Calcutta High Court (Appellete Side)
Balaram Chowdhury & Ors vs Samaresh Mridha & Ors on 19 February, 2020
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
AD-3 19.2.2020 FMA 517 of 2020
Court
No. 6 (MAT 846 of 2019)
G.S.Das CAN 7949 of 2019
CAN 12231 of 2019
Balaram Chowdhury & Ors.
-Vs.-
Samaresh Mridha & Ors.
Mr. S. K. Kapur
Mr. Sudipta Moitra
Mr. Sourab Chatterjee
Mr. Abhishek Halder
Mr. Arka Kr. Nag
Mr. Soumya Nag
... for the appellants
Mr. Jayanta Narayan Chatterjee
Mr. Debashis Banerjee
Mr. Apalak Basu
Mr. Nazir Ahmed
Ms. Moumita Pandit
Mr. S. Naskar
Ms. Jayshree Patra
... for the Respondent No.1
Mr. Abhrotosh Majumder Mr. Supratim Dhar ... for the State Sufficient grounds have been made out as to why the appellants were not represented on December 5, 2019 when the appeal and the connected application were dismissed for default.
The order dated December 5, 2019 is recalled. The appeal is readmitted and the connection application is restored to the file.
The restoration application, CAN 12231 of 2019, is allowed as above.
Since the principal parties are represented, the appeal is taken up for immediate consideration.
The appellants question the propriety of a judgment and order dated May 17, 2019 directing an 2 investigation by the Central Bureau of Investigation into the circumstances leading to the unnatural death of a person on July 12, 2011.
According to the appellants, a thorough investigation was conducted by the appropriate agency and, even during the pendency of the investigation, a writ petition had been filed by the victim's father in 2013. The appellants say that it was a high profile case which was widely reported in the media and there was substantial pressure on the investigating agency to look into all aspects of the matter. Further, the victim's father appealed to the Chief Minister which resulted in the Chief Minister requiring the matter to be looked into. A petition was also carried to the State Human Rights Commission, which issued certain directions to the investigating agency.
The appellants say that during pendency of the writ petition filed by the victim's father, certain directions were issued from time to time by the writ court. The appellants attempt to indicate that, in such circumstances, it would be inconceivable that the investigation was conducted in a shoddy manner or to shield any person or to not look into all aspects of the matter. The appellants complain that after the hearing was concluded, the Single Bench called for the case diary and based on the assessment of the investigation, certain conclusions were arrived at which may not have been justified on facts.
In particular, the appellants are critical of some of the observations made in the judgment impugned to the 3 effect that various aspects had not been investigated into by the investigating agency. The appellants also point out that upon the final report being filed before the criminal court, a protest petition was filed by the victim's father but no further steps were taken for re- investigation.
It is also evident that polygraph tests were conducted on the five appellants in Gandhinagar, Gujarat and brain-mapping was also resorted to. Both the polygraph tests and the brain-mapping conducted on the appellant nos. 1, 3, 4 and 5 reveal that truthful answers had been given and there was no attempt at deceit by such persons. The appellants submit that they have been hounded since the death of the victim in 2011 and it would be embarrassing and extremely inconvenient to go through the entire process again 10 years after the incident when the trail may have almost frozen.
The appellants refer to a judgment reported at (2010) 3 SCC 571 (State of West Bengal vs Committee for Protection of Democratic Rights, West Bengal) for the word of caution therein. The judgment instructs that an investigation by the CBI should not be directed for the mere asking and, though the High Court may have the power to direct such investigation, the same must be cautiously and sparingly exercised.
A further judgment reported at (2002) 5 SCC 521 (Secretary, Minor Irrigation & Rural Engineering Services, U.P. vs Sahngoo Ram Arya) is placed for the enunciation of the principle that it was not sufficient to merely have 4 the materials in the pleadings to demonstrate that there was any need for a further enquiry, a prima facie view in such regard ought to be formed before a fresh enquiry or investigation is directed.
It is in the light of the tests as laid down by the Supreme Court in the second of the two judgments cited, the writ court proceeded to look into the matter. There are certain findings which have been rendered where the writ court found that the investigation may not have been adequate or certain aspects may not have been appropriately covered. However, such findings or observations have to be read down and have to be regarded as a mere prima facie view for the purpose of directing the further investigation and no more.
In short, neither the investigating agency nor the criminal court, in the event any proceedings are initiated upon the conclusion of the investigation, should be influenced by the observations in the judgment and order impugned and such observations remain confined to the immediate cause that was looked into: whether a fresh investigation was warranted.
Considering the manner in which the writ court approached the matter and the various aspects that the writ court perceived necessary to be inquired into afresh, the judgment and order impugned do not call for any interference. Nothing more is added by way of facts so that the appellants herein are not prejudiced thereby. It goes without saying that as of now the appellants have to be regarded as innocent. It may also 5 be recorded that the appellants have suffered considerable inconvenience and prejudice and, if the truth had been unearthed by now, the appellants may have been relieved of the further ordeal.
However, what is undeniable is that a citizen succumbed to a bullet and no answer has come up as to who fired the shot or at whose behest it was fired. It is for such purpose that a further investigation is necessary and cogent grounds have been indicated for the further investigation in the judgment and order impugned.
The CBI should conclude the investigation within a period of six months as directed by the order impugned. Such period of six months would have begun on February 18, 2020, since the CBI team visited the appellants' residence on such date.
The CBI should also ensure that the appellant nos. 1, 3, 4 and 5 are not needlessly harassed and no coercive action is taken against the appellant nos. 1, 3, 4 and 5 without having cogent materials to proceed against such persons.
There is a reference at the end of paragraph 12 of the impugned judgment pertaining to custodial interrogation. It is, however, made clear that custodial interrogation of the appellants or any of them may only be resorted to upon discovery of any incriminating material against the relevant person.
Nothing in this order should be regarded as an expression of any opinion as to the involvement of any of the appellants in the matter pertaining to the 6 unnatural death of the victim on July 12, 2011.
FMA 517 of 2020 along with CAN 7949 of 2019 are disposed of.
There will be no order as to costs.
In view of this order, MAT 1293 of 2019 along with CAN 10030 and 2019 and CAN 10031 of 2019, stand disposed of.
(SANJIB BANERJEE, J. ) (KAUSIK CHANDA, J.)