Calcutta High Court (Appellete Side)
Pallabi Chatterjee And Others vs State Of West Bengal And Others on 17 May, 2022
May 17, 2022
Item Nos.3 & 4
gd/ssd
WPA(P) 168 of 2022
Pallabi Chatterjee and others
vs.
State of West Bengal and others
with
WPA(P) 169 of 2022
Tiyasa Biswas
vs.
State of West Bengal and others
Ms. Susmita Saha Dutta
...for the Petitioners in WPA(P) 168 of 2022
Mr. S.N. Mookherjee,learned Advocate General
Mr. Amitesh Banerjee,
Mr. Nilotpal Chatterjee,
Ms. Ipsita Banerjee
... for the State
Mr. Dhiraj Trivedi,
Ms. Sumita Sarkar
... for the Union of India
Mr. Billwadal Bhattacharyya,
Mr. Samrat Goswami
... for the CBI
Mr. Sumit Ray, Advocate
... for respondent No.5 in WPA(P) 168 of 2022
Mr. Pramit Kr. Ray,
Mr. Krishnendu Bhattacharya,
Mr. Lokenath Chatterjee,
Ms. Rini Bhattacharyya
...for the Petitioner in WPA(P) 169 of 2022
Mr. Amrit Sinha,
Mr. Surajit Saha
...for respondent No.2 in WPA(P) 169 of 2022
Mr. A. Ray,
Md. T.M. siddiqui,
Mr. D. Ghosh
..for the Respondent no.7
in WPA(P) 168 of 2022
In Moynaguri incident learned counsel
appearing for the petitioners by placing reliance
upon the affidavits of the two seizure witnesses
dated 4th May, 2022, has submitted that the
signatures of these witnesses in the first seizure
have been obtained by misrepresentation and in
the second seizure, their signatures have been
fabricated. She has further submitted that
though the victim has died, but her dying
declaration may not have been recorded and
that in these circumstances, the investigating
officer should be changed and that this Court
should ascertain the allegations which have
been made by the two seizure witnesses and in
this background the prayer referring the matter
to the CBI has been revived placing reliance
upon the judgment of the Hon'ble Supreme
Court in the matter of K.V. Rajendran v.
Superintendent of Police, CBCID, South Zone,
Chennai & Others reported in (2013) 12 SCC
480.
Learned Advocate General has vehemently
opposed the plea by submitting that this Court
has already considered the two affidavits of the
seizure witnesses while passing the order dated
4th May, 2022 and directing that the
investigation will be carried out under the
supervision of Shri Amit P Javalgi, IPS, DIG,
Jalpaiguri Range. He further submits that the
petitioners cannot enter into the roving enquiry
without there being any material in support of
the allegation and has submitted that the
investigation is being done under the
supervision of the DIG, Jalpaiguri Range. He
has also submitted that he is not placing on
record the counter affidavit because the issue
raised in the two affidavits of the seizure
witnesses is the subject matter of trial.
Having heard the learned counsel for the
parties and on perusal of the records, it is
noticed that the issue, which the petitioners is
raising, based upon the affidavits of the two
seizure witnesses, has already been considered
in the previous order dated 4th May, 2022 and
the appropriate directions to ensure the proper
investigation has been issued.
The truthfulness or falsity of the allegations
which have been made by the seizure witnesses
in the affidavit before this Court will be subject
matter of trial, hence this Court need not go into
that issue at this stage. Since such an allegation
has come on record, therefore, it is the
responsibility of the DIG, Jalpaiguri Range
under whose supervision the investigation is
being carried out to duly take note of these
allegations and ensure that the investigation is
carried out in a fair manner. The concerned DIG
under whose supervision the investigation is
being carried out if finds that any change in the
IO is required, he will be at liberty to do so in
accordance with law. So far as the allegation
relating to non-recording of dying declaration is
concerned, learned Advocate General has
produced the case diary in support of his
submission that such allegation is incorrect.
Let the report in the form of affidavit
relating to the status of the investigation be filed
before this Court on the next date of hearing by
the DIG, Jalpaiguri Range.
In Namkhana incident, the submission of
learned counsel for the petitioner is that the
allegation is about the rape and burning and
that the provisions of Section 164 A of the
Cr.P.C. have not been fully complied with. His
further submission is that though the
undergarments, sari, blouse and ornaments of
the victim have been seized but nothing has
been done by the investigating agency to send
them for further examination and the
bloodstained cloths have also not been sent for
chemical examination and referring to the report
in the form of affidavit filed on behalf of the
respondent no.9 dated 29th April, 2022 he has
submitted that in paragraph 5(I) and 5(II) the
factum of registration of the P.S. Case 81/2022
and 83/2022 is mentioned but the affidavit is
conspicuously silent about the P.S. Case
82/2022.
Learned Advocate General has submitted
that the matter was listed today for the limited
purpose of considering Moynaguri incident,
therefore he does not have the detailed
instructions in respect of Namkhana incident
and the petitioner should give in writing the
objection so that they can be responded to.
This Court by order dated 22nd April, 2022
considering the circumstances of the case and
the allegations made by the learned counsel for
the petitioner has already directed that the
investigation will be done under the supervision
of Smt. Damayanti Sen, IPS, Special
Commissioner of Police, Kolkata. Therefore, the
said IPS officer supervising the investigation
may look into the allegations which have been
made today by the counsel for the petitioner and
ensure that the investigation is done by covering
all the relevant aspects which needs to be
enquired into and investigate in such an offence.
Let the report in the form of affidavit be
filed by Smt. Damayanti Sen, IPS, Special
Commissioner of Police, Kolkata on the next
date of hearing.
List on 20th June, 2022.
(Prakash Shrivastava, C.J.)
(Rajarshi Bharadwaj, J.)
