Tripura High Court
Accused vs The State Of Tripura on 23 March, 2017
Author: Chief Justice
Bench: Chief Justice
THE HIGH COURT OF TRIPURA
AGARTALA
CRL. PETN. NO.22/2016
Sri Somenath Ganguly,
Son of Late Ram Sabak Ganguly,
Resident of Durgadas Apartment,
358 C Panchanan Tala Road, Kolkata 70041.
.... Accused-petitioner.
-: Vrs. :-
1. The State of Tripura,
(To be represented by the Public Prosecutor,
Hon'ble High Court of Tripura, Agartala,
West Tripura.
2. Ramfanmauri, I.O of the West Agartala
Women P. S Case No.30/13, dated,
14.04.2013, U/s 498 (A)/302/34 ASI of
Police.
3. Sri Joiyoti Laskar,
S/o - Sri Manoranjan Laskar, resident of
42, East Shibnagar, P.O - Agartala College,
P.S - East Agartala, Agartala, District - West
Tripura.
4. Sri Manoranjan Laskar,
S/o Late Atul Chandra Laskar, resident of
42, East Shibnagar, P.O - Agartala College,
P.S - East Agartala, Agartala, District - West
Tripura.
5. Smt. Basumati Laskar,
W/o - Sri Manoranjan Laskar, resident of
42, East Shibnagar, P.O - Agartala College,
P.S - East Agartala, Agartala, District - West
Tripura.
..... Respondents.
CRL.PETN. NO.22/2016 Page 1 of 8
BEFORE HON'BLE THE CHIEF JUSTICE Counsel for the petitioner : Mr. S G. Mukherjee, Advocate, Mr. P Roy Barman, Advocate, Mr. S Bhattacharjee, Advocate.
Counsel for the respondents: Mr. A. Ghosh, P.P.,
Mr. P K Biswas, Sr. Advocate,
Mr. A Bhattacharjee, Advocate,
Mr. A K Banerjee, Advocate,
Mr. P Majumder, Advocate.
Date of hearing : 13-2-2017.
Date of Judgment & Order : 23-02-2017
JUDGMENT & ORDER
In this criminal petition U/s 482 CrPC, the petitioner is seeking the intervention of this Court for directing further investigation of Agartala Women P.S. Case No.30/13 U/s 498-A/302/34 IPC, which is corresponding to S.T. No.14(WT/A)/2014 pending before the learned Additional District Judge, Court No.5, West Tripura, by a more competent investigating officer.
2. The case of the petitioner is that the death of the deceased, who is the daughter of the petitioner, on 15-4-2013, was not suicidal but a homicide punishable U/s 498-A/302/34 IPC and a complaint to that effect was lodged by her with the Officer-in-Charge of Agartala Women Police Station on the same day. According to the petitioner, there used to be regular altercations between her daughter and her husband due to excessive consumption of alcohol by her husband, and she was gradually subjected to physical and mental torture by her husband at the instigation of the respondent No.5 (her mother-in-law). From their marriage, a male child was born to them, and he is now 10 years old. When their minor son was left in an abandoned condition by the respondent No.3 (husband of the deceased), the petitioner rescued him and gave him a shelter. The minor boy is now pursuing his study at Kolkata with the financial support of the petitioner. The application filed by the petitioner before the Family Court, West Tripura being Misc. G.C. No.16 of 2013 for his appointment as the guardian of the CRL.PETN. NO.22/2016 Page 2 of 8 minor boy is still pending as the respondent No.3 is contesting the case. According to the petitioner, the police conducted investigation in a perfunctory manner and submitted the final report by charge-sheeting the respondent No.3, 4 and 5 U/s 498-A/306/34 IPC and not U/s 498- A/302/34 IPC. The application of the petitioner filed before the learned Additional Sessions Judge, Court No.5, West Tripura for further investigation of the case has been rejected without any rhyme or reason. Aggrieved by this, this criminal petition is now filed by the petitioner.
3. It is contended by Mr. S.G. Mukherjee, the learned counsel for the petitioner, that the investigation of the case suffers from the following infirmities, namely, (i) the IO of the case (respondent) No.2 did not even examined the parents of the deceased, the aunt of the deceased; without actually recording their statements, fake statements purportedly U/s 161 CrPC were prepared by her thereby putting words into their mouths; (ii) no attempt was ever made by the respondent No.2 to investigate the allegations of physical and mental torture of the deceased by the respondent No.3, 4 and 5; (iii) though the petitioner had to pay huge amount to the said respondents on different occasions by transferring money to the Bank account of the victim by the petitioner to satisfy their dowry demands, the respondent No.2 did not bother to investigate into this aspect of the matter and (iv) the respondent No.2 also did not seize the video footage of the post mortem examination of the body of the deceased for verification; (v) Though one Suchitra Debnath, wife of late Kalidas Debnath, a resident of 54/2, Karunamoyee, Kolkata-82, is one of the witnesses in whose presence the inquest was conducted, in the list of witnesses mentioned in the charge- sheet, she is referred to as "Suchitra Ganguly" with a view to ensure that she could not located and summoned by the trial court and (vi) the investigation carried on by the respondent No.2 is a sham one, farce and not to explore the truth and conducted in a slip-slot manner with the oblique motive of shielding the culprits. As the investigation is defective and is not likely to result in effective prosecution of the culprits, submits the learned counsel for CRL.PETN. NO.22/2016 Page 3 of 8 the petitioner, this is a fit case for directing further investigation of the case by a more competent investigating officer.
4. The criminal petition is opposed by the State-respondents by filing their counter-affidavit. The respondent No.2 also filed her counter-affidavit opposing further investigation wherein she flatly denies that she improperly or perfunctorily conducted the investigation of the case; that she cited the parents of the victim and the said Suchitra Debnath and her aunt i.e. PW-5, PW-6 and PW-7 as witnesses without recording their statements U/s 161 CrPC and that she put words into the mouths of these witnesses according to her sweet will to frustrate the investigation. She asserted that their statements were recorded U/s 161 CrPC on 15-4-2013 at Agartala Women Police Station as they were found available at the Police Station. She admits that some facts surfaced subsequently which could not have been within her knowledge; these omissions occurred as they were never stated to her. She also denies that no attempts were ever made by her to collect the evidence of torturing the victim by the respondents and asserts that the petitioner, who is supposed to give the statement regarding payment of huge amount to the accused on different occasions by transferring from the account of the victim to the account of the accused to satisfy their dowry demands, never divulged such facts to her nor were such facts disclosed by PW-6 or PW-7 to her during the investigation or subsequent to filing of the charge sheet. Therefore, such transactions were beyond her knowledge; naturally, procuring of statements of the bank accounts of the petitioner and that of the victim, under the circumstances, does not arise. She points out that the said Suchitra Debnath was recorded by her, but she inadvertently and through bona fide mistake described her as "Suchitra Ganguly". She also points out that no video recording was done during the post mortem examination of the dead body of the deceased. She vehemently denies that the investigation was conducted in a perfunctory manner and contends that the charge sheet was submitted after making a thorough and proper investigation of the case thereby making out a prima facie case against the CRL.PETN. NO.22/2016 Page 4 of 8 accused U/s 498-A/306/34 IPC. It is, therefore, submitted by the answering respondent that the investigation of the case requires no interference of this Court.
5. The law with respect to the powers of the Magistrate with reference to Section 173(2) read with Section 173(8) and Section 156(3) IPC once again came up for consideration before the Apex Court in Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, and the following are the conclusions of their Lordships:
"40.1. The Magistrate has no power to direct "reinvestigation" or "fresh investigation" (de novo) in the case initiated on the basis of a police report.
40.2. A Magistrate has the power to direct "further investigation"
after filing of a police report in terms of Section 173(6) of the Code. 40.3. The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case21 by a three-Judge Bench and thus in conformity with the doctrine of precedent.
40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the 21 Bhagwant Singh v. Commr. Of Police, (1985) 2 SCC 537 CRL.PETN. NO.22/2016 Page 5 of 8 police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.
40.6. It has been a procedure of propriety that the police has to seek permission of the court to continue "further investigation" and file supplementary charge-sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case."
The Apex Court at para 51 of the same judgment lays down the principles for ordering further investigation by the Magistrate, which are in the following terms:
"51. ...... It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the court cannot be permitted to direct "further investigation" to clear its doubt and to order the investigating agency to further substantiate its charge-sheet. The satisfaction of the learned Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate should direct "further investigation" or not is again a matter which will depend upon the facts of a given case. ......" CRL.PETN. NO.22/2016 Page 6 of 8
6. In the instant case, the grievance of the petitioner is directed against the alleged defective investigation of the case by the respondent No.2. However, the respondent No.2 has completely answered the questions raised by the petitioner in the criminal petition. No stone appeared to have been left unturned by the respondent No.2 in the investigation of the case. She has categorically stated that the transfer of money from the Bank account of the victim to the account of the accused to satisfy the demand for dowry was never mentioned by the petitioner in his statement. Incidentally, no such statement was also made in the FIR. She has also stated that she recorded the statements of the parents of the victim as well as the aunt of the victim U/s 161 CrPC. In my opinion, on the facts and circumstances of the case as disclosed by the affidavit of the respondent No.2, there is no material to substantiate the allegations of the petitioner that there were lapses or omissions of substantial nature in the investigation of the case by the respondent No.2 for directing further investigation. The learned Magistrate, therefore, did not commit any infirmity in rejecting the prayer for further investigation of the case.
7. In Zahira Habibullah Sheikh and anr. v. State of Gujarat, (2005) 4 SCC 158, the Apex Court held that statement made by a witness to the police officer during investigation may be reduced to writing and that it is not obligatory on the part of the police officer to record any statement made to him; he may do so if he feels it necessary. What is enjoined by the section is a truthful disclosure by a person who is examined. Under Section 114(e) of the Evidence Act, there is a presumption that official or judicial acts have been regularly performed. In any case, the contaminated conduct of the respondent No.2, if there be any, should not stand in the way of the Court getting at the truth by having recourse to Section 311, Section 391 CrPC and Section 165, Evidence Act at the appropriate stages of the trial or of evaluating the evidence. Moreover, it is a settled law without reference to cases that the statements of witnesses are to be recorded by the police CRL.PETN. NO.22/2016 Page 7 of 8 without any delay. Now, it is difficult to understand as to what purpose will really be served at this belated stage to examine the witnesses U/s 161 CrPC, even assuming that they were never examined earlier; no benefit is likely to accrue to the prosecution at this late stage to order further investigation to record the statements of the witnesses; this omission can be rectified by the trial court by taking resort to Sections 311 and 391, CrPC and Section 165, Evidence Act. It is, however, incomprehensible to me as to how no video recording was done during the post mortem examination on the body of the deceased, but this omission is too small a peg to vitiate the investigation conducted by the respondent No.2.
8. The offshoot of the foregoing discussion is that there is no merit in this criminal petition, which is, accordingly, dismissed. Interim order, if any, stands vacated.
CHIEF JUSTICE Sukhendu CRL.PETN. NO.22/2016 Page 8 of 8