Calcutta High Court (Appellete Side)
Susmita Saha Dutta vs The Union Of India And Ors on 19 August, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(Appellate Side)
Reserved on: August 03, 2021
Pronounced on: August 19, 2021
(Through Video Conference)
WPA(P) 142 of 2021
Susmita Saha Dutta
Vs.
The Union of India and Ors.
with
WPA(P) 143 of 2021
Anindya Sundar Das
Vs.
Union of India and Ors.
with
WPA(P) 144 of 2021
Priyanka Tibrewal
Vs.
The State of West Bengal and Ors.
with
WPA(P) 145 of 2021
Pradipta Arjun
Vs.
Union of India and Ors.
with
WPA(P) 146 of 2021
Smt. Aparajita Mitra
Vs.
The Union of India and Ors.
2 WPA(P)142 of 2021
with
WPA(P) 147 of 2021
Kuntal Mojumder
Vs.
Union of India and Ors.
with
WPA(P) 148 of 2021
Susheel Kumar Pandey
Vs.
State of West Bengal and Ors.
with
WPA(P) 149 of 2021
Marufa Bibi and Ors.
Vs.
State of West Bengal and Ors.
with
WPA(P) 167 of 2021
Kashinath Biswas
Vs.
Union of India and Ors.
Present :
Mr. Bikash Ranjan Bhattacharjee, Senior Advocate with
M/s. Uday Sankar Chattopadhyay, Debapriya Samanta
Pronoy Basak and Santanu Maji, Advocates
..for the Petitioner(s) in WPA(P) 143 of 2021
Ms. Priyanka Tibrewal, Advocate
... Petitioner in-person in WPA(P) 144 of 2021
Mr. Mahesh Jethmalani, Senior Advocate with
Mr. Dhiraj Kumar Trivedi, Mr. Ravi Sharma,
Mr. Debu Choudhury, Mr. Shoumendu Mukherjee,
Mr. Praneet Pranav, Mr. Shaurya R. Rai,
Mr. Shailendra Kumar Mishra, Ms. Mugdha Pandey,
Ms. Jayeeta Dhar, Mr. Raja Satyajit Banerjee,
Mr. Abhishek Sarkar, Mr. Tanmoy Majumder and
Mr. Saket Sharma, Advocates
..for the Petitioner(s) in WPA(P) 145 of 2021
Ms. Pinky Anand, Senior Advocate with
Mr. Loknath Chatterjee, Mr. Sukanta Ghosh,
Ms. Saudamini Sharma and Ms. Kirti Dua Advocates
..for the Petitioner(s) in WPA(P) 146 of 2021
3 WPA(P)142 of 2021
Ms. Souri Ghoshal and
Mr. Prasayan Mukherjee, Advocates
..for the Petitioner(s) in WPA(P) 147 of 2021
Mr. J. Sai Deepak and
Mr. Rishav Kumar Singh, Advocates
..for the Petitioner(s) in WPA(P) 148 of 2021
Mr. Bikash Ranjan Bhattacharjee, Senior Advocate with
Mr. Samim Ahmed, Mr. Arka Maiti and
Ms. Saloni Bhattacharya, Advocates
... for the Petitioner(s) in WPA(P) 149 of 2021
Mr. Rabi Sankar Chattopadhyay,
Mr. Uday Sankar Chattopadhyay,
Mr. Sayan Chattopadhyay, Mr. Soumen Banerjee,
Mr. Santanu Maji, Ms. Payel Shome and
Ms. Smriti Das, Advocates
... Petitioner(s) in WPA(P) 167 of 2021
Mr. Y.J. Dastoor, Additional Solicitor General with
Mr. Phiroze Edulji, Mr. Bhaskar Prosad Banerjee,
Mr. Arijit Majumdar and Ms. Amrita Pandey, Advocates
..for the Union of India.
Mr. Kishore Datta, Advocate General with
M/s. Sayan Sinha and Debashish Gosh, Advocates
..for the State.
Dr. Abhishek Manu Singhvi,
Mr. S.N. Mookherjee, Senior Advocates with
Mr. Sanjay Basu, Mr. Samik Kanti Chakraborty,
Mr. Amit Bhandari, Mr. Soumen Mohanty,
Ms. Ranjabati Ray and Ms. Shrivalli Kajaria, Advocates
..for the D.G. West Bengal.
Mr. Kapil Sibal, Senior Advocate with
Mr. Sanjay Basu, Mr. Apoorv Khator,
Mr. Adit S. Pujara, Mr. Soumen Mohanty,
Ms. Shrivalli Kajaria and Ms. Ranjabati Ray, Advocates
..for all Superintendents of Police.
Mr. Subir Sanyal and Ms. Sumouli Sarkar, Advocates
..for the NHRC.
M/s Sidhant Kumar, Manyaa Chandok,
Suvrodal Choudhury and Dipayan Chaudhury, Advocates
..for the ECI.
Mr. Saptangsu Basu, Senior Advocate with
Mr. Soumava Mukherjee, Advocate
..for the Applicant in CAN 4 of 2021
in WPA (P) 142 of 2021
4 WPA(P)142 of 2021
Coram: THE HON'BLE JUSTICE RAJESH BINDAL,
CHIEF JUSTICE (ACTING)
THE HON'BLE JUSTICE I.P. MUKERJI
THE HON'BLE JUSTICEHARISH TANDON
THE HON'BLE JUSTICESOUMEN SEN
THE HON'BLE JUSTICESUBRATA TALUKDAR
ORDER
Index of the contents
Sr.
Particulars Page No.
Nos.
2. Schedule of State Assembly Elections, 2021 6
7. DISCUSSION
Other issues in the Exceptions filed by 61
the State
Committee
Election Commission's responsibility 66
of law and order
5 WPA(P)142 of 2021
RAJESH BINDAL, CHIEF JUSTICE (ACTING)
1. The extraordinary jurisdiction of this Court has been
invoked by the residents of the State seeking to preserve the
constitutional values and the democratic set up. Civil liberties and
fundamental rights are sought to be protected. The preamble of our
Constitution provides for India to be a sovereign, socialist, secular,
democratic, republic securing to all its citizens' liberty of thought,
expression and political rights. The dignity of the individual, which is
spoken of in the Preamble of the Constitution of India is a facet of
Article 21, thereof (Ref. Joseph Shine Vs. Union of India, (2019) 3
SCC 39, Para 107)
2. The allegations in the petitions are that the people who
supported the political parties other than the ruling party in the
recently concluded Assembly Elections in the State (year 2021), have
been made to suffer at the hands of the supporters/workers of the
party, which came in power. The courts have a duty to adjudicate
whenever violation of fundamental rights is alleged. The following
discussions will make the position clear.
6 WPA(P)142 of 2021
3. SCHEDULE OF ELECTIONS
Elections to the State Assembly were conducted in eight
phases, starting from March 27, 2021. Last date of polling was April
29, 2021. Result was declared on May 02, 2021.
4. FACTS OF THE CASES:
WPA(P) 142 of 2021 filed on 04.05.2021
The present writ petition filed was first in the series, inter-
alia, praying to combat the post-poll violence and take corrective as
well preventive action. Direction was also sought to open Control
Room so as to enable the victims to lodge their complaints online or
over telephone. As an interim measure direction was sought to the
respondents to help the post-poll violence victims. The result of the
Assembly polls was declared on May 02, 2021. The present writ
petition was filed immediately thereafter. It was mentioned in Court
on May 04, 2021. It is alleged in the petition that till the date of filling
of the petition there had been 14 victims of post poll violence. The
victims were not even able to go to the police stations to lodge their
complaints. Even though the incidents occurring across the State were
well within the knowledge of the police but there had been no punitive
or preventive action.
WPA(P) 143 of 2021 filed on 06.05.2021
The present petition was filed by different set of persons
praying for a direction to the respondents to take immediate steps to
stop ongoing post-poll violence. The prayer was also made for an
independent and impartial investigation of the offences by constitution
of a special investigation team. Direction was sought to the Union of
7 WPA(P)142 of 2021
India to deploy adequate central forces in the disturbed areas and to
provide compensation to the families of the sufferers. The aforesaid
petition was mentioned for immediate listing on May 06,2021to
appear in the cause list on May 07, 2021. The petitioner in this
petition claimed that he is a practising lawyer of this Court. It is
alleged in the petition that the situation in the State post Assembly
Elections is alarming. 11 persons have died in various incidents. Many
had to leave their houses to save their lives. After the declaration of
result, the activists of the ruling party ransacked and looted the houses
of the supporters of the opposition parties and they were killed and
assaulted. It is further pleaded that after the elections, same sort of
violence always occurred in West Bengal. The State used to take steps
to control the same but this time it was a mute spectator. Number of
photographs as appeared in print media along with news of the victims
have been annexed.
WPA(P) 144 of 2021 filed on 07.05.2021.
The present petition has been filed by an advocate
practising in this Court in public interest raising the issue of post-poll
violence. She had contested the election in the recently concluded
State Assembly polls from Entally constituency. She also claimed
herself to be a social-worker, who had been raising various social
issues by filling public interest litigations. She sought to expose the
cause of economically weaker sections, who were affected in the post-
poll violence in her constituency. It is pleaded that at the instance of
the goons belonging to the party in power, the houses of her
supporters have been looted and vandalized. She had filed complaints
8 WPA(P)142 of 2021
to the police on May 03, 2021. However, no action was taken by the
police. In fact, the complaints filed by her were sent by the police to
the goons of the ruling party who in turn harassed the aggrieved
persons. They were pressurised to withdraw the complaints. This
establishes that the police is hand in glove with the ruling party goons.
The prayer was made for a direction to the police to immediately take
action and stop the atrocities. Time-bound investigation be made of
the offences already committed. Number of photographs of the
persons affected were also annexed.
WPA(P) 145 of 2021 filed on 10.05.2021
The present petition, again filed in public interest, raises
the issues regarding violence in which number of workers of the
opposition parties including the main opposition party suffered
physically as well as damage to their properties. It is alleged that
properties of number of them were even set on fire. The Office of the
Akhil Bharatiya Vidya Parishad was set on fire on May 04, 2021 and
the persons present there were assaulted. In the past few days, murder,
assault, rape, ransack and vandalism of houses of the workers of the
main opposition party had become common in the State. List of nine
persons, who were murdered in different areas immediately after the
elections, was given. Despite wide reporting of the post-poll violence
the State agencies are collectively keeping silence, hence, failing to
discharge their constitutional duty. The victims were not even allowed
to lodge their complaints as they were threatened with implication in
false cases in case they dare to lodge complaints. Even women and
children were not spared. The prayer has been made that the
9 WPA(P)142 of 2021
respondents herein be directed to submit the details of the FIR
registered, arrest made and the steps taken to control the violence. The
prayer has also been made for independent and impartial investigation
by constituting a Special Investigation Team. Direction was sought to
the official respondents to deploy Central and State forces to enforce
law and order. The petitioner also sought protection as he
apprehended threat to his life having espoused the cause of the
affected persons.
WPA (P) 146 of 2021 filed on 10.05.2021
In another petition filed in public interest raising similar
issues, the facts narrated are that assembly polls were held in the State
of West Bengal in eight phases starting from March 27, 2021 and the
last date of poling being April 29, 2021. On May 02, 2021, the result
was declared. The Trinamul Congress was the winning party. The
main opposition party was Bharatiya Janata Party. Immediately
thereafter, the violence broke. The houses and vehicles of the workers
of the opposition parties were attacked and ransacked. Their party
offices were set ablaze. Number of persons were killed, beaten up and
even sexually assaulted. Number of photographs as appeared in the
print media were annexed. Prayer was made to the Central as well as
the State government to deploy more forces to maintain law and order,
appoint an independent committee to conduct free and fair
investigation, to provide protection to the petitioner from retributive
action of rioting mob, direction to the police to register FIRs in all
cases. Number of photographs of the affected persons were annexed.
10 WPA(P)142 of 2021
WPA (P) 147 of 2021 filed on 10.05.2021
Another petition was filed in the series of petitions raising
hue and cry on behalf of the persons who are sufferers in the post poll
violence. The petitioner claimed that there were number of murders
and damage to the property of the workers of the losing political
parties. Besides annexing photographs of the workers, whose house
were damaged and who were caused grievous injuries including the
weaker sex, the petitioner has also annexed a compact disk containing
videos of such violence as collected from various social and digital
media. No action was taken by the ruling party or its leaders either to
condemn or take corrective steps. Prayer was made to secure life and
property of the affected persons, proper judicial investigation of the
incidents of political violence. The persons, who had been displaced
on account of threat to their life and property, be restored to their own
houses.
WPA (P) 148 of 2021 filed on 12.05.2021
In yet another petition filed, similar issues were sought to
be raised. In addition, it is pleaded that on account of post-poll
violence, thousands of residents of the State living close to the
neighbouring State of Assam had to migrate to that State. Their houses
and business establishments were damaged. Some of them were raised
to the ground. The news was termed to be fake by the party in power.
National Commission for Women expressed shock over gang rapes at
various places in the State. It was further pleaded that the intent to
unleash the violence was to create a fear factor in the mind of the
residents of the State, not to spare any other party except one in
11 WPA(P)142 of 2021
power. As a result the democratic setup in the state itself is in danger.
The State authorities have failed to discharge their duty despite
intimation. As the State machinery had kept its eyes closed to the
large scale violence after the assembly polls, it cannot be trusted for
carrying out investigation. The same need to be handed over to some
independent agency. Further grievance raised was that the police is
not registering the complaints. The prayer was for calling upon the
official respondents to show cause as to why they failed to register the
complaints. It is pleaded that about 80,000 persons had to migrate
from the state to the neighbouring state of Assam because of post poll
violence. Steps be taken to reinstate the victims to their native places.
Prosecution of the persons involved in the offence, deployment of
Central Forces for restoration of law and order in the State, payment
of adequate compensation to the victims and the investigation by some
independent central agency, are the other reliefs claimed.
WPA(P) 149 of 2021 filed on 12.05.2021
The present petition was being filed by the widow of a
person, who was murdered on May 03, 2021 in post-poll violence.
Though other petitioners have also joined along with her. The
allegations are similar in nature. It states that about 20 persons have
died in post-poll violence. Many of the victims are not even in a
position to reach out to the Courts or lodge complaints with the police.
On May 03, 2021, late husband of the petitioner No. 1 was working in
field when some workers of the party in power threw bombs targeting
her husband with a view to kill him as he was a worker of the Indian
Secular Front. He died on way to hospital. Number of examples were
12 WPA(P)142 of 2021
given, where houses of the workers of different political parties than
the party in power were attacked, ransacked, damaged and looted. The
pleadings in the case do not pertain only to the main opposition party.
Names of the persons who had attacked the victims or damaged their
properties have specifically been mentioned in the petition. It further
pleads that the Chief Minister had declared compensation for the
victims of political violence. However, no such scheme had been
published and nothing has been paid. Investigation be got conducted
by constituting a Special Investigation Team. The victims should be
compensated. The prayer was made for independent investigation of
the crime after registration of the FIRs. Police reinforcement in the
affected areas and rehabilitation of the affected victims were also
prayed for.
WPA (P) 167 of 2021 filed on 03.06.2021
Yet another petition has been filed by none else than a
candidate who contested the recently concluded State Assembly
election from Beliaghata Constituency with Bharatiya Janata Party
ticket and a practicing advocate in Alipore District Court. He also
sought to espouse the cause of the persons who were made to suffer in
post-poll violence. He pleaded that all his supporters who are mostly
belonging to economically and socially weaker sections of the society
were terrorised and traumatised. On the day the counting was taking
place, he along with some of his supporters had gone to the Netaji
Indore Stadium. 10 to 15 motorcycles of his supporters were parked in
front of his house. Before he could return, after the result was
declared, the goons of the party in power gathered in front of the
13 WPA(P)142 of 2021
house of the petitioner and started abusing. They were involved in
stone pelting as well. Though the petitioner was not present, however,
his family members were there. At around 03:00 P.M., they broke the
CCTV camera, threw bombs in front of his house and started
damaging the bikes of his supporters, which were parked outside his
house. One of these was set ablaze. As a result, even the petitioner's
house also caught fire. Photographs have been annexed. The petitioner
called the Beliaghata Police Station but with no response. The
petitioner had to take shelter at some other place to save his life.
Similarly in the same fashion, the houses and properties of his other
supporters were also damaged and looted. The goons were carrying
the banners and flags of the party in power. Prayer was made for
appropriate protection and deployment of security forces in the area
and constitution of a special investigation team for independent
investigation of crime.
ARGUMENTS OF THE PETITIONERS:
In WPA(P) 145 of 2021
5. Mr. Mahesh Jethmalani, learned Senior Counsel appearing
for the petitioner submitted that the issues under consideration before
this Court are quite serious. It is nothing else but attack on the
democracy. The residents in this State are being punished for
exercising their right of vote in free and fair manner. The material
which has come on record clearly suggests that there was post-poll
violence, which was well planned. It is not even denied by the State
but it has tried to down play the same by diverting its responsibility.
The issue is that the victims should get justice and the guilty punished,
14 WPA(P)142 of 2021
in accordance with law. The police had failed to record complaints
and wherever these were recorded, after intervention of this Court, the
complainants were threatened to withdraw the same. Considering all
the facts, which came before this Court a fact-finding committee was
constituted. Some of the members were to be nominated by the
Chairman of National Human Rights Commission (for short
'NHRC'), whereas 2 were nominated by this Court. It is not a dispute
between the NHRC and the State as is sought to be raised by the
respondents by giving it a political colour. West Bengal State Legal
Services Authority (for short, 'WBSLSA') was also involved for
receiving the complaints. The respondents are seeking to allege bias
against the members of the Committee as they are unable to come out
of the facts, which are writ large in the report submitted by the
Committee. Such a practice needs to be deprecated. It is established
from the report that there was complicity of the police and the persons
in power, in the violence which erupted after polling and also
declaration of the result in the recently concluded Assembly Elections.
The Committee, in the case in hand, had merely visited some places in
the State and collected material, which is part of the report.
6. Referring to certain instances where there were huge gap
in recording FIRs by the State for heinous offences, Mr. Mahesh
Jethmalani, learned Senior Counsel, submitted that there were 60%
gap between the number of death as reported by the Committee and as
submitted by the State. The Committee reported 52 murders even
though it had not visited the entire State whereas the Director General
of Police reported only 29. As per the State, there was no rape
15 WPA(P)142 of 2021
incident, whereas the Committee reported that there were 11 rape
cases. In fact, two of the gang rape victims had moved Hon'ble the
Supreme Court. The cases are pending there. The aforesaid stand of
the State, which is totally contrary to the facts on ground, justifies the
case of the petitioner for an independent probe, which could be by
CBI only. In a number of cases where FIRs have been registered, the
prime accused being supporters of the party in power, are yet to be
arrested. In the case of majority of murder victims, the State had either
not responded or had tried to misdirect the issue by treating them as
deaths on account of depression, family quarrel or alcoholism. It had
even manipulated the Medico Legal Reports/Post-Mortem Reports.
This is despite the fact that the family of the deceased claimed that it
was politically motivated murder. It is alleged that some of the victims
were pressurised by the police not to give their statements to the
Committee.
7. Further pointing out the facts from the report of the
Committee and the response of the State, he submitted that out of
3,384 complaints forwarded by the Committee to the State, there was
no response in about 1,000 such complaints. In 135 cases, the State
claimed that the cases were found to be not true. However, the same
was done without registration of any FIR though cognizable offences
were reported. This is totally contrary to the established principle of
law. Reference was made to a judgment of Supreme Court Lalita
Kumari v. Govt. of U.P., (2014) 2 SCC 1. The complicity of the
police is evident from the fact that without registration of FIR they
have treated the cases closed. Meaning thereby, no judicial
16 WPA(P)142 of 2021
intervention. In case FIR is registered and ultimately the closure report
is filed, the Court can always review the same and record its
satisfaction or can order further investigation. Even the complainant is
also to be heard but by adopting a novel procedure, unknown to the
criminal law, the police had closed the cases itself. In some cases
though complainants and victims are known but still FIRs are stated to
be suo moto with a view to close those cases.
8. The inaction by the police is evident from the fact that
FIRs for heinous crimes were registered only after these were pointed
out in the report of the Committee. This clearly establishes that the
complaints made by the victims were not registered. This lead to
destruction of evidence. In most of the cases the complaints have been
registered only for minor offences. Hardly any arrests were made.
9. Explaining the post-poll violence, Mr. Mahesh Jethmalani,
learned Senior Counsel submitted that there cannot be a cut-off date
for categorizing an incident as post-poll violence. It is aftermath of
declaration of result on May 02, 2021. If the complainants or victims
state that the crime committed against them was retributive in nature
and had connection with the political allegiance of the family, even if
the same is committed much after the declaration of result, it will still
fall in the category of 'post-poll violence'. Being in a continuous state
of violence, the actual incident may or may not be post poll but if the
nature of violence is retributive and aligned to political identities. He
further referred to admission made by the State in its reply admitting
that after the new government had taken over on May 05, 2021,
number of incidents had drastically reduced. The statement is clearly
17 WPA(P)142 of 2021
admission of fact that there was post-poll violence. This fact is even
established from the FIRs registered by the State suo-moto. Some of
these were immediate whereas some were registered only after the
Committee pointed out the incidents. In many of the FIRs, the
supporters of the party in power have been shown to be accused and
the workers of the opposition parties as victims. Number of them were
on the complainants of some police officials.
10. As regards the allegations of bias against the members of
the Committee, he submitted that all what the Committee has done is
collection of facts. No final finding of convictions has been recorded.
In WPA(P) 144 OF 2021
11. A lady advocate practising in this court, who also
contested recently concluded Assembly Elections in the State on a
ticket by a party in opposition, submitted that she could not see the
plight of her supporters and the party workers, to whom the goons of
ruling party starting terrorising immediately after the elections
concluded. It was only because they had exercised their right of vote
in favour of the candidate of their choice. Their properties were
damaged. They were forced to leave their houses to save their lives. In
physical violence even women were not spared. All efforts made not
only by them but even by her to lodge complaints to the police was
met with deaf ears. With no option open she had to approach this
court. Initially on her prayer for reinstatement of the victims who had
to leave their houses, a three member committee was constituted. All
efforts made at that time were temporary, as either because of
continued threat the people did not come back to their houses or were
18 WPA(P)142 of 2021
threatened again of dire consequences as they had approached the
court.
12. She further argued that to claim that there was no post poll
violence, is totally wrong. It is still continuing in the form of threat to
the persons who either lodged complaints to the NHRC or WBSLSA.
The complainants are either being forced to withdraw their complaints
or admit that the issue did not pertain to assembly elections and was a
private dispute, which stands settled. In some of the cases, the
complainants under threat of the goons of the political party in power
had toed to these lines to save their lives. In some cases, the sufferers
were allowed to come back to their houses on payment of huge
protection money. Social boycott was also resorted to.
13. She has referred to the cases where even FIR for offence of
rape has been registered after the report of the Committee was
submitted and in some cases, these have still not been registered. In
one case after registration of the FIR, the victim was taken to the
accused and she was pressurised to withdraw the case. The account of
the victims and the facts which she is placing before the court are
from her personal visits to many places, where she has seen their
plight and helplessness. A long list of crime against women has been
furnished by the committee, which was directed to be kept in a sealed
cover, otherwise the identity of the victims would have been
disclosed. An independent agency be constituted to investigate all the
cases so the confidence of the public in rule of law is restored. The
matter does not end here as State Machinery is also fully involved in
manipulating the Post-Mortem Reports or Medico Legal Reports. In
19 WPA(P)142 of 2021
number of rape cases immediate medical examination was not got
done. All have connived to destroy the evidence. She also referred to
the statement made by leaders of AITMC that central forces will not
remain in the state forever.
In WPA(P) 148 OF 2021
14. Mr. J. Sai Deepak, the learned Counsel for petitioners
submitted that the main issue involved in the bunch of petitions is as
to whether an independent probe is required in the cases involving
post poll violence in the state. He argued that from the report of the
committee, which is supported by documents, it is established that the
state had failed to discharge its constitutional obligation in
maintaining law and order in the State. The State in its exception filed
to the report of the committee has not been able to answer any of the
specific issues. Rather with representation by four senior counsels,
including the Advocate General, it has merely tried to confuse the
issue. In the cases of the petitioners herein nothing has been done by
the State till date. To save their lives, they were forced to migrate to
the neighbouring State of Assam and are still there. Their houses have
been damaged and household items and jewellery looted.
15. All the petitions are claimed to be politically motivated as
if any worker or a supporter of a political party has no right and he
cannot approach the court to seek redressal of his grievances and this
right is available only with the political leaders. In fact all what the
petitioners have pointed out is the state's blind eye on the lawlessness
in the State, post assembly polls.
20 WPA(P)142 of 2021
16. As far as the report of the Committee is concerned, no
conviction is being recorded on the basis thereof. The report makes
out the case setup by the petitioners that it requires independent probe.
Conviction of the accused will be only after the trial. Referring to
some part of the report he submitted that the accused are affiliates of
ruling party and the sufferers are supporters of various opposition
parties. The contents of the report are the tip of an iceberg as the
members of the committee because of shortage of time, could not visit
the entire State and the people are still afraid to come out into the open
to file complaints seeing threat being given by the goons of ruling
party to the complainants. Some of them had even withdrawn the
complaints later on. He submitted that the system as a whole has
failed. Even if the State has resources but it lacks willingness to
investigate fairly. Confidence is required to be inspired in the
residents of the State so that the people are able to air their grievances,
which should be gone into impartially. It was in fact a breakdown of
the Constitutional machinery in the State.
17. The learned Counsel has referred to various data furnished
by the Committee with its report, which establishes beyond doubt that
there was post-poll violence. The State kept a calculated silence as a
definite object was to be achieved. Police either did not register FIRs
or no investigations were carried out. The accused party threatened the
complainants. In many cases, the complainants were forced to
withdraw their complaints. It shows total lawlessness.
21 WPA(P)142 of 2021
In WPA(P) 149 of 2021
18. The arguments raised by the petitioner in this petition are
that none of his complaints to the NHRC have been addressed. The
committee did not even visit the area. The police is threatening the
complainants to withdraw the complaints. Cross cases are being
threatened. Statements of the widows of deceased have not been
recorded under section 164 CrPC. Any delay in registration of cases
and investigation thereof leads to destruction of evidence. This Court
should not confine itself to investigation of criminal cases only as
there are other facets of the crime. The affected people have to be
rehabilitated. They have to be paid compensation for the loss of
property suffered by them in addition to the victims of crime. He
referred to judgment of Supreme Court in National Human Rights
Commission v. State of Arunachal Pradesh,(1996) 1 SCC 742 in
support of his arguments regarding duties of court in cases of human
rights violation.
In WPA(P) 167 of 2021
19. The petitioner appeared in person. He is a practising
advocate in the Alipore District Court and was a candidate in the
recently concluded Assembly Elections. He submitted that his own
house was set on fire by supporters of the ruling party. Number of
vehicles belonging to his supporters, parked outside his house, were
also set on fire. No complaints were registered by the police. This
clearly shows that even the police was complicit in the crime. It was
only then he made a complaint to NHRC. His statement under section
22 WPA(P)142 of 2021
164 CrPC was recorded only after this Court passed the order on June
30, 2021.
ARGUMENTS OF THE RESPONDENTS
20. On the other hand, Mr. Kapil Sibal, learned Senior Counsel
appearing for different Superintendents of Police impleaded in various
writ petitions submitted that this Court had set up the Committee. The
members were to be decided by the NHRC. The report was to be
submitted in this Court. There was no direction for any interim report
to be filed but still it was filed. The petitioners in their arguments have
referred to the report as given by the NHRC. In case that is so, then
the provisions of the Protection of Human Rights Act, 1993 (for short
'the 1993 Act') would be applicable. The 1993 Act provides for
complete procedure for enquiry and investigation that was required to
be followed. In the absence thereof, the report cannot be accepted as
such. Section 12 of the 1993 Act provides that the NHRC can hold
enquiry even on reference of a complaint to it by the Court. The
allegation that all the investigation officers in the State are politically
motivated is hard to believe. This is an aspersion on the entire police
force. It is State's duty to protect its residents but it can be by
following procedure as established in law. In case the grievance of any
of the complainant is that his complaint was not registered by the
police, he has remedy in Cr.P.C. Section 14 of the 1993 Act provides
that even the evidence produced before the Committee or even the
Commission has no evidentiary value. If that is so, even FIR cannot be
registered on the basis of the statements annexed with the report. The
Committee has in fact gone beyond the brief assigned to it as it has not
23 WPA(P)142 of 2021
merely collected the data but has given further recommendations
causing aspersion on the police force and certain other persons. It has
also commented upon the State's action. But the same should not be
accepted. However, all findings of the Committee in the report are not
sought to be disputed.
21. Referring to the biasness of the members of the
Committee, he submitted that three of the members thereof including
the Chairperson of the Committee have close links with BJP. Hence,
report falls on that ground as well, as bias is writ large on the fact of it.
He did not dispute the fact that there were certain incidents, however,
the State is fully competent to take action and it has taken as provided
in law. The State will act in terms of any further direction given by the
Court.
22. Mr. S.N. Mukherjee, learned Senior Counsel appearing for
the Director General of Police submitted that the figures as provided
for in the report are self-contradictory. In fact, proper action was taken
by the police wherever it was reported. Some incidents are sought to
be blown out of proportion. He further submitted that the data given in
the report is self-contradictory. Date of incident is not mentioned in
about 43% of the cases. 892 cases pertained to the period from May
02-05, 2021. 35 cases were prior to May 02, 2021. Wherever
complaints were received by the police directly or through NHRC,
action was taken. However there was no response to the issue that
why the police had not taken action initially and it was only after the
complaints were sent by the NHRC to the police.
24 WPA(P)142 of 2021
23. Dr. A.M. Singhvi, learned Senior Counsel also appearing
for Director General of Police, submitted that the report cannot be
treated as conclusive and on that basis, no action can be taken. It has
been argued that three members of the Committee out of nine were
biased. They had conflict of interest. The same is good enough to
discard this report. He referred to certain statements or the comments
uploaded on Twitter by one of the members of the Committee and also
referred to the materials placed on record to show that they have links
with BJP. Once there is reasonable or likelihood of bias, the report
cannot be acted upon. In support, reliance was placed upon judgments
of Hon'ble the Supreme Court in A.K. Kraipak and others v. Union
of India and others, (1969) 2 SCC 262 and Badrinath v.
Government of Tamil Nadu and others, (2000) 8 SCC 395. Even if
one member of the Committee is shown to be biased, the action by the
entire body goes. The report of the Committee may bring disrepute to
the State so needs to be examined on all parameters. The petition was
filed alleging post-poll violence, however, there are certain complaints
on record which were pertaining to offence committed prior to the
polls. The same is good enough to reject the report. He further
submitted that the words 'post poll' are being used in all the petitions
filed. It has to have some meaning and also some duration. It cannot
include the incidents which may take place even after a month or more
thereafter. It could at best be immediately after the polls. The
Committee has accepted even some incidents which had taken place
towards the end of May 2021 treating them to be the post-poll
violence. He further referred to the discrepancies in the report to show
25 WPA(P)142 of 2021
that the translation made by the Committee of various complaints was
wrong. There are also other infirmities in the report. The report also
suggests that it had issued certain press notes for visit of the
Committee to different places, however, the same have not been
placed on record. The criteria for choosing the places to be visited is
not forthcoming. He further submitted that the State, in the exception
filed to the report of the Committee, had properly explained all the
issues sought to be raised in the report. Wherever required, FIR was
registered and action taken. The complainants had not initially
approached the police. Hence, there may be some discrepancies.
24. Mr. Kishore Dutta, learned Advocate General appearing
for the State, submitted that even the State was quite serious about the
incidents which had taken place after polling in the State. Wherever
these came to their notice, FIRs were registered. He referred to the
details of 268 FIRs registered by the State suo-moto. He does not
dispute the fact that there were certain incidents of post-poll violence,
however, the same were controlled immediately the new Government
took over. Wherever incidents were reported, immediate actions were
taken. The report of the Committee even records the cases where the
police had taken the action. There are number of instances referred to
in the report which are unrelated to the polling. The report cannot be
accepted as such. In any case for the purpose of investigation, the
State is duty-bound to conduct the same fairly and abide by all
directions issued by the Court.
25. Mr. Dastoor, learned Additional Solicitor General
submitted that there are certain important aspects. Firstly, he argued
26 WPA(P)142 of 2021
that there was post-poll violence is a fact not denied by the State. It
was unprecedented is again not disputed. Response of the police even
after the cases were filed was not adequate and timely. Some action
was taken when the Court intervened. In fact drastic steps are required
to be taken to establish rule of law and save democracy. This Court
should issue appropriate directions. He further submitted that in case
assistance of any of the independent agency for investigation or any
para-military force is required to maintain law and order in the State,
the Government will abide by the order of the Court. It can also
provide for special prosecutors. The Special Court can also be set up
to try these cases.
REJOINDER
26. On the arguments raised by Mr. Sibal, challenging the
constitution of the committee, Ms. Priyanka Tibrewal submitted that it
is an afterthought just to misdirect the issue when the report has show
the State as a mute spectator.Such an objection was not raised on
different occasions immediately after the Committee was constituted,
though the State had the opportunity.
27. Mr. Jethmalani, learned Senior Counsel submitted that the
argument raised by the State that procedure as provided in the 1993
Act has not been followed, is merely to be noticed and rejected for the
reason that it was not a case taken up by the Commission suo-moto or
referred to the Commission by the Court. But this Court had merely
requested the Chairperson of the NHRC to constitute a committee to
examine the issue and report to this court. Two members of the
committee, who are officers from the State, were nominated by this
27 WPA(P)142 of 2021
court. Report was to be submitted in the Court. He further submitted
that the State does not have any answer to the core issue of post-poll
violence and its silence thereon. The report of the committee exposes
the entire system as it had personally visited many places and
interacted with the sufferers. Even by filing voluminous Exception to
the report of the Committee, the State had not been able to answer
many issues raised in the report. The procedure followed by police for
investigation of cases and stating that finally no case will be made out,
even without registering FIR in cases of murder, is unknown to law.
Post-Mortem and Medico Legal examination were not got conducted
at the right time, just to destroy the evidence.
DISCUSSION
28. The genesis of the present litigation is the Assembly
Election held in the State of West Bengal for the assembly polls.
Elections were held in eight phases starting from March 27 to April
29, 2021. The result was declared on May 02, 2021. It was argued by
the learned Counsel for the petitioners that post-poll violence in the
State is a norm even though such extreme and widespread incidents
are hardly seen in other States. Any kind of violence either during
polling or post-poll directly affects the democratic fabric. Immediately
after the result was declared as the violence was unabated, this Court
was flooded with writ petitions raising various grievances. First in the
series was filed on May 04, 2021. Thereafter, different petitions were
filed raising similar issues pertaining to different areas in the State.
Considering importance of the issues raised in the writ petitions, the
matter was referred to be considered by a Larger Bench consisting of
28 WPA(P)142 of 2021
five Judges. At one point of time, this Court was of the view that
multiple petitions raising similar issues are not required to be
entertained as the larger issue regarding post-poll violence can be
gone into in the petitions already pending. However, seeing the
evasive response of the State which is even so recorded in the order
passed by this Court, multiple petitions were entertained. As to what
transpired during hearing of the cases and the issues touched, a brief
account of the Court proceedings from the beginning till the final
arguments were heard, are briefly summed up in the succeeding
paragraphs.
i) First petition in the series bearing WPA(P) 142 of
2021, filed by Susmita Saha Dutta, was mentioned before
this Court on May 04, 2021. Vide order passed on that day,
the Registry was directed to register the same and list before
the Court taking up the Public Interest Litigation on May 05,
2021. On May 05, 2021, the petitioner who appeared in
person sought time to amend the petition. The case was
adjourned to May 10, 2021. On that day, the Court recorded
that there is already a matter pending before a Special
Bench. Hence, it will not be appropriate for the Division
Bench to take up the matter.
ii) On May 07, 2021, another petition bearing
WPA(P) 143 of 2021 was listed before the Division Bench
of this Court. Keeping in view the importance of the matter
and the unprecedented issues raised therein, the same was
29 WPA(P)142 of 2021
directed to be placed before a Bench of five Judges. It was to
be taken up at 02:00 P.M. on the same day.
iii) Noticing the grievance raised by the petitioners
therein, the Larger Bench of this Court directed that copies
of the petition be served upon the learned Additional
Solicitor General of India, the Advocate General and the
Government Pleader. The learned Advocate General sought
time to file affidavit of the Home Secretary of the State
specifying the areas where the violence had taken place and
the steps taken to control the same. The Court was also to be
apprised of the latest law and order situation. The matter was
directed to be listed on May 10, 2021.
iv) Order passed on May 10, 2021 records that report
in the form of affidavit of the Additional Chief Secretary,
Home and Hills Affairs Department of the State was filed.
The learned Advocate General raised preliminary objection
regarding maintainability of the writ petition in public
interest. The contention raised by the learned Additional
Solicitor General of India was that issue regarding post-poll
violence was highlighted not only by the workers/supporters
of one political party rather by all different parties, which
had contested the assembly elections. This fact was not even
denied by the State in the affidavit filed. He further stated
that the police was not registering complaints. There was no
online mechanism available in the State of West Bengal on
which a complaint can be filed. There are number of
30 WPA(P)142 of 2021
complaints received in the offices of National Human Rights
Commission, West Bengal State Human Rights
Commission, National Commission for Women and also
National Commission for Scheduled Caste and Schedule
Tribes raising the issue regarding post-poll violence. This
Court directed that in case any such complaints have been
received by any of the aforesaid Commission, the same may
be forwarded to the Director General of Police of the State
on his email id so as to enable him to forward the same to
the concerned Police Station for appropriate action. The
learned Advocate General disputed the fact that any of the
complaints filed to the police were not entertained. However,
he said that he cannot respond to the allegations as there are
no details available. He further highlighted the facts stated in
the affidavit that from May 09, 2021 onwards there was no
violence reported in the State and assured that all possible
steps shall be taken to ensure that no incident takes place in
future. He sought time to seek instructions from the
Government regarding availability of online mechanism for
filing of complaints by aggrieved persons.
v) The order passed by this Court on May 18, 2021
records that the State had responded to some of the petitions
whereas in some, affidavits-in-opposition were yet to be
filed. The petitioners were also seeking to file their
affidavits-in-reply. Time was granted to both the parties to
complete the pleadings. While noticing the fact that the
31 WPA(P)142 of 2021
aggrieved persons were not able to lodge their complaints in
the police station, some designated email ids were to be
provided by the State, for which the learned Advocate
General had sought time on the last date of hearing. He
sought further time to furnish the same. On the last date of
hearing, this Court had directed that the complaints received
by various Commissions be forwarded to the Director
General of Police, however, the State had not furnished the
details of all such complaints received from the various
Commissions and the action taken thereon. Time was sought
to furnish that information as well. As the Counsel appearing
for various parties had again raised a grievance that they
have not been able to file their complaints, liberty was
granted to file the same before the various Commissions as
noticed above, either online or a hard copy thereof. The
Commissions in turn were directed to forward these
complaints to the Director General of Police, West Bengal
for immediate action.
vi) The order passed by this Court on May 28, 2021
records the stand taken by Ms. Priyanka Tibrewal, the
petitioner in-person in WPA (P) 144 of 2021. She stated that
in the affidavit-in-reply filed by her, affidavits of about 200
persons have been annexed who have not been allowed to go
back to their houses after being displaced in post-poll
violence. Considering the conduct of the State where time
and again issues were sought to be answered with reference
32 WPA(P)142 of 2021
to pleadings in the writ petition and not placing complete
facts before the court in general regarding post-poll violence
in the State, this Court passed the following order.
"3. We make it clear that leaving aside whatever
is stated in the petition or in the affidavit-in-
opposition, it shall be the responsibility of the officers
concerned to place entire facts before the Court
pertaining to any crime or any disturbance which has
taken place in that area post State Assembly Elections
including the allegations of the petitioners. Failure to
their part to state complete and correct facts before the
Court, may result in serious consequences."
(emphasis supplied)
vii) The matter was directed to be taken up on May 31,
2021. It may be out of place if not added here that the
response of the State had been lukewarm in furnishing
complete information to the Court. Thereby raising the doubt
of bonafides.
viii) On May 31, 2021, the learned Advocate General
responded to the allegations made by Ms. Priyanka
Tibrewal, the petitioner in-person in WPA (P) 142 of 2021,
who is also an Advocate practicing in this Court. He stated
that some of the persons who were allegedly not allowed to
go back to their houses are living at different places on
account of their job requirements. Some could not go back
because of the lockdown restrictions, whereas 39 persons
have already returned back to their houses. Finding that such
an issue could not be decided on affidavits, where
allegations and counter allegations were there and with a
33 WPA(P)142 of 2021
view to resolve the issue raised regarding displacement of
some persons as raised by Ms. Tibrewal, we directed for
constitution of a committee of three officers to monitor and
coordinate for reinstatement of these persons. The committee
was to monitor the situation and report back to this Court.
The committee was to consist of an officer each nominated
by the Chairperson of the National Human Rights
Commission, West Bengal State Human Rights Commission
and the third member being the Secretary of the West Bengal
State Legal Services Authority. The persons who were
allegedly not allowed to go back to their houses were to
communicate on the designated email ID of the West Bengal
State Legal Services Authority. The committee was to
coordinate with the local police and submit a report to this
Court. The local police was to ensure that the people who
were reinstated back to their houses are allowed to live
peacefully. The matter was directed to be taken up on June
04, 2021. The report was submitted by the aforesaid
committee giving details of the process carried out by it. The
copy thereof was directed to be supplied to the learned
Counsel for the parties appearing in different cases. Ms.
Tibrewal filed a supplementary affidavit stating that she had
received communication from number of persons located in
different parts of the State, who are facing similar problems.
ix) Mr. Bikash Ranjan Bhattacharya, learned Senior
Counsel appearing in one of the petitions raised an issue that
34 WPA(P)142 of 2021
the persons who were reinstated in view of the Court order
are being threatened by the local police that they will not be
allowed to live peacefully as they had approached the Court.
As regards the contention raised by Ms. Priyanka Tibrewal
regarding the displacement of persons in other districts in the
State, liberty was given to them to lodge complaints on the
email ID provided in the supplementary affidavit filed by the
Additional Chief Secretary, Home and Hills Affairs
Department, Government of West Bengal and also on the
designated email of WBSLSA. The authorities concerned
were directed to take immediate steps for reinstatement of
those persons after receipt of complaints. It may be
appropriate to note here that no data of any such complaints
received or the persons reinstated, was furnished by the State
till final arguments were heard.
x) On June 18, 2021, this Court, noticed the
contention raised by learned Counsel for the petitioners in
brief where they alleged threat even after reinstatement to
their residences and further that displacement of the persons
had resulted in loss of their livelihood and also depriving
them of various government schemes. The complaints filed
by them to the police are not being acted upon, however, the
NHRC had forwarded the complaints to the police, they are
being threatened with false cases.
xi) In WPA(P) 145 of 2021, Mr. Dhiraj Kumar
Trivedi, learned Counsel stated that the complainants are
35 WPA(P)142 of 2021
even being pressurised to write that they have never filed
any complaint. Raising another facet of loss of livelihood of
the victims, he submitted that street-vendors licences of a
particular group of persons in Kolkata are not being
renewed. Even statements of the victims under Section 164
of Cr.P.C. are not being got recorded. The petitioner in-
person who appeared in WPA (P) 167 of 2021 submitted
that despite his house being set on fire, the police had not
taken any action on his complaint. In WPA (P) 148 of 2021,
learned Counsel submitted that no action has been taken by
the State on any of the issues and the violence had not still
stopped and it is continuing. In WPA (P) 149 of 2021, the
learned Counsel referred to the photographs attached along
with the supplementary affidavit dated June 04, 2021 where
entrance of his shop had been blocked by constructing brick
wall. No action was taken by the police and when the
petitioner approached this Court now he is being threatened
by the police
xii) Mr. Kishore Dutta, learned Advocate General,
referred to the report submitted by the Member Secretary,
WBSLSA dated June 03, 2021 stating that the State is
making all efforts to reinstate all the persons who had
allegedly been displaced after the State Assembly polls.
Efforts are being made to take further steps, wherever any
such report is received. He sought time to file response to
the affidavit filed by Ms. Priyanka Tibrewal raising some
36 WPA(P)142 of 2021
further allegations. This Court in the aforesaid order noticed
another report submitted by the Member Secretary,
WBSLSA along with his letter dated June 10, 2021 in which
various complaints received by the WBSLSA were tabulated
in six different heads. The same was taken on record. Soft
copy thereof was directed to be furnished to the office of the
Advocate General. This Court further directed that in case
any other complaints are received by the WBSLSA, the
same may be compiled and placed before the Court. This
Court further noticed that to take care of immediate
grievances of the persons who were displaced in post-poll
violence, a Committee was constituted for their
reinstatement. However, subsequent thereto, it was pointed
out before the Court that the issue did not pertain to only one
constituency. Grievance was also raised regarding inability
of the victims to lodge their complaints. The learned
Advocate General had provided designated email ID on
which the complaints could be submitted. In addition, the
same could be submitted on the official email ID of the
WBSLSA as well. A compilation of the complaints received
by WBSLSA was furnished. These complaints were
forwarded to the police, however, the remarks recorded
against some of the complaints are that no response was
received from the authority concerned. This Court was
constrained to pass following order:
"12. ...In a case like where the allegation is that
life and property of the residents of the State is in
37 WPA(P)142 of 2021
danger on account of alleged post poll violence, the
State cannot be allowed to proceed in the manner it
likes. The complaints required immediate action.
But somehow from the facts as are available on
record and are sought to be projected by the
petitioners, such an action is missing. It is the duty
of the State to maintain law and order in the State
and inspire confidence in the residents of the State.
13. Though action should have been taken by
the State but despite matter being pending in Court
apparently no concrete steps have been taken.
14. Affidavits after affidavits being filed by the
petitioners raising grievances which have briefly
been noticed in the arguments of the learned
counsel for the petitioners. Where it is alleged that
though they have been reinstated back to their
houses but are being threatened again with cross
cases being filed against them or they are
compelled to write that they have not made any
complaints or their right to livelihood is sought to
be effected in the manner noticed above. In our
view, this exercise of filing of affidavit and counter
affidavit will continue. It may not lead us
anywhere because State from the very beginning
had been denying everything but the facts as have
been placed on record by the petitioners and also as
is evident little bit from the report dated June 3,
2021 filed by the Member Secretary of the West
Bengal State Legal Services Authority, are
different."
xiii) Keeping in view the factual matrix and the
arguments raised by learned Counsel for the parties and the
finding that delay in the process was resulting in violation of
38 WPA(P)142 of 2021
fundamental rights of the victims, as are enshrined in the
Constitution of India, this Court vide order dated Jun 18,
2021 requested the Chairperson of the National Human
Rights Commission to constitute a committee of which, the
Member Secretary of the WBSLSA shall be a member. A
representative of the State Human Rights Commission, West
Bengal was also to be associated. The relevant part of the
order is extracted below:
"15. Under these circumstances and keeping in
view the fact that there is infrastructure available
with the National Human Rights Commission and
the instances sought to be projected by the
petitioners are large in number and certainly
allege violation of human rights, we request the
Chairperson of the National Human Rights
Commission to constitute a Committee of which
the Member Secretary of State Legal Services
Authority shall be a member, to examine all the
cases, the complaints of which have already been
received by the Commission or which may be
received. Soft copy of the compilation of the
complaints which have been received by the West
Bengal State Legal Services Authority as received
vide communication dated June 10, 2021 be also
forwarded to the National Human Rights
Commission. In addition, if any other complaints
are received by the West Bengal State Legal
Services Authority, the same may be compiled
and sent to this Court with copy to the National
Human Rights Commission to be placed before
the Committee as we have constituted. The
Committee shall examine all the cases and may be
39 WPA(P)142 of 2021
by visiting the affected areas and submit a
comprehensive report to this Court about the
present situation and also the steps to be taken to
ensure confidence of the people that they can
peacefully live in their houses and also carry on
their occupation or business to earn their
livelihood. The persons prima facie responsible
for crime and the officers who maintained
calculated silence on the issue, be pointed out. A
representative from the State Human Rights
Commission, West Bengal also be associated by
the National Human Rights Commission.
16. Needless to add that the State shall be duty
bound to provide all logistic support to the
Committee wherever and whenever they wish to
visit any place. The State shall ensure there is no
obstruction of any kind in this process. Such
obstruction shall be viewed seriously, which may
entail action under the Contempt of Courts Act
besides others."
xiv) After the aforesaid order was passed by this Court
on June 18, 2021, the State filed applications for
recalling/modification thereof. The prayer was also made for
stay of the aforesaid order. It was only on ground that the
State was not given due opportunity to place the complete
facts on record. Serious objection was raised by learned
Counsel for the writ petitioners. The applications were
dismissed on June 21, 2021 with the following observations:
"...All the arguments raised by them were
considered. The way the State was proceeding in
the matter which required immediate action, did
40 WPA(P)142 of 2021
not inspire confidence. Whatever information the
State now wants to produce with reference to the
complaints, may be placed before the National
Human Rights Commission, which is to examine
all the complaints along with the information
supplied by the State and submit a report before
this Court. There is no prejudice as such caused to
the State."
xv) It may be noted that no other ground was raised,
namely nomination of the members of the Committee by the
National Human Rights Commission which was notified on
June 21, 2021.
xvi) Order dated June 30, 2021 records that an interim
report was filed by the Committee. This Court had only
opened the report and not the supporting documents, which
are voluminous. The case was adjourned to July 02, 2021.
On the next date of hearing on a perusal of the interim report
submitted by the Committee, it was found that prima-facie
the stand taken by the petitioners that there was post-poll
violence, stood established. Number of persons were killed,
many suffered sexual violence and grievous injuries.
Properties of many of them were damaged. Some were
forced to leave their houses. It was further noticed that from
the very beginning the stand of the State was that they have
not received any complaints, however, when opportunity
was given for submission of complaints to the State Legal
Service Authority or on the portal of the National Human
Rights Commission, large number of complaints were filed.
41 WPA(P)142 of 2021
The interim report also noticed that different authorities had
failed to respond to the queries raised by them. A member of
the Committee was obstructed from discharging its duty.
Reference was made to the case of murder of Abhijit Sarkar,
whose dead body was lying in the mortuary, as the family
was demanding second autopsy, which the police and
administration was denying. While noticing the aforesaid
facts this Court directed as follows:
"9. But from the report, we feel that following
directions need to be issued for the present to
enable the committee to discharge the job
assigned to it:
a. The police is directed to register cases
in all matters which have either been
reported to it or have been placed before the
NHRC or any other authority/Commission.
Steps be taken to get the statements of the
victims recorded under section 164 CrPC
immediately, as per law.
b. The State shall make all arrangements
for medical treatment of all who have been
injured in the violence, post assembly
elections.
c. Supply of rations be ensured to the
persons, even if they have lost their ration
cards.
d. The state is directed to place before the
committee complete details of the cases in
which the accused were arrested and have
42 WPA(P)142 of 2021
been enlarged on bail by the courts, so as to
enable it to place the same before the court.
e. Whatever information has been asked
for by the committee from different
authorities in the state, be supplied
immediately. Any delay may call for adverse
inference.
f. Second autopsy of Abhijit Sarkar, Vice
President of Bhartiya Mazdoor Trade Union
Council in district Kolkata, whose body is
lying in hospital be got done from a team of
doctors to be constituted by the head of the
Hospital at Command Hospital, Kolkata. For
the purpose, the Chairperson of the
Committee constituted by the National
Human Rights Commission shall coordinate
with the hospital concerned where the body
of the deceased is lying and also the Head of
the Command Hospital. The body shall be
shifted to the Command Hospital for
carrying out the second autopsy. The report
shall specifically mention about the
condition of the body as to whether it was
properly preserved in the hospital where it
was.
g. Let a notice be issued to Rashid Munir
Khan, Deputy Commissioner of Police,
South Suburban Division, Kolkata to show
cause as to why proceedings for contempt be
not initiated against him for violation of the
order passed by this court on June 18, 2021.
h. All the central agencies and service
providers of various services to assist the
43 WPA(P)142 of 2021
committee and provide the requisite
information wherever required, to the extent
permissible in law.
i. The Chief Secretary of the State is
directed to ensure preservation of the
correspondence of the Special Branch/
Intelligence Branch of the State Police. Logs
of different control rooms should also be
preserved. The entire material from May 02,
2021 till date be kept in a sealed cover duly
signed by the members of the committee,
immediately. Any lapse or delay in the
matter will invite adverse inference.
10. The request made by the Committee for
further time to carry out investigation is accepted.
Early action in the matter is expected as the delay
may result in destruction of evidence.
11. We may make it clear here that we are not
making the interim report public as of now as the
matter is still being investigated by the Committee
and only interim report has been filed. Before
passing any final order, due opportunity shall be
granted to all the concerned parties to place their
cases before the court, in view of final report to be
submitted by the Committee."
xvii) On the next date of hearing i.e. July 13, 2021, the
Committee submitted its report in sealed cover. This Court
directed that soft copies thereof be supplied to the learned
Counsel appearing for the parties. The learned Counsel
appearing for the State sought time to respond.
44 WPA(P)142 of 2021
xviii) When the matter was taken up for hearing on July
22, 2021, request was made by the learned Counsel for the
State for further time to file response to the report given by
the Committee. Time was granted. The case was adjourned
to July 28, 2021. The DNA test report of Abhijit Sarkar was
submitted by learned Additional Solicitor General in a
sealed cover. Another envelope containing certificate under
Section 65-B of the Evidence Act with reference to the video
recording of autopsy of the aforesaid deceased was also
submitted. Both were directed to be kept in safe custody
with the Registrar General. Exception to the report of the
Committee was filed by the State. Learned Advocate
General sought further time to file supplementary affidavit.
While noticing that on July 22, 2021 last opportunity was
granted but still as a matter of indulgence another
opportunity was granted to file the same on or before July
31, 2021. The case was adjourned to August 02, 2021 for
arguments. However, the facts remains that no further
affidavit was filed.
xix) The arguments in the bunch of petitions were
heard on August 02 - 03, 2021.
REPORT OF THE ENQUIRY COMMITTEE AS
CONSTITUTED BY THIS COURT
29. The Committee as was directed to be constituted by this
Court consisted of the following members:
45 WPA(P)142 of 2021
1) Shri Rajiv Jain, Member, NHRC-to head the Committee
2) Shri Atif Rasheed, Vice Chairperson, National
Commission for Minorities
3) Smt. (Dr.) Rajulben L. Desai, Member National
Commission for Women
4) Shri Santosh Mehra, Director General (Investigation),
NHRC
5) Shri Pradip Kumar Panja, Registrar, West Bengal State
Human Rights Commission
6) Shri Raju Mukherjee, Member Secretary, West Bengal
State Legal Services Authority
7) Smt. Manzil Saini, DIG (Investigation), NHRC
30. The same was constituted as per directions of the Court by
the Chairman of the National Human Rights Commission, vide order
dated June 21, 2021. Though initially interim report was submitted by
the Committee, however, the same being interim, copy thereof was
not furnished to either of the parties. It was only the final report
submitted by the Committee which was supplied to all the Counsel
and on the basis of which, arguments were also heard and the written
responses permitted. The report has mentioned the modalities
followed by the Committee by constituting different teams. It
mentions that on its designated email ID the NHRC received
approximately 1,650 complaints mentioning about 5,000 victims.
From the West Bengal State Human Rights Commission, only 188
were received. It is mentioned that rest of the complaints received by
the Commission were disposed of at their own level. 315 complaints
were received from the WBSLSA. 578 were received from National
Commission for Women. Large number of cases relating to murder,
46 WPA(P)142 of 2021
rape, molestation, vandalism were reported, when the teams
constituted by the Committee visited different areas. Overall, it is
claimed that the Committee received around 1,979 complaints
covering about 15,000 victims.
31. In paragraph 5 of the report, the Committee records that
certain data was sought from the Chief Secretary and the Director
General of Police, West Bengal which is to the following effect:
"A) Details of cases reported under various
heads of crime, district wise from 02/05/2021 to
20/06/2021 and the details of PCR calls, P.S. wise DD
entries, MLCs of injured, preventive detention action,
details of losses/property damaged, orders under 144
Cr.P.C., CCTV recordings, intelligence inputs etc.
Vide NHRC's letter No.PS/DIG/NHRD/2021-23
dated 23/06/2021.
B) Details of number of people displaced, total
monetary loss, details of relief camp, people
reinstated, compensation provided, employment given
on compassionate grounds, confidence building
measures taken etc. vide letter of even no. Dated
27/06/2021.
C) Details of Police Officers transferred in/out
from their place of posting vide letter No.
PS/DIG/NHRC/2021 dated 27/06/2021.
D) Details of cross cases registered in various
incidents in prescribed format vide letter No.
PS/DIG/NHRC/2021 dated 06/07/2021.
E) Details of FIRs registered after the Hon.
High Court's order dated 02/07/2021 on the various
complaints forwarded by NHRC to the DGP of the
47 WPA(P)142 of 2021
West Bengal vide letter No. PS/DIG/DGWB-Comp/L-
1/2021 dated 078/07/2021."
32. The Committee reports that the response of the State was
piecemeal and complete information was not furnished. The
information on point 'B' had not been furnished despite reminders. It
may be apt to mention here only that even in paragraph 57 of the
Exceptions filed by the State to the report of the Committee, the Home
Secretary has stated that the report regarding preventive action taken
in the matter is awaited from the DGP. Even though two senior
Counsel appeared and argued on behalf of the DGP as well without
filing any affidavit but still this information was not furnished even in
Court. It goes without saying that even during the course of hearing of
the petitions as well the conduct of the State has been quite evasive in
furnishing information though thousands of documents have been
placed on record.
33. The data as furnished by the DGP to the Committee has
been tabulated in paragraph 8 of the report. The same reads as under:
Sl. Type of crime No. of No. Of No. of No. of No. of Percentage Percentage
No. complaints FIRs accused accused accused of accused of accused
lodged in registered cited in arrested arrested arrested who are
all Police on these FIRs so far but now out of still in
stations of complaints on bail cited custody
West (approx)
Bengal
Murder/
1. 29 29 379 134 2 35% 35%
Homicide
Attempt to
rape/Sexual
2. 12 12 53 11 9 21% 4%
assault
Molestation
Grievous
3. hurt/ 391 388 3780 590 492 16% 2.5%
incapacitation
Arson/
vandalism/
4. 940 609 4324 540 460 12% 1.8%
loot/damage
to public or
48 WPA(P)142 of 2021
private
property
123 are on
bail whereas
Threats/ only 79
5. criminal 562 130 768 79 123 10% arrested
intimidation which is
contra-
dictory
Grand Total 1934 1168 9304 1345 1086 2.88%
34. The Committee further reports that the In-charge of the
Police Stations have not even visited the places of occurrence to
collect evidence and record statements, let alone registering FIRs.
35. In paragraph 9 of the report, the Committee has mentioned
that in terms of the directions issued by the Court, the police were to
register FIRs on the complaints being forwarded by the Commission
or by any other authority and steps were to be taken for recording
statements of the victims under Section 164 of Cr.P.C. Initially 582
complaints were sent by the Commission to the DGP, however,
adding the complaints forwarded later on, the total number was 1,893.
Compliance was sought from the DGP. In reply to the Committee, it
was revealed that only 137 FIRs were registered. It may be added here
that these are in addition to the FIRs registered by the police and
number of them are stated to be suo-moto. These FIRs included 1 for
attempt to rape, 4 for grievous injury, 104 for arson/vandalism, 24 for
criminal intimidation and 4 for other offences.
36. Brief account of the spot visit by the Enquiry Committee
has been given in Para 10 of the report. The result has been tabulated,
which reads as under:
49 WPA(P)142 of 2021
Sl. TEAM Total Places Places Places where Places where No.ofvictims/comp
No. no. of where FIR where FIR minimization/ minimization/ lainants who
places not not dilution of dilution of approached the
visited registered registered crime crime (in %) teams but their
(in %) statement could not
be recorded by our
team due to paucity
of time/prior
commitment
2. B 42 26 62% 4 25% --
4. D 35 18 51% 10 58% 1665
Total 311 188 60% 33 27% 2869
37. The aforesaid table gives an astonishing figure. In 60 % of
the cases, FIRs were not registered. This is despite the fact that on
account of shortage of time, the Committee could not record the
statements of number of complainant/victims as is mentioned in the
aforesaid table. In addition to that, details have also been furnished
regarding other sufferings of the victims.
38. From the report of the Committee, sample data can be
culled out which shows that in 20 cases murder, where the complaints
were referred to by the Committee to the police for registration of
FIRs but lukewarm response from the State. In the Master Data
furnished by the Committee there are otherwise 60 cases of murder. In
one case of murder of Abhijit Sarkar, his brother had to approach this
Court for conducting second autopsy, which was allowed and it was
got conducted from Command Hospital, Kolkata as the victim was not
having faith in the Government machinery. The details thereof are as
under:
50 WPA(P)142 of 2021
Committee
Sl. Name of complainant/
Report Ref. Allegation
No. victim
No.
Annex. H, Vol.
1. Durbala Bag Murder
4, P. 2288
Master Data,
Annex. C, Sr.
2. Anwesha Bera Murder
No. 910, page-
Master Data,
Annex. C, Sr.
3. Marutha Bibi Murder
No. 1182,
page- 60
Master Data,
Annex. C, Sr.
4. Alok Lata Barman Murder
No. 359, page-
Master Data,
Annex. C, Sr.
5. Purnima Mondal Murder
No. 1074 Page-
Master Data,
Annex. C,
6. Bipul Roy Murder
Page- 24, Sr.
Master Data,
Annex. C,
7. Sangita Chakraborty Murder
Page- 26, Sr.
Master Data,
Annex. C,
8. Bikash Chandra Barman Murder
Page- 30, Sr.
No. 580,
Master Data,
Annex. C,
9. Birendra Nath Roy Murder
Page- 30, Sl.
Master Data,
Annex. C,
10. Akash Jadav Murder
Page- 62, Sr.
No. 1214
Master Data,
Annexure C,
11. Murder
Page-62, Sr.
No. 1213
Master Data,
Annex. C,
12. Murder
Page- 62, Sr.
No. 1211
Master Data,
Annex. C,
13. Shom Hansda Murder
Page- 78, Sr.
No. 1527
Master Data,
Annex. C,
14. Bhadhu Das Murder
Page- 78 , Sr.
No. 1528
Master Data,
15. Nirmal Mondal Annex. C, Murder
Page- 88, Sr.
51 WPA(P)142 of 2021
No. 1726
Master Data,
Annex. C,
16. Pradip Baidya Murder
Page- 88, Sr.
No. 1728
Master Data,
Annex. C,
17. Piyush Many Murder
Page- 53, Sr.
No. 1038
Master Data,
Annex. C,
18. Arindam Midde Murder
Page- 88, Sr.
No. 1730
Master Data,
Rakibul Molla & Sirajul Annex. C,
19. Murder
Molla Page- 92, Sl.
No. 1802
Master Data,
Annex. C,
20. Madan Rajak Murder
Page- 98, Sr.
No. 1916
Master Data,
Annex. C,
21. Jyotsna Mallick Page- 63, Sr. Murder
No. 1232
39. Another glaring example of inaction by the State is evident
from the data furnished in the report of the Committee where for
heinous crime against women, such as rape or attempt to rape, made in
the complaints presented by the complainants before the Committee,
which were referred to the police, but proper steps have not been taken
to investigate the heinous crime, which could inspire confidence in the
law enforcing agencies. In the Master Data furnished by the
Committee there are 13 cases of rape. In one of the case the victim has
even approached Hon'ble the Supreme Court for intervention and the
matter is pending. The names of the victims or the complainants are
not being mentioned for the purpose of confidentiality. The details
thereof are as under:
52 WPA(P)142 of 2021
Sl. Committee Report Reference
Allegation
No. No.
Master Data, Annex. C, Page- 6,
1. Rape
Master Data, Annex. C, Page- 54,
2. Rape
Sr. No. 1065
Master Data, Annexure C, Sr. Attempt to
3.
No. 65, Page 4 rape
Master Data, Annex. C, Page- 97,
4. Rape
Sr. No. 1894
Master Data, Annex. C, Page- 53,
5. Rape
Sr. No. 1041
Master Data, Annex. C, Page- 53,
6. Rape
Sl. No. 1046
Master Data, Annexure C, page
7. Rape
No. 84, Sr. No. 1649
Master Data, Annexure C, page
8. Rape
No. 79, Sr. No. 1542
Master Data, Annexure C, page
9. Rape
No. 77, Sr. No. 1510
40. In paragraph 16, brief details of rape cases have been
made. The details are contained in a separate booklet, Annexure-I'. It
was submitted to the Court in a sealed envelope as the identity of the
victims could not be disclosed. This Court had not supplied the copy
thereof to either of the parties to which lot of hue and cry was raised
by the State. However, we thought it appropriate at that stage not to
divulge their identity. The post-poll violence, in the opinion of the
Committee, is said to be well planned with definite motive. It has also
resulted in destruction of property, loss of livelihood of many persons.
Many of the victims complained that their identity and other cards,
were taken away by the goons and destroyed. This deprived them
from availing the benefits of various government schemes. Fear was
still evident on the face of the victims who had lost faith in the police
machinery as it had failed to respond to their calls when required.
FIRs were not registered even where cognizable offences were made
53 WPA(P)142 of 2021
out. Besides this, certain other issues have been touched and
recommendations have been made but we are not touching those
issues for the present.
EXCEPTION FILED BY THE STATE TO THE REPORT
FILED BY THE COMMITTEE
41. Exception filed by the State to the report of the Committee
runs into 17 volumes containing 9,692 pages. It may be added that
some of the documents annexed to the exception are not even legible.
The primary issue which the petitioners have been raising and the
Court was called upon is as to whether there was post-poll violence or
not and if yes, as to whether investigation into the offences is required
by an independent agency. With voluminous documents placed on
record by the State, it had not been able to make out the case that there
was no post-poll violence rather it was admitted. It is further pleaded
that the State had taken immediate preventive and corrective actions.
42. Briefly what could be gathered from the Exception filed by
the State is that copy of Annexure-I which contains the details
regarding crime against women has not been supplied; sufficient time
was not granted to the State to file its response; it has sought cross-
examination of the members of the Committee; the procedure as
provided under the provisions of the 1993 Act has not been followed;
entire litigation is politically motivated; the police had responded to
the complaints wherever and whenever required; bias has been alleged
against the members of the Committee; statements under Section 164
of Cr.P.C. were recorded wherever required; the duration of the period
for post-poll violence need to be defined; how the Committee had
chosen the locations to visit different places is not defined; certain
54 WPA(P)142 of 2021
recommendations have been made by the Committee which were
beyond the job assigned to it. It is mentioned that in 268 matters, FIRs
were registered by the police suo-moto. We deem it appropriate to
deal with the suo-moto FIRs registered by the State, on which much
reliance has been placed to show whether the State had or not been
proactive in taking care of incidents of post poll violence.
SUO MOTO FIRs
43. Before we proceed further, it would be appropriate to deal
with briefly the FIRs registered by the State suo-moto.
44. In para 39 of the Exception file by the State to the report of
the Committee, reference has been made to the fact that the police had
registered 268 FIRs suo-moto. The details thereof are at Letter "J".
(page 7487). However, the details of all the FIRs are not forthcoming.
45. Further, if the aforesaid information is analyzed, these
cases pertaining to 13 districts in the State. Upto 04.05.2021 only 37
FIRs were registered. In the FIR registered on 03.05.2021 in Purba
Medinapore, it has specifically been recorded by the police officials
that there was unlawful assembly of 150-200 Trinamul Congress
workers against whom FIR was registered under various provisions of
IPC and the National Disaster Management Act.
46. FIR No. 194/21 dated May 04, 2021 registered at
Nandigram Police Station, District Purba Midnapore on the
complaints made by the police officials. It is recorded that 100-150
unknown persons had gathered at Tengua Morh under Nandigram
Police Station. They were protesting against the incident which
occurred on May 03, 2021 at Nandigram Bazar and the surrounding
55 WPA(P)142 of 2021
areas where shops, houses of the members of the non-ruling party
were attacked by burning tyres, throwing wooden logs. However,
there is nothing on record to show that any FIR was registered of the
incident which took place on May 03, 2021. The FIR only pertains to
the protest which took place later on.
47. In FIR No. 193/21 dated May 04, 2021 registered at
Nandigram Police Station, the report by the police officials is that one
grocery shop in Swarasati Bazar under Nandigram Police Station was
looted and the shop was set on fire.
48. In 5 such cases pertaining to district Paschim Medinapore,
it was reported by the police officials that the offices of the main
opposition party in the State were burnt by some miscreants. The
allegations in one of the FIRs bearing No. 200/21 dated May 4, 2021
are quite serious. It specifically records that the supporters of the party
in area of Garberia, Kishorepur, Rajbalabpur and Dewan had looted
ornaments, household articles and ransacked the houses of the
supporters of the party in opposition in village Kishorepur, Laumara,
Garberia and other adjoining areas. Besides, they had also assaulted
number of persons, some of whose names are mentioned in the FIRs.
(page 7968)
49. Even a perusal of the some of the other FIRs registered on
the complaint made by the police official the allegations are regarding
damage to the property and also causing injuries at a large scale. Some
persons have been named whereas in some cases the FIRs have been
registered against unknown persons.
56 WPA(P)142 of 2021
50. Though it was claimed by the learned Advocate General
that ever since the ruling party came to power officially on May 5,
2021 the violence, if any, was put under control. The claim is found to
be contrary with the record produced by the State itself. In North 24
Parganas, FIR No. 87 of 2021 dated 09.05.2021 was registered on a
complaint made by the police official against unknown workers of the
party in power where they damaged certain houses, raised slogans,
terrorized the people. Four more FIRs were registered at Sandeshkhali
P.S. bearing Nos. 78 of 2021 dated May, 05, 2021,83 of 2021 dated
May 04, 2021, 85 of 2021 dated May 09, 2021 and 86 of 2021 dated
May 09, 2021 at the same police station. (pages 7590, 7588, 7586)
51. Other important facts which come out of in Exception filed
by the State and expose the hollowness of the claim made by it are
that out of the total FIRs claimed to be registered by the State suo-
moto, 58 have been registered after the present government had taken
over on May 05, 2021. Out of those 58 cases, 22 FIRs have been
registered much after the incident shown therein. It was only because
the matter was pending in this Court and was being monitored and
further the Committee had been constituted by this Court.
52. It is further strange to notice that though the name of the
victim/complainant is known but still the police officials are shown as
the complainants. It is mentioned in the complaints that all of a
sudden, he had gone to the residence of the victim on July 17,
2021.He also records that the victims did not inform the police earlier
as they were afraid of the accused. This development has taken place
only after this Court had taken cognizance of the matter and the
57 WPA(P)142 of 2021
Committee had also been constituted. FIR No. 135/21 dated June 05,
2021 at Nazat Police Station, (page 7614) also records that the reason
of violence was the result of the election where the house of the victim
was damaged. In this case also the police official, all of a sudden,
went there. The incident was about a month old. There are similar
FIRs registered suo-moto almost at the same time.
53. Similar is the position with reference to FIRs registered in
24 Parganas (South). There also number of FIRs have been registered
for the occurrence which took place much earlier and in number of
them the perpetrators are shown to be the workers of the political
party in power. The victims are not belonging to only one opposition
party, rather workers/supporters of different political parties.
54. As far as district Cooch Behar is concerned, copies of the
FIRs have been placed on record by the State along with its exception
to the report of the Committee which were registered suo moto. In 20
cases workers/supporters of the ruling party are shown to be the
aggressors and the victims are shown as the members/supporters of
the opposition parties in 21 cases. In 9 cases the members/supporters
of the opposition parties are shown to be the aggressors and in 8 cases
the supporters of the ruling party were shown to be the victims.
55. Some of the glaring cases of murder and rape have been
tried to be downplayed by the State. These have been referred to in the
written submissions filed by the petitioner in WPA(P) 145 of 2021.
(i) Arup Ruidas is the complainant. The date of incident is
May 05, 2021 (Annexure - H/Volume - 1, Page 867).
Specific allegations are that the mob of TMC workers had
58 WPA(P)142 of 2021
attacked their house with deadly weapons and taken away
his father who was subsequently killed. The FIR was
registered 36 days after the Court order under Section
156(3) Cr.P.C. No arrest was made though 21 accused in
the FIR. The response of the State is that it is not a post-
poll violence. The murder could not be established. (Page
8075/Annexure - L)
(ii) Kush Khetrapal, mother of the deceased, is the
complainant. Specific allegation is against the TMC
workers as her son was a BJP polling booth agent. Date of
incident is stated to be 06.05.2021/08.05.2021. (Annexure
- H/Volume - 1, Page 881). FIR was registered 60 days
after the incident. No arrests have been made till date. The
police reported that no case was made out and the case will
end in final report as false.
(iii) Gobindo Mondal (Scheduled Caste), the complainant made
specific allegations against several TMC workers that
multiple attempts were made to kill him and he was abused
in the name of his caste. FIR was registered 64 days after
the incident on 05.07.2021. (Annexure - H/Volume - V,
Page 2765-2768). No arrest has been made. The police
report is that it is not a case of post-poll violence.
56. The following instances are also in similar line in some of
the cases where even FIRs have not been registered.
59 WPA(P)142 of 2021
Name of the Report page Offence Whether
Complainant No. FIR
registered
Durgabala Bagh (Annexure - Murder No
H/Volume -
IV, Page
2288).
Raju Samanta (Annexure - Murder No
H/Point 6(1),
Page 207).
Ajay Dutta (Annexure - Vandalism, No
H/Volume - V, Molestation
Page 2692-93).
Santu Mondal (Annexure - Murder No
H/Volume -
IV, Page 2160-
62).
Ranjit Das (Annexure - Murder No
H/Volume -
IV, Page
2148).
Anil Barman (Annexure - Murder No
H/Volume - II,
Page 1428).
Anwesha Bera Rape and No
Murder
Sangita (Annexure - Murder No
Chakraborty/ H/Volume - II,
Sefali Mondal Page 1885).
Purnima Mondal (Annexure - Attempt to No
H/Volume - II, Rape
Page 1882).
57. From the facts as are available from the complaints on the
basis of which the police had registered suo moto FIRs, it is evident
that proper provisions of law for which crime was committed have not
been invoked. In fact, the allegations have been diluted to the benefit
of the accused. Some of the instances are as under:
1. On 5.5.2021 at around 100.00 hrs. shutter of a grocery
shop of Selim Mondal was broken and huge quantity of
grocery articles were looted in presence of police by a
group of 100-150 unknown miscreants. But the case was
registered only under sections 143, 447, 379, 427 IPC.
[Ref. page- 7525, Annex. J. of Exception]
60 WPA(P)142 of 2021
2. It is stated that 50-60 unknown TMC supporters invaded
the shop/houses of a victims, named in the FIR and their
shops were damaged. On such premises Bhangar P.S. case
No.219 dated 5.5.2021 was initiated under sections 143,
341, 147, 148, 427, 379against unknown miscreants. [Ref.
page no. 7549, Annexure J]
3. A suo-moto case was initiated by Samuktala P.S. case
No.211/2021 dt. 11.7.2021 on complaint that some TMC
goons armed with sharped weapon and fire arms entered
into house of the victim and damaged all the properties and
also snatched some valuables. Proper provisions of law
were not invoked. [Ref. page- 7505, Annex. J. of
Exception]
4. A suto-moto case was initiated by Falakata P.S. stating that
10 named accused entered into the house of the victim
armed with iron daa, ballam, axe, iron rod and broke tin
fence and they also entered into the bedroom of the
complainant to damage all household articles including
one scooty and also took Rs.42,000/- from the Almirah.
The victims were also assaulted. On such premises
Falakata P.S. case No 293/21 dated 17.6.2021 was initiated
only under sections 448, 323, 427, 324. 379. 506, 34 IPC.
[Ref. page 7505, Annexure J].
58. Out of 268 FIRs claimed to be registered by the police suo-
moto, copies of only 219 could be found. It is evident that 62 FIRs
were registered up to May 05, 2021 whereas, 157 FIRs were
registered from May 06, 2021 onwards. Some of these were registered
immediately after the offence was committed whereas in many of
these, FIRs were registered belatedly. The aforesaid figure submitted
by the State itself belies the stand taken by it that the post-poll
violence was controlled the moment the new government had taken
61 WPA(P)142 of 2021
over on May 05, 2021 and secondly, number of cases were registered
much after the violence had already taken place, only because this
Court was monitoring the cases and a Committee had also been
constituted.
OTHER ISSUES IN THE EXCEPTION FILED BY THE STATE
59. In paragraph 36 of the Exceptions, it is admitted that the
State had received 3,384 complaints from different Commissions, out
of which 651 FIRs were registered. In 405 cases, non-cognizable
reports (for short NCRs) have been submitted in Court whereas 1,356
complaints were found to be untrue. This very paragraph mentions
that copies of only 312 NCRs have been annexed and not all of them.
60. Though in some FIRs have been registered or some other
action has been shown to be taken by the State but there is nothing
stated about the balance 972 complaints forwarded by various
Commissions to the police. In paragraph 56 of the Exception, strange
contentions has been raised that the Committee was to submit the
medical reports in cases of crime against women as if it was not the
duty of the police to carry out that exercise immediately when the
offence was reported. In fact this shows that a calculated silence was
maintained to let the evidence be destroyed.
61. In paragraph 57 of the Exception, it is stated that as
regards, the preventive steps taken by the Government, the
information was awaited from the DGP headquarters but was not
furnished till the arguments finished.
62. Huge exercise was carried out by the State in filing
thousands of papers in the Exceptions filed to the report of the
62 WPA(P)142 of 2021
Committee. The idea seems to be to side track or confuse the issue, for
which efforts were made repeatedly. Written submissions were filed
by the State running into 532 pages including Annexures. Apparently,
certain more documents have been furnished there is no reference to
the page number of the document already on record.
63. Certain irrelevant issues are sought to be highlighted more
instead of sticking to the core issue. As if the State was not satisfied
by filing two volumes running into more than 500 pages of written
information, another note was filed giving lot of information running
into 125 pages. However, filing of voluminous records with number of
documents will not detain this Court from deciding the core issue
raised in the present bunch of petitions. It was made clear at the
beginning when the report of the Committee was taken on record that
the copy of Annexure-I' will not be given as it contains identity and
details victims of crime against women.
64. As regards, grievance of sufficient time is concerned, the
contention is double edged. The report of the Committee was taken on
record on July 13, 2021. The copy thereof was directed to be supplied
to all the parties. On July 22, 2021 request was made for grant of
further time to file response to the report. The request was accepted.
Thereafter, the exception running into about 10,000 pages was filed.
On July 28, 2021, still more time was requested, which was acceded
to but no further affidavit was filed. Hence, such a grievance is totally
uncalled for.
65. Similar is the argument regarding request for cross-
examination of the members of the Committee. It was clear to all the
63 WPA(P)142 of 2021
parties that this Court is not investigating the criminal cases and
holding any accused guilty. The Committee was only constituted for
collection of the facts on the ground. Idea was to see whether there
was post poll violence and the response of the police to the distress
call of the victims. The facts clearly speak for themselves in the case
in hand. These cannot be brushed aside on the argument especially
when the entire issue revolves around politics as the contentions raised
by the petitioners are that they were assaulted and their properties
were damaged. Besides there being cases of murder and rape, only on
account of the fact that in the recently concluded Assembly Elections,
they had supported the political parties other than the ruling party in
the State.
REGARDING PROCEDURE TO BE FOLLOWED BY THE
COMMITTEE AS PRESCRIBED IN THE 1993 ACT
66. Much stress was laid by the learned Counsel appearing for
the State, DGP and the police officers on the argument that the report
of the Committee cannot be accepted for the reason that it had failed
to follow the procedure as laid down in various provisions of the 1993
Act. The argument needs to be rejected at the threshold. It is clear
from the various orders passed by this Court that the matter was not
referred to the National Human Rights Commission for enquiry or
investigation. The Chairman of the Commission was merely requested
to constitute a Committee considering the fact that there was blatant
violation of human rights besides violation of other rights of the
victims. This Court had directed that two officers from the State
namely the Member Secretary, WBSLSA and the Registrar of the
West Bengal State Human Rights Commission shall be members of
64 WPA(P)142 of 2021
that Committee. The modalities were briefly mentioned in the order
passed by this Court. The report which was to be submitted to this
Court. The Committee visited number of places to ascertain the facts
stated in the complaints received by it and found them to be prima
facie correct. No action was to be taken by the NHRC on the basis of
the report. Hence, the argument that the report cannot be accepted as
the Committee had not followed the procedure as stated down in the
1993 Act deserves to be rejected.
BIAS
67. Though issue of bias of three members of the committee
was sought to be raised. The argument just needs to be noticed and
rejected. In fact the entire effort seems to be to misdirect the issue and
delay the proceedings. It seems to be an argument in frustration,
where on the core issue the State has been found on a wrong foot. This
court had directed constitution of the Committee vide order dated June
18, 2021. The members were nominated by the Chairperson of NHRC
on June 21, 2021.No objection was raised by any one. An application
was filed by the State for recalling of order dated June 18, 2021 vide
which Committee was directed to be constituted. The application was
dismissed on June 21, 2021 but no such argument was raised. It was
not raised even when the committee started working on field. The
Committee filed interim report in Court on June 30, 2021 and order
was passed by the Court. No issue was raised. The same was sought to
be raised only when final report was filed and it revealed the conduct
of the state and the pleas raised by the State were found to be false.
65 WPA(P)142 of 2021
68. Another reason for which the objection deserves rejection
is that the members of the committee had only collected information
from the field, collated the same and presented before the Court. Three
members against whom allegations are sought to be made were not the
only members in the exercise of collection of facts from the field. The
committee consisted of nine members, having wide experience in
different fields. Two were from the State, namely Member Secretary
of the WBSLA and the Registrar of the WBSHRC. Besides this there
were different sub-committees constituted for visits to different places
in the State. The judgments relied upon by the counsel for the state do
not come to their rescue for the reason that here the issue is not of
selection of any candidate for service where recommendation may be
final. Here committee was constituted for collection of information
from the ground as the allegation against the State was that the police
was not recording the FIRs for the crime and no action was being
taken. In fact the stand taken by the State was found to be wrong from
the material collected by the Committee, which could not be dislodged
by the State even by filing voluminous response, which apparently
was with a view to confuse the issue.
DURATION OF POST POLL VIOLENCE
69. One of the argument raised by the State was to fix the
period of the crime reported during which can be considered as post
poll violence. But we do not wish to enter into that area for the reason
that if any aggressor party commits an offence on account of some
one's participation in the election process and supporting a particular
political party, the same shall be considered as post poll violence and
66 WPA(P)142 of 2021
no time limit as such can be fixed. Further, polling in the State was in
eight phases starting from March 27, 2021 and ending on April 29,
2021. In every phase of polling some of the persons who support or
work for a particular party are well known. If any offence is
committed even before declaration of result and has connection with
election process, even that can also be considered as part of the post
poll violence. Any threat to a victim or a complainant afterwards is
also continuation of offence related to the polls. It will be for the
investigating agency to find out from the facts of each case. The
investigating agency shall also find out as to whether the police had
registered FIRs under proper sections or not.
ELECTION COMMISSION'S DUTY ON LAW AND ORDER
70. Strong argument was sought to be raised by the learned
Advocate General time and again that till such time election code was
in force, entire police was under the control and supervision of the
Election Commission of India, hence, it is responsible for any
violence till May 03, 2021, when the code was lifted.
71. No provision of law rules or instructions to that effect have
been referred in support of the argument. The argument deserves to be
rejected outrightly. Civil or police administration is under the control
of the Election Commission during the process of elections only to
ensure free and fair elections. That does not mean that the police stop
discharging its normal duties to control law and order. This arguments
runs contrary to even the stand of the State where it claimed that
number of FIRs were registered upto May 03, 2021 for post poll
violence and otherwise also for normal crime in state the police was
67 WPA(P)142 of 2021
duty bound to maintain law and order and register FIRs and not the
Election Commission. The State cannot be allowed to blow hot and
cold at the same breath. There is nothing placed on record by the state
that even normal law and order, and registration of criminal cases
comes within the purview of EC. Constitutional obligations of the
State do not get vested in the Election Commission during the process
of elections.
CASE LAW
72. In the aforesaid factual matrix and in the cases where
exceptional issues have been raised, we have been guided by the
following judgments of Hon'ble the Supreme Court to reach to a
conclusion. Duties of the Court in such circumstances have also been
defined. Observations made by Hon'ble the Supreme Court regarding
human rights and personal liberties in National Human Rights
Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742, are
quite apt in the facts of the case. The same reads as under:
"20. We are a country governed by the Rule of
Law. Our Constitution confers certain rights on every
human being and certain other rights on citizens. Every
person is entitled to equality before the law and equal
protection of the laws. So also, no person can be deprived
of his life or personal liberty except according to procedure
established by law. Thus the State is bound to protect the
life and liberty of every human being, be he a citizen or
otherwise, and it cannot permit anybody or group of
persons, e.g., the AAPSU, to threaten the Chakmas to
leave the State, failing which they would be forced to do
so. No State Government worth the name can tolerate such
threats by one group of persons to another group of
68 WPA(P)142 of 2021
persons; it is duty-bound to protect the threatened group
from such assaults and if it fails to do so, it will fail to
perform its constitutional as well as statutory obligations.
Those giving such threats would be liable to be dealt with
in accordance with law. The State Government must act
impartially and carry out its legal obligations to safeguard
the life, health and well-being of Chakmas residing in the
State without being inhibited by local politics. Besides, by
refusing to forward their applications, the Chakmas are
denied rights, constitutional and statutory, to be considered
for being registered as citizens of India."
(Emphasis supplied)
73. In Rubabbuddin Sheikh v. State of Gujarat and others,
(2010) 2 SCC 200, Hon'ble the Supreme Court taking cognizance of a
letter written by a person alleging killing of his brother and sister-in-
law in fake encounter, and being not satisfied the way the State was
carrying out the investigation, referred the matter to be investigated by
CBI, as allegations was found against the State police. It was in order
to make sure that justice is not only done but also is seen to be done,
the CBI was directed to investigate the matter.
74. An important issue arising from the State was considered
by a Constitution Bench of Hon'ble the Supreme Court in State of
West Bengal v. Committee for Protection of Democratic Rights,
West Bengal and Others, reported as (2010) 3 SCC 571. It was a
case where in an alleged political violence 11 persons died and many
suffered injuries. This Court had referred the matter for investigation
by the CBI without the consent of the State, The facts in that case are
noticed in paras 3 to 5 of the judgment of Hon'ble Supreme Court,
which read as under:
69 WPA(P)142 of 2021
"3. These are: one Abdul Rahaman Mondal
(hereinafter referred to as "the complainant") along with a
large number of workers of a political party had been
staying in several camps of that party at Garbeta, District
Midnapore, in the State of West Bengal. On 4-1-2001 the
complainant and few others decided to return to their
homes from one such camp. When they reached the
complainant's house, some miscreants, numbering 50-60,
attacked them with firearms and other explosives, which
resulted in a number of casualties. The complainant
managed to escape from the place of occurrence, hid
himself and witnessed the carnage. He lodged a written
complaint with Garbeta Police Station on 4-1-2001 itself
but the first information report ("the FIR", for short) for
offences under Sections 148/149/448/436/364/302/201 of
the Penal Code, 1860 (for short "IPC") read with Sections
25/27 of the Arms Act, 1959 and Section 9-B of the
Explosives Act, 1884 was registered only on 5-1-2001.
4. On 8-1-2001 the Director General of Police,
West Bengal directed CID to take over the investigations
in the case. A writ petition under Article 226 of the
Constitution was filed in the High Court of Judicature at
Calcutta by the Committee for Protection of Democratic
Rights, West Bengal in public interest, inter alia, alleging
that although in the said incident 11 persons had died on 4-
1-2001 and more than three months had elapsed since the
incident had taken place yet except two persons, no other
person named in the FIR had been arrested; no serious
attempt had been made to get the victims identified and so
far the police had not been able to come to a definite
conclusion whether the missing persons were dead or alive.
It was alleged that since the police administration in the
State was under the influence of the ruling party which was
trying to hide the incident to save the image, the
70 WPA(P)142 of 2021
investigations in the incident may be handed over to CBI,
an independent agency.
5. Upon consideration of the affidavit filed in
opposition by the State Government, the High Court felt
that in the background of the case it had strong reservations
about the impartiality and fairness in the investigation by
the State police because of the political fallout, therefore,
no useful purpose would be served in continuing with the
investigation by the State investigating agency. Moreover,
even if the investigation was conducted fairly and
truthfully by the State police, it would still be viewed with
suspicion because of the allegation that all the assailants
were members of the ruling party. Having regard to all
these circumstances, the High Court deemed it appropriate
to hand over the investigation into the said incident to
CBI." (emphasis supplied)
75. The Director General of Police had directed the CID to
take over the investigation. A writ petition was filed in this Court
alleging that in the incident, 11 persons had died and more than 3
months had elapsed but still no effective steps were taken by the
police for investigation or arrest of the accused. It was further alleged
therein that police administration was under the influence of the ruling
party, which was trying to hide the incident. Prayer was for handing
over the investigation to the CBI. This Court directed that the
investigation of the case be handed over to CBI. It was with the
observation that this Court has strong reservations about the
impartiality and fairness of the investigation by the State Police
because of political fallout. Moreover, even if the investigation was
conducted fairly and truthfully by the State police, it would still be
viewed with suspicion because of the allegations that all the assailants
71 WPA(P)142 of 2021
were members of the ruling party. The order was upheld by Hon'ble
the Supreme Court. It was observed that being protectors of civil
liberties of the citizens, this Court not only has power and jurisdiction
but an obligation to protect the fundamental rights of the citizens. The
findings recorded are extracted below:
"68. Thus, having examined the rival contentions
in the context of the constitutional scheme, we conclude as
follows:
(i) x x x
(ii) Article 21 of the Constitution in its broad
perspective seeks to protect the persons of
their lives and personal liberties except
according to the procedure established by law.
The said article in its broad application not
only takes within its fold enforcement of the
rights of an accused but also the rights of the
victim. The State has a duty to enforce the
human rights of a citizen providing for fair
and impartial investigation against any person
accused of commission of a cognizable
offence, which may include its own officers.
In certain situations even a witness to the
crime may seek for and shall be granted
protection by the State.
x x x
69. In the final analysis, our answer to the
question referred is that a direction by the High Court, in
exercise of its jurisdiction under Article 226 of the
Constitution, to CBI to investigate a cognizable offence
alleged to have been committed within the territory of a
State without the consent of that State will neither impinge
72 WPA(P)142 of 2021
upon the federal structure of the Constitution nor violate
the doctrine of separation of power and shall be valid in
law. Being the protectors of civil liberties of the citizens,
this Court and the High Courts have not only the power
and jurisdiction but also an obligation to protect the
fundamental rights, guaranteed by Part III in general and
under Article 21 of the Constitution in particular, zealously
and vigilantly.
70. Before parting with the case, we deem it
necessary to emphasise that despite wide powers conferred
by Articles 32 and 226 of the Constitution, while passing
any order, the Courts must bear in mind certain self-
imposed limitations on the exercise of these constitutional
powers. The very plenitude of the power under the said
articles requires great caution in its exercise. Insofar as the
question of issuing a direction to CBI to conduct
investigation in a case is concerned, although no inflexible
guidelines can be laid down to decide whether or not such
power should be exercised but time and again it has been
reiterated that such an order is not to be passed as a matter
of routine or merely because a party has levelled some
allegations against the local police. This extraordinary
power must be exercised sparingly, cautiously and in
exceptional situations where it becomes necessary to
provide credibility and instil confidence in investigations
or where the incident may have national and international
ramifications or where such an order may be necessary for
doing complete justice and enforcing the fundamental
rights. Otherwise CBI would be flooded with a large
number of cases and with limited resources, may find it
difficult to properly investigate even serious cases and in
the process lose its credibility and purpose with
unsatisfactory investigations." (emphasis supplied)
73 WPA(P)142 of 2021
76. In Narmada Bai v. State of Gujarat and others, (2011) 5
SCC 79, Hon'ble the Supreme Court while referring to the earlier
judgments dealing with the issue, observed that the matter is referred
to be investigated by an independent agency like CBI so that it may
bear credibility. The Court felt that no matter how faithfully and
honestly the local police may carry out the investigation, the same will
lack credibility as allegations were directed against them. By reference
of such matter for investigation by CBI no reflection either on the
local police or the State was intended. It was in larger public interest.
77. Following observations of Hon'ble the Supreme Court
regarding Constitutional values and duties of each organ of State, as
made in (2011) 7 SCC 547, Nandini Sunder and others v. State of
Chhattisgarh, are quite relevant in the facts of the present case. It
dealt with a gap between the promised principled exercise of power in
a Constitutional democracy and the reality of the situation in
Chhattisgarh, where gross violation of human rights was alleged
against the State. Modes of State action were found to be seriously
undermining the Constitutional values, which may cause grievous
harm to the national interest. Incidents of violence were directed to be
investigated by CBI. Relevant paras thereof are extracted below:
"1. We, the people as a nation, constituted
ourselves as a sovereign democratic republic to conduct
our affairs within the four corners of the Constitution, its
goals and values. We expect the benefits of democratic
participation to flow to us - all of us - so that we can take
our rightful place, in the League of Nations, befitting our
heritage and collective genius. Consequently, we must also
74 WPA(P)142 of 2021
bear the discipline, and the rigour of constitutionalism, the
essence of which is accountability of power, whereby the
power of the people vested in any organ of the State, and
its agents, can only be used for promotion of constitutional
values and vision.
2. This case represents a yawning gap between the
promise of principled exercise of power in a constitutional
democracy, and the reality of the situation in Chhattisgarh,
where the respondent, the State of Chhattisgarh, claims
that it has a constitutional sanction to perpetrate,
indefinitely, a regime of gross violation of human rights in
a manner, and by adopting the same modes, as done by
Maoist/Naxalite extremists. The State of Chhattisgarh also
claims that it has the powers to arm, with guns, thousands
of mostly illiterate or barely literate young men of the
tribal tracts, who are appointed as temporary police
officers, with little or no training, and even lesser clarity
about the chain of command to control the activities of
such a force, to fight the battles against alleged Maoist
extremists.
3. x x x
4. As we heard more and more about the situation
in Chhattisgarh, and the justifications being sought to be
pressed upon us by the respondents, it began to become
clear to us that the respondents were envisioning modes of
State action that would seriously undermine constitutional
values. This may cause grievous harm to national interests,
particularly its goals of assuring human dignity, with
fraternity amongst groups, and the nation's unity and
integrity...
x x x
92. We now turn our attention to the allegations
made by Swami Agnivesh, with regard to the incidents of
violence perpetrated against and in the villages of
75 WPA(P)142 of 2021
Morpalli, Tadmetla and Timmapuram, as well as incidents
of violence allegedly perpetrated by people, including
SPOs, Koya Commandos, and/or members of Salwa
Judum, against Swami Agnivesh and others travelling with
him in March 2011 to provide humanitarian aid to victims
of violence in the said villages.
93. In this regard we note the affidavit filed by the
State of Chhattisgarh in response to the above. We note
with dismay that the affidavit appears to be nothing more
than an attempt at self-justification and rationalisation,
rather than an acknowledgment of the constitutional
responsibility to take such instances of violence seriously.
The affidavit of the State of Chhattisgarh is itself an
admission that violent incidents had occurred in the above
named three villages, and also that incidents of violence
had been perpetrated by various people against Swami
Agnivesh and his companions.
94. We note that the State of Chhattisgarh has
offered to constitute an Inquiry Commission, headed by a
sitting or a retired Judge of the High Court. However, we
are of the opinion that these measures are inadequate, and
given the situation in Chhattisgarh, as extensively
discussed by us, unlikely to lead to any satisfactory result
under the law. This Court had previously noted that
Inquiry Commissions, such as the one offered by the State
of Chhattisgarh, may at best lead to prevention of such
incidents in the future. They however do not fulfil the
requirement of the law: that crimes against citizens be fully
investigated and those engaging in criminal activities be
punished by law. (See Sanjiv Kumar v. State of Haryana
[(2005) 5 SCC 517] .) Consequently, we are constrained to
order as below.
Order
95. We order the Central Bureau of Investigation to
immediately take over the investigation of, and taking
76 WPA(P)142 of 2021
appropriate legal actions against all individuals responsible
for:
(i) the incidents of violence alleged to have
occurred in March 2011, in the three villages,
Morpalli, Tadmetla and Timmapuram, all
located in Dantewada District or its
neighbouring areas;
(iii) the incidents of violence alleged to have been
committed against Swami Agnivesh, and his
companions, during their visit to State of
Chhattisgarh in March 2011."
(Emphasis supplied)
78. Duty of the Constitutional courts, where violation of
fundamental rights is alleged, has been well defined in Constitution
Bench judgment of Hon'ble the Supreme Court in (2018) 10 SCC 1,
Navtej Singh Joharv. Union of India. It laid down that the
Constitutional Courts are under an obligation to protect the
fundamental rights of every citizen without waiting for catastrophic
situation. Relevant paras 182-183 are extracted below:
"182. The Constitution Framers could have never
intended that the protection of fundamental rights was only
for the majority population. If such had been the intention,
then all provisions in Part III of the Constitution would
have contained qualifying words such as "majority
persons" or "majority citizens". Instead, the provisions
have employed the words "any person" and "any citizen"
making it manifest that the constitutional courts are under
an obligation to protect the fundamental rights of every
single citizen without waiting for the catastrophic situation
when the fundamental rights of the majority of citizens get
violated.
77 WPA(P)142 of 2021
183. Such a view is well supported on two counts,
namely, one that the constitutional courts have to embody
in their approach a telescopic vision wherein they inculcate
the ability to be futuristic and do not procrastinate till the
day when the number of citizens whose fundamental rights
are affected and violated grow in figures..."
79. In the case in hand, the facts, as have been discussed in the
preceding paragraphs are even more glaring as the incidents are not
isolated to one place in the State. Rather the violence which erupted
after polls and declaration of results was state-wide. Number of
persons had died. The women were raped. The house of certain
persons who had not supported the party in power were demolished.
Their other properties were damaged. Their belongings were looted
including the chattels. Allegations are also that the complainants are
being threatened to withdraw their cases. Number of cases of murder
are sought to be claimed as natural death without recording FIRs and
the investigations of cases as per procedure established by law.
Number of persons are alleging that they were forced to leave their
houses and villages and had not been able to come back because of
threat. Social boycott and closure of their business establishments are
the other allegations. The matters are pending in this Court and are
being taken up on regular basis but still in spite of the fact that three
months have lapsed no concrete action has been taken by the State,
which could inspire confidence except filing affidavits and placing on
record thousands of papers. In number of cases pertaining to murder,
rape and other crime against women, the cases are sought to be closed
without registration of FIRs or no response given to the committee.
Apparently to favour the accused, FIRs have not been registered under
78 WPA(P)142 of 2021
proper provisions of law. Accused in number of FIRs have been
named as workers/supporters of ruling party in the State. The
allegations of the petitioners are that in registration of cases and
investigation thereof of the police is slow as main allegations are
against the supporters and workers of the ruling party. In number of
cases FIRs were registered only after the committee pointed out those.
There are some FIRs registered against the supporters/workers of
political parties not in power. These are claimed by them as false cross
cases. Even they will not be able to allege bias against the State if
investigation of their cases is also held by an independent agency or
monitored by SIT. It should and will inspire confidence of the people
in rule of law. The allegation is of police inaction. Report submitted
by the Committee throws some light on this and the police having not
properly responded to all the issues raised and trying to downplay the
same, it certainly needs investigation by an independent agency. Even
comparison of data pertaining to crime during previous corresponding
period will also not come to the rescue of the State as the pattern of
the crime can change and the period thereof. Further there are definite
and proved allegations that complaints filed by the victims of post poll
violence were not registered. Such types of incidents, even if isolated
are not good for healthy democracy.
80. In our opinion, the heinous crime such as murder and rape
deserve to be investigated by an independent agency which in
circumstances can only be Central Bureau of Investigation. It is for the
reason that in number of cases, the State had failed to register the FIRs
and opined the same to be not the cases of murder. In some cases,
79 WPA(P)142 of 2021
even after registration of FIR, the observation by the State is that these
may result in 'no case'. This shows pre-determined mind to take
investigation into a particular direction. Under such circumstances
investigation by independent agency will inspire confidence to all
concerned. Only the cases which have been mentioned in the report of
the Committee pertaining to murder and rape shall be referred to CBI.
We have chosen this option because as the from the facts of the cases,
which have been briefly discussed above, these fall in the category of
rare cases and the reasons for which this large scale violence has
occurred in State.
81. As far as other cases are concerned, there are allegations
that the police had not registered number of cases initially and some
were registered only after the Court had intervened or the Committee
was constituted. These allegations were found to be true on the basis
of the material placed on record. A number of FIRs were registered by
the State suo-moto after the Court had intervened. In some the
allegations pertained to the incidents which had taken place
immediately after the result of the State Assembly Elections was
declared whereas, in some, FIRs were registered belatedly for the
incidents which had taken place about a month ago. The petitioners
apprehend that seeing the conduct of the police, there may not be fair
investigation. To install faith of the people in rule of law and
considering the extraordinary circumstances with which the State and
the Court is faced with, we propose to constitute a Special
Investigation Team headed by Suman Bala Sahoo and Soumen Mitra
and Ranveer Kumar, all IPS officers of West Bengal cadre, as the
80 WPA(P)142 of 2021
members thereof. The working of the SIT shall be overviewed by a
retired Hon'ble Judge of Hon'ble the Supreme Court, who shall be
requested to take up the assignment after taking his/her consent. He
will be required to only review the working of the SIT and ensure that
it is moving on a right track. Any report(s), pleadings or applications
shall be filed in court only by and under the signatures of the Head of
SIT. The idea being to inspire confidence regarding the independence
of system being followed for investigation of cases.
ORDER
82. In view of our aforesaid discussions, we direct as follows:
i) All the cases where, as per the report of the Committee, the
allegations are about murder of a person and crime against
women regarding rape/attempt to rape, shall be referred to
CBI for investigation. The Committee, NHRC, any other
Commission or Authority and the State shall immediately
hand over entire record of the cases entrusted to the CBI
for investigation. It is made clear that it shall be the Court
monitored investigation. Any obstruction in the course of
investigation by anyone shall be viewed seriously.
ii) For other cases, as have been referred to in the report of
the Committee, Special Investigation Team is constituted
for monitoring the investigation. The team shall be headed
by Suman Bala Sahoo, and Soumen Mitra and Ranveer
Kumar, all IPS officers of the West Bengal cadre, shall be
its members The SIT shall be entitled to take assistance of
81 WPA(P)142 of 2021
any other officer/police officer or any institution or agency
for carrying out fair investigation of the cases. It is made
clear that it shall be Court monitored investigation. The
State shall spare their services for the purpose, as and
when required and shall not take any adverse action
against them without specific permission of the Court. The
working of the SIT shall be overviewed by a retired
Hon'ble Judge of Hon'ble the Supreme Court, for which
separate order shall be passed after taking his/her consent.
His/her terms of appointment shall be decided later on.
iii) Notice issued to Rashid Munir Khan, Deputy
Commissioner of Police, South Suburban Division,
Kolkata vide order dated July 13, 2021, to show-cause as
to why proceedings for contempt be not initiated against
him, shall be dealt with later.
iv) As the core issue regarding the post-poll violence and the
action required to be taken thereon has been resolved with
the directions for proper investigation of cases by the CBI
and the SIT as referred to above, the matters now shall be
placed before the Division Bench for dealing with other
issues in the report and further proceedings.
v) The application bearing CAN No 4/2021 in WPA(P) 142
of 2021 filed by the Partha Bhowmick and Jyotipriya
Mallick for impleading as parties to the proceedings, is
rejected as they are neither necessary nor proper parties to
82 WPA(P)142 of 2021
the proceedings for the issues being dealt with by this
Court.
vi) The sealed cover (Annexure - I) submitted by the
Committee along with its report, second autopsy report of
Abhijit Sarkar, DNA analysis report as submitted by the
Director Command Hospital, Kolkata and any other sealed
cover pertaining to the case, lying with the Registrar
General of this Court shall be handed over to the
authorised officer of the CBI against proper receipt. Any
documents/material therein, which is not relevant to the
cases to be investigated by the CBI shall be handed over
by it to the head of the SIT.
vii) Immediate action shall be taken by the State to pay
compensation to the victims of crime as per the policy of
the State, after due verification. It shall be direct bank
transfer in their accounts. The same will not debar them to
claim further compensation under any law or scheme of
the Government, for which the victims shall be at liberty to
avail of their appropriate remedies.
viii) We direct the CBI and the SIT to submit its status report in
Court within six weeks from today.
ix) The CBI or the officer heading the SIT shall be entitled to
file application for any further direction to enable them to
carry out investigation expeditiously and in a fair manner.
83 WPA(P)142 of 2021
Such an application shall be listed before the Division
Bench, as per roaster.
x) All the authorities in the State or any other agency, if
requested, are directed to cooperate with the CBI and the
SIT in conducting fair investigation of cases.
xi) It is further directed that in case CBI or SIT finds any case
to be not related to post poll violence, the same shall be
transferred to the officer incharge of the concerned police
station for further proceedings. Entire record pertaining to
the same shall be handed over to the concerned officer
against proper receipt.
xii) It is made clear that any observation made in this order is
only for the limited purpose of deciding the issue whether
investigation is to be handed over to CBI and Special
Investigation Team. Nothing observed shall be construed
as an expression of opinion on the merits of the cases.
83. Adjourned to October 04, 2021. To be placed before the
Division Bench, as per roster.
I. P. Mukerji, J.
84. I have had the privilege of going through the draft
judgement prepared by my brother the Hon'ble the Chief Justice
(Acting). I agree with the ultimate order proposed to be passed by his
lordship. My reasons for concurring with that conclusion and my own
observations are given below.
84 WPA(P)142 of 2021
85. If a crime is suspected to have been committed, it is the
duty of the State to investigate into it, apprehend the offender and
prosecute him. An ordinary citizen has a right against the State to
expect that the alleged offender is brought to justice.
86. The jurisdiction we have assumed in this litigation is in
relation to those incidents of violence which occurred immediately
after or contemporaneously to announcement of the West Bengal
assembly poll results, 2021on 2nd May, 2021. It is not sufficient that
those incidents of violence occurred contemporaneously to
announcement of the poll results but also that, it should have been a
direct consequence of the reaction of a person or a body of persons to
the result and that reaction was towards another person or body of
persons which resulted in commission or attempt towards commission
of an offence. Hence, any investigation into post poll violence should
be across party boards.
87. The Committee constituted by the National Human Rights
Commission is not to be treated as a Tribunal or a Commission. It is to
be equated with a team of Special Officers appointed on the direction
of this court. The data, other information and documents that have
been submitted in their report are only to be taken as an exercise of
fact finding by them. This fact finding is to be treated as prima facie
by the court and to be considered together with data, other
information, documents etc. brought on record by the State
respondents, the petitioners and other parties. The allegation of bias
against the Committee is not material because this court has
85 WPA(P)142 of 2021
considered not only the report of the Committee but other materials as
well and arguments of learned Counsel based thereon.
88. The said Committee constituted by the National Human
Rights Commission had only power under our order to report on facts
as gathered by them on investigation. They had no jurisdiction to
make any recommendation or to express any opinion. We did not vest
them with that power. Before proceeding to make any
recommendation or express any opinion, they had to observe the
procedure prescribed by the Protection of Human Rights Act, 1993.
Before making any recommendation the Commission had an
obligation of complying with certain procedures mentioned in that
Act, inter alia with regard to giving notice to and hearing a person
against whom a recommendation is proposed to be made. Even if we
assume that the Committee was making a recommendation under the
said Act, the view expressed by it was without compliance with that
procedure. Therefore the part of the report expressing opinion, making
recommendations etc. is non-est in the eye of law.
89. Maintenance of law and order and discharge of police
functions is with the state under entries 1 and 2 of list II of the seventh
schedule corresponding to Article 246 of the Constitution of India. It
follows that normally investigation of and prosecution for a crime
committed within the state is within the purview of the state.
Ordinarily no other agency has the power to make the investigation.
However the Supreme Court and the High Court have, in the exercise
of their powers, ordered other agencies, like the CBI to make
investigation in cases where the court was convinced that the accused
86 WPA(P)142 of 2021
were powerful enough to influence the state machinery or those in
power were directing the state machinery to shield the accused and the
machinery was acting according to such dictate or there was failure of
the investigation process or the interest of justice demanded enquiry
by the CBI.
90. In this case, it is alleged that the police did not receive
complaints of crimes related to post poll violence or after receipt of
complaints did not take any action or took action which was
insufficient or charged the persons accused with offences getting
lesser punishment or declared certain complaints to be without merit
for inadequate reasons.
91. I observe that under Section 154(3) of the Code of
Criminal Procedure, 1973 on the refusal on the part of the officer-in-
charge of a police station to record the FIR a person aggrieved had the
right of sending the substance of the information to the Superintendent
of police who would register it and investigate the case himself or
send it to any police officer for investigation. That any such attempt
was made by any of the complainants under Section 154(3) is not
disclosed. Neither any written complaint to any other authority is on
record.
92. Allegations have been made by the petitioners that the
police officials have forced the victims to withdraw their complaints.
If the police officials forces a complainant to withdraw a complaint,
that is also an offence. Communication by the victim to any authority
complaining of such conduct has not been brought on record. Ms.
Priyanka Tibrewal, learned Advocate states that the victims are
87 WPA(P)142 of 2021
uneducated and do not have the required resources. While hearing this
matter, the court had given leave to learned Advocate to make
complaints on behalf of such victims but still no complaint that the
police was forcing people to withdraw them had been registered.
93. It is an accepted position that in total 1979 cases involving
15000 victims were received by the Committee. The State says that
the number of cases where no dates of incidents have been mentioned
are 864 which is 43.65% of the total cases. 892 incidents have
occurred between 2nd May, 2021 and 5th May, 2021 which is 45.07%
of the total cases. Incidents after 5th May, 2021 are 188 which is 9.4%
of the total cases.
94. The submission of the Election Commission is absolutely
right that conduct of elections was with the Election Commission but
the administration was with the government. The government says
that the Election Commission was in charge upto 5thMay, 2021. The
Election Commission, in my opinion, is theoretically correct. But, it is
also true that the Election Commission had directed the administration
to transfer officials with administrative duties and post them according
to its direction at the time when it was in charge of the election.
If offences had occurred as a consequence of the polls, it was also the
duty of the Election Commission at least to direct or advise the
administration to register the complaints which it did not.
Furthermore, between the polls and assumption of office by the new
government the Election Commission should have played a more
positive role in directing the administration to register the complaints.
It was also not out of place on their part to have instructed the
88 WPA(P)142 of 2021
administration to take steps so that crimes were not committed or
checked. The records show that the incident of crime declined after
5th May, 2021. If not anything else, it does not show any intention on
the part of the ruling party to promote political violence.
95. The state has admitted in their written submissions that
after and further to our order 3384 complaints were received by them.
1356 complaints have been found to be baseless. 2877 action taken
reports were sent by the police directly to "the various Commissions".
Action taken reports of 1338 cases were forwarded to the Committee.
96. In my opinion, it is not established that the state has shown
apathy to action on the information regarding crimes involving post
poll violence or that there is failure on its part in the investigation
thereof or that there is interference with the same by the state. The
investigation process, in my opinion, is at the initial stage. A more
concrete view can be found after some time is given to the
investigation to progress.
97. What is very serious is that the state has not responded to
the alleged offences of murder and rape tabulated as referred to in the
judgment of the Hon'ble the Chief Justice (Acting). The offences are
grievous, serious and heinous. It may be as a result of post poll
violence. It may well be in the usual course of affairs. The fact
remains that each of these offences needs serious investigation. That is
the expectation of the people of this state. If this expectation is
fulfilled, their faith in the rule of law and in the justice delivery system
will be maintained and enhanced. Allegations have been made against
the state alleging apathy towards investigation of these crimes. To
89 WPA(P)142 of 2021
dispel any doubt in the mind of the general people regarding fairness
of the state machinery, the CBI should be entrusted with investigation
of those specified offences regarding murder and rape under the
supervision of the court. In this type of cases, it does not matter, in my
opinion, which agency makes the investigation, the state or the CBI. If
the offence is established, the wrong doers have to be brought to
justice. Only then will the entire system be seen as fair, just and
transparent by the ordinary people.
98. The interest of justice would be sub-served if investigation
into these specific cases of murder and rape enumerated in the said
judgment of the Hon'ble the Chief Justice (Acting) is made by the
Central Bureau of Investigation. Of course, if the said agency acts
illegally or irregularly or unfairly, it is always open to a person
aggrieved to approach us.
99. Once again, to promote the confidence of the ordinary
people, in the rule of law, investigation into all other offences may be
done in accordance with law under the supervision of the Special
Investigation Team constituted by this court.
Harish Tandon, J.
100. I have been forwarded with a copy of the judgment
authored by Justice Rajesh Bindal, Chief Justice (Acting) adumbrating
the facts in lucid and explicit manner and I have no dissent so far as
conclusion arrived thereat. Without making any observations to the
findings made on the merits and the reasons given therein, I take
privilege to pen few words.
90 WPA(P)142 of 2021
101. The tyranny of the Princely States and the rule of law in
the hands of a king have caused deprivation of the liberty, rights and
the privileges of the citizenry. The age old adage 'king can do no
wrong' has evaporated by passage of time and the rule by the people
of the country or the State was felt by several philosophers, thinkers
and the wise man which gradually transformed into the concept of
democracy. The citizenry has faced several prejudices with the
functioning of the king and the administration in establishing the rule
of law which he pleases. The voice of the common man was
suppressed, manifold which led to a struggle for freedom. Our country
is not an exception and the freedom fighters adopted Non-violent
Agitation to get freedom and the voice of the people of the country
was unanimous and echoed in one voice by their collective and
collaborative efforts during the British Raj. The Non-violent
Movement was considered to be the biggest tool in achieving the
freedom as no orderly society can grow by suppression of their voices.
The struggle for freedom in the Non-violent Agitation throughout the
country forced the British to declare freedom and hand over the
administration of the country into the hands of the people of India.
The Constituent Assembly was constituted for making of the
Constitution of India by the people of India. Several discourses and
debates raged in the Constituent Assembly but the Constituent
Assembly was unanimous on one issue that Democracy is the
foundational stone and it is the people of India who would give and
adopt the Constitution establishing the democracy.
91 WPA(P)142 of 2021
102. Jurisprudentially, the State in a democratic society
derives its strength and powers from the co-operative and
dispassionate will of its free and equal citizens. The social and
economic freedom is the foundation of the political democracy being
the foundation on a way of life in Indian polity. The preamble of the
Constitution envisaged the collaborative efforts of the people of India
and imbibed within itself the word 'democratic republic' to secure its
citizens. Our Constitution is a living and breathing document, the
longest of its kind envisioning political, economical and social ideas
and aspiration of the people of India, which would not have been
achieved unless there had been immense sacrifices by the freedom
fighters. The idea behind the word 'Republic' before word
'democracy' used in the Preamble of the Constitution connotes unity
in diversity to be considered as One. The aforesaid expression
conveys mandate of all citizens in securing justice, liberty, equality
and the fraternity without any distinction.
103. The first Article of the Constitution naming the country
manifests the federal character as the Union of States and reserved the
freedom distinct from the Union yet inter-woven with the common
thread in preserving the rights of the citizenry uniformly. The first and
paramount duty of the State is to establish the rule of law and to avoid
the discrimination, suppression and/or deprivation of the citizen of the
country.
104. The expression 'to secure' conveys the idea of assurance
and confidence into the Government chosen by the citizens of the
country. Unless the justice and equality are secured, the other facets of
92 WPA(P)142 of 2021
the constitutionally guaranteed rights would be rendered meaningless
and the perception of the framers of the Constitution would be totally
shattered. In order to achieve the constitutional aspiration for the
governance of the country in collaboration with the three
organs/pillars envisaged in the Constitution i.e. the legislature,
executive and judiciary, the rule of law is the bedwork and its
maintenance is sine qua non to the constitutional scheme. The
Constitution further engulfed within itself the election of the person to
represent in the federal system to protect their fundamental rights
guaranteed under the Constitution. Electing the people to represent the
majoritarian mandate is the main pillar of the democracy and peaceful
election is the need of the hour.
105. At the advent of the emerging modern democracy, the
basic right of the people in exercising their voting rights and choosing
the candidate is eminently ubiquitary. The democratic India will never
grow unless it protects the basic principles behind the fundamental
rights guaranteed under the Constitution. The Ruling Government
chosen by the majority has no relevance nor can act in a
discriminatory manner so as to suppress the minority. The equality is
the hallmark of the Constitution schemes and the aspiration reposed
by the people of India. The discriminatory act has been seriously
viewed under the judicial jolt.
106. It is no gain saying that to achieve the goals of justice and
equality evidently present in the preamble of the Constitution, the
State and its instrumentality have to function through political entities
at different levels. The exercise of power by the political entities in
93 WPA(P)142 of 2021
juxtaposition with the larger public interest and for public good leaves
no exception and the maintenance of the rule of law is the primary
duty of the State as opposed to anarchy. Any violation during the poll
or after and the partition attitude of the chosen Government offends
the basic fabric of the constitution and the rights guaranteed therein.
Our country never propagates violent movements as the freedom was
achieved due to the Non-violent Movements inculcating a sense in the
mind of rulers that the suppression of the rights of the people and the
aspiration for the freedom is invoiable.
107. In the prospective of the findings returned herein above,
we embark our journey on a different terrain by assimilating the facts,
data and the disclosure being made by the respective parties including
the State in several facts files in course of proceedings.
108. The voluminous documents formed part of the record
reflects the cry of the deprived persons and it is a salutary function of
the Court to protect their rights guaranteed under the constitution. The
Court cannot be a mute spectator nor should be apathetic to the voices
of the persons who felt aggrieved but must rise to an occasion to
protect such rights. There may be cases which are not relatable to
post-poll violence but the persons have been deprived of their rights
being not addressed through a well-recognised system in place and
therefore there is no fetter on the part of the Court to entrust
investigation to impartial, independent agency constituted for the
purpose of rendering justice to deprived persons.
94 WPA(P)142 of 2021
SOUMEN SEN, J.
109. I have the benefit of reading the draft judgment prepared
by the esteemed Hon'ble the Acting Chief Justice and my esteemed
brother Judges. I concur with the conclusions. However, I propose to
indicate briefly my reasoning in favour of the conclusions.
110. The necessity to appoint an external agency in
supersession of the State machinery to investigate the post poll
violence is the core issue before us.
111. The very essence of constitutionalism is the submission
of politics to law. The state is required to preserve and protect
"imprescriptible rights of man." People are born free with equal rights.
112. The majority's lack of willingness to exercise oversight
and lack of tolerance to accept the different views in a democracy
often lead to oppression on minority and shake the foundation of good
governance. The dominance of parties in the choice of persons and
functionaries chosen in the process may not behave in a manner which
places their party loyalties above the objective logic of respective
remits and in such a situation constitutional means can be used to at
least establish parameters to ensure that justice and rule of law
prevails.
113. The constitution seeks to achieve equality through the
protection of a party neutral civil service, the binding legal obligations
on the administration and independence of the judiciary. However
problem arises when neutrality of civil service is compromised and
when the state machineries failed to behave and function honestly,
fairly and impartially. Distrust in a particular government should not
95 WPA(P)142 of 2021
be confused with and not to be mistaken for distrust in the
constitution. In the book "The Constitution of Freedom An
Introduction to Legal Constitutionalism" by Andras Sajo and Renata
Uitz published by the Oxford University Press, the learned authors
have very lucidly brings out this trust factor in the following words:
"Distrust in government may be a creative force. In a
democratic constitution distrust makes government
responsible and responsive, and, as such, ultimately,
enables self-government. Tools of political accountability
(including freedom of speech, freedom of information,
freedom of assembly) are driven by an impulse to
contribute to the public discourse through criticizing the
government. Distrust and outrage are the muse of the
dissenter: those who ask questions about what the
government did and why, usually do not mean to flatter,
they mean to offer informed criticism through rational
debate, or at least wish to express disagreement. Such
active and critical engagement with public affairs is a
promising sign for constitutional system, increasing the
costs of coordination. In the absence of voluntary
cooperation and popular trust in government, the costs of
monitoring and policing increase. Dissatisfied people
taking to the streets constitute a serious security risk and
create a demand for policing. Oppression is costly: it
relies on running an oppressive machinery. But here
again, one cannot trust oneself: democracy as self-
government is in need of constitutional restrictions.
Constitutional constraints follow from the dictates of the
rightful distrust of people in their own selves."
96 WPA(P)142 of 2021
114. In a democracy as Bainbridge Colby has said "An
Intelligent and conscientious opposition is a part of loyalty to
country."
115. In a democracy voice of dissent has to be heard and
respected.
116. The role of the state has been beautifully captured in the
following words by one of the most eminent jurists of India Nani
Palkhivala in his book "India's Priceless Heritage":
"It would be hard to improve upon the sense of values
which made ancient India so great. Our old sages judged
the greatness of a State not by the extent of its empire or
by the size of its wealth, but by the degree of
righteousness and justice which marked the public
administration and the private lives of the citizens."
117. The concept of Dharma in the modern sense would mean
equality before law and equality for all. Righteousness and justice are
the two essential pillars of Dharma. In ancient India even the monarch
was not above the law. The monarchy was required to perform Raj
Dharma.
118. In a cooperative federalism the Constitution ordains that
it is the responsibility of the State to maintain law and order within its
territory. A high degree of confidence faith and expectations are
attached to the State machinery for being fair, honest and impartial in
its approach in dealing with its citizens and most importantly in
ensuring equality before the law and equal protection of the laws.
119. The Criminal Procedure Code elaborately discusses the
duties and responsibilities of police officers in matters of investigation
97 WPA(P)142 of 2021
and trial. In the Code provisions have been made to secure fair trial.
The ultimate aim of investigations is to ensure that those who have
committed crime are prosecuted and those who have not are not
arraigned to stand trial. Fair and impartial investigation is non-
negotiable and a clear mandate which emanates from Article 21 of the
Constitution of India. The Criminal Procedure Code also takes into
consideration the remedies available to the complainant in case of
non-registration of FIR. It balances the presumption of innocence of
the accused with the finding of guilt through a procedure established
by law, the court, acting as fulcrum delivering even handed justice in a
cautious and careful manner to ensure that a culprit does not go
unpunished.
120. However, over a period of time the courts are faced with
situations where there are apprehensions about Justice becoming a
victim because of manipulative, partisan and shabby investigation.
The instances of complete abdication of power by the State enforcing
law machinery in favour of the party in dispensation raises serious
apprehension of bias. The failure to conduct a fair investigation or an
attempt to shield culprits has undermined the prestige, honesty,
impartiality and dignity of institutions created and entrusted for
maintaining law and order and ensure safety and security of citizens.
121. Will Durant in his celebrated book "The Pleasures of
Philosophy" made a very pertinent observation in the following
words:
"The Thrasymachus of [Plato's] Republic proclaimed to
the world that 'might is right', and justice merely the
interest of the stronger; the "unjust" is lord over the truly
98 WPA(P)142 of 2021
simple and just, and the 'just' is always loser by
comparison."
122. The malevolent becomes the benefactor of an
intentionally and motivated State managed manipulated and
questionable investigation and the victim remains as a victim with no
one to wipe his tears with complaints unattended and destiny sealed as
a fait accompli. The pernicious and polluted investigation thereby
deprived the victim of his basic human rights of a free and fair
investigation and trial. This equally applies to an innocent victim of
circumstances who by reason of illegal and manipulative investigation
becomes an accused. Here comes the role of the Constitutional Courts
as the protector of Human Rights. We as Judges are required to
constantly remind ourselves of sentinel on the qui vive if the call of
the constitutional conscience is to retain its meaning. The right to life
guaranteed to every person under Article 21 of the Constitution
embraces a right to have fair investigation and speedy trial. It is the
duty of the Judiciary to secure liberty of citizens when it is in danger.
123. The epoch making statement in Romesh Thappar vs.
State of Madras reported at AIR 1950 SC 124 : "This court is thus
constituted the protector and guarantor of fundamental rights" obliges
and cast a duty upon the constitutional courts to secure, preserve and
protect the fundamental rights of every citizen guaranteed under the
Constitution of India.
124. A trial encompasses investigation, inquiry, trial, appeal
and retrial i.e. the entire range of scrutiny including crime detection
and adjudication on the basis thereof.
99 WPA(P)142 of 2021
125. The expression "fair and proper investigation" in criminal
jurisprudence has a twin purpose:
Firstly, the investigation must be unbiased, honest, just
and in accordance with law;
Secondly, the entire emphasis on a fair investigation has
to be to bring out the truth of the case before the court of
competent jurisdiction. Once these two conditions of fair
investigations are satisfied, there will be least interference by
the court with the investigation, much less quash the same.
Fair investigation is opposed to an unfair, tainted investigation
or cases of false implication. In Samaj Parivartana Samudaya
& Ors. v State of Karnataka & Ors., reported in (2012) 7 SCC
407, in same vein, it has been reiterated that the basic purpose
of an investigation is to bring out the truth by conducting fair
and proper investigation, in accordance with law and to ensure
that the guilty is punished and that the jurisdiction of a court to
ensure fair and proper investigation is of a higher degree than
in an inquisitorial system and it has to take precaution that
interested and influential persons are not able to misdirect, or
hijack the investigation, so as to throttle a fair investigation
resulting in the offenders escaping the punitive course of law.
(emphasis supplied)
126. The Court seized with the matter cannot reduce itself to
be resigned and helpless spectator, on the face of a faulty investigation
or when it appears that initiation of investigation and its completion
by the investigating agency may not lead to a fair trial, in view of the
100 WPA(P)142 of 2021
attendant facts. A fair, impartial, effective and efficient investigation
is what expected from an investigating agency.
127. In Babubhai v State of Gujarat & Ors., reported in
(2010) 12 SCC 254, the Hon'ble Supreme Court has held that the
right to fair investigation is a fundamental right of an accused
guaranteed under Article 21 of the Constitution of India in the
following words:
"32. The investigation into a criminal offence must be
free from objectionable features or infirmities which may
legitimately lead to a grievance on the part of the accused
that investigation was unfair and carried out with an
ulterior motive. It is also the duty of the Investigating
Officer to conduct the investigation avoiding any kind of
mischief and harassment to any of the accused. The
Investigating Officer should be fair and conscious so as
to rule out any possibility of fabrication of evidence and
his impartial conduct must dispel any suspicion as to its
genuineness. The Investigating Officer "is not to bolster
up a prosecution case with such evidence as may enable
the court to record conviction but to bring out the real
unvarnished truth". (Vide R.P. Kapur Vs. State of Punjab
AIR 1960 SC 866; Jamuna Chaudhary &Ors. Vs. State of
Bihar AIR 1974 SC 1822; and Mahmood Vs. State of U.P.
AIR 1976 SC 69).
44.The charge sheets filed by the investigating agency in
both the cases are against the same set of accused. A
charge sheet is the outcome of an investigation. If the
investigation has not been conducted fairly, we are of the
view that such vitiated investigation cannot give rise to a
valid charge sheet. Such investigation would ultimately
prove to be precursor of miscarriage of criminal justice.
In such a case the court would simply try to decipher the
truth only on the basis of guess or conjunctures as the
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whole truth would not come before it. It will be difficult
for the court to determine how the incident took place
wherein three persons died and so many persons
including the complainant and accused got injured.
45. Not only the fair trial but fair investigation is also
part of constitutional rights guaranteed under Articles 20
and 21 of the Constitution of India. Therefore,
investigation must be fair, transparent and judicious as it
is the minimum requirement of rule of law. Investigating
agency cannot be permitted to conduct an investigation in
tainted and biased manner. Where non- interference of
the court would ultimately result in failure of justice, the
court must interfere. In such a situation, it may be in the
interest of justice that independent agency chosen by the
High Court makes a fresh investigation."
(emphasis supplied)
128. The investigation should be judicious, fair, transparent
and expeditious to ensure compliance to the basic rule of law. These
are the fundamental canons of our criminal jurisprudence and they are
quite in conformity with the constitutional mandate contained in
Articles 20 and 21 of the Constitution of India. It is not only the
responsibility of the investigating agency but as well that of the Courts
to ensure that investigation is fair and does not in any way hamper the
freedom of an individual except in accordance with law. Equally
enforceable canon of criminal law is that the high responsibility lies
upon the investigating agency not to conduct an investigation in
tainted and unfair manner. The investigation should not prima facie be
indicative of bias mind and every effort should be made to bring the
guilty to law as nobody stands above law de hors his position and
102 WPA(P)142 of 2021
influence in the society. In Kashmeri Dev v. Delhi Administration and
Anrs. [JT 1988 (2) SC 293] it has been held that the record of
investigation should not show that efforts are being made to protect
and shield the guilty even where they are police officers and are
alleged to have committed a barbaric offence/crime. The Courts have
even declined to accept the report submitted by the investigating
officer where it is glaringly unfair and offends basic canons of
criminal investigation and jurisprudence. Contra veritatem lex
nunquam a liquid permit it: implies a duty on the Court to accept and
accord its approval only to a report which is result of faithful and
fruitful investigation. The Court is not to accept the report which is
contra legem but to conduct judicious and fair investigation and
submit a report in accordance with Section 173 of the Code which
places a burden and obligation on the State Administration. The aim
of criminal justice is two-fold. Severely punishing and really or
sufficiently preventing the crime. Both these objects can be achieved
only by fair investigation into the commission of crime, sincerely
proving the case of the prosecution before the Court and the guilty is
punished in accordance with law. (See. Sidharta Vashisht @ Manu
Sharma vs. State (NCT of Delhi); AIR 2010 SC 2352; 2010 (6) SCC
1).
129. The role of the investigating officer to bring out the real
unvarnished truth for the courts to reach a right conclusion. The duty
of the Investigating Officers is not merely to bolster up a prosecution
case with such evidence as may enable the Court to record a
conviction but to bring out the real unvarnished truth. The sole object
103 WPA(P)142 of 2021
of every trial is to conduct a fair trial in search of a ultimate truth viz
whether the accused is an actual perpetrator of the crime or is an
innocent person. To find out the ultimate truth in a criminal case, the
court is not dependent merely on the evidence placed on record by the
police. The effect of any criminal proceedings cannot always be left
entirely in the hands of the parties as ultimately, it is the duty of the
court to leave no stone unturned to bring out the truth for doing
complete justice between the parties and to protect the interest of the
society as well. [See. Jamuna Chaudhary and Ors.vs. State of
Bihar; (AIR 1974 SC 1822) and Pawan @ Diggi v. State;
Manu/DE/0255/2014 decided on 24th January, 2014 (Delhi)].
130. In dealing with the concept of fair trial in relation to any
criminal proceedings, the Apex Court in Zahira Habibullah Sheikh
and Anr. v. State of Gujarat and Ors. reported in (2006) 3 SCC 374
held as under:-
"The complex pattern of life which is never static
requires a fresher outlook and a timely and vigorous
moulding of old precepts to some new conditions, ideas
and ideals. If the court acts contrary to the role it is
expected to play, it will be destruction of the fundamental
edifice on which the justice delivery system stands.
People for whose benefit the courts exist shall start
doubting the efficacy of the system. Justice must be rooted
in confidence; and confidence is destroyed when right-
minded people go away thinking: The Judge was biased.'
(Per Lord Denning, M.R. in Metropolitan Properties Co.
Ltd. v. Lannon, All ER p. 310 A.) The perception may be
wrong about the Judge's bias, but the Judge concerned
must be careful to see that no such impression gains
ground. Judges like Caesar's wife should be above
104 WPA(P)142 of 2021
suspicion (Per Bowen, L.J. in Leeson v. General Council
of Medical Education.). It was significantly said that law,
to be just and fair has to be seen devoid of flaw. It has to
keep the promise to justice and it cannot stay petrified
and sit nonchalantly. The law should not be seen to sit by
limply, while those who defy it go free and those who seek
its protection lose hope (see Jennison v. Baker).
Increasingly, people are believing as observed by Salmon
quoted by Diogenes Laertius in Lives of the Philosophers,
Laws are like spiders' webs: if some light or powerless
thing falls into them, it is caught, but a bigger one can
break through and get away Jonathan Swift, in his Essay
on the Faculties of the Mind said in similar lines: Laws
are like cobwebs, which may catch small flies, but let
wasps and hornets break through. Right from the
inception of the judicial system it has been accepted that
discovery, vindication and establishment of truth are the
main purposes underlying the existence of the courts of
justice. The operative principles for a fair trial permeate
the common law in both civil and criminal contexts.
Application of these principles involves a delicate judicial
balancing of competing interests in a criminal trial: the
interests of the accused and the public and to a great
extent that of the victim have to be weighed not losing
sight of the public interest involved in the prosecution of
persons who commit offences." (emphasis supplied)
131. In Mohan Lal vs. State of Punjab reported at (2018) 17
SCC 627, the right to fair trial has been reiterated in paragraph 17
where it has been observed that:-
"17. In a criminal prosecution, there is an obligation cast
on the investigator not only to be fair, judicious and just
during investigation, but also that the investigation on the
very face of it must appear to be so, eschewing
105 WPA(P)142 of 2021
any conduct or impression which may give rise
to a real and genuine apprehension in the mind
of an accused and not mere fanciful, that the
investigation was not fair. In the circumstances, if
an informant police official in a criminal
prosecution, especially when carrying a reverse
burden of proof, makes the allegations, is himself asked
to investigate, serious doubts will naturally arise with
regard to his fairness and impartiality. It is not
necessary that bias must actually be proved. It would be
illogical to presume and contrary to normal human
conduct, that he would himself at the end of the
investigation submit a closure report to conclude false
implication with all its attendant consequences for
the complainant himself. The result of the investigation
would therefore be a foregone conclusion."
132. In the context of a prayer for investigation by CBI, the
Hon'ble Supreme Court in Pooja Pal vs. Union of India and Ors.;
AIR 2016 SC 1345 had reiterated the need for a fair, honest and
impartial investigation. The issue before the Hon'ble Supreme Court
was the necessity or otherwise of further investigation or re-
investigation by the CBI in view of overall conspectus of facts and the
state of law. In Pooja Pal (supra) admittedly faced with such situation
the Hon'ble Supreme Court passed a landmark judgment. Justice Roy
while delivering the judgment on behalf of the Bench in His
Lordship's inimitable style has highlighted the court's duties to ensure
a free and fair investigation in the following words given in
paragraphs 72, 74, 76 and 77 as stated below:-
"72. The precedential ordainment against absolute
prohibition for assignment of investigation to any
106 WPA(P)142 of 2021
impartial agency like the CBI, submission of the charge-
sheet by the normal investigating agency in law
notwithstanding, albeit in an exceptional fact situation
warranting such initiative, in order to secure a fair,
honest and complete investigation and to consolidate the
confidence of the victim(s) and the public in general in
the justice administering mechanism, is thus
unquestionably absolute and hallowed by time. Such a
measure however can by no means be a matter of course
or routine but has to be essentially adopted in order to
live up to and effectuate the salutary objective of
guaranteeing an independent and upright mechanism of
justice dispensation without fear or favour, by treating all
alike.
74. The judicially propounded propositions on the aspects
of essentiality and justifiability for assignment of further
investigation or reinvestigation to an independent
investigating agency like the CBI, whether or not the
probe into a criminal offence by the local/state police is
pending or completed, irrespective of as well, the
pendency of the resultant trial have concretized over the
years, applicability whereof however is contingent on the
factual setting involved and the desideratum for vigilant,
sensitised and even handed justice to the parties.
76. A "speedy trial", albeit the essence of the
fundamental right to life entrenched in the Article 21 of
the Constitution of India has a companion in concept in
"fair trial", both being in alienable constituents of an
adjudicative process, to culminate in a judicial decision
by a court of 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
107 WPA(P)142 of 2021
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 analyzed 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.
77. As every social order is governed by the rule of law,
the justice dispensing system cannot afford any
compromise in the discharge of its sanctified role of
administering justice on the basis of the real facts and in
accordance with law. This is indispensable, in order to
retain and stabilize the faith and confidence of the public
108 WPA(P)142 of 2021
in general in the justice delivery institutions as envisioned
by the Constitution."
(emphasis supplied)
133. Since a trial is based on the charges framed by the
investigating agency on the basis of materials collected during
investigation it is imperative to ensure that a fair trial must entail a fair
and impartial investigation. A fair investigation is the foundation and
backbone of a fair trial. Mithilesh Kumar Singh v State of Rajasthan
reported in (2015) 9 SCC 795 has underlined the importance of
fairness in investigation in paragraph 12 in the following words:
"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
109 WPA(P)142 of 2021
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 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."
(emphasis supplied)
134. In Sasi Thomas v State & Ors reported in (2006) 12 SCC
421 it is stated that free and fair investigation on the part of the
investigating officer is the backbone of rule of law.
135. The issue whether a police officer is duty bound to
register an FIR upon receiving any information relating to commission
of cognizable offence as provided under Section 154 of the Cr.P.C.,
1973 and whether a police officer has power to conduct an enquiry in
order to test veracity of such complaint before registering FIR was
considered by a larger Bench of the Hon'ble Supreme Court in Lalita
Kumari v Govt. of U.P & others reported in (2014) 2 SCC 1. The
Hon'ble Supreme Court disposed of the reference in the following
words:-
110 WPA(P)142 of 2021
"31. As such, a significant change that took place by way
of the 1898 Code was with respect to the placement
of Section 154, i.e., the provision imposing requirement of
recording the first information regarding commission of a
cognizable offence in the special book prior to Section
156, i.e., the provision empowering the police officer to
investigate a cognizable offence. As such, the objective of
such placement of provisions was clear which was to
ensure that the recording of the first information should
be the starting point of any investigation by the police. In
the interest of expediency of investigation since there was
no safeguard of obtaining permission from the Magistrate
to commence an investigation, the said procedure of
recording first information in their books along with the
signature/seal of the informant, would act as an
"extremely valuable safeguard" against the excessive,
mala fide and illegal exercise of investigative powers by
the police.
40. The use of the word "shall" in Section 154(1) of the
Code clearly shows the legislative intent that it is
mandatory to register an FIR if the information given to
the police discloses the commission of a cognizable
offence.
48. .................The First Information Report is in fact the
"information" that is received first in point of time, which
is either given in writing or is reduced to writing. It is not
the "substance" of it, which is to be entered in the diary
prescribed by the State Government. .......................
64. ...........The non qualification of the word
"information" in Section 154(1) unlike in Section
41(1)(a) and (g) of the Code is for the reason that the
police officer should not refuse to record any information
relating to the commission of a cognizable offence on the
ground that he is not satisfied with the reasonableness or
credibility of the information........
111 WPA(P)142 of 2021
73. In terms of the language used in Section 154 of the
Code, the police is duty bound to proceed to conduct
investigation into a cognizable offence even without
receiving information (i.e. FIR) about commission of such
an offence, if the officer in charge of the police station
otherwise suspects the commission of such an offence.
The legislative intent is therefore quite clear, i.e., to
ensure that every cognizable offence is promptly
investigated in accordance with law. This being the legal
position, there is no reason that there should be any
discretion or option left with the police to register or not
to register an FIR when information is given about the
commission of a cognizable offence. Every cognizable
offence must be investigated promptly in accordance with
law and all information provided under Section 154 of
the Code about the commission of a cognizable offence
must be registered as an FIR so as to initiate an
offence....................
76. Therefore, conducting an investigation into an offence
after registration of FIR under Section 154 of the Code is
the "procedure established by law" and, thus, is in
conformity with Article 21 of the Constitution.
Accordingly, the right of the accused under Article 21 of
the Constitution is protected if the FIR is registered first
and then the investigation is conducted in accordance
with the provisions of law.
83. The object sought to be achieved by registering the
earliest information as FIR is inter alia two fold: one,
that the criminal process is set into motion and is well
documented from the very start; and second, that the
earliest information received in relation to the
commission of a cognizable offence is recorded so that
there cannot be any embellishment etc., later.
88) The registration of FIR either on the basis of the
information furnished by the informant under Section
112 WPA(P)142 of 2021
154(1) of the Code or otherwise under Section 157(1) of
the Code is obligatory.
98) While registration of FIR is mandatory, arrest of the
accused immediately on registration of FIR is not at all
mandatory..............
111) In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of
the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is
permissible in such a situation.
ii) If the information received does not disclose a
cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted only to
ascertain whether cognizable offence is disclosed or not.
vi) As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case."
136. The court is caught between the scylla and charibdis in
view of the nature of the complainants concerning the political party
in dispensation in the state by the opposition parties. The prayer for
impartial investigation based on data collected by the court appointed
fact finding committee on behalf of the petitioners is opposed by the
State. The State in its affidavit and in the exception to the report filed
by the fact finding committee tried to pick holes in the report and
project that the State machineries have been geared to the fullest
extent possible to maintain law and order in the State soon after the
present government has assumed office on 5th May, 2021. For all
instances of violence during the election between 27th March, 2021 till
2nd May, 2021 the contention of the State is that the Election
Commission must take the responsibility as the entire police
113 WPA(P)142 of 2021
machinery was under the supervision of the Election Commission and
the police officers were transferred at the behest and at the dictates of
the Election Commission. The State was ready and willing to
maintain the law and order however, the State machineries were
unable to take appropriate measures as the movements of the police
personnel all over the State were being monitored and controlled by
the Election Commission without consulting the State.
137. However, after the present government assumed office
the instances of post poll violence has reduced drastically. The learned
Advocate General has gone on record to contend that after 9th April,
2021 there has been no violence at all. The pleadings filed by the
petitioners read with the fact finding committee report, however, has
belied such claim of the State. The state was given ample
opportunities and scope to register complaints and take appropriate
measures in accordance with law. The State was on a denial mode.
The instances of the failure of the State to take prompt and effective
action and steps after 2nd May, 2021 or 5th May, 2021 have been
meticulously stated and analysed in the judgment delivered by the
Acting Chief Justice and I fully concur with the narration of events
and findings based on analysis of such events made by the Chief
Justice (Acting) in His Lordship's judgment. Even if, we discard the
scathing remark and recommendations of the fact finding committee
the data forming part of the report of the fact finding committee with
regard to the nature of the offences, the lukewarm response of the
State in dealing with such complaint cannot be countenanced. While I
appreciate the anxiety expressed on behalf of the State with regard to
114 WPA(P)142 of 2021
the sudden surge in undated complaints during the pendency of the
proceeding and few discrepancies in the language of the FIR and its
translated version produced by the fact finding committee, however,
such incidents per se does not dilute the apprehension expressed by
the writ petitioners with regard to the non-registration of FIRs and/or
closure of investigation in cognizable offence or dilution of sections to
shield the culprits.
138. The fact finding committee in terms of our order
examined all the cases and even visited the affected areas and
submitted a comprehensive report about the situation prevailing
thereat and the steps to be taken to ensure confidence of the people so
that they can live peacefully in their houses and carry on their business
to earn their livelihood. Moreover, the persons prima facie
responsible for the crime and the officers who maintained calculated
silence on the same was also required to be pointed out by the
committee.
139. The final report in paragraph 9 clearly mentions that
despite specific directions of the Hon'ble High Court, only 137 FIR's
were registered on 1893 complaints sent by the Committee to the DGP
(West Bengal). It is also pertinent to mention that the details related to
the registration of the cases and counter cases (where original
victims/complainants were implicated in false cases) were not
furnished by the DGP, West Bengal despite sending letter by the
Committee dated 6th July, 2021 and reminder dated 10th July, 2021.
140. The Final Report clearly indicates that hardly 14% of the
accused named in the FIRs lodged by West Bengal police were
115 WPA(P)142 of 2021
arrested and out of those arrested, 80% were released on bail.
Effectively speaking, only 3% of the accused named are in jail.
141. The petitioners contended that Judicial precedents
mandate the view that when accusations are directed against the local
police personnel, it is desirable to entrust the investigation to an
independent agency like the CBI so that all concerned including
relatives of the deceased feel assured that since an independent agency
is looking into the matter which would lend credibility to the final
outcome of the investigation as observed in -RS Sodhi Adv v State of
UP & Ors. 1994 Supp (1) SCC 143 at paragraph 2. Fair and impartial
investigation by an independent agency, not involved in the
controversy is the demand of public interest and in this regard reliance
is placed on - Md. Anis v Union of India & Ors. 1994 Supp (1) SCC
145. In the interest of victims of post poll violence in West Bengal,
justice must not only be done but seen to be done. Hence an
independent investigating agency must be entrusted with the
investigation in the light of allegations of complicity of police officials
in the commission of the crimes.
142. SITs have been constituted in the past on occasions when
investigation was not being carried out satisfactorily in the Court's
view or when the nature of cases was sensitive, such as the 1984 riots
case and upon placing reliance on (S. Gurlad Singh Kahlon v Union
of India & Ors. Writ petition (Criminal) No.9/2016 dt. of judgment
11.1.2018) or the Gujrat riots case in NHRC v State of Gujarat &
Ors. (2009) 6 SCC 342, or on recovery of black money in Ram
116 WPA(P)142 of 2021
Jethmalani & Ors.v Union of India & Ors. (2011) 8 SCC 1.Similar
directions have been prayed for in the instant matters.
143. The petitioners have defended the composition of the fact
finding committee and submitted that the accusation of biasness
against the fact finding committee was to malign the committee rather
than dispelling the findings arrived at by the committee. The State has
miserably failed to remove the glaring discrepancies between the
complaints registered by the Committee and the State Police
Authority.
144. This argument is articulated on the basis that there is a
gap of 60% between the number of political murders reported by the
Committee and that by the DGP West Bengal. Whereas the
Committee reports 52 murders committed from 2nd May, 2021
onwards, the DGP West Bengal on the other hand has reported 29
such cases during that period. The situation with rape cases is even
more stark. The State at page 169 of the Report which is based on
information obtained from DGP WB says no rape had occurred and all
offences merely relates to attempt to rape or sexual molestation,
whereas as per the Committee's spot visits, 11 rape cases have come
to light.
145. This certainly raises an important issue with regard the
fairness of the investigation as the State has specifically contended
that no rape has occurred during post poll violence. In cases where
FIRs have been registered, the allegation is that the prime accused
being party functionaries of the ruling dispensation are yet to be
117 WPA(P)142 of 2021
apprehended. For a majority of the murder victims, the allegation is
that police has either offered no response in their reply or attempted to
downplay the political angle by showing them to be deaths due to
family quarrel, alcoholism, depression etc despite clear allegations by
the family that the murders were politically motivated. There are also
instances where family members claimed that they were pressurized
by the local political functionaries of the ruling dispensation not to
give statements to the Committee.
146. In the State's reply at Paragraph 36 of the exceptions, out
of the 3384 complaints which were received from the Committee,
there are more than 1000 such complaints where there is no response
by the State. Further 1356 complaints have been found to be not true.
It is submitted on behalf of the Petitioners that in terms of the mandate
contained under Chapter XII of the CrPC (Sections 154 to 173) that
Police has no discretion to declare a version of a victim untrue without
registering an FIR and carrying out an investigation. The law is well
settled in Lalita Kumari v Govt. of UP (2014) 2 SCC 1 that once a
complaint discloses a cognizable offence it is mandatory for the Police
to register an FIR. It is only after registration of an FIR that the
veracity of the complainant's version can be questioned. It is
submitted that it is not the contention of the Petitioners that every
investigation or every complaint has to result in a final report under
Section 173 CrPC, but a closure report can only be filed post the
registration of FIR in terms of Section 157 CrPC or under Section
173. A mere perusal of Section 154 read with Sections 157, 158 and
118 WPA(P)142 of 2021
159 CrPC makes it amply clear that in case the Police after the
registration of an FIR chooses not to investigate a case it is obliged in
law to forward a report detailing the reasons to justify its decision not
to investigate to the Magistrate subsequent to which the Magistrate
can either direct investigation by the police or depute any subordinate
Magistrate to hold a preliminary enquiry. In this regard reliance is
placed on SN Sharma v Bipin Bihari Tiwari AIR 1970 SC 786-
Paragraphs 2 and 3).
147. I find considerable merit in the aforesaid argument in the
light of the data disclosed in the report of the fact finding committee
read with the disclosures made by the State.
148. I am not going into further facts and figures of omission
and commission or the arguments in detail made by the respective
parties in advancing their cause or in defence on their actions but what
transpires from the report and the stand taken by the Government,
there are good number of cases where the complaints prima facie
disclose commission of offence many of which had remained
unattended or the cases were closed after the investigation by the
police is over. There are many instances where the complainants have
withdrawn the complaints. The cases of rape and murder have also
been reported by the commission and in many cases the State has not
given any response although sufficient opportunities were given to the
State to explain its stand in relation to those cases.
119 WPA(P)142 of 2021
149. The purpose of all investigation is to reveal the
unvarnished truth. The constitutional courts are duty bound to ensure
that the truth is revealed. The allegations of the State are that there are
false complaints and in many cases private disputes have been given
colours of the post poll violence. The State respondents are critical
about annexure-H of the report of the fact finding committee as
according to the State respondents, such reports are tainted,
manipulated and premeditated - the whole approach was casual and
premeditated almost as if complaints were kept ready. It is true that
when it concerns rival political groups it is possible that some of the
complaints may be motivated, harrassive and vexatious. It may be
equally true that some are genuine. The bench was constituted to
ensure that persons suffered in the post poll violence irrespective of
political affiliation, religion, caste and creed get justice. The post poll
violence in my view must refer to only those incidents that have taken
place on immediate aftermath of the election results and the
complaints must have a direct nexus to the election results. I agree
with the submission of Dr. Singvi that there must be temporal and
spatial limits imposed while taking note of complaints and it cannot be
open ended. I have also come across few instances where boundary
disputes or snatching or other kind of offences completely unrelated to
post poll violence found place in the report filed by the fact finding
committee. However, such instances are not significant in number
and given the time constraints I think it would be unfair to impute
biasness against the members of the fact finding committee who
120 WPA(P)142 of 2021
otherwise have done a commendable job in collecting and compiling
complaints.
150. Although the fact finding committee has made scathing
remarks and made recommendations against politicians and police
officers I am of the view that such remarks and recommendations
were uncalled for and to that extent the committee has transgressed its
limits. Inclusion of Rajulben L. Desai, Atif Rashid and Rajib Jain in
the fact finding committee in my view does not vitiate the report of
the fact finding committee although I felt that having regard to the
antecedents of Rajulben Desai and Atif Rashid the inclusion of the
said two members could have been avoided as it might raise
reasonable likelihood of bias. However, having regard to the fact that
the decision of the committee is unanimous and we are accepting the
said report only for the purpose of relying upon data disclosed in the
report and the information gathered by the member of the committee
during spot visits the inclusion of the said two persons in my view
cannot be considered to be one single drop to taint the whole glass.
151. I accept the argument of Mr. Kapil Sibbal that unless the
procedure under the Protection of Human Rights Act 1993 are
followed with regard to the enquires, investigations and persons like
to be prejudicially affected are not heard by the commission in
exercise of its power under the Protection of Human Rights Act, 1993,
the recommendations cannot be accepted by this court. I think
heading of the report has given an impression that it is the report of
121 WPA(P)142 of 2021
the National Human Rights Commission but in reality the report is of
a fact finding committee constituted in terms of the order passed by
this court. The imputations against the politicians and the police
officers are not acceptable as there has been no appropriate enquiry or
investigation against the persons responsible for the acts alleged
following the procedure laid down in the PHR Act, 1993 and I do not
consider the said report as NHRC report. However, this finding in no
way belittle the efforts of the committee members in collating and
compiling the datas which are now to be looked into by the
investigating agencies appointed by the court in terms of the order
passed by the Chief Justice (Acting).
152. I am aware of the fact that the power of transferring
investigation to other investigating agency must be exercised in rare
and exceptional cases and in the contingencies where the Court finds
it necessary in order to do justice between the parties to instil
confidence in the public mind, or where investigation by the State
Police lacks credibility.
153. At this stage it is impossible for this court to assess the
veracity of the complaints. It is neither possible nor desirable for this
court at this stage to express any view on the merits of complaints and
assistance of specialised agency is required for the unvarnished truth
to surface. The petitioners have attributed bias and lack of apathy of
the state police administration and the report filed by the fact finding
committee prima facie shows that the apprehension expressed by the
122 WPA(P)142 of 2021
writ petitioners have substance. However, the prime concern and
endeavour of the court of law is to secure justice on the basis of true
fact which ought to be unearthed through an upright, honest, resolute,
impartial and competent investigating agency under the supervision of
the constitutional court. The purpose and object of monitoring the
investigation is essential when transfer of investigation 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 to allay any fear of being tardy or being
influenced by persons or authorities who may stand to gain from the
result of the investigation. A watchful eye is required to monitor the
investigation in order to instil faith in the public at large in the
administration of justice.
154. Judiciary as the last hope of the victims in discharge of its
constitutional duties and obligations strike upon the party-political
coercion of the holders of public office and use of state machinery for
party purposes in order to restore faith in the constitution- the sacred
parchment. In this way constitution endows those who wish to act
appropriately in their role and resist any pressure with a strong legal
position.
155. The Saga Of post poll violence, culture of intolerance and
reluctance to accept dissenting views reminds me of the prophetic
words of Nani Palkivala in his book "Democracy and Freedom":
"Will freedom itself survive in the world or will the free
way of life yield to totalitarianism? I believe that liberty
123 WPA(P)142 of 2021
will not die before man. The invincible soul will find a
way of triumphing over any repression, however ruthless.
Man's unconquerable mind will always crave and hunger
for freedom despite all the deficiencies and inefficiencies
of the democratic set up - in preference to the efficient
monolithic state with its inhuman sacrifice of human
values. The spirit of liberty will always be the Eternal
Flame."
156. It would be the duty and the responsibility of the
investigating agencies to consider the cases where no FIR was
registered or dilution of charges have been made and or complaints
have been withdrawn and complaints of rape, murder and other
heinous crimes. The purpose is to ensure that the truth is discovered
and no person is falsely implicated.
157. If the attending circumstances create a reasonable doubt
in the minds of the court that a fair investigation may not be possible
with the state machinery being manipulative or tardy or partial, it is
always desirable that an external Investigative Agency may be
constituted to revisit and re-examine the complaints and the steps
taken by the investigating agency of the state to be monitored by the
Court. It is only on the basis of an impartial assessment of all the
complainants and reports, a fair conclusion should be reached,
keeping in mind that no person should be unnecessarily harassed and
prosecuted irrespective of his position, power and status.
124 WPA(P)142 of 2021
158. I hope and trust that the investigating agency constituted
by the court and the CBI would maintain integrity, impartiality,
honesty and good faith. The institutional independence of the
agencies should be of paramount consideration and should be
maintained throughout at costs.
Subrata Talukdar, J.
159. I respectfully concur with the conclusions arrived at by
the Chief Justice (Acting), as have been respectfully concurred by
Brothers Mukerji, Tandon and Sen.
Rajesh Bindal, C.J.(A)
I.P. Mukerji, J.
Harish Tandon, J.
Soumen Sen, J.
Subrata Talukdar, J.
KOLKATA
August 19, 2021
