. Union of India & Ors. (2014(8) SCC 768) directed investigation by CBI in the instant case.
The interim order had been passed on 15th December, 2017 that CBI officers shall not be called by the State Police. It is not happy state of affairs that CBI officers should be called by the State police; they have to work in tandem with each other is the expectation of the court as far investigation of the criminal case is required. However, in the main case, since this Court had confined itself to the investigation to be made by the 10 CBI there are certain other matters with respect to investigation which equipments like laptop, mobile phones etc. are required, is not for this court to go into. It is not the job of this Court to adjudicate upon such issues at the first instance. Since the investigation is pending, it would be open for the CBI, in case any obstruction is faced by its officers, similarly, in Case the State machinery has any objection, they are free to approach the High Court at Calcutta.
It was submitted that under the guise of an order of 23.10.2017 State police had asked for certain details from the CBI. In case CBI is aggrieved by the said order we give liberty to CBI to question it by filing appropriate petition in accordance with law within a period of six weeks in the High Court. In case it is filed, the same be treated as filed within limitation and be dealt with in accordance with law on merits. It is made clear that any observation made in this order shall not be treated as the observation on the merits of the case.
M.A. stand disposed of accordingly."
In this revisional application the order impugned dated 23.10.2017 in connection with CGR Case No. 3216/17 arising out of Ballygunge P.S. Case No. 103 of 2017 dated 03.8.2017 under Sections 142, 143, 149, 448, 353, 427/34 of the Indian Penal Code was passed by the learned CJM, Alipore, 24-Parganas (South) without taking into account that the General Manager, M/s. Chocalate Hotels (P) Ltd., 226 A.J.C. Bose Road, Kolkata - 700020 had consented to meet the delegates of purported investors without giving any information to CBI and the act of 11 vandalism by the said delegates had no connection whatsoever with the investigation of the case being investigated by the CBI. Mr. Chanda learned Additional Solicitor General submitted that the petition by the four petitioners namely Dipak Saha, Paulumi Chakraborty, Jaya Saha and Narayan Chanda was not maintainable as they have no locus standi in respect of the case arising out of Ballygunge P.S. Case No. 103 of 2017 dated 03.8.2017.
The FIR dated 03.8.2017 was lodged by the O.C., Ballygunge P.S. on the allegation that five delegates came with 350 to 400 investors who were chanting slogans against Rose Valley and it's management outside the hotel. Police help was sought for to intervene into the matter so that peace can be maintained. The mob turned unruly and forcefully scaled the main gate to enter into the hotel premises after manhandling members of police personnel standing guard to pacify the gathering. The mob wrested with the police from doing the lawful duty by applying criminal force upon them. The unruly members of the gathering barged inside, vandalised and ransacked the ground floor of the hotel premises causing damage to the glass door, glass furniture fixtures, LCD TV, printing machine etc. On the basis of the said complaint of Vinod Kumar, the General Manager of the hotel Ballygunge P.S. under reference was started in which proceeding, 12 the learned CJM passed the impugned order dated 23.10.2017 in most cavalier manner which is reflected from the order reproduced hereunder :
"23.10.17 : Record is put up today by Courts order petitioner filed on behalf of the petitioner namely Dipak Saha, 2. Paulumi Chakraborty 3. Jaya Saha and 4. Narayan Chanda and prays for necessary direction may be given to the investigation officer to collect details from the office of the different investigating agencies associated with investigation in Rose Valley matter on the ground stated therein.
Hd.
Ld. A.P.P. I.O. to Act according with law."
Now, it is pertinent to take note of the petition on the basis of which the said order was passed by the learned CJM without assigning reason.
It is reflected on perusal of the petition that direction was sought for upon the Investigating Officer to collect details from the officer of the different investigating agencies associated with investigation in Rose Valley matter on the contention that petitioners are the investors for the money market of that company which had to undergo forcible closure when different investigating agencies started probe against the company and that petitioners ran from pillar to post for the recovery of their hard earned money and have learnt that the assets of Rose Valley Group of Companies both moveable and immovable had been taken care of by different 13 investigating agencies but the Hotel Park Prime at 226, AJC Bose Road, Kolkata is operating smoothly and the case under reference was started for the alleged ransacking of the said Hotel on 03.8.2017. The impugned order appears to have been passed by the learned CJM without any just reason and without application of judicial mind.
Mr. Chanda adverting to an order dated 10.12.2017 passed by the learned CJM submitted that the order was passed in most mechanical manner without judicious application of mind. The said order of the learned CJM reads thus :
"10.12.2017. Seen the prayer of I.O. who prays for necessary order be passed in this regard.
Seen the prayer of I.O. who prays and submit report that one Narayan Chanda an investor of M/s. Rose Valley Company submitted a petition before S.I. P.S. of the Directors of M/s. Rose Valley Company sold two Cars regd. in the name of the said Company. (i) Honda City MH-02 BY-3985 (ii) Mahindra XUV-500 Regd. No. MH-02 CP. 3815 despite the matter pertaining to M/S. Rose Valley is subjudice & the hard earned money of the investors& necessary order in this regard as your honour in this regard & same be kept with C/R. I.O. to act in accordance with the law."
Bare reading of the aforesaid orders reflect that the learned CJM hardly applies his judicial mind in attending to applications filed by the Investigating Officer of the case under reference. 14
Learned ASG contended that in furtherance to revisional application being CRR 2456 of 2018 and pursuant to the Hon'ble Supreme Court observation vide order dated 16.7.2018, in M.A. No. 1720/18, a notice under Section 160 Cr.P.C. dated 23.8.2018 was issued by Inspector Bratim Ghosal to O.P. No. 2 Narayan Chanda in connection with CBI/EO-IV Kolkata Case No. RC 39(S)/2014 registered under Section 420/408/409/120-B/34 of the IPC and Sections 4, 5 & 6 of the Prize Chits & Money Circulation Schemes (Banning) Act, 1978 against the Chairman, Rose Valley Hotel & Entertainment Limited and others investigated by CBI and pursuant to the directions of the Hon'ble Supreme Court dated 09.5.2014 passed in Writ Petition (Civil) No. 401 of 2013 filed by Shri Subrata Chattoraj and Writ Petition (Civil) No. 413 of 2013, filed by Shri Alok Jena. The FIR of the said case was filed in the Court of Spl. CJM/CBI/ Bhubaneswar and three Charge-sheets have already been filed in the said case in the mean time keeping the investigation open in terms of Section 173(8) Cr.P.C.
The opposite party no. 2 had appeared before I.O. on 28.8.2018 in the Office of superintendent of Police, CBI, EO-IV, CGO Complex, Salt Lake, Kolkata who was examined after observing all legal formalities in a very decent manner and he left CBI office at around 6:30 P.M. but he had not submitted the 15 original Deposit Certificates which he had proposed to submit on 07.9.2018 and to the utter surprise said opposite party no. 2 filed a petition before learned CJM on 30.8.2018 alleging mental harassment and wrongful confinement. And the learned CJM passed order dated 30.8.2018 on the said petition of the opposite party no. 2 and others seeking direction upon the Inspector Bratim Ghosal of CBI to appear before the learned Court to give an explanation for the harassment meted out to him. It would also go to show that prior to the said application opposite party no. 2 complained to the O.C., Bidhannagar North P.S. on 28.8.2018 alleging that he had submitted Xerox copy of Deposit Certificate with Rose Valley. But he did not submit the original receipt and for that he was allegedly harassed by the Investigating Officer. On such a petition after this complaint the opposite party no. 2 submitted a prayer for direction upon the Inspector CBI and the learned ACJM, Alipore, 24-Parganas (South) considering that petitioner has alleged mental torture upon him by the I.O. of this case during investigation, a report was called from the Inspector Bratim Ghosal of CBI to explain the circumstances along with an explanation report regarding the alleged incident fixing 12.9.2018. The order reflects that alleged mental torture was by I.O. of this case during interrogation means the I.O. conducting the investigation in connection with Ballygunge P.S. Case No. 16 103/2017 dated 03.8.2017 whereas the petitioner's prayer was for direction upon the I.O. being Inspector Bratim Ghosal of CBI conducting Rose Valley case. However, direction was so given to the I.O. of the Rose Valley case who has no connection whatsoever in relation to said Ballygunge P.S. case for the offences alleged under Sections 142, 143, 149, 448, 353, 427/34 of IPC. In this regard, learned ASG contended that under the guise of order dated 23.10.2017, State Police had asked certain details from CBI in connection with Rose Valley case. It is submitted that Magistrate has no occasion to entertain petition dated 23.10.2017 by-passing the direction of the Hon'ble Supreme Court to the CBI to investigate the case. Accordingly, it is urged that orders passed in connection with Ballygunge P.S. case is perverse as the State Police Agency has no business to enter into the arena of CBI conducting Rose Valley Case. It is also submitted that the order dated 30.8.2018 passed by learned CJM, Alipore is beyond his jurisdiction as the case in which the complainant was called by the I.O. of the CBI is subjudice before the Special CJM/CBI, Bhubaneswar and the place of alleged incident was in the office of SP. CBI/EO-IV, Kolkata.
It is further submitted that allegation so made are false and frivolous and at the instance of the State Police Agency with an object to extricate from the investigation into Rose Valley Case 17 being investigated by the CBI as per the solemn direction of the Hon'ble Supreme Court in case of Subrata Chattoraj (supra).
Learned ASG further invited my attention to an order dated 28.9.2018 contending that notwithstanding the order dated 30.8.2018 suffers from jurisdictional error, Inspector Bratim Ghosal of CBI submitted his explanation in compliance with the order passed by learned CJM, Alipore. Yet further direction was given to him to appear in person on 26.11.2018 and to produce CCTV footage for the relevant period of investigation for the purpose of effective adjudication of the dispute. I am of the considered view that the order so passed on 28.9.2018 appears to have been passed without lawful justification as the learned CJM, Alipore cannot enlarge the scope of investigation to encroach upon the arena of CBI investigation into Rose Valley Scam Case.
In rebuttal, Mr. Kishore Dutta, learned Advocate General assisted by Mr. S.G. Mukherjee, learned P.P. submitted that CBI cannot be said to be an aggrieved party when the direction was to the I.O. to consider as per law and secondly, that the CBI has not exercised his liberty for transfer of the case of Ballygunge P.S. case under reference and takes me directly to the solemn order dated 16.7.2018 passed by the Hon'ble Supreme Court in M.A. No. 1720 of 2017 in W.P. (C) No. (s). 401/2013, wherein it has been clearly mentioned that the interim order had been passed on 15th 18 December, 2017 that CBI officer shall not be called by the State Police. It is not happy State of Affairs that CBI officer should be called by the State Police; they have to work in tandem with each other is the expectation of the Court as far investigation of the criminal case is required. It is also observed that since the investigation is pending, it would be open for the CBI, in case any obstruction is faced by its officers, similarly, in case of State machinery has any objection, they are free to approach the High Court at Calcutta.
Accordingly, Mr. Dutta argued that CBI is also expected to act in tandem in the matter of investigation of Ballygunge P.S. case under reference as the said case has not been sought to be transferred to CBI. It is also submitted that orders passed by the learned CJM do not affect CBI investigation into the matter of Rose Valley Case as the Supreme Court has directed to act in tandem with CBI Agency and that CBI cannot assail the order passed by the learned CJM as illegal.
Mr. Kaushik Chanda, learned ASG candidly submitted that there is no allegation by CBI that State Police Agency has not cooperated with the CBI in connection with Rose Valley and pointed out that the petitions filed in connection with Ballygunge P.S. under reference by Narayan Chanda is malafide through the Investigating Officer of the said case under reference who had no 19 connection whatsoever with a case undertaken by the State Police because the investigation in Ballygunge P.S. case is relating to allegation of vandalism and ransacking of the Prime Hotel by the aggrieved investors who were led by at the place of occurrence by five members of the delegate but the mob turned violent.
Therefore, I am of the considered view that I.O.'s scope of investigation is only to the extent of the offence under Sections 142, 143, 149, 448, 353, 427/34 of Indian Penal Code so as to ascertain the accused persons responsible for the alleged offences against the public tranquility by formation of unlawful assembly and for the offence of criminal trespass, mischief, criminal force and assault allegedly perpetrated by them. Therefore, there is no issue involved insofar as Rose Valley investigation by the CBI is concerned and the scope of investigation of Ballygunge case by its I.O. is very limited. There could be no occasion for the private petitioner namely, O.P. No. 2 to file application with the bald allegation against the Investigating Officer of CBI investigating the Rose Valley case in terms of direction of the Hon'ble Supreme Court.
It is pertinent to take note of the fact on the allegation of harassment at the hands of Investigating Officer Bratim Ghosal of CBI in connection with Rose Valley case against said Narayan Chanda, it was expedient on his part to have complained before 20 the jurisdictional Special Chief Judicial Magistrate/CBI, Bhubaneswar and he could register his complaint with the superior Officer of CBI.
It was imperative for the learned CJM too, to have considered the application filed before him by a private individual insofar as his locus was concerned. The entire order passed on the aforesaid two applications by the said Narayan Chanda allegedly an investor of money with Rose Valley Company should not have been entertained as he had failed to submit his Deposit Receipt to show that he is a genuine investor aggrieved person.
Be that as it may, said Narayan Chanda is a witness to the Rose Valley case and in that context, he was asked to appear before the I.O. in the interest of investigation. So it cannot be presumed that the I.O. investigating Rose Valley case would harass the witness to the case.
Mr. Kishore Dutta, learned Advocate General strenuously argued that the CBI Agency is expected to cooperate the State Police Agency in the matter of investigation in the Ballygunge P.S. Case No. 103/2017 in tandem as per the direction of the Hon'ble Supreme Court.
It is also submitted that on 23.10.2017 four investors prayed for direction upon the I.O. to collect details from the officer of the 21 different investigating agencies associated with investigation in Rose Valley matter and the impugned order was passed directing I.O. to act in accordance with law. So, on 24.10.2017 I.O. of Ballygunge P.S. Case No. 103/2017 issued summon to the I.O. of CBI investigating R.C. 39 of 2017.
I have observed that indubitably the Hon'ble Supreme Court of India in case of Subrata Chattoraj (supra) directed the investigation into Rose Valley Scam Case and Saradha Scam Case to be investigated by the CBI Agency by way of transfer of the cases from the State Police Agency and direction were given for every cooperation into the investigation by the State Police Agency. The orders impugned passed by the learned CJM appears to extricate the investigation into the said cases by the CBI. The direction of the Hon'ble Supreme Court spell out that the CBI Officers should not be called by the State Police and it is expectation of the Court that investigation into a criminal case has to be within its periphery but not to extricate and enlarge the scope of investigation of Ballygunge P.S. Case No. 103/2017 under Sections 142, 143, 149, 448, 353, 427/34 of IPC. The investigation is limited to this that the I.O. is expected to visit the place of occurrence, examine available witnesses by recording their statements under Section 161 Cr.P.C. to ascertain the names of the persons responsible for committing the offence of vandalism, 22 mischief by causing damage to the property and criminal trespass into the premises of the Hotel. Therefore, there was no scope for the I.O. concern to entertain application of the said Narayan Chanda and other to enlarge the scope of the investigation with a view to fish out otherwise evidence. That apart, orders passed by the learned CJM in my considered view is without jurisdiction and without application of judicial mind. Nevertheless, the CBI may exercise liberty in its discretion for transfer of Ballygunge P.S. Case No. 103/2017 dated 03.8.2017 if the case is found to be ingrained with the Rose Valley case being investigated by the CBI as per the solemn order of the Hon'ble Supreme Court giving such liberty go the Joint Director CBI for transfer of any case.
For the reasons stated above the order dated 23rd October, 2017 and subsequent orders dated 30.8.2018 and 28.9.2018 passed by the learned CJM, Alipore in CGR 3216/2017 arising out of Ballygunge P.S. Case No.103/2017 dated 03.8.2017 under Section 142, 143, 149, 448, 353, 427/34 of IPC are devoid of merits and suffer from jurisdictional error passed without jurisdiction liable to be set aside, ergo, set aside.
Accordingly, the revisional application being CRR 2456 of 2018 and CRR No. 3394 of 2018 are allowed and disposed of. 23
CRAN No. 3463 of 2018 : This application is at the instance of State of West Bengal, Applicant/Respondent in connection with CRR 2456 of 2018 and CRR No. 3394 of 2018.
It is submitted that on or about 30.11.2018 State Police officers have represented to the State Government that they are receiving notices under Section 160 Cr.P.C. to appear as witnesses but the dates of appearance mentioned in such notices were already past and the notices have been received by them more than three weeks after the date of appearance mentioned in such notices. Such notices also appear to have been dated beyond the date of appearance fixed requiring the attendance of such Police Officers. Therefore, the State Police Officers were confounded and unable to comply with such notices.
It would appear from notices dated 30.11.2018 under Section 160 Cr.P.C. that such notices were issued by S.K. Tripathi, Additional Superintendent of Police, CBI, EO-IV, Kolkata, to Shri Dilip Kumar Hazra of village Debogram, P.S. Burdwan Sadar, Shri Sankar Bhattacharyay of Santoshpur Kalinagar P.S. Rabindranagar 24-Parganas (South) and to Shri Arnab Ghosh, Superintendent of Police, District- Malda, West Bengal calling upon them to appear before the CBI Authority on 05.11.2018, 06.11.2018 and 07.11.2018 respectively. So, obviously those notices being Annexure-P1 were issued beyond the date of 24 appearance but this fact cannot be lost sight of that those notices were issued in connection with RC 04(S)/2014-R under Section 120B read with Sections 406/409/420 of IPC which is a case in respect of Saradha chit fund case as per submission of Mr. Chanda learned Additional Solicitor General and no way connected with the Ballygunge P.S. Case under reference. Nevertheless, this Court by order dated 06.12.2018 directed that the notices aforesaid issued to the witnesses be kept in abeyance till the date fixed on December 17, 2018 and the said order was allowed to continue till the disposal of the revision case.
True, it is axiomatic from the petition being CRAN No. 3463 of 2018 that the State of West Bengal has sought for quashing of the notices Annexure -P1 issued by the CBI upon the witnesses in Saradha Chit fund scam case is no way connected with the Ballygunge P.S. Case No. 103/2017 nevertheless, considering that the said notices Annexure-P1 cannot be held to be legal valid and sufficient, this Court kept the notices in abeyance and now the notices having lost its force cannot be given effect to. However, upon hearing the learned counsel for both the parties, the CBI is at liberty to hold the investigation into Rose Valley Chit Fund Scam Case and Saradha Chit Fund Scam Case in letter and spirit of the observation and direction of the Hon'ble Supreme Court and the State Agency are also directed to cooperate into the 25 investigation of the above referred cases in tandem with each other as per the direction of the Hon'ble Supreme Court.
Mr. Kishore Dutta, learned Advocate General of West Bengal has invited my attention to the solemn order dated 05.02.2019 in CONMT. PET.(C) No. 166/2019 in W.P. (C) No. 401/2013 (PIL-W) in connection with M.A. No. 302/2019 in W.P. (C) No. 401/2013 passed by the Hon'ble Supreme Court to submit that the witnesses of the State Agency are ready to faithfully cooperate with the CBI in the investigation of the scam cases and similar direction has been sought for that no coercive steps including arrest be taken against the witnesses of the State Police Agency.
Although, I have observed and held that alleged notices is no way concerned with the investigation of Ballygunge P.S. Case under reference and those notices cannot be held to be valid legal and sufficient as issued by the CBI under Section 160 Cr.P.C. notwithstanding, application being CRAN 3463 of 2018 is hereby decided and disposed of in the light of the observation made hereinabove and taking cue from the solemn order dated 05.02.2019 of the Hon'ble Supreme Court that the State Police Agency do cooperate with the investigation of the scam cases undertaken by the CBI as per the direction of the Hon'ble Supreme Court, however, no coercive steps including arrest against the witnesses of the State Police Agency be taken in connection with 26 the said scam cases. I make it clear that such direction of this court will abide by the final decision of the Honorable Supreme court.
Thus, the revisional applications being CRR 2456 of 2018 and CRR No. 3394 of 2018 and CRAN No. 3463 of 2018 are disposed of.
Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)