Calcutta High Court (Appellete Side)

Shaista Afreen And Others vs The State Of West Bengal And Others on 12 April, 2022

April 12, 2022
Sl. No. 4-5
Court No.1
(PA - RB)
                                  WPA (P) 157 of 2022

                               Shaista Afreen and Others
                                           vs.
                          The State of West Bengal and Others

                                          With

                                  WPA (P) 154 of 2022

                                 Anindya Sundar Das
                                          vs.
                          The State of West Bengal and Others

                 Mr. Sabyasachi Chatterjee,
                 Mr. Sayan Banerjee,
                 Ms. Debolina Sarkar, Advocates
                                                     ... for the intervenor

                 Ms. Susmita Saha Dutta,
                 Mr. Sanjeeb Seni, Advocates
                                                     ... for the petitioner
                                                  in WPA (P) 157 of 2022
                 Mr. Phiroze Edulji,
                 Mr. Rajdeep Biswas,
                 Mr. D. Dandapath,
                 Mr. A.K. Upadhyay,
                 Mr. Biswapriya Samanta,
                 Mr. Debapriya Samanta,
                 Mr. Avijit Ray,
                 Mr. Indratanu Das Mahapatra,
                 Mr. Mansa Ram Mondal,
                 Mr. Sourav Mallick,
                 Mrs. Avipra Sarkar, Advocates
                                                     ... for the petitioner
                                                  in WPA (P) 154 of 2022

                 Mr. S. N. Mookherjee, ld. AG
                 Mr. Samrat Sen, ld. AAAG
                 Mr. Tapas Mukherjee,
                 Ms. Srijita Ray, Advocates
                                                   ... for the State
                 Mr. Dhiraj Trivedi, ld. ASG
                 Mr. Aganabha Raha, Advocate
                                                 ... for the Union of India

                 Mr. Samrat Goswami, Advocate
                                                   ... for the CBI
                        2
                                       WPA (P) 157 of 2022 & Anr.




1.

In these Public Interest Petitions, an unfortunate

incident of alleged gang rape and death of a minor girl

aged about 14 years belonging to the scheduled caste

category has been highlighted. It has been alleged that on

4th April, 2022, the said minor girl was invited in the

birthday party by one Brijgopal Goalain, Shyamnagar

area in Hanshkhali in Nadia district of West Bengal, who

is stated to be the son of an influential political leader of

the ruling Trinamool Congress Party (TMC) and a member

of Gazna Gram Panchayat. It is further alleged that the

girl was gang raped by Brijgopal Goalain with 4-5 other

friends. The record reflects that the girl was sent back to

her house at around 8 p.m. in a sick condition. She was

unable to stand up and was bleeding from her private

parts and was smelling of alcohol. It was alleged that she

was forced to consume alcohol. The mother of the girl

went to local doctor to take medicine and after returning,

she found that her daughter was lying dead on the bed. It

has been alleged that the family members were prevented

from taking her to any private or government hospital

and the girl died on account of excessive bleeding from

the private parts.

2. Submission of learned Counsel for the petitioner

is that the family members of the victim were threatened

and that police had refused to register the report on the

next date and with the intervention of the local NGO, the

FIR was finally registered by the police after five days. It

WPA (P) 157 of 2022 & Anr.

is also submitted that the father of the accused is a TMC

leader, therefore, the police is not properly investigating

the matter and that no MLC and post-mortem of the girl

has been done and she has been hurriedly cremated and

that even the highest executive of the State is calling it to

be an incident of love affair, hence, the people do not

have faith that the State police machinery will carry out a

fair investigation.

3. This matter was taken up in the first half of the

day when learned Counsel for the State took time to

produce the case diary along with the report in the

second half, therefore, matter was passed over.

4. Learned Counsel for the State has produced the

case diary and the report of the investigation.

5. The submission of learned Counsel for the State

is that the police authorities are properly investigating

the matter. The arrest has been made and that the

statements under Section 164 of Cr.P.C. of the concerned

persons have been recorded.

6. We have heard the learned Counsel for the

parties and perused the record.

7. The unfortunate incident of death of a minor

scheduled caste girl aged about 14 years is undisputed.

Nothing relevant has been pointed out to counter the

allegation of the petitioners that the victim has been

cremated hurriedly without any medico-legal

examination, without any post-mortem examination and

WPA (P) 157 of 2022 & Anr.

without any death certificate. The incident had taken

place on 4th April, 2022 whereas, the FIR has been

registered on 10th April, 2022. In the FIR, we find that no

reason for delay in reporting the complaint has been

recorded. Learned Counsel for the petitioner in WPA (P)

157 of 2022 has made following allegations and

requested us to examine the following points in the case

diary.

a. While recording the statement of the

witnesses under Section 164 of Cr.P.C., no

videography as required in terms of proviso of

Sub-section 1 of Section 164 of Cr.P.C. has been

done.

b. The victim was found on the road bleeding

and was taken by someone but blood-stained

mud has not been seized from the spot of

recovery of the girl.

c. No crime reconstruction scene of the incident

has been done.

d. The chemical test to trace out the blood-

stains was not done. He has submitted that the

West Bengal Police does not have necessary

facility for that test and it can be done only by

CFSL, Delhi.

e. The clothes of the victim have not been seized

for the DNA sampling.

WPA (P) 157 of 2022 & Anr.

f. The clothes of the accused, which he was

wearing at the time of the incident, have not

been seized. He has submitted that those clothes

were required to be seized and sent for forensic

examination and referring to the article

"Persistence of DNA from laundered semen

stains: Implications for child sex trafficking

cases" published by Forensic Science

International: Genetics 19 (2015) 165-171, he

has submitted that with the advanced

techniques, complete DNA profile can now be

obtained from laundered semen stains on

clothing even after a long time and multiple

washes.

g. He has also submitted that the FIR is to be

uploaded but the name of the complainant may

not have been blurred in that.

h. The bedsheet, which was used at the time of

commission of offence, which may be filled with

blood-stains, has not been seized.

i. Entire case may be based upon the

circumstantial evidence because the dead body

has been cremated hurriedly, therefore, minute

investigation with advanced technology is

required.

8. We have examined the case diary and have also

considered the above points which the learned Counsel

WPA (P) 157 of 2022 & Anr.

for the petitioner has raised. We find that the

investigation suffers from serious lapses on several

important aspects. We cannot lose sight of the fact that

the accused is the son of a powerful leader of the ruling

party and that there is material available in the case

diary indicating that the family members of the victim

have been threatened. The fact that there is no MLC, no

post-mortem report and no death certificate also creates

a suspicion about an attempt to suppress the entire

incident and to wipe out the evidence. Learned Counsel

for the State submits that there is no death certificate

because there is no crematorium in the village, but the

said statement appears to be incorrect because a perusal

of the case diary shows that the victim was cremated in

Shyamnagar Atirpur Burning Ghat (Shamsan). The case

diary further reflects that the rape may have been

committed upon the victim not only by the person named

in the FIR but by other persons also.

9. This Court in the matter of The Court on its

own Motion In re: The Brutal Incident of Bogtui

Village, Rampurhat, Birbhum by order dated 25th

March, 2022 in WPA (P) 130 of 2022, considering the

circumstances and scope of handing over the

investigation to an independent agency like CBI has

taken note of the legal position as under:

"Hon'ble Supreme Court in the matter of Gudalure M.J. Cherian and Others vs. Union of India and Others reported in (1992) 1 SCC

WPA (P) 157 of 2022 & Anr.

397 in a case of alleged rape of two nuns at Gajraula in Uttar Pradesh where after filing of charge-sheet, a prayer for transfer of investigation to the CBI was made, has held that in a given situation to do justice between the parties and to instill confidence in the public mind, it may become necessary to ask the CBI to investigate a crime. It only shows the efficiency and the independence of the agency. The Hon'ble Supreme Court in that case had directed the CBI to take up the investigation.

In the matter of R.S. Sodhi v. State of U.P. and Others reported in AIR 1994 SC 38, in a case where allegations were leveled against the local police and it was held that the investigation by State police would lack credibility and that it would be desirable to entrust the investigation to an independent agency like the CBI so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of investigation credible. In the facts of the case, it was observed that however faithfully the local police may carry out the investigation, the same would lack credibility since the allegations were against them.

In the matter of Punjab and Haryana High Court Bar Association, Chandigarh vs. State of Punjab and Others reported in AIR 1994 SC 1023, in a case where a practicing lawyer, his wife and child were abducted and murdered and the lawyers' fraternity was not satisfied with the police investigation though the investigation was already completed, Hon'ble Supreme Court, considering the facts of the case, in order to do complete justice in the matter and to instill

WPA (P) 157 of 2022 & Anr.

confidence in the public mind had directed fresh investigation through specialized agency, i.e., CBI.

In the matter of State of West Bengal and Others vs. Committee for Protection of Democratic Rights, West Bengal and Others reported in AIR 2010 SC 1476, considering the scope of power of the Court to direct investigation by the CBI, it is held that direction to the CBI can be given by the Writ Court even in absence of consent of the State and such direction is not incompatible with federal structure or doctrine of separation of power. It has further been observed that being protectors of civil liberties of the citizens, the Supreme Court and 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. It has been held that such power should be exercised sparingly, cautiously and in exceptional situations. It has been also held that the extraordinary power can be exercised when it becomes necessary to provide credibility and instill 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 right.

In the matter of Rubabbuddin Sheikh vs. State of Gujarat and Others reported in AIR 2010 SC 3175, the Hon'ble Supreme Court has held that in order to do complete justice, even after filing of charge-sheet, Court can direct to hand over investigation to the CBI more so, when

WPA (P) 157 of 2022 & Anr.

high profile officials of the State are involved in crime and investigation is not made in proper direction.

In the matter of Ashok Kumar Todi vs. Kishwar Jahan and Others reported in AIR 2011 SC 1254, in the case of unnatural death, where the mother and brother of the deceased were suspecting murder at the hands of the in- laws of the deceased and the State CID was interested in protracting the investigation, considering the circumstances of the case and the fact that the complainants had expressed doubt about fair investigation under the CID, the Hon'ble Supreme Court had found investigation by CBI to be proper.

In respect of the incident of deaths by police firing in Nandigram, this Court had registered the suo motu petition and in order to ensure fair investigation and avoid possibility of loss/destroying of the relevant evidence, had directed the investigation by the Special Team deputed by the Director of CBI. (Association for Protection of Domestic Rights vs. State of West Bengal and Others; 2007 SCC OnLine Cal 672). Counsel for the petitioners have also brought to the notice of this Court, the Division Bench judgment in the matter of Bar Association of High Court at Calcutta reported in (2011) 4 CHN 736 (Cal) wherein considering the circumstances of the case and being prima facie satisfied that the local committee of CPI(M) was involved in the incident the Court had directed the investigation by the CBI."

10. In the circumstances of the case and after

considering the above legal position, we are of the opinion

WPA (P) 157 of 2022 & Anr.

that in order to have fair investigation in the matter and

to instill confidence in the family members of the victim

and also the residents of the locality and the State, the

investigation should be carried out by the CBI instead of

the local police. Hence, we direct the State Investigating

Agency to hand over the investigation to the CBI with

immediate effect. The State Investigating Agency will

hand over all the papers relating to the investigation

along with the custody of the accused persons to the CBI