Usuf Ali Sheikh vs The State Of West Bengal And Ors on 18 April, 2023

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Calcutta High Court (Appellete Side)

Usuf Ali Sheikh vs The State Of West Bengal And Ors on 18 April, 2023

1. The writ petitioner, appearing in person, and also represented by his earlier and current advocates, submits that he does not wish to press the writ petition any further in view of the WPA 14678 of 2022.

2. Hence, WPA 7666 of 2023 is dismissed as not pressed.

Re.: WPA 14678 of 2022

3. Affidavits have been exchanged.

4. The petitioner seeks transfer of investigation of ACB WB Case No.3 of 2022 dated 20th April, 2022 registered by the Anti Corruption Branch Police Station, West Bengal (ACB, WB) to the Central Bureau of Investigation (CBI).

5. The case was registered against the principal accused, one Tapas Saha, MLA of Tehatta, West Bengal and three others, namely, Prabir Kumar Koyal, Shyamal Koyal, and Sunil Kumar Mondal, under sections 7 and 7(a) of the Prevention of Corruption Act, 1988.

6. The substance of the allegations in the FIR is that the principal accused MLA and three of his associates accepted huge sums of money, running into crores of rupees, from various persons, particularly from the complainant, promising jobs in the primary, secondary and higher secondary schools in the State. Promises had 3 also been made for jobs in the Fire Services and Health etc. departments in the State.

7. The principal accused MLA was only issued a notice under Section 41A of the CrPC. The other three accused were taken into custody and interrogated. The Investigation has not been completed till date.

8. Mr. Tewari learned counsel for the petitioner would argue, that from the very inception, the investigation was being carried out in right earnest and diligently by the IO, Anupam Das, and this Court also indeed finds as such. However, the investigation reached a stumbling block whenever it came to the principal accused MLA, Tapas Saha.

9. This court has considered the case diary carefully. The said Tapas Saha has given a very detailed statement under section 161 of the Cr.P.C. However, to unearth the truth, his statement alone is not sufficient. The investigating officer has not sought custody of the said Tapas Saha, till date.

10. In the affidavit-in-opposition filed by the investigating officer on behalf of the State, the reason for not taking the principal accused into custody is contained in Sub-para 'Q' of 'Para 4' of the affidavit-in-opposition at page 13. Sub-para 'Q' of 'Para 4' is set out hereinbelow:-

"Q. Tapas Kumar Saha, MLA, Tehatta appeared before the I.O. of this case on the basis of 4 notice issued under section 41(A) Cr.P.C. He was examined in this case and his statement was recorded under section 161 Cr.P.C. He also submitted his clarification during interrogation regarding different debit and credit entries of his bank account transactions during the alleged period."

11. According to Mr. Tewari, it is the position of influence and power that the principal accused holds as an MLA, that has deterred the investigating officer from taking him into custody.

12. Mr. Tewari argues that there is an imminent and urgent need to transfer the investigation into the subject FIR to the CBI, not only for ascertaining and unearthing the truth but also for instilling confidence of the public at large in the investigation.

13. It is also submitted that the investigating officer may have been extremely diligent in the matter but his hands have been tied by the power of the principal accused and other persons in power in the State. Under these circumstances, the truth may not emerge, despite the diligence and sincerity of the investigating officer. The investigation must, therefore, be entrusted to an independent agency.

14. It is further argued that more than a year has elapsed since the registration of the FIR. Three other accused persons have been enlarged on bail after the expiry of the statutory period. The investigation, which 5 has now turned tardy and may have come to a grinding halt, may become infructuous and irrelevant if left at the hands of the State ACB. The prime reason, therefore, is that a sitting MLA of the State Legislature is the principal accused.

15. Reliance is placed on a decision of this Court on the circumstances under which investigation must be handed over to an independent agency other than a State agency.

16. Mr. Samrat Sen, learned Senior Advocate appearing for the State has produced the case diary in the matter and has argued that the delay in the investigation was for want of the report of the handwriting expert. Such report was received only on March, 2023.

17. He further submits that the Investigating Officer had strictly followed the dicta of the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar reported in (2014) 8 SCC 273. The principal accused has responded to the notice under Section 41A of the Cr.P.C. and has cooperated in giving a very detailed statement under Section 161 of the Cr. P.C. Hence, there was no need for taking the principal accused into custody.

18. Mr. Sen submits that given the diligence of the Investigating Officer, the doubts expressed by the petitioner on the investigation are misplaced. 6

19. The learned Additional Solicitor General (ASG), Mr. Ashok Kumar Chakraborty, has placed the instructions of the CBI addressed to the DSGI. It is submitted that the CBI is already investigating into the recruitment scam against the School Service Commission, and several influential persons in the State, in relation thereto. The CBI has filed several charge sheets in the matter. Further investigation is on and supplementary charge sheets are contemplated. New evidence is emerging before the CBI with each passing day and the money trail is revealing involvement of new persons in the chain of offenders. The CBI has found incriminating material against the principal accused Tapas Saha, MLA, in their own investigations.

20. Based on the facts and documents that have come on record in the instant case and already there with the CBI as above, Ld. ASG submits that the subject matter of ACB WB case no. 3 of 2022 is vitally linked to the cases already being investigated by the CBI.

21. It is submitted by Ld. ASG that there could be a conflict of interest if the State Agencies are investigating into the allegations of corruption against a sitting MLA.

22. There should not be a conflict of findings between the two different Agencies in respect of the same crime according to the learned ASG. The subject matter of the investigation into the current case, being conducted by the ACB, WB is an offshoot of the subject matter of the 7 investigation being conducted by the CBI, which is being monitored by a Co-ordinate bench.

23. Learned ASG places reliance upon the following decisions of this Court, in the case of Jitendra Kumar Tiwari & Anr. Vs. State of West Bengal & Ors. dated 27th September, 2022 in WPA 21788 of 2022 and a Division Bench decision in the case of Suman Sankar Chatterjee Vs. State of West Bengal & Ors. dated 27th September, 2022 in WPA (P) 493 of 2022.

24. Mr. Kamalesh Bhattacharyya for the principal accused Tapas Saha submits that his client has been cooperating with the IO till date.

25. This Court finds it necessary for the purpose of the instant case to set out the statements of the investigating officer, one Anupam Das, made in the objection to the bail application filed before the Sessions Judge.

"4. In course of investigation during P.C Period of accused Prabir Koyal, searches were conducted as per his statement in two places of his residential houses. During search in the house of village Boyerbandha under P.S. Tehatta, District-Nadia, the list of candidates for Group-'D' and Group-'C' post, Health, ICDS under WCD&SW department and the list of candidates for examination of West Bengal Excise Department, Bio-data of one person along with copy of his WBCS examination admit card, important letters of MLA-Tapas Saha on his official pad addressing to The Honourable Minister, Government of West Bengal, Education Department 8 and The Principal Secretary to Government of West Bengal, Education Department have discovered. In this context role, involvement and nexus of Prabir Koyal with other accused persons is required to verify further.

5. During search in another house of Prabir Koyal at village Kanthanaly Koyalpara, P.S- Shyampur, District-Howrah some appointment letters for the post of LDC and Department of Agriculture, Bio-data of different candidates, Interview letter of West Bengal Cooperative Service Commission and Blank letter head /pad of MLA Tapas Saha of Tehatta have been discovered on the basis of statement of P.C accused. Such discovery leads to the evidence of involvement and close association with Tapas Saha, ML Tehatta for commissioning illegal activity of bribe collection on his behalf is strengthening. It is required to verify,

6. On interrogation P.C accused Prabir Koyal disclosed that Tapas Saha, MLA Tehatta, as his personal assistant paid him salary Rs. 12,000/- cash per month and other expenses like travelling allowance from the year 2016, however no such appointment letter was issued by him. Prabir Koyal stated during interrogation that he received about thirty to Forty Lakhs of cash amount till now from Tapas Saha other than Salary, as commission of illegal gratification collected through him and Prabir Koyal invested this amount by Purchasing different lands in his name and the name of his wife Payel Biswas(Koyal), a lot of expensive house hold furniture and fittings in his luxurious house at village - Boyerbandha, P.S- Tehatta, Dist- Nadia. It is ratified by the inventory list prepared at his house in his presence as the evidences of his conduct which is required to verify.

7. It is pertinent to mention here that accused Prabir Koyal is very influential person as a Personal Assistant of Ashis (Tapas) Saha, MILA, Tehatta and thus the victim persons were very much afraid to lodge complaint against them before local Police or any other investigating agency, but those persons are now getting lid of about illegal gratification received by Prabir Koyal from them when they heard about arrest and Police Custody of Prabir Koyal. Among them one victim Surojit Kundu of Betai, P.S- Tehatta, District- Nadia lodged complaint against Prabir Koyal that he procured about 24 lakhs on behalf of Tapas Saha, MLA Tehatta from the year 2021 to 2022 partly on cash (Rs.14,10,000) and partly through banking transaction (Rs,99,000) in different bank accounts of another person's for appointment of complainant's nephew in WBCS post but entire amount were misappropriated by them. His statement is recorded U/s 161 Cr.P.C. in this case and prayer has submitted before the Ld. Court for recording his judicial statement as a vital and important piece of oral evidence of this case. This victim provided some bank account numbers of different bank where he remitted a bulk amount as per instruction of Prabir Koyal and this is required to verify.

8. Another victim Usful Ali Sheikh of village- Fatajpur, P.S Tehatta, Dist- Nadia and Smt. Tinku Mandal of Vill- Chanderghat, P.S- Tehatta, Dist- Nadia also lodged complaint through e-mail dated 02.05.2022 and 04.05.2022 at this office that Prabir Koyal as the PA of Tapas Saha, MLA accepted illegal gratification from them about Rupees Seven Lakhs and One Lakh Seventy Thousand respectively for the job of Primary teacher and required to verify by further face to 10 face interrogation of accused Prabir Koyal and the victim persons.

9. On interrogation of another two P.C accused namely Sunil Mandal and Shyamal Koyal it revealed that they have well acquainted about the illegal activity of Prabir Koyal about collection of huge money from various person as a close associate with MLA Prabir Saha. Both of them disclosed during interrogation that Prabir Koyal is friend of Sunil Mandal and distant relative of Shyamal Koyal. Prabir Koyal has been residing in his house at village Kanthanaly when this case was tarted and somehow Prabir Koyal got information that Police may reach there. Prabir Koyal offered Sunil Mandal and Shyamal Koyal to make an arrangement for hiding in a safe place away from this area. Accordingly Sunil Mandal and Prabir Koyal accepted his proposal to assist him for searching of safe place for hide out on condition that all the expenses will bear by Prabir Koyal. In such condition they prepared a plan for searching a safe place of hide out and all of them left village Kanthanaly, Howrah on 28.04.2022 at Morning. They hired a country motor boat with a cost of Rs. 1000/- from Gadiara ferry ghat to reach at Dimond Harbour for avoiding the usual normal road transportation. After arrival at Dimond Harbour they again hired a vehicle and reached at Namkhana where they hired at two rooms at the rate of Rs.1000/- per room at 'Baisakhi Hotel. They spent the night of that day and left this hotel on next day i.e. 29.04.2022 for their next destination of hide out at Raidighi area. They again hired vehicle and reached at Raidighi and further hired room at 'Hotel Sree Durga!. All of them were arrested on 29.04.2022 from Raidighi in front of the said hotel.

10. According to the statement of PC. Accused persons, Prabir Koyal has switched of his own mobile phone when they left village Kanthanoly and he was maintaining communication through the entire journey route with his wife Payel Biswas (Koyal), Tapas Saha, MLA and other of his associates by using mobile phone of Sunil Mandal and Shyamal Koyal. Sunil Mandal and Shyamal Koyal during interrogation confessed that some of their relatives have used to reside in the area of Namkhana, Raidighi and thus they selected this place for sheltering Prabir Koyal as safe place.

Their statement has been verified and found that they were harboring Prabir Koyal with ulterior motive having their full of knowledge about illegal activity of Prabir Koyal and both of them were screening Prabir Koyal from his arrest in this case.

11. Medical examination of arrested accused persons have been done in every 24 hours during P.C. period which is being produced before the Ld. Court in original.

12. GROUNDS FOR FURTHER REMAND OF PRABIR KOYAL : -

(i)     ...
(ii)    He    did    not   disclose      about    his    entire

investment of ill gotten money apart from land purchase ion his name and in the name of his spouse as well as construction of luxurious house during the period of from 2016 to 2022 as a Personal Assistant of Tapas Saha, MLA. Hence further interrogation is required to unearth siphoning of his illegal income during this period.

(iii) Further interrogation is required to unearth the chain about procuring of various appointment letters for different posts of Government jobs as recovered from his house during search. 12

(iv) Further interrogation is required to know about some bank accounts other than Prabir Koyal which were provided by him to the victims for depositing of illegal gratification during this period."

(emphasis added)

26. The observations of the Sessions Judge, while refusing bail to the three co-accused on the 2nd of June, 2022, also needs to be noted.

"Perused the case record and the CD and on perusal of the same I find that there are sufficient materials against the accused person and the investigation is in the nascent stage and the main accused, who is MLA is not yet arrested by the I.O. and considering the nature and gravity of offence and also considering the stage of investigation, I am not inclined to allow the bail prayer and hence the bail prayer of accused Shyamal Koyal stands rejected."

(emphasis added)

27. The three co-accused, namely, Prabir Kumar Koyal, Sunil Mandal, and Shyamal Koyal have been granted bail by the Session Judge on the expiry of sixty days from the date of registration of FIR on 29th June, 2022, since the investigation could not be completed.

28. The grounds for transfer of investigation from State Agencies to that of a Central and/or of an independent Agency and the reasons therefor have been settled by the Hon'ble Supreme Court in a number of decisions. One such ground for transfer is when the investigation is being conducted against persons in power in the State's ruling dispensation.

29. There cannot be two investigations into one crime.

30. It is now well-settled that every investigation must be fair and transparent but an effective, just, and independent investigation must also be seen to be done in the eyes of the public at large. The faith of the public may not be there in a State Agency investigating into one of their own persons in a powerful position. An MLA of a ruling dispensation could wield substantial power and influence over the police machinery. It will therefore be inappropriate for a State investigation agency to investigate into the subject FIR.

31. In the case of Purnima Kandu and Another v. State of West Bengal and Others reported in 2022 SCC OnLine Cal 660, this Court as approved by a Division Bench of this Court has held as follows:

"18. The proposed transfer of the investigation to the Central Bureau of Investigation (CBI) is, necessary in view of the dicta of the Hon'ble Supreme Court laid down in R.S. Sodhi, Advocate (supra) case, that it must be clearly evident and apparent to the common public at large that there is indeed honest, transparent and just investigation into the crime in question. The investigation being conducted by the State Police, where the Prosecution would also rest in the State as such, in a case where the principal accused are, a member of the ruling party and an officer of the State Police, may not send a proper message as regards about the investigation."

32. In the case of Mithilesh Kumar Singh v. State of Rajasthan reported in (2015) 9 SCC 795 at para 12 and 13, it was held as follows:-

"12. Even so the availability of power and its exercise are two distinct matters. This Court does not direct transfer of investigation just for the asking nor is transfer directed only to satisfy the ego or vindicate the prestige of a party interested in such investigation. The decision whether transfer should or should not be ordered rests on the Court's satisfaction whether the facts and circumstances of a given case demand such an order. No hard-and- fast rule has been or can possibly be prescribed for universal application to all cases. Each case will obviously depend upon its own facts. What is important is that the Court while exercising its jurisdiction to direct transfer remains sensitive to the principle that transfers are not ordered just because a party seeks to lead the investigator to a given conclusion. It is only when there is a reasonable apprehension about justice becoming a victim because of shabby or partisan investigation that the Court may step in and exercise its extraordinary powers. The sensibility of the victims of the crime or their next of kin is not wholly irrelevant in such situations. After all transfer of investigation to an outside agency does not imply that the transferee agency will necessarily, much less falsely implicate anyone in the commission of the crime. That is particularly so when transfer is ordered to an outside agency perceived to be independent of influences, pressures and pulls that are commonplace when State Police investigates matters of some significance. The confidence of the party seeking transfer in the outside agency in such cases itself rests on the independence of that 15 agency from such or similar other considerations. It follows that unless the Court sees any design behind the prayer for transfer, the same must be seen as an attempt only to ensure that the truth is discovered. The hallmark of a transfer is the perceived independence of the transferee more than any other consideration. Discovery of truth is the ultimate purpose of any investigation and who can do it better than an agency that is independent.

13.........So also in R.S. Sodhi v. State of U.P. [1994 Supp (1) SCC 143 : 1994 SCC (Cri) 248] investigation was transferred even when the State Police was doing the needful under the supervision of an officer of the rank of an Inspector General of Police and the State Government had appointed a one-member Commission of Inquiry headed by a sitting Judge of the High Court to enquire into the matter. This Court held that however faithfully the police may carry out the investigation the same will lack credibility since the allegations against the police force involved in the encounter resulting in the killing of several persons were very serious. The transfer to CBI, observed this Court, "would give reassurance to all those concerned including the relatives of the deceased that an independent agency was looking into the matter".

33. In the case of Pooja Pal v. Union of India reported in (2016) 3 SCC 135 in para 83, the Supreme Court has held as follows:-

"83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to 16 culminate in a judicial decision by a court o law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency."

34. The above dicta of the Supreme Court clearly apply to the facts of this case as already discussed hereinabove. There is need for transfer of the investigation into the subject FIR to an independent agency.

35. Another reason for this Court to consider the arguments of the petitioner for transfer is the similarity between the investigation into the current FIR and the investigation being conducted by the CBI in what is commonly referred to as the recruitment scam in the State. Admittedly, the CBI has already filed a large number of charge sheets. Investigation is still going on and supplementary charge sheets are contemplated. Indeed, the possibility of conflicting conclusions and findings is likely, if two independent agencies investigate into FIRs and cases that are similar and/or have an uncanny resemblance.

36. An agency having already investigated into the same or similar set of facts and/or crime may be better suited, equipped, and experienced to investigate the subject ACB case no. 3 of 2022. The possibility of this investigation being vitally linked to the pending CBI investigation is very high. The CBI has already found incriminating material against the principal accused MLA in the investigations already being conducted by them.

37. Some powerful political persons have already been taken into custody by the CBI in their investigations. 18 These facts are in the public domain. The likelihood of conflicting findings between the State and the CBI in the instant case, if allowed to remain with the State agency cannot be ruled out.

38. As already indicated hereinabove, the Investigating Officer, Anupam Das, has already shown extreme diligence and courage in conducting the investigation. This Court is of the view that such courage and diligence may have fallen short when it came to the principal accused. The facts in the case diary and those available in the pleadings definitely indicate so. Nothing prevented the Investigating Officer from seeking custody of the principal accused Tapas Saha after the compliance of Section 41A. The statements of the co-accused clearly and unequivocally indicate to this Court the role of the principal accused.

39. The Court's mind is not free from doubt that the Investigating Officer's hands have been tied by vested interests from proceeding with the investigation and to take it, full circle.

40. The Court also notices that there are three other accused, one of whom is a personal assistant who received not only salary and allowance from the principal accused but also as per the Investigating Officer's findings, handled cash transactions running into several crores of rupees. The letterheads of the MLA and his signatures on such documents have been disclosed by 19 the co-accused. There is substantial evidence and reason for the Investigating Officer to have taken the principal accused into custody. He has not done so despite having wanted to do so.

41. This Court also notices another glaring aspect in the matter. Although there are three accused who are not public servants, the State has not chosen to include any sections of the IPC in the FIR. The IO does not appear to have proposed to do so.

42. There are other aspects of the investigation that this Court does not wish to discuss herein as it may prejudice both the prosecution and the accused.

43. The aforesaid observations made by this Court are only for the limited purpose of arriving at the finding as to whether the subject investigation into the ACB Case No.3 of 2022 ought to be transferred to the CBI or not. The observation made herein should not in any way be construed as any final finding on the FIR. The truth will emerge only in course of a fair and independent investigation. Such independent, effective, fair, and sincere investigation is also a vital and essential prerequisite for a fair trial.

44. For the reasons indicated hereinabove, this Court directs that the ACB Police Station, the ACB Case No. 3 of 2022 dated April 20, 2022, under Sections 7 and 7(a) of 20 the P.C. Act read with Section 120B of the IPC be transferred to the CBI for investigation.

45. The Investigating Officer shall transmit the entire case diary and all evidence collected directly or indirectly in his custody to the CBI. The CBI shall take over the investigation and conduct the same with urgency and diligence. The I.O. of the ACB, WB shall cooperate with the CBI.

46. With the aforesaid observations, the instant writ petition is allowed and shall stand disposed of.

47. Mr. Sen, learned counsel appearing for the State seeks stay of the aforesaid judgement and order. The same is considered and refused.

48. The case diary is returned back to the Investigating Officer.

49. There shall be no order as to costs.

50. All parties shall act on the server copy of this order duly downloaded from the official website of this Court.

(Rajasekhar Mantha, J.)

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