Anindya Sundar Das vs Union Of India And Others
2022 Latest Caselaw 1479 Cal

March 25, 2022 Sl. No. 1-6 Court No.1 (PA - RB/SS) WPA (P) 130 of 2022

The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum

With

WPA (P) 124 of 2022

Anindya Sundar Das vs.

Union of India and others

With

WPA (P) 125 of 2022

Tarunjyoti Tewari vs.

Union of India and others

With

WPA (P) 126 of 2022

Priti Kar vs.

The State of West Bengal and others

With

WPA (P) 129 of 2022

Sayanti Sengupta vs.

The State of West Bengal and others

With

WPA (P) 133 of 2022

Priyanka Tibrewal vs.

The State of West Bengal and others

Mr. Sabyasachi Chatterjee, Mr. Pintu Kakar, Mr. Akashdeep Mukherjee, Ms. Debolina Sarkar, Mr. Ranjil Mukherjee, Mr. Sayan Banerjee,

WPA (P) 130 of 2022 & ors

Mr. Samim Ahammed, Mr. Arka Maiti, Mr. Aniruddha Singh, Ms. Gulsanwara Pervin, Advocates ... for the intervenor in WPA (P) 130 of 2022 Mr. Phiroze Edulji, Mr. Rajdeep Biswas, Mr. Nilendu Bhattacharya, Mr. A. K. Upadhyay, Mr. Debapriya Samanta, Mr. Dipankar Dandapath, Mr. Idratanu Das Mahapatra, Mr. Mrinal Das, Mr. Raja Adhikari, Mr. Abhijit Roy, Mr. Sanjeeb Sen, Advocates ... for the petitioner in WPA (P) 124 of 2022 Mr. Nilanjan Bhattacharjee, Mr. Kumar Jyoti Tewari, Mr. Brajesh Jha, Mr. Ajit Kumar Mishra, Mr. Uttam Basak, Mr. Rajdeep Mazumdar, Mr. Arijit Majumdar, Mr. Lokenath Chatterjee, Mr. Ayon Paul, Mr. Moyukh Mukherjee, Mr. Aniruddha Tewari, Mr. Saket Sharma, Mr. Sukanta Ghosh, Advocates ... for the petitioner in WPA (P) 125 of 2022 Mr. Koustav Bagchi, Mr. Debayan Ghosh, Advocate ... for the petitioner in WPA (P) 126 of 2022 Mr. Rabi Shankar Chattopadhyay, Mr. Uday Shankar Chattopadhyay, Mr. Santanu Maji, Mr. Jamiruddin Khan, Mr. S. Chattopadhyay, Mr. Imteaz Ahmed, Advocates ... for the petitioner in WPA (P) 129 of 2022

Ms. Priyanka Tibrewal, ... petitioner-in-person in WPA (P) 133 of 2022 Mr. S. N. Mookherjee, ld. AG Mr. Samrat Sen, ld. AAAG Mr. Anirban Ray, ld. GP Mr. Md. T. M. Siddiqui,

WPA (P) 130 of 2022 & ors

Mr. D. Ghosh, Mr. N. Chatterjee, Advocates ... for the State Mr. Y. J. Dastoor, ld. ASG Mr. Vipul Kundalia, Ms. Amrita Pandey, Advocate ... for the Union of India in WPA (P) 124 of 2022 Mr. Y. J. Dastoor, ld. ASG Mr. Debasish Tandon, Advocate ... for NIA in WPA (P) 124 of 2022 Mr. Dhiraj Trivedi, ld. Asst. Solicitor General Mr. Shailendra Kumar Mishra, Mr. Rishav Kumar Thakur, Advocates ... for the CBI in WPA (P) 125 of 2022

Mr. Billwadal Bhattacharyya, ld. Asst. Solicitor General Mr. Debu Chowdhury, Advocate ... for the CBI in WPA (P) 126 & 129 of 2022

A very shocking and unfortunate incident has taken

place at village Bogtui, on the outskirts of Birbhum's

Rampurhat. At late night on 21st of March, 2022, some

miscreants have put on fire 10 houses of the village, in

which at least 8 persons which include a child, women,

and newly married couple have been burnt alive. Apart

from the fact that charred bodies of 8 persons have been

found from those houses in the village, some villagers are

also injured who have been hospitalized.

The media reports state that Bogtui is a village with

over 2000 population and after the incident the residents

of the village have left their houses on account of fear and

terror. It has been reported that the killings was the

result of the outrage amongst the close aids and

supporters of Bhadu Sk, the deputy chief of ruling party

WPA (P) 130 of 2022 & ors

run Barishul Gram Panchayat who was killed by

assassinator belong to the rival camps, due to bombs

hurled on Monday night, and, therefore, the incident is

the retaliatory action to Bhadu Sk's killing. Some of the

reports also state that the poor villagers became the

victim of rivalry between two groups of the ruling party

and that incident was caused by goons supported by the

political party in power. At this stage, it is not possible to

draw any conclusion about truthfulness or falsity of these

allegations because investigation is yet to take place but

these reports and allegations cannot be completely

ignored.

On registering the suo motu petition by this Court as

many as 5 PILs have also been filed making serious

allegations. It has been alleged that the incident had

taken place at the instance of the hooligans associated

with the ruling party and that even the fire brigade

personnel were stopped from entering the village.

Apprehension has been expressed that though SIT has

been formed but the investigation will be done only to

cover up the issue instead of finding the culprits or to

unearth the truth. Serious apprehension has been

expressed that the investigation has been camouflaged by

the investigating agency and the evidence will be

destroyed and that the independent investigation by the

local police is not possible on account of the involvement

of high profile persons connected to one of the political

WPA (P) 130 of 2022 & ors

party and that in order to cover up the incident one of the

leaders of the ruling party has already stated the incident

took place due to short circuit as a television had blasted.

A strong apprehension has been expressed about

likelihood of tampering the evidence and influencing the

witnesses by raising the plea that the incident is the

result of a political vendetta.

The object of registering this suo motu petition is to

ensure fair investigation and to trace out the persons

responsible for the incident and to see that they are

punished adequately. This Court on 23rd of March, 2022

had issued certain directions in this petition to preserve

the evidence and had further directed the learned

Advocate General to provide the case diary / report of

investigation to this Court and the same has been

produced.

Submission of learned Counsel for the petitioners is

that the investigating agencies are not properly carrying

out the investigation and till yesterday no action was

taken and only after the intervention by this Court some

activity has been shown. It is also submitted that

whereabout of one of the minor witnesses is not known

and the police is not recording the statements of the

family members of the deceased and that out of fear and

terror all the villagers of not only the concerned village

but also nearby villages have fled away and it is

necessary that justice be done to the victims of the family

WPA (P) 130 of 2022 & ors

and the faith of the society in the system is restored,

therefore, an independent agency be appointed to carry

out the investigation. In support of their submission they

have placed reliance upon various judgments of this

Court as well as Hon'ble Supreme Court.

Learned Advocate General has submitted that all the

directions which were issued by this Court on 23rd of

March, 2022 have been complied with and protection to

the witnesses has been provided but it will take some

time to restore confidence in the villagers so that they can

come back to their houses. He has advanced the

argument that the writ petitions have been filed without

proper verification and that oral arguments without the

pleadings have been advanced before this Court and that

the investigation is being properly carried out and SIT has

been formed and arrests have been made, therefore, at

this stage no case is made out for transferring the

investigation to the CBI.

We have heard the learned Counsel for the parties

and perused the records.

Before entering into the issue, we deem it proper to

examine the scope of judicial intervention and consider

circumstances when the investigation can be transferred

to the CBI.

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 397 in a case of alleged

WPA (P) 130 of 2022 & ors

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

WPA (P) 130 of 2022 & ors

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 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

WPA (P) 130 of 2022 & ors

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 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).

WPA (P) 130 of 2022 & ors

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.

Learned Advocate General has advanced argument

to distinguish the cases relied upon by the Counsel for

the petitioners by submitting that only in the cases

relating to the police firing, etc. where involvement of

police is found, the power to transfer the case to the CBI

should be exercised but on perusal of the judgments

noted above, we find that such power can be also

exercised where it becomes necessary to provide

credibility to the investigation and instill confidence in

society or where the incident may have national

ramification or where such an order may be necessary for

doing complete justice and enforcing the fundamental

right. In this view of the matter, we are of the opinion

that the prayer made by the petitioners cannot be turned

down on the basis of the judgments in the matter of K.V.

Rajendran vs. Superintendent of Police, CBCID, South

Zone, Chennai and Others reported in (2013) 12 SCC

480, in the matter of Mohd. Haroon and Others vs.

Union of India and Another reported in (2014) 5 SCC

WPA (P) 130 of 2022 & ors

252, in the matter of Sujatha Ravi Kiran vs. State of

Kerala and Others reported in (2016) 7 SCC 597 and in

the matter of Shree Shree Ram Janki Ji Asthan

Tapovan Mandir and Another vs. State of Jharkhand

and Others reported in (2019) 6 SCC 777 relied upon by

the learned Advocate General.

Having examined the present case in the light of the

aforesaid judicial pronouncement and limited scope of

judicial intervention, we find that the undisputed

shocking incident of burning of at least 8 persons

including a child and as many as 6 women has shaken

the conscience of the society. It has a nationwide

ramification and all the national media reports are

flooded with the news of this unfortunate incident.

We have already taken note of serious apprehension

expressed before this Court about fair investigation in the

hands of local police or SIT by raising the plea that the

incident is the result of political group rivalry and

counter-blast of the murder of an Upa-Pradhan belonging

to a particular group of the ruling party and submission

that the attempt is being made to destroy the evidence

and cover up the incident. In the communication dated

22.03.2022, Hon'ble Chief Minister has mentioned the

fact that murdered Upa-Pradhan was an important TMC

Party functionary. Though after the incident by the order

dated 22.03.2022 the Director General and Inspector

General of Police, West Bengal has formed three member

WPA (P) 130 of 2022 & ors

Special Investigation Team and this team is headed by

Shri Ghyanwant Singh, IPS, Additional Director General

of Police, CID, West Bengal but his independence and

impartiality has been doubted by submitting that there

was an allegation of murder of one Rizwanur Rahaman

against him in the year 2007, therefore, he was kept out

of work till 2014 and that ED had also summoned him in

relation to a coal smuggling scam of rupees one thousand

three hundred crores. Though learned Advocate General

has submitted that in respect of the allegation of murder

no charge sheet was filed against him but it remains

undisputed that such an allegation was made against

him.

The case diary of the incident has been produced

before us. We have minutely examined it. We find that

though the SIT was constituted on 22.03.2022 but till

now there is no effective contribution of the SIT in the

investigation. It has been submitted that in spite of the

fact that the police station is very near to the spot of

incident, the police did not reach on time and persons

trapped inside the houses were kept on burning. Counsel

for the petitioners have pointed out the procedure which

was required to be followed in investigation by using

tower damping technology to ascertain the presence of

accused on the spot, manner of collection of samples and

seizures, the videography of the collection of sample,

recording of the evidence of the witness under Section

WPA (P) 130 of 2022 & ors

161 and 164 of the Cr.P.C., recording of dying

declaration, etc. On minute examination of the case diary,

we are of the opinion that the investigation as expected,

keeping in view the gravity of the offence, has not been

done. We are not mentioning the details of lacuna noticed

in investigation as it may prejudice the rights of the

parties. We also find that this is one such exceptional

case where requisite direction is required.

It is pertinent to mention here that expeditious

steps are required to be taken to hand over the

investigation to an independent investigating agency

because there is an allegation of an attempt to wipe off

the evidence.

We take note of the fact that learned Additional

Solicitor General has stated that CBI has no difficulty in

doing the investigation.

Having regard to the aforesaid we are of the opinion

that facts and circumstances of the case demand that in

the interest of justice and to instill confidence in the

society and to have fair investigation to dig out the truth

it is necessary to hand over the investigation to the CBI.

Accordingly, we direct the State Government to forthwith

hand over the investigation of the case to CBI. We also

direct the State authorities to extend full cooperation to

CBI in carrying out the further investigation.

In view of this order the State police authorities or

SIT formed by the State will not carry out any further

WPA (P) 130 of 2022 & ors

investigation in the matter from the time the same is

handed over to CBI.

CBI will not only be handed over the case papers but

also the accused and suspects who were arrested in the

matter and in custody.

Hence, we direct the CBI to forthwith take over the

investigation in the case and submit the progress report

before us on the next date of hearing.

We make it clear that any factual observation made

in this order is only tentative for the purpose of deciding

the issue of transfer of investigation to the CBI and will

not be treated as binding in any other proceeding.

List on 07th of April, 2022.

[Prakash Shrivastava, C.J.]

[Rajarshi Bharadwaj, J.]

Later,

After pronouncement of the order, an oral prayer

has been raised by the learned Advocate General to

stay of the operation of the order. We find no reason to

grant the prayer. Hence, the prayer is rejected.

[Prakash Shrivastava, C.J.]

[Rajarshi Bharadwaj, J.]