Calcutta High Court
Smt. Leela Das vs Union Of India (Uoi) And Ors. on 18 September, 1998
Equivalent citations: 1999CRILJ1807
Author: Amitava Lala
Bench: Amitava Lala
ORDER Amitava Lala, J.
1. The writ petitioner is a widow of a Police Officer allegedly murdered while he was returning from a successful anti -poaching operation at the Land Fall Island of Andaman in the evening hours of 19th November, 1995.
2. From the factual analysis it appears that suspicion arose in the mind of the relatives of the deceased after seeing the dead body which was kept in G. B. Pant mortuary/cold room at Port Blair awaiting return of the parents of the deceased, who were in main land on tour. The relatives including the brother-in-law of the deceased, a Senior Medical Officer of G. B. Pant Hospital, detected a deep sharp cut injury on the left side of the neck of the deceased suspected foul play. The complainant and other relatives and suspected the conduct of Dy. S. P. Raghuvir Singh who brought the dead body to the residence of the complainant. It was alleged that said Dy. S. P., did not allow any relative, even the wife of the deceased to see the face of the dead body which was wrapped by a long cloth and ordered to put off all the lights on the plea that none could tolerate the shock of seeking the dead body being entirely eaten by sea fish. The Dy. S. P. also insisted to complete the cremation as soon as possible without waiting any further. The behaviour of the Dy. S. P. was not found natural by the complainant and other relatives of the deceased. Moreover in view of detection of the deep sharp cut injury on the dead body they really believed that the incident was not an accident but a case of murder.
3. Thereafter, the complainant being the father-in-law of the deceased brought the fact before various authorities, including the Andaman and Nicobar Administration and in the complaint made by the complainant, the District Magistrate's Court, Andaman had ordered for re-postmortem examination of the dead body by a medical board consisting of 4 (four) medical officers. The Medical Board of 4 medical officers conducted the re-postmortem examination on 22-11-1995 after the Magisterial inquest over the dead body as conducted on the same date.
4. During the investigation it could be learnt that the first postmortem was conducted by Dr. Nareshwar Lall, senior Medical Officer of Community Health Centre, Diglipur on 20-11-95. Though Dr. Lall recorded the existence of injury in the left side of face including left cheek", he declared the cause of death as "death is due to drowning leading to respiratory failure due to asphyxia". The re-postmortem report conducted by Medical Board on 22nd November, 1995 described as "incised wound left side on neck spindle shape from one inch below angle of left lower jaw extending across mid line of neck upto mid point of right side of the neck. Wound is gaping, skin around wound show bruising and tissue around the wound give bluish black discolouration which cannot be removed by washing; size of wound is six inches in length, width is 11/2 inch at midpoint, depth of midpoint is approx. one inch and shows damage of underlying muscles and vessels".
It has also been stated :-
Evidence of incised wound neckled to haemorrhage and death, would appear to be ante-mortem and can be accidentally sustained or homicidal....
5. In order to have a clear cut opinion Dr. Apurba Nandy, Professor and Head of the Department of Forensic and State Medicine, Medical College Hospital, Calcutta was taken. Dr. Nandy after going through all the relevant documents, records etc. photographs available gave his opinion as follows :-
Giving due consideration to facts as available from the papers as narrated and discussed above, I am of opinion that death of the deceased was due to the combined effect of neck injury and drowning and though possibility of accident cannot be absolutely ruled out, it appears to me to be a case of homicidal death. In my opinion it is more convincing that the injury on the neck of the victim was first inflicted on the dinghy and then he was forcefully dropped in the sea water before death, resulting in his death due to entrance of water through the injured part of the trachea.
6. In view of the fact that below the dinghy there exists a metal propeller, further opinion from Dr. Nandy was sought as to whether there was possibility of the injury being inflicted on the deceased from the said propeller. After examining the propeller and the photographs of the deceased and after ascertaining from the undersigned about the exact location of the propeller fitted in the dinghy, Dr. Nandy was of opinion that-
To the best of my understanding, the propeller in question was not likely to cause the fatal injury as is described in the report of re-postmortem examination on 22-11-1995 and as is noticeable in the stated photograph.
7. Considering all the aspects, ultimately a report was submitted by the Dy. S. P., CBI/SCB/ Calcutta in which it is mentioned that one Saw Bonny, a Forester was present in the Dinghy in sea along with the deceased and the Burmese poachers.
8. It is to be remembered that the incident took place on 19th November, 1995. The case was registered with CBI upon being called on 9th December, 1995. The first report/charge-sheet, as aforesaid, filed before the learned Judicial Magistrate, 1st Class, Mayabunder on 26th October, 1996. Initially, a writ petition was moved being CO. No. 229 (W) of 1995 and the same was disposed of on 29th February, 1996 by expressing the desire of the Court that the Central Bureau of Investigation would not make any further delay in carrying out the investigation work.
9. Thereafter, on 27th Dec, 1997 an application was made by the said Dy. S. P., CBI/SCB/ Calcutta in the Court of the learned District and Sessions Judge, Andaman and Nicobar Islands, Port Blair contending therein that he is investigating the case Under Section 173(8), Cr.P.C. and the same is about to be completed. He has further contended that it cannot be ruled out at that stage that some names will figure as accused in the said final report. It was also contended that it may take another one month's time to submit the report in final form in the appropriate Court and at present the report is under legal scrutiny. Thereafter, he asked for adjournment of the criminal proceeding, which was scheduled to be commenced on 5th January, 1998 on the plea that if the trial proceeds further in view of the filing of report in final form, as stated above, there are chances of recalling all the witnesses examined as such much inconvenience likely to be caused not only to the learned Court but also to the witnesses.
10. I find several representations were made by the writ petitioner/wife of the deceased on 8th October, 1996, on 5th June, 1998 and so on as available from the annexures to the writ petition.
11. The contention of the writ petitioner is that after filing the report dated 29th Oct., 1996, and after passing an order under the writ jurisdiction of the Court in the erstwhile writ petition expressing the desire of the Court to complete the investigation and furnish a report without further delay and after making several representation and waiting for considerable period from 26th October, 1996 till 6th July, 1998, as to when the instant writ petition was moved, no report was filed either before the concerned District and Sessions Court or before the concerned Magistrate as assured by the C.B.I. Officers which naturally caused a suspicion in the mind of the writ petitioner about their honesty, integrity, skill and professionalism in the work. According to them by such lapse of time some of the police officers against whom complaints were lodged or suspicion arose in the mind of the writ petitioner/complainant and the relatives, if at all involved in crime may be get escaped.
12. By making this writ petition, the writ petitioner, inter alia, prayed the following reliefs:-
To issue a Writ of Mandamus and/or writ in the nature thereof, commanding the respondents and each one of them :-
(a)(i) To do and to proceed in accordance with law;
(ii) To submit the report in final form already prepared under Section 173(8) of the Code of Criminal Procedure or Supplementary Report which are suspecting the other accused persons, be submitted before the Dist. & Sessions Court, Andaman & Nicobar Islands forthwith;
(iii) To dispose of the representations with reasoned order upon giving an opportunity to your petitioner for changing the Investigating Officer and the Supervising Officer of the case and to pass a reasoned order upon giving an opportunity of being heard to your petitioner;
(iv) The trial accordingly be conducted and/or be resumed on receipt of such report in final form in accordance with Law;
(v) To compel the respondents to discharge their statutory duties by completing the investigation of the case and to submit report in final form forthwith as per provisions of Section 173 of the Code of Criminal Procedure;
(vi) To take appropriate steps against the erring officers investigating the case and all Agencies-in-charge of training of the Police and at all levels to see to it that the degree of professionalism and responsibility is ensured in respect of the investigation of all criminal offences and the investigation must be time bound, it must be effective and it must be in keeping with what the Law expects of the Police Department, and the Investigating Officers in all cases of criminal offences shall be specifically informed that it is their personal responsibility for which they will be held personally accountable if the requisite evidence, such as - property documentary evidence etc. is not forthcoming before the Court;
(b) A writ of Certiorari do issue, and or any other writ or writ do issue, for transmitting the records relating to the present proceedings and for the purpose of passing appropriate order in case; And further other consequential relief.
13. Upon going through the record and various orders passed from time to time by the Court, I found that on 13th July, 1998 a single Bench of this Hon'ble Court was pleased to direct the concerned Investigating Officer under the Central Bureau of Investigation to submit a supplementary report and an additional charge-sheet, if any, within two months from the date and further directions were given for filing affidavits etc.
14. On enquiry Mr. Shovan Lal Hazra, Ld. Sr. Counsel for the Central Bureau of Investigation, contesting respondents herein submitted a report before the concerned Magistrate.
15. In the premises prima facie I was under the impression that since the remedy under the writ petition appears to be exhausted by filing such report and outcome is yet to be born from the decision of the Sessions Judge a Judicial review at this stage in any manner is premature.
16. Mr. Haradhan Banerjee, Ld. Counsel appearing on behalf of the writ petitioner contended that the writ petition is not only restricted only for the purpose of filing a supplementary report but for various other reliefs. Cause of action for the purpose of Judicial Review starts from when investigation starts and continues as such remedy under the writ petition cannot be said to be premature but subsisting irrespective of filing report.
17. He relied upon (S.N. Sharma v. Bipen Kumar Tiwari) and stated that remedy of invocation of writ jurisdiction is available in case of mala fide exercise of powers of investigation by Police which is exactly the subject matter herein. In further he firmly relied upon two judgments of the Supreme Court and 1997 (10) SCC 476 (sic) (Vineet Narain v. Union of India) respectively commonly known as 'Jain Hawala Case'.
18. From there it appears to me how High Court in a writ of mandamus is required to proceed with the matter in similar circumstances.
...It has to be borne in mind that the purpose of these proceedings is essentially to ensure performance of the statutory duty by the C.B.I, and the other Government agencies in accordance with law for the proper implementation of the rule of law. To achieve this object a fair, honest and expeditious investigation into every reasonable accusation against each and every persons reasonably suspected of involvement in the alleged offences has to be made strictly in accordance with law. The duty of the Court in such proceedings is, therefore, to ensure that the C.B.I, and other Government agencies do their duty and do so strictly in conformity with law. In these proceedings, the Court is not required to go into the merits of the accusation or even to express any opinion thereon, which is a matter for consideration by the competent Court in which the charge-sheet is filed and the accused have to face trial. It is, therefore, necessary that not even an observation relating to the merits of the accusation is made by the Court in these proceedings lest it prejudice the accused at the trial. The nature of these proceedings may be described as that of 'continuing mandamus' to require performance of its duty by the C.B.I, and the other Government agencies concerned....
...The nature of such a proceeding in a Court of law was also indicated by Lord Denning as under:-
A question may be raised as to the machinery by which he could be compelled to do his duty. On principle it seems to me that once a duty exists there should be a means of enforcing it. This duty can be enforced. I think, either by action at the suit of the Attorney General, or by the prerogative order of mandamus.
19. Mr. Banerjee, learned Advocate for the petitioner contended that the supplementary report or the final report as given by such Investigating Officer only after making the writ petition on 6th August, 1998 and wherefrom it will appear that although further investigations were made and number of fresh witnesses and some old witnesses were examined. Searches were conducted in the residential house and the business premises of Dy. S. P. concerned and the concerned Doctor and various records were examined but no evidence either direct or circumstantial could be collected to establish involvement of the said Dy. S. P. or for that matter any body else in the alleged conspiracy to kill the husband of the writ petitioner. Similar, no evidence was established direct or indirect linked between Saw Bonny and other suspects could be unearthed. Interestingly, in the investigation it was revealed that there was several omissions and commissions on the part of Dy. S. P. Raghuvir Singh, the concerned Doctor Dr. Nareshwar Lal, Inspector Daya Shankar Singh and ASI A. D. Yadav. It is contended in the report that:-
During further investigation the following acts of omissions and commissions have come to light in respect of Shri Raghuvir Singh. He did not take the mandatory permission of the District S. P. before going for anti poaching operation against foreigners. He delayed the transportation of the dead body from Mayabunder to Port Blair allowing to decompose faster; he showed utter lack of sensitivity while escorting the dead body from Mayabunder to Port Blair on the night of 20-11-95, in that he killed a deer on the way; he did not allow the deceased's wife and my other family members of the deceased to see the dead body stating that it was in very bad shape; he showed his disinclination for the second postmortem orally and did not supervise the case in a professional manner. It has also come to light that he insisted for early cremation of the dead body etc. As regards Dr. Nareswar Lal, he conducted the first postmortem at Diglipur Community Health Centre in a negligent and unprofessional manner and did not preserve any viscera etc for further examination.
Inspector Daya Shankar Singh who was the Investigating Officer of the case, he did not take the photograph of the dead body and did not go to the spot i.e. the place of occurrence. Similarly, AS I A. D. Yadav who conducted the inquest and investigated the case initially also shown lack of responsibility in not taking photographs of the dead body and in not informing the near relative etc. of the deceased.
The aforesaid omissions and commissions on the part of officers named are being brought to the notice of Andaman Administration for contemplating departmental proceedings as per rules.
20. Therefore, the apprehension on the part of the petitioner come to the reality. The real mastermind and other persons connected i.e. Dy. S. P. and others connected are all escaped from the criminal investigation since there was no evidence directly or consequentially allegedly available to the Investigating Officer.
21. Under these circumstances, laches, inaction and/or negligence on the part of the authority concerned due to cause of delay established, therefore, the remedy lies under the writ jurisdiction to enquire as to the mala fide exercise of power by the new tool of judiciary i.e. "continuing Mandamus". I associate myself with the observation of the Supreme Court in the interest of justice that the inertia is the common rule whenever the alleged offender is a powerful person. Thus, it becomes necessary to take measures to ensure permanency in the remedial effect to prevent reversion to inertia of the agencies in such matters. I also feel that everyone against whom there is reasonable suspicion of committing a crime has to be treated equally and similarly under the law and probity in public life is of great significance. The Constitution and working of the investigating agencies revealed the lacuna of its inability to perform whenever powerful persons were involved. For this reason, a close examination of the constitution of these agencies and their control assumes significance. No doubt, the overall control of the agencies and responsibility of their functioning has to be in the executive but then a scheme giving the needed insulation from extraneous influences even of the controlling executive, is imperative. It is this exercise which became necessary in these proceedings for the future. This is the surviving scope of this writ petition. "Continuing Mandamus" is having the effect of making the agencies perform their statutory function. C.B.I, authorities must expedite their action to comply the task.
22. Mr. Haradhan Banerjee, the learned Advocate in support of his contention also cited a judgment (State of Bihar v. P.P. Sharma). By relying upon some of the paragraphs therein, he contended that arms of the High Court in exercise of discretionary power under the writ jurisdiction to reach injustice that is found in the Judicial or quasi-Judicial process of any Court or Tribunal or within its jurisdiction, it is that self-imposed limitation. In fact Mr. Banerjee wanted to establish the question of judicial review irrespective of filing of the final report wherein this case is principally applicable. By citing another judgment that is (Bhagwant Singh v. Commissioner of Police) he contended that the report forwarded by the Officer-in-charge of a Police Station to the appropriate Criminal Court comes up for consideration when two different situations arose. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceedings or (3) he may direct further investigation under Sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses :* (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under Sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. In the way, Mr. Banerjee, learned Advocate wanted to submit that the Magistrate being part of the Criminal Court has no other alternative but to travel within the fixed parameters which is not the scope and ambit of the writ petition.
23. The other case cited by Mr. Banerjee, is (State of Haryana v. Ch. Bhajan Lal) wherein the scope and ambit of the writ jurisdiction in taking cognizance and quashing the Criminal Proceedings were discussed. Mr. Banerjee has drawn my attention to few paragraphs with regard to reasonable suspicion about involvement of an accused in the crime, and also with regard to other various aspects, and ultimately, the question of Judicial reviewability by invoking the writ jurisdiction. Important part of the observation of the Supreme Court is that the Investigation of an offence in the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code of Criminal Procedure and the Courts are not justified in obliterating the track of investigation when the investigating agencies are Well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the Police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a Police Officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. Needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of 'Divine Power' which no authority on earth can enjoy.
24. Upon considering the facts and law it appears to me that the writ petition cannot be closed only by filing supplementary report by the Dy. S. P., CBI/SCB/Cal. but requires further inquiry and investigation under the writ jurisdiction of course keeping in mind the limitation. Under such circumstances, 1 called upon Mr. Shovan Lal Hazra, the Ld. Sr. Counsel appearing for CBI to make submission especially on two grounds - (i) What is the scope before the Criminal Court to extent as above; (ii) Why such delay is being caused on the part of the CBI. Mr. Hazra on his usual fairness submitted that his submission would be on the question of law and not on the question of facts which may affect the trial yet to be completed before the appropriate Criminal Court.
25. Mr. Hazra contended that the remedy lies under the writ jurisdiction is already exhausted by submission of the supplementary report filed by the concerned officer of the CBI. Secondly, further remedy lies before the Magistrate under Section 191 (a) & (b) read with Section 202 and also before the Sessions Court Under Section 390 of the Code of Criminal Procedure. Remedy also lies Under Section 210 of Cr. P.C. Accordingly without exhausting such remedy cause of action, if any, at this stage is not tenable as premature, lastly he contended that there are various limitations under the Code of Criminal Procedure in connection with the completion of the investigation but there is no limitation prescribed for the case falling under Section 302 of the Indian Penal Code. Mr. Hazra mainly relied upon two judgment one of which reported in 1994 SCC (Crl) 851: 1994 Cri LJ 2320 (Ram Pal Pithwa Rohidas v. State of Maharashtra) wherein it was observed by the Supreme Court that "The quality of a nation's civilization, can be largely measured by the methods it uses in the enforcement of criminal law". In every civilised society the police force is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of the society that the investigation agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigation agency but in the ultimate analysis in the system of dispensation of criminal justice. Let no guilty man go unpunished but let the end not justify the means. The Courts must remain ever alive to this truism. Proper results must be obtained by recourse to proper means otherwise it would be an invitation to anarchy.
26. He also relied upon a judgment reported in 1994 SCC (Crl.) 1172 : 1994 Cri LJ 1981 in the case of Joginder Kumar v. State of U.P. wherein it has been contended that a person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.
27. He further relied upon various judgments (H.N. Rishbud v. State of Delhi), (Raghubans Dubey v. State of Bihar), (Abhinandan v. Dinesh Mishra) with another matter, (R.N. Chatterjee v. Havildar Kuer Singh), (1980) SCC 554 : 1980 Cri LJ 98 (State of Bihar v. J.A.C. Saldanha) and another matter, (Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, (India Carat Pvt. Ltd. v. State of Karnataka), 1995 Cri LJ 2917 : 1995 AIR SCW 2212 (Director CBI v. Niyamavedi), (Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada), (Girish Yadav v. State of M.P.), (State of U.P. v. Sukhbasi), an unreported judgment of Supreme Court in Civil Appeals Nos. 7586-7587 of 1997* (Union of India v. Sushil Kumar Modi), (P.K. Narayanan v. State of Kerala), AIR 1987 SC 995 : 1987 Cri LJ 789 (Paramhans Yadav v. State of Bihar), (State of A.P. v. I.B.S.P. Rao).
28. Out of the said judgments, the following , , and (1997) 2 SCC 357 are either rested on i.e. the case of Ch. Bhajan Lal or followed the principle laid down therein. Therefore, there is no necessity of reiterating the same otherwise it will be academic discussion.
29. The other decisions cited by Mr. Hazra are considered herein which are mostly related as to the power of the Magistrate as well as the ingredients of criminal conspiracy and power of Court on the offence of Criminal conspiracy etc.
30. So far as the first point is concerned I have taken a general idea from the judgments , , and .
31. It appears therein that Magistrate can take cognizance of an offence and not the offender; once he takes cognizance of an offence it is his duty to find out the offender really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The Magistrate can call for further investigation under Section 156(3) of the Code of Criminal Procedure. Furthermore, Section 190(1)(c) of the Code of Criminal Procedure empowers the Magistrate to take cognizance of an offence notwithstanding a contrary opinion of the police. Under Section 191(1) of the Code of Criminal Procedure the Magistrate is not debarred from taking cognizance of a complaint merely on the ground that he had earlier declined to take cognizance of a police report. The position, is therefore, now well settled that upon receipt of a police report, under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code of Criminal Procedure, even if, the police report is to the effect that no case is made out against accused. The Magistrate can take into account the statements of the witness examined by the police during the investigation and take cognizance of an offence complained off and an order of issue of process to the accused. Section 190(1)(b) of the Code of Criminal Procedure does not lay down that a Magistrate can take cognizance of an offence only when the Investigation Officer gives an opinion that the investigation is made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of powers under Section 190(1)(b) and direct the issue of process to the accused.
32. In the judgment reported in 1995 Cri LJ 2917 (SC) the Supreme Court held observation which may amount to interference if the investigation should not be made. Of late, the tendency to interfere in the investigation is on the increase and Courts should be wary of its possible consequences.
33. But prematurity of the investigation was clarified therein from which it appears that the Supreme Court directed to refrain from making any comments on the manner in which investigation was being conducted by the CBI when the investigation is far from complete. Any observation which may amount to interference should not be made at this stage. Court should refrain from interfering with investigation at premature stage as that may derail and demoralise the investigation is forthcoming which is factually different herein when after investigation the report is furnished.
34. So far the other point is concerned i.e. mainly with regard to ingredients of a criminal conspiracy and how far the Court can proceed, I have considered the judgments , AIR 1985 SC. 1424 : (1985 Cri LJ 1479), , and , wherein it appears that there is enough power with a Court in an appropriate case to exercise its jurisdiction under Section 319 of the Code of Criminal Procedure. It is not possible to agree that once the police had not submitted charge-sheet against some accused the Court ought not to have roped them in. In a case in which the evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not be consistent with the guilt of the accused, but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons, then it cannot be held that the prosecution had successfully established its case. Even if, some acts are proved to have committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation.
35. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmise or inferences which are not supported by cogent evidence.
36. If the prosecution relies upon circumstantial evidence, a clear link has to be established and the chain has to be completed, otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the basis of such incomplete evidence, the allegation of conspiracy cannot be accepted. Before conviction based solely on circumstantial evidence can be sustained, it must be such as to be conclusive of the guilt of the accused and must be incapable of explanation of any hypothesis consistent with the innocence of the accused. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused, however, extravagant and fanciful it might be. A guilt of an accused person has to be established beyond all reasonable doubt. Extraordinary jurisdiction of the superior Courts can be exercised in a case where substantial and grave injustice has been done or exceptional and special circumstances existed in the case. A reliance has been given by Mr. Hazra, on an unreported judgment being Civil Appeal Nos. 7586/ 97 arising out of a SLP (C) Nos. 17144-17145 of 1997 (Union of India v. Sushil Kr. Modi)* in which the Vineet Narain' s case had been considered. The Supreme Court held that the monitoring process in the High Court in respect of the particular matter had come to an end with the filing of the charge-sheet in a special Court and that the matter relating to execution of the warrant issued by the Court. Supreme Court held that the charge-sheet is filed in a competent Court after completion of the investigation, the process of monitoring by the High Court for the purpose of making the CBI and other concerned investigating agencies performed their functions of investigating into the offence concerned comes to an end and thereafter it is only the Court in which the charge-sheet is filed which is to deal with all the matters relating to trial of the accused including matters falling with the scope of Section 173(8) of the Code of Criminal Procedure.
37. I have carefully considered the submissions made by Mr. Banerjee as well as Mr. Hazra on the existing facts and circumstances of this case as well as the decisions referred by them and it appears that although the supplementary report/charge-sheet was submitted by the authority under CBI, but that was done after lapse of 2 years time and after invocation of the Writ jurisdiction of this Court to do the same. Therefore, there is a jurisdiction of invocation of the writ jurisdiction which resulted to an appropriate disposal but not the dismissal by recording mere filing of the report pursuant to an order. It appears to me this is not also the desire of the counsel for the respondent but they wanted an appropriate legal analysis and finding considering transgress of the case. I believe if the writ petition is disposed of with certain salient points the purpose will be served.
38. The writ petition is thus disposed of with the following directions :
a) The District & Sessions Judge, or the Magistrate concerned, whosoever is in the session of the Criminal Proceeding is at liberty to proceed against any of the persons allegedly involved in the criminal conspiracy in accordance with law irrespective of finding of the Investigating Officer, Central Bureau of Investigation as to the framing of charges under the supplementary report dated 6-8-98.
b)The persons appears to be responsible for acts of omission and commission under the report of the Investigating Officer of the Central Bureau of Investigation dated 6th August, 1998 be immediately notified with the Andaman & Nicobar Administration by appropriate authority of the Central Bureau of Investigation for holding departmental proceeding as suggested under the report.
c) The Director of the Central Bureau of Investigation, respondent No. 2 herein will enquire as to the cause of delay of about two years in furnishing the supplementary report dated 6th August, 1998 from the date of first report dated 26th October, 1996 upon calling the writ petitioner, complainant and other relatives of the complainant and enquiring as to their grievances and furnish an appropriate reasoned departmental order for the interest of justice.
d) There is no further necessity of monitoring by the Writ Court since the charge-sheet has already been filed by the Investigating Officer of the Central Bureau of Investigation before the appropriate Court and in view of the directions as above.
39. There will be no order as to costs.
40. Let a plain copy of the operative part of the order duly countersigned by the Assistant Registrar (Court) be supplied to the learned Advocates for the parties on usual undertaking.