Calcutta High Court (Appellete Side)
Kanchan Sharma vs Union Of India & Ors on 10 August, 2022
10.08.2022
Item No.05
Court No.32
Avijit Mitra
WPA (H) 24 of 2022
In re: An application under Article 226 of the
Constitution of India;
And
Kanchan Sharma
-vs-
Union of India & ors.
Mr. Sabyasachi Chatterjee,
Mr. Sandipan Das
....for the petitioner
Ms. Ipsita Banerjee
....for the State
The present writ petition has been preferred
primarily praying for the following reliefs :
(a) A writ in nature of Habeas Corpus
commanding the concerned authority to
produce the body of the petitioner's husband
in the Court of Law;
(b) A writ in nature of mandamus commanding
the Central Bureau of Investigation to take
over the Sarsuna P.S. Case No.03 of 2022 for
an impartial investigation under supervision of
this Hon'ble Court and submit report relating
to the progress of the case periodically till the
disposal of this application.
Mr. Chatterjee, learned advocate appearing for the
petitioner submits that on 27 th September, 2021 at
about 2.00 a.m. the husband of the petitioner, namely,
Raj Kumar Sharma went to a nearby pond for taking a
bath and he was forcibly taken away by some persons.
Such fact was immediately brought to the notice of
respondent no.9 upon lodging a General Diary being
GDE No.1722 of 2021. However, the police authorities
did not take any step towards recovery of her husband.
A further representation was submitted by the petitioner
to the Commissioner of Police on 28 th October, 2021
stating inter alia that two police personnel of Sarsuna
Police Station were present at the time of occurrence.
The name of one police personnel was 'Naba Babu' and
that the said persons were involved in the alleged
offence. The complaint was, however, not registered as
FIR and as such the petitioner was constrained to file an
application under Section 156(3) of the Code and on the
basis of the order passed in the same, Sarsuna Police
Station Case No.03 of 2022 dated 8 th January, 2022 was
registered under Sections 364/34 of the Indian Penal
Code. As no proper steps were taken even thereafter by
the police authorities, the petitioner was constrained to
approach this Court.
Mr. Chatterjee submits that a serious offence has
been committed and the accused persons have not yet
been arrested. As police personnel are involved in the
alleged offence, proper investigation has not been
conducted by the respondent no.9 and such
lackadaisical attitude on the part of the police
authorities would be explicit from the records. In view
thereof, investigation needs to be handed over to the
CBI. In support of such contention reliance has been
placed upon a judgment delivered in the case of State of
Punjab Vs. Central Bureau of Investigation reported in
(2011) 9 SCC 182.
Ms. Banerjee, learned advocate appearing for the
State denies and disputes the contention of Mr.
Chatterjee and submits that there had been a sincere
endeavour on the part of the police authorities to
recover the missing person. The allegation that some
police personnel are involved in the alleged offence does
not feature in GDE No.1722 dated 27th September,
2021. Such allegation was subsequently incorporated
in representations addressed to the Commissioner of
Police and others.
She further submits that during investigation of
the case, raids were conducted at Begusarai, Bihar,
being the native place of the missing person and also at
Delhi and Noida. The statement of the brother of the
missing person as well as the statement of 'Naba Babu'
were also recorded and investigation is still continuing
in Sarsuna Police Station Case No.03 of 2022 dated 8 th
January, 2022. In support of such contention reliance
has been placed upon two reports filed by the
Investigating Officer of the case. Let the said reports, as
produced, be kept on record.
Drawing our attention to the contents of
paragraph 11 of the report dated 25 th July, 2022, Mr.
Chatterjee submits that one 'Naba Babu' was present at
the time of occurrence. Despite such fact, the said
person has not been arrested.
Records reveal that the missing diary was lodged
on 27th September, 2021. In a subsequent complaint,
she alleged inter alia that one 'Naba Babu' and one
'Sagar Tamang' are involved in the alleged offence. From
the orders passed by the learned Additional Chief
Judicial Magistrate, Alipore, South 24 Parganas, it
appears that AC(I)(A), South West Division (Behala) had
been asked to keep strict vigil over the matter and to
monitor the developments closely. It further appears
that the video footages of two working CCTV cameras
had been seized.
A writ in the nature of habeas corpus is a
prerogative writ by virtue of which the causes and
validity of detention of a person are investigated by a
summary procedure. It appears that investigation in
Sarsuna Police Station Case No.03 of 2022 dated 8 th
January, 2022 is still continuing. AC(I)(A), South West
Division (Behala) had been asked to keep strict vigil over
the matter. The petitioner cannot claim that such
investigation should be conducted by any particular
agency of his choice. In exercise of extraordinary
jurisdiction in a habeas corpus petition, the ordinary
administration of criminal justice cannot be usurped.
The judgment upon which reliance has been placed by
Mr. Chatterjee, in our opinion, is also distinguishable on
facts.
In the said conspectus, no further interference is
called for in the present habeas corpus petition and the
same is, accordingly, disposed of.
Needless to observe, the police authorities shall
conduct investigation in Sarsuna Police Station Case
No.03 of 2022 dated 8th January, 2022 in a fair and
impartial manner and conclude such investigation as
expeditiously as possible.
Nothing herein shall, however, prevent the
petitioner from initiating proceedings before any other
Court or forum seeking relief, in accordance with law.
There shall, however, be no order as to costs.
All parties shall act on the server copies of this
order duly downloaded from the official website of this
Court.
(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)
