Calcutta High Court (Appellete Side)
Sri Suvendu Adhikari vs The State Of West Bengal And Others on 27 April, 2023
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(PUBLIC INTEREST LITIGATION)
APPELLATE SIDE
RESERVED ON: 10.04.2023
DELIVERED ON: 27.04.2023
CORAM:
THE HON'BLE MR. ACTING CHIEF JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
WPA (P) 151 OF 2023
SRI SUVENDU ADHIKARI
VERSUS
THE STATE OF WEST BENGAL AND OTHERS
WITH
WPA (P) 154 OF 2023
AMBOOJ SHARMA
VERSUS
UNION OF INDIA AND OTHERS
WITH
WPA (P) 156 OF 2023
INDRA DEO DUBEY
VERSUS
UNION OF INDIA AND OTHERS
WITH
WPA (P) 162 OF 2023
PRIYANKA TIBREWAL
VERSUS
THE STATE OF WEST BENGAL AND OTHERS
Page 1 of 31
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
REPORTABLE
Appearance:-
Mr. Soumya Majumder, Adv.
Mr. Srijib Charkarborty, Adv.
Mr. Anish Kumar Mukherjee, Adv.
Mr. Suryaneel Das, Adv.
........For the Petitioner in
WPA (P) 151 of 2023
Mr. Sabyasachi Chatterjee, Adv.
Mr. Sayan Banerjee, Adv.
Mr. Akashdeep Mukherjee, Adv.
Mr. Badrul Karim, Adv.
Mr. Kiran Sk., Adv.
Mr. Dipankar Das, Adv.
.....For the Petitioner
In WPA (P) 154 of 2023
Ms. Priyanka Tibrewal
.......Petitioner-in-person
In WPA (P) 162 of 2023
Mr. S.N. Mookherjee, Ld. A.G.
Mr. Anirban Ray, Adv.
Md. T.M. Siddique, Adv.
Mr. Amitesh Banerjee, Adv.
Mr. Nilotpal Chatterjee, Adv.
Mr. Avishek Prasad, Adv.
Mr. Debashis Ghosh, Adv.
Mr. A. Pandey, Adv.
......For the State.
Mr. Asok Kumar chakraborty, Ld. A.S.G.
Mr. Sukumar Bhattacharya, Adv.
....For the Union of India
Mr. Billwadal Bhattacharya, Ld. D.S.G.I.
Mr. Debasish Tandon, Adv.
......For the NIA
Mr. Dhiraj Trivedi, Ld. D.S.G.I
Mr. Shailendra Kr. Mishra, Adv.
.........For the CBI
Page 2 of 31
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
REPORTABLE
JUDGMENT
(Judgment of the Court was delivered by T.S.SIVAGNANAM, ACJ.)
1. The petitioner in WPA 151 of 2023 is a Member of Legislative Assembly
of West Bengal and leader of a political party. The petitioner in WPA (P) 154
of 2023, states that he is a social worker and a political activist associated
with a particular political party. The petitioner in WPA 156 of 2023 also
states that he is a Member of an organization and convener of Ram Navami
Sobhayatra rally for the year 2023. The petitioner in WPA 162 of 2023 is
appearing in person is an Advocate practicing before this Court and a
Member of a political party. Though, there may be a slight variation in the
prayer sought for essentially the grievances expressed by all the 4
petitioners are identical. Since WPA 151 of 2023 was the first writ petition
which was filed, the same is taken as a lead case. In the said writ petition,
the petitioner prays for issuance of a writ of mandamus to direct the Central
Bureau of Investigation (CBI) to register an FIR into the acts of violence,
arson and communal conflagration at Howrah and Dalkhola on 30th March,
2023 on the occasion of Ram Navami and conduct investigation into the
same. The petitioner also seeks for issuance of a writ of mandamus to direct
the National Investigation Agency (NIA) to conduct investigation into the use
of explosive substances, in the violence, arson and communal conflagration
in the said areas on 30th March, 2023 on the occasion of Ram Navami. The
writ petition was heard on 3rd April, 2023 and this Court passed the
following order.
1. This writ petition styled as a public interest
litigation has been filed praying or issuance of a writ of
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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mandamus to direct the Central Bureau of Investigation to
register an FIR into the act of violence, arson and communal
conflagration at Howrah and Dalkhola on 30th March, 2023
on the occasion of Ram Navami. The petitioner also prays
for issuance of a writ of mandamus to direct the National
Investigation Agency to conduct investigation, inter alia, into
the use of explosive substances in the violence in the said
areas on 30th March, 2023.
2. The learned Advocate appearing for the writ
petitioner has drawn our attention to the representation
given by the petitioner to His Excellency The Hon'ble
Governor of West Bengal on 30th March, 2023 and to the
Hon'ble Union Home and Cooperation Minister, Ministry of
Home Affairs, Government of India, New Delhi, which is
also dated 30th March, 2023.
3. The concern expressed by the petitioner is that
violence still continues in the said areas and there is an
absolute failure on the part of the State police in bringing
the situation under control. It is also pointed out that in
certain areas, the internet connection has also been
suspended.
4. There are other learned Advocates, who also seek
to file similar writ petitions but, however, the Court made it
clear that they will be heard in the matter so that the
multiplicity can be avoided. It is submitted by the learned
Advocate that in the procession, fire arms were used and
this was not prevented by the State police, which led to lot
of innocent people being severely injured.
5. The learned Advocate General appearing for the
State would submit that the situation is under control and
would like to highlight certain other 2 issues such as how
the conditions imposed by the Commissioner of Police,
Howrah in the licence / permission granted were violated
by the groups that joined the procession and also about the
cases which have been registered, the arrests already
made and statements that have been recorded under
Section 161 of the Cr.P.C.
6. Let a comprehensive report be filed by the
respondents/State covering all aspects with liberty to
produce CCTV and video footages on the next hearing date.
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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The respondents/State shall ensure that the public of the
areas are not in any manner affected by any fresh incident
of any violence or arson and the law and order should be
kept under control. The safety of the school going children,
the residents of the locality and the businessmen should be
sufficiently safeguarded.
7. Needless to state that adequate deployment of
police force shall be made so that peace and tranquillity
prevails in the said areas.
8. Let such report be filed not later than 5th April,
2023 after serving advance copies on the learned Advocates
for the parties.
9. List this matter on 6th April, 2023 in the same
position.
2. By the above order, a comprehensive report by the respondent / State
covering all aspects was directed to be submitted with the further direction
to the respondent/ State to ensure with the public of the areas are not in
any manner affected by any fresh incidents of violence or arson and law and
order should be kept under control. Further, safety of the school going
children, the residents of the locality and the businessmen was also directed
to be safeguarded. Direction was issued to deploy adequate police force so
that peace and tranquility prevails in the said areas. Though the matter was
directed to listed on 6th April, 2023, since the learned Advocate appearing
for the writ petitioner mentioned the matter for listing the same earlier than
06.04,2023 on the ground that a supplementary affidavit has been filed by
the writ petitioner dated 3rd April, 2023 reporting about the violence which
has spread to several parts of the State such as Rishra area of Hooghly
District wherein on 2nd April, 2023 violence has erupted and there was
severe pelting of stones and hurling of bombs which resulted in several
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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public who had been severely injured and also there has been death being
reported. Further, the situation had deteriorated to the extent that internet
service has been suspended in the entire District. Photographs of people
injured in the violence at Rishra were annexed to the supplementary
affidavit as also the notifications issued by the Government suspending the
internet services were appended. The petitioner thus stated that the
materials annexed to the supplementary affidavit has come to his knowledge
after filing writ petition of the same are necessary for the adjudication of the
writ petition and the same ought to be brought on record. The
supplementary affidavit was taken on record and copies were served to the
learned Advocate General and the learned Advocates appearing for the
respondents. On 5th of April, 2023, the matter was heard and the following
order was passed.
2. In terms of the directions made in the above order,
report has been filed on behalf of the Commissioner of
Police, Howrah Police Commissionerate, report on behalf of
C.I.D regarding Shibpur Police Station Case No.113 of
2023, report on behalf of the Superintendent of Police,
Islampur 3 and report on behalf of Commissioner of Police,
Chandannagar Police Commissionerate. The reports
appear to be elaborate along with annexures which are
taken on record. The contents of the report will be
examined on the next hearing date.
3. The issue which has been brought to our notice by
the learned counsel appearing for the petitioners as well
as the learned advocates, who are granted leave to make
submission before this Court and after hearing submission
of the learned Advocate General, learned Additional
Solicitor General, learned counsel appearing on behalf of
the National Investigation Agency, we are of the view that
certain directions are required to be issued so as to ensure
that Hanuman Jayanti to be celebrated on 6th April, 2023
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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is celebrated in a peaceful manner without any untoward
incident.
4. The learned Advocate General has produced before
us a copy of the application which the concerned
organizing body has to submit before the Joint
Commissioner of Police Headquarter, Kolkata for granting
'No Objection Certificate' for conducting meeting or rally or
procession. Such form contains 27 conditions, which have
been perused by us. We find that the conditions should be
more stringent and it appears that the form is a common
form for all processions, rallies and meetings and
considering the 4 fact that during the Ram Navami festival
several incidents had occurred in the neighbouring
districts of Kolkata, more stringent conditions have to be
imposed.
5. First and foremost is the accountability of the
persons organizing the rally or procession should be made
accountable for any untoward incident and requisite
amendments be made in the form. The police authorities
are at liberty to restrict the number of participants in the
procession so that the procession is taken out with
religious flavour without any political affiliations. The
police shall ensure that at all vantage points barricades
are erected and preferably a common route can be
prescribed for the procession to proceed so that the police
authorities will be able to control the crowd and prevent
any untoward incident. The police shall also have the
discretion to restrict the route considering the past events
which took place, which are wholly unpleasant. The police
authorities are directed to conduct a route march today
(5.4.2023) to assure and reassure the public that the police
are there to safeguard their interest. In areas where order
under Section 144 of the Criminal Procedure Code have
been promulgated no rally or procession should be
conducted.
6. It is stated by the learned Advocate General that
the organizations which have applied for permission to
conduct procession would furnish the names of their
volunteers. In our considered view, the volunteers who
may assist the police will not be in a position to control any
untoward incident. So the role of the volunteers should be
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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made minimal and full details of the volunteers should be
collected by the police and they should be given identity
cards. Additional CCTV cameras should be installed apart
from video graphing the vantage areas through which the
procession will be taken through.
7. It is submitted by the learned Advocate General
that as to how more than 160 applications have been
received as of now for conduct of the procession. We are
informed that a large number of police force has been
deployed in those vantage areas to maintain law and
order situation. Therefore, considering the largeness of the
issue and in order to avoid any breach of peace, we are of
the definite view that the State Government should
requisition the assistance of paramilitary force from the
Central Government. In fact, this was the observation,
made by the Hon'ble Division Bench of this Court in the
Case of WPA(P) 258 of 2022 dated 15th June, 2022. The
assistance of the paramilitary force will definitely help the
state police in maintaining the law and order situation 6
apart from assuring the general public that their safety
and security will be taken care of.
8. That apart, the State will also be at liberty to take
appropriate action under the provisions of West Bengal
Maintenance of Public Order (Amendment) Act, 1972 as
amended by the West Bengal Maintenance of the Public
Order (amendment) Act, 2017 wherever it is necessary.
9. The purport and scope of this order and direction is
to ensure that public are assured and reassured that they
will be safe in their homes and they will not be affected by
any riotous behaviour of miscreants.
10. The Registry of this Court has received a
representation from the Additional District and Sessions
Judge, Diamond Harbour, South-24 Parganas wherein he
has lamented that he is unable to even get requisite police
assistance for his family and himself, whose residence is
situated in Rishra. This aspect is also to be taken into
consideration and it should be ensured that any of these
districts which are perceived to be the sensitive areas, the
judges of the District Judiciary should be in a position to
freely discharge their judicial functions and if there is any
request made by the District Judiciary for adequate police
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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help or protection to enable them to function peacefully or
protection for their family, the same 7 shall be provided by
the State without putting any fetters.
11. It goes without saying that if any of the local
people apprehend any breach of peace in their locality and
if the same is brought to the notice of the police authorities
they should immediately act on such request and ensure
that no untoward incident occurs in their area.
12. Thus, what is to be highlighted is that "prevention
is better than cure". Therefore, the State police are required
to take all steps with the assistance of the paramilitary
force or any other central force to prevent any untoward
incident so that public are not put to jeopardy. The above
directions shall be scrupulously complied with.
13. The learned counsel appearing for one of the writ
petitioners submitted that in Rishra where rioting took
place, stones were pelted from roof tops of the building.
Had the intelligence wing of the police department been
little more vigilant, such preplanned attack could have
been easily been avoided. Therefore, the intelligence wing
of State Police shall take all steps be taken to avoid any
such pre-planned attacks or violence.
14. The above directions shall be scrupulously
complied with and action taken report be submitted on the
next date of hearing. 8
15. Considering the sensitivity of the problem, this
Court directs that no person either a political personality or
a leader or a common man shall make any statement in
public or to the media concerning the festival to be
celebrated tomorrow.
16. As we have directed the State to make request for
deployment of paramilitary forces, the concerned authority
of the Central Government shall take expeditious steps in
deploying such force since the festival is to be celebrated
tomorrow (i.e. 6th April, 2023).
17. List this matter on 10th April, 2023 for further
consideration.
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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3. In terms of the directions issued in the order dated 3rd April, 2023, the
reports were filed by the Commissioner of Police, Howrah Police
Commissionerate, report on behalf of CID regarding Shibpur Police Station
case No. 113 of 2023 , report on behalf of Superintendent of Police Islampur
and report on behalf of the Commissioner of Police, Chandannagar Police
Commissionerate. When the matter was heard on 5th April, 2023 it was
stated that Hanuman Jayanti is to be celebrated on 6th April, 2023 and the
writ petitioner apprehended violence during the celebration as the violence
which erupted during Ram Navami had still not ebbed and therefore,
necessary directions were sought for. The learned Advocate General placed
before this Court, the copy of the application which the concerned
organizations are required to submit for obtaining "No Objection Certificate"
for conducting meeting or rally and submitted that 27 conditions had been
laid down which are to be complied with by the applicant. On perusal of the
27 conditions we found that the condition should be more stringent as the
form appeared to be a common form for all processions, rallies and meeting.
Thus, considering the violence which erupted during Ram Navami festival
we directed that some stringent conditions should be imposed. Various
other observations and directions were made/ issued so that the rally or
procession which is organized during the Hanuman Jayanti is conducted in
a peaceful manner. The Court also directed that the areas where order
under Section 144 of the Criminal Procedure Code had been promulgated no
rally or procession should be conducted. The learned Advocate General had
reported more than 160 applications have been received for the conduct of
procession and also informed that a large number of police force has been
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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deployed in those vantage areas to maintain law and order. The Court
considering the largeness of the issue and in order to avoid any breach of
peace was of the definite view that the State Government should requisition
the assistance of paramilitary force from the Central Government. In this
regard the Court noted the observations made by the Division Bench in WPA
(P) 258 of 2022 dated 15th June, 2022. Further, it was pointed out that the
assistance of the paramilitary force will definitely help the State police in
maintaining the law and order situation apart from assuring the general
public that their safety and security will be taken care of. The State was
granted liberty to take appropriate action under the provision of the West
Bengal Maintenance of Public Order (Amendment) Act, 1972 as amended by
West Bengal Maintenance of the Public Order (Amendment) Act, 2017
wherever it is necessary. The Court made it clear that the purpose of the
order and directions to ensure the public are assured and reassured that
there will be safe in their homes and they will not be affected by any riotous
behaviour or arson. The Court also took note of the representation received
by the Registry of the Court from the Additional District and Sessions
Judge, Diamond Harbour, South 24 Parganas wherein he has lamented
about the safety and security of his family residing in Rishra and as to how
in spite of the request made by him to the local police, they were reluctant
and did not even respond. Therefore, we directed that in areas which are
perceived to be sensitive the Judges of the District Judiciary should be in a
position to freely discharge their judicial functions and if there is any
request made by the District Judiciary for adequate police help or protection
to enable them to function or protection for their family the same be
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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provided by the State without placing any fetters. The State was directed to
take all steps with the assistance of the paramilitary force to prevent any
untoward incident so that the public would be safe. Further, it was pointed
out that in Rishra where rioting took place, stones were pelted from roof
tops of the buildings. The Court took note of the submission and
observation that had the intelligence wing of the police department be little
more vigilant, such pre-planned attacks could have easily been avoided and
therefore, directed the intelligence wing of the State Police to take all steps
that are required to be taken to avoid any such pre-planned attacks or
violence. Thereafter, the matter was heard on 10th April, 2023 and judgment
was reserved.
4. During the course of hearing, the learned Advocates for the other two
writ petitioners and the petitioner appearing in person were also heard apart
from elaborate submissions made by the learned Advocate General, learned
Additional Solicitor General, Learned Deputy Solicitor General were heard in
full. Before considering to as to what relief the writ petitioners would be
entitled to in these writ petitions, we need to examine as to how the law and
order situation prevailed in the recent past whenever a religious celebration
had taken place in the State. Our task has become easier on account of the
various orders passed by the Hon'ble Division Bench on 8 earlier occasions.
5. On 29th March, 2023 an explosion occurred in the house of Hamizuddin
Sardar in the area of Phulmalancha Gram Panchayat near Basanti in South
24 Parganas. The said explosion was the result of bombs being pelted in the
house and in the explosion one person died. Public interest writ petitions
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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were filed in WPA (P) 187 of 2022 praying for transfer of the investigation to
the National Investigation Agency (NIA). According to the writ petitioners the
incident is a part of series of such incidents which had taken place in the
recent past involving stone pelting, weaponry, arms, ammunitions, artillery
and bombs which has caused great loss of life and public properties. In the
affidavit 12 such incidents of bomb blast occurred in the West Bengal were
listed which are as follows:
Sl. Date Incident
1. 19th April, 2021 Bomb Explosion outside BJP worker's
home in Panihati, North 24 Parganas
District.
2. 19 April, 2021
th Bomb blast at Banashpur village in the
Mallarpur area of Birbhum at night.
3. 21st April, 2021 The explosion took place near the house
of Trinamool Congress (TMC) regional
president Bakul Sheikh in Berugram
panchayat area of Ketugram, Purba
Bardhaman District. A bomb exploded in
front of his house in Chinishpur that day.
Raju Sheikh and Raja Sheikh were
seriously injured in the blast.
4. 22 April, 2021
nd Man killed, another injured in bomb blast
near Titagarh in North 24 Parganas.
Several bomb explosions rocked the
Megna jute mill area.
5. 29 July, 2021
th Two police personnel were injured in a
crude bomb explosion in Jagatdal area of
North 24 Parganas district in West
Bengal.
6. 7th September, Unknown miscreants hurdled three crude
bombs outside the house of BJP MP Arjun
2021 Singh in the North 24 Parganas district of
West Bengal. Notably, when the bombs
were hurdled at night on Tuesday,
security personnel were present outside
the premises.
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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7. 1st December, A blast in South 24 Parganas district's
Nodakhali in Diamond Harbour area,
2021 where three people died in bomb explosion
today.
8. 30 th December, Two children were injured in an explosion
at a garbage vat in Salt Lake's Nayapatti
2021 area on Thursday morning, police said.
The children were playing near the vat,
kept aside a ground, when the low-
intensity blast happened around 11.30
am, they said.
9. 19 th December, Kolkata Municipality Corporation
elections: Bomb blast outside polling
2021 booth in Sealdah and Taki Boys School,
three injured.
10. 3rd January, 2022 A bomb exploded in the house of accused
Kankan Karan, a resident of Paschim
Bhanganmari village. While accused
Kankan Karan was seriously injured in
the explosion, another person succumbed
to his injuries. A case was filed at the
Khejuri Police Station in East Medinipur
on 4th January 2022 and the NIA took
over the investigation on 25th January
2022,
11. 21 st January, At least four people have been injured in a
parcel bomb blast in a pharmacy in West
2022 Bengal's Uttar Dinajpur District. The
incident took place at Baharail in
Hemtabad.
12. 22nd February, An infant was killed, while three other
children were seriously injured in a bomb
2022 blast out a house in the Kuitha Village of
District Birbhum in West Bengal. On
Tuesday afternoon, a mysterious sound of
a blast was heard behind the house of a
man named Monir Sheikh of Kuitha
village, which comes under the Sadaipur
police station in Birbhum.
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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6. Further the writ petitioners therein contended that the case registered
on the basis of the incident on 29th march, 2022 is a scheduled offence
under the National Investigation Agency Act, 2008 (NIA Act) and, therefore,
it is required to be investigated by NIA. The report in the form of an affidavit
filed by the said appellant was taken note of.
7. In WPA (P) 146 of 2022 the explosion which occurred on 30th March,
2022 was highlighted which was a result of a bomb blast in which a 9 year
old girl was injured.
8. In WPA (P) 187 of 2022, a bomb blast which occurred on 24th April,
2022 was highlighted where 5 children mistook a crude bomb which was
lying in the field and they started playing with it under the impression that
it was a football when all of a sudden the bomb exploded leaving the
children severely and critically injured. The State did not dispute that the
offences which were committed are scheduled offences under the NIA Act
but contended that in every scheduled offence under the NIA Act, it is not
required to be investigated by the NIA and in this regard, referred to the
preamble of the Act and it was submitted that only in four circumstances
the scheduled offence can be referred for the investigation to NIA and those
four circumstances are (i) offences affecting the sovereignty, security and
integrity of India, (ii) offences affecting the security of State, (iii) offences
affecting friendly relations with foreign States and (iv) offences under Acts
enacted to implement international treaties, agreements, conventions and
resolutions of the United Nations, its agencies and other international
organisations. It was further submitted on behalf of the State that the
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objects and reasons of the Act is also required to be borne in mind. The
Division Bench noted that the State has not disputed with the procedure as
prescribed under Section 6(1) to (3) of the Act was not followed and the
report as required by Section 6(1) was not forwarded. However, it was the
submission on behalf of the State that if procedure is not followed, the
Central Government should have exercised suo moto power under Section
6(5) of the Act and in support of his contention the learned Advocate
General placed reliance on the decision of the High Court of Bombay in the
case of Pragyasingh Chandrapal Singh Thakur Versus State of
Maharashtra 1. The Division Bench after taking note of the several FIRs
which are registered by the State Police pointed out that the offences are
scheduled offences under the NIA Act and those offences clearly fall within
the definition of scheduled offence as defined in Section 2(1) (g) of the NIA
Act and taking note of Section 6 of the NIA Act it was pointed out that on
receipt of record, the information under Section 154 of Cr.P.C. concerning
scheduled offence, it is mandatory for the Officer-in-Charge of the police
Station to forward the report to the State Government forthwith. It was
observed that the word "shall" used in Sub-section (1) of Section 6 caused
such a mandatory duty. Further, it was pointed out that if a report as
required by Section 6(1) is not forwarded then no action in terms of Sub-
section (2) to (4) can be taken and hence, compliance of Section 6(1) is
mandatory for the Officer-in-Charge of the Police Station. Thus, on
registration of the case under any of the scheduled enactments under the
NIA Act, the Officer-in-Charge of the concerned police station has no option
2013 SCC Online Bom. 1354
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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but to send the report to the State Government without any delay as the
word "forthwith" finds place in Section 6(1) of the Act. Further, it was
pointed out that in terms of Sub-section (2) it is incumbent upon the State
Government to forward the report to the Central Government as
expeditiously as possible. Therefore, it was held that no delay is permissible
on the part of the State in sending the report to the Central Government and
in terms of Sub-section (3) the Central Government is to determine within
specified period of 15 days from the date of receipt of the report to improve
situations firstly whether offence in question is scheduled and secondly
considering the gravity of the offence and other relevant factors if the case is
fit to be investigated by the NIA. If the Central Government opines that the
offence is the scheduled offence and the case is fit to be investigated by the
NIA then it was required to direct the NIA to investigate the offence. The
Division Bench noted that the above view of the Division Bench is duly
supported by the judgment of the Hon'ble Supreme Court in Naser Bin Abu
Bakr Yafai Versus State of Maharashtra 2. Considering the facts of the
case on hand, the Division Bench pointed out that though admittedly
scheduled offence under the NIA Act has been registered, the Officer-in-
Charge of the concerned police station has failed to fulfil the statutory
mandate in terms of Section 6(1) of the Act. With regard to the decision of
the High Court of Bombay in Pragyasingh Chandrapal Singh Thakur the
Division Bench held that in the said decision, the constitutional validity of
the provisions of the Act was upheld and the argument that Section 6 of the
NIA Act confers absolute arbitrary unbridled and unguided powers was
(2022) 6 SCC 308
WPA (P) NO. (151 OF 2023) AND CONNECTED MATTERS
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rejected by clarifying merely because a scheduled offence is committed, the
Central Government will not direct that it will be investigated by the Agency
but it will have to apply its mind to the gravity of the offence and other
relevant factors. Therefore, it was held that the said judgment will not be of
any help to the State.
9. Noting that the investigation in two cases was still pending with the
state investigating agency, it was observed that the concerned officer-in-
charge of the police station must follow the provisions of Section 6(1) of the
Act without any delay. In respect of other cases also, the court noted that
though apparently the offences under the provisions of the Explosives
Substances Act had been committed, there was no justifiable reason put
forth by the state for not registering the offences under the provisions of the
Explosives Substances Act. Ultimately the court directed the officer-in-
charge of the concerned police station to register offences under the
provisions of the Explosives Substances Act and on registration of the
offences the provisions contained in Section 6 of the Act was directed to be
followed and on receipt of the report, the State Government was directed to
take action of forwarding the report in terms of the Section 6(2) within three
days and the Central Government thereafter to take an appropriate decision
as required and by Section 6(3) of the Act. The judgment to be delivered by
the Division Bench dated 30.08.2022 in WPA (P) No. 187 of 2022 etc. has
become final.
10. In WPA (P) No. 526 of 2022, a communal conflagration in the city of
Kolkata prompted the writ petitioner to file a public interest litigation
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alleging that the state police remain silent spectators when the communal
violence erupted in Iqbalpur- Mominpur area on the eve of Lakshmi Puja
and that no steps were taken to ensure protection of life and property of the
members of the scheduled caste community who were severely affected by
the riot. Further it was stated that the incident involved throwing of bombs
in locality and requisites steps under the NIA Act have not been taken.
Under such circumstances, prayer was made that Central Paramilitary
Forces have to be deployed forthwith to maintain peace and investigation of
the crimes be taken up by NIA. The Division Bench took note of the five FIRs
which were registered which included the offences under the Explosives
Substances Act and Arms Act and various directions were issued apart from
the submissions made on behalf of the state stating that the officer-in-
charge, Iqbalpur Police Station had forwarded a report in terms of Sub
section (1) of Section 6 of the NIA Act to the State Government and which in
turn has already sent intimation to the Central Government in terms of Sub
section (2) of Section 6 of the NIA Act. Subsequently, the said writ petition
was heard along with WPA (P) No. 528 of 2022 and on 15.11.2022, the NIA
was directed to inform about the progress of the case handed over to them.
11. In WPA (P) No. 564 of 2022, a public interest writ petition was filed
with regard to an altercation which took place between the two groups of a
political party on 15.11.2022 which had disrupted normal life. The learned
Advocate General appearing on behalf of the state submitted that the state
police has already submitted a report in terms of Section 6 (1) of the Act and
the State Government will the forward report to the Central Government in
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terms of Sub section (2) of Section 6 of the NIA Act. Recording the said
submission, the writ petition was disposed of.
12. In WPA (P) No. 4543 of 2022, the Single Bench passed an order on
01.12.2022 directing the charge sheet as well as copies of any evidence
collected by Amta Police Station to be forwarded to the National
Investigation Agency and the Secretary, Ministry of Home Affairs,
Government of India directly within a period of seven days.
13. The case of the writ petitioner Sekh Sarabat Ali was that the there
was a deliberate attempt made by the local MLA Dr. Nirmal Majhi to
sabotage the investigation and destroy the evidence. It was submitted that
by the time the belated investigation by Amta Police started, one victim had
come to Kolkata for treatment and has stated that he sustained injuries as a
consequence of the explosion of gas cylinder when in fact he was a victim of
bomb blast and the victim is none other than the son of the writ petitioner.
These facts were also directed to be considered by the Central Government
and NIA and a suitable decision was directed to be taken.
14. In WPA (P) No. 590 of 2022, a public interest was filed by one Anindya
Sudar Das, prayer was made to direct investigation by NIA in respect of two
different incident of explosion of bomb one at Keshpur Police Station,
Paschim Medinipur and another at Minakhan Police Station, North 24
Parganas. In the blast, one person had lost his right hand one female child
lost her life and that the bombs were stored at a residential house. The
learned Advocate General appearing for the state submitted that the report
has already been sent in terms of Section 6 (1) of the Act and the State
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Government will report to the Central Government in terms of Section 6(2)
recording the said submission, the writ petition was disposed of by order
dated 29.11.2022.
15. In WPA (P) No. 620 of 2022, the writ petitioner filed a public interest
litigation alleged that 1.5 quintals of explosives materials used for making
bombs was recovered from Nanoor but no action in terms of provisions of
the NIA Act had been taken. The court by order dated 20.12.2022 directed
the state to file a report.
16. In WPA (P) No. 607 of 2022 public interest writ petition was filed
raising the issue relating to two bomb blasts one of which occurred on
01.12.2022 within the jurisdiction of Panskura Police Station, where one
civic volunteer had lost his life and the other within the jurisdiction of
Bhupatinagar Police Station where three persons were stated to have been
injured and subsequently lost their lives. The learned counsel for the
petitioner in WPA (P) No. 607 of 2022 alleged that the second incident was in
the residential house of booth president of state ruling party. Further it was
stated that the place where incident occurred has not been fenced and no
forensic expert has visited the place and no proceedings in terms of the
Section 6 of the NIA Act has been initiated. The State sought time to seek
instructions which has been recorded in the order dated 12.12.2022. When
the writ petition came up for hearing on 28.12.2022, the learned Advocate
General informed that so far as the incident falling within the jurisdiction of
Panskura Police Station, the state will follow the procedure prescribed under
the NIA Act and the report in terms of Section 6(1) will be forwarded by the
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officer-in-charge of the concerned police station of the State Government
and thereafter the State Government will forward the report to the Central
Government in terms of Section 6(2) of the NIA Act. Subsequently, when the
writ petition was heard on 21.03.2023, the Learned Advocate General has
reported that from the report submitted by CFSL shows that the explosives
substances were used and therefore a report in terms of Section 6(1) of the
Act will be submitted.
17. The above decisions have been referred to the highlight that the use
of explosives substances, hurling of bombs during processions, rallies and
religious ceremonies have been occurring and recurring regularly and in all
such cases investigation has been transferred to NIA. In one of the cases
where state police failed to register a case under the Explosives Substances
Act, the court took note of the facts and pointed out that when an offence of
a similar nature which was brought to light in WPA (P) No. 146 of 2022, the
officer-in-charge of the concerned police station had registered offences
under the provisions of the Explosives Substances Act, there was no
justifiable reason put forth by the state for not registering the offence under
the provisions of the Explosives Substances Act in the case involved in WPA
(P) No. 187 of 2022 and therefore direction was issued to register offence
under the provisions of the Explosives Substances Act.
18. In the report submitted on behalf of the Commissioner of Police,
Chandannagar Police Commissionerate, mention has been made about the
FIR registered with Serampore Police Station in Case No. 141 of 2023 dated
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02.04.2023 where offences under the Arms Act have been registered. In the
said report, it has been mentioned as follows:
Police requested them to stop their illegal activities and
maintain peace and tranquility in the area. But they
became more furious and started to assault police by
using bamboo sticks and throwing bricks, stones and
also started to damage one Government Vehicle bearing
registration no.- WB23/H-779. Thereafter they set
Government Vehicle bearing registration no. WB-23/A-
0184 on fire and put on arson one local shop. As per
order of superiors, force fired tear smoke=grenade, stun-
grenade, spade, paper cartridge, long and short range
shell, rubber bullet etc. to disperse the mob but they
became more furious and again started to assault police
personnel with bamboo sticks, iron rod, stones/bricks,
and displaying sword and fire arms with a view to kill
the police personnel. Then the police team used mild
force upon the unlawful mob to disperse them. During
the time of dispersal, they stole some body protector
equipment of police personnel. As a result so many
police personnel received bleeding injury on their
person. The police team somehow handled the situation
by detaining the above noted accused persons from the
spot to prevent the commission of further offences and
damage to public and private property and to protect life
of public and police. It is to be mentioned here that there
was a news on various news portals that miscreants
stopped the train services. In this regard, it is bring
noticed that violence erupted again on 3rd of April, 2023
evening at many places including 4 No. railway gate.
One vehicle of Eastern Frontier Rifle (EFR), Salua was
stopped by the miscreants near the railway crossing
and put on fire. The burning vehicle touched the
automated drop gate which got stuck and led distress
signal. Railway authorities reached the spot and
converted the barrier into manual handling. So train
services were suspended temporarily to mend the
automated barrier. Shortly the vehicle was removed
away. Train services resumed shortly. As informed by
railway authorities there was absolutely no damage at
railway station or of railway property.
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Again on 03.04.2023 evening Sub Inspector Altaf
Hossain of Rishra Police Station along with other officers
and force under supervision of superior of
Chandannagar Police Commissionerate were performing
Area Domination Duty for boosting up the confidence of
general public over the issue of Ram Nabami
incident/clash vide Rishra PS GDE No. 89 dated
03.04.2023. While the police team reached at N.S. Road
area, suddenly at 12:10 hrs. approx 300/400 local
people of the area gathered and used filthy language
desperately aiming upon the police personnel. Then they
started pelting bricks/stones towards police personnel.
As a result the situation deteriorated. Finding no other
alternative, to stop their movement, Sub Inspector Altaf
Hossain Hazari informed the matter to Officer-in-Charge,
Rishra Police Station and requested for re-enforcement
of force to tackle the situation. Accordingly Officer-in-
Charge, Rishra Police Station along with superiors of the
Chandannagar Police Commissionerate and re-
enforcement team reached there and declared the mob
as unlawful assembly and commanded them to
disperse from that place by hand held loud hailer. Police
again requested them to stop their illegal activities and
maintain peace and tranquility in the area. But they
became more furious and started to assault police by
using bamboo sticks and throwing bricks, stones.
Thereafter they put on arson one local shop. As per
order of superiors, force fired tear smoke-grenade, stun-
grenade, spade, paper cartridge, long and short range
shell, rubber bullet etc. to disperse the mob but they
became more furious and again displaying sword and
fire arms with a view to kill the police personnel. Then
the police team used mild force upon the unlawful mob
to disperse them. During the time of dispersal, they stole
some body protector equipment of police personnel. As a
result, so many police personnel received bleeding injury
on their person. The police team tactfully handled the
situation by detaining the above noted accused persons
from the spot to prevent the commission of further
offences and damage to public and private property and
to protect life of public and police.
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19. Along with the said report of the Commissioner of Police,
Chandannagar Police Commissionerate, dated 04.04.2023 several
annexures have been filed and one of the annexures is a complaint given to
the Rishra Police Station by one Mr. Nirmal Ghosh which finds place in page
18 of the said report wherein it has been stated as follows:
Ali MD. Shakir 28 Gandhi sarak post:- Rishra ps:
serampore District:- Hooghly they themselves and
accompanied with huge trinamul miscreants deliberately
and pre-planned, without any provocation, attacked us
and were ruthlessly throwing stones and several bombs
were thrown by them upon the rally an our supporters,
by throwing stone our M.L.A. of Pursura Bidhan Sava Mr.
Biman Ghosh got blooded injury on the lower part of his
Head and on the ear now he is admitted in the Hospital
and Mr. Dilip Ghosh has also attacked and injured by
Bombs and his Car has been destroyed by the
miscreants, not only that our about 2000 supporters
present in the rally have also been ruthlessly bitten by
present miscreants, near Baro Mosjid and Trinomul
supporters and attacked by bombs for that they got
heavily blooded injury some treating by the nearest
Hospital (necessary injury report, documents and video
footages will submit latter on at the time of investigation)
20. Though the complaint of Biman Ghosh dated 03.04.2023 was taken
on record (Page 18 of the Report of Commissioner of Police, Chandannagar),
specifically, alleging that persons were attacked by hurling bombs, no
investigation appears to have been done in that regard, and no steps taken
to alter the FIR dated 02.04.2023 in Case No. 161/23 was reported. This, in
our opinion is serious lapse.
21. In Paragraph 10 of the writ petition No. WPA (P) No. 151/23, there is
a specific allegations that since, bombs were hurled, the provisions of the
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Explosive Substance Act, 1908, will be attracted and hence, investigation
has to be conducted by NIA. Though the learned Advocate General points
out that in the Report submitted by Superintendent of Police, Islampur, this
allegation is denied, the annexures to the report which we have taken note
of above, belies the situation.
22. News report dated 2nd April, 2023 (Annexure P2 in WPA (P) 156/23)
quotes a statement of a Senior Officer that video footage has established the
identity of the armed vandals. The identity of the people who have been
thrown petrol and acid has been given and Bengal CID is raiding different
areas to trace them out.
23. In the interim report drawn by the relief hospital while recording a
short history of the case and the injuries stated by the patient party, it has
been stated that was passing besides a road at Rishra then gas bottles,
stones, crude bombs were thrown from adjoining areas and the patient had
sustained severe injuries. These documents which are appended to the
reports submitted by Commissioner of Police Chandannagar, Police
Commissionerate will clearly reveal that scheduled offences have been
committed despite the same, the state police have not registered offences
under the Explosives Substances Act. The seizure list has been annexed
along with the report along with the report from pages 12 to 16 along with
the report. We find that under the column list of articles in the seizure list
drawn one column has been left blank and all the four seizure reports have
been prepared by the very same officer as the handwriting is identical. It is
hard to believe that the very same person was able to draw five seizure
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reports within a short span to time though it is stated by the learned
Advocate General had areas where the seizure took place were in close
proximity. In any event, we find the seizure report not reflecting the true
state of affairs especially considering the nature of offences which have been
registered in the various FIRs could not have been as a result of minimum
number of weapons and glass bottles which have been seized. Therefore,
there is a series of doubt on the very seizure report when there was a
specific complaint made on 03.04.2023 that bombs were hurled and people
were injured with heavy bleeding injuries. It is not clear as to why the police
have not registered any offence under the provisions of the Explosives
Substances Act. Thus, the question would be as to whether the state police
have purposely failed to register any offence under any of the scheduled
enactments fearing that the matter will have to be transferred to the central
agency for investigation and further action. This would be a good reason for
the court to transfer the investigation to a central agency. The reports have
carried photographs of people with bleeding injuries. It is true that the court
cannot come to a conclusion based on press reports, nevertheless the
investigation has to proceed to ascertain the exact cause of such large-scale
rioting. Further we note that in FIR No. 141 of 2023 dated 02.04.2023
offences have been registered under various provisions of the IPC, Arms Act,
Public Property Destruction Act etc. but no offence has been registered
under the Explosives Substances Act and the FIR relates to incidence which
occurred in five different areas and identical offences have been registered
which also cast a serious doubt on the manner in which the state police
have investigated the matter. The IC Serampore Police in his report dated
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04.04.2023 to the Inspector-in-Charge Serampore Police Station stated that
the mob became furious and assaulted the police with bamboo sticks and
throwing bricks on the police and also damaged one government vehicle and
thereafter set fire to another vehicle and one local shop and based on orders
of superiors tear gas, smoke grenade, stun grenade, spade, paper cartridges
long and short range shell, rubber bullet etc. were used to disperse the mob
but they became more furious and again started to assault police personnel
with bamboo sticks, iron rods, stones, bricks, swords, displaying fire arms
with a view to kill police personnel and therefore police team used mild
force upon the unlawful mob to disperse them and during the time of
dispersal the mob stole some body protecting equipment of police personnel
as a result of which several policemen received bleeding injuries on their
person and head. In the other seizure lists which have been drawn on
03.04.2023 records seizure of swords. Thus, from the above facts it is
evidently clear that despite the offences being committed under the Act
mentioned in the schedule to the NIA Act, no case has been registered under
the provisions of such Act. It raises a series doubt in our minds as to
whether this was a deliberate attempt by the investigating police fighting shy
of resorting to the procedure required to be complied with under Section 6(1)
of the NIA Act.
24. In the preceding paragraphs, we have referred to the various orders
passed by this court by the Division Bench of this Court from August 2022
and in all such cases, the offences under the Explosives Substances Act
have been committed and in one such case they did not register an offence
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under the said Act and the Division Bench rejected the stand taken by the
state as being unbelievable and direction was issued to register a case under
the Explosives Substances Act. Probably the state police having been
directed by this Court in more than 8 orders to transfer the matter to the
NIA, in the present incidents they have under played the true state of affairs
which in our view should not be permitted. Considering the fact that there
was a genuine apprehension in the mind of the public as brought on record
by the writ petitioner in WPA No. 151 of 2023 apprehending serious violence
during Hanuman Jayanti, the court had to direct central agency to be
deployed which our direction was complied with and it appears that the
Hanuman Jayanti festival passed off without any serious incidents. In the
various orders passed by the Division Bench as referred to above where the
direction have been issued to sent a report in terms of the Section 6 (1) of
the NIA Act, however in the cases on hand, we prima facie find that there
has been a deliberate attempt on the part of the concerned police not to
register any offence under the provisions of the Explosives Substances Act.
There is also mention about the acid bottles and if be so, necessarily offence
under the scheduled Act having been committed, the procedure under
Section 6(1) of the NIA Act should have been resorted to. Therefore, we are
convinced that no useful purpose would be served by directing the state
police to register cases under the Explosives Substances Act or under any
other scheduled act as the matter has travelled beyond the said stage and it
is a fit case where the entire investigation should be transferred to the
National Investigation Agency with a direction to the Central Government to
exercise their power under Section 6(5) of the NIA Act.
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25. The Hon'ble Supreme Court has time and again dealt with the issue
under what circumstances the investigation can be transferred from the
State investigating agency to any other independent investigating agency
like CBI. It has been held that the power of transferring such investigation
must be in rare and exceptional cases where the court finds it necessary in
order to do justice between the parties and to instil confidence in the public
mind, or where investigation by the State police lacks credibility and it is
necessary for having "a fair, honest and complete investigation", and
particularly, when it is imperative to retain public confidence in the
impartial working of the State agencies.
(Vide K.V. Rajendran v. CB-CID [K.V. Rajendran v. CB-CID (2013) 12 SCC
480, Gudalure M.J. Cherian v. Union of India [(1992) 1 SCC 397] , R.S.
Sodhi v. State of U.P. [1994 Supp (1) SCC 143 : 1994 SCC (Cri) 248 : AIR
1994 SC 38] , Punjab and Haryana High Court Bar Assn. v. State of
Punjab [(1994) 1 SCC 616 : 1994 SCC (Cri) 455 : AIR 1994 SC 1023] , Vineet
Narain v. Union of India [(1996) 2 SCC 199 : 1996 SCC (Cri) 264] , Union of
India v. Sushil Kumar Modi [(1996) 6 SCC 500 : AIR 1997 SC 314]
, Disha v. State of Gujarat [(2011) 13 SCC 337 : (2012) 2 SCC (Cri) 628 : AIR
2011 SC 3168] , Rajender Singh Pathania v. State (NCT of Delhi) [(2011) 13
SCC 329 : (2012) 1 SCC (Cri) 873] and State of Punjab v. Davinder Pal Singh
Bhullar [(2011) 14 SCC 770 : (2012) 4 SCC (Civ) 1034 : AIR 2012 SC 364] .)
26. In the result, the writ petitions are disposed of by directing the
concerned police to ensure that all the FIRs, documents, materials seized,
CCTV footage etc. be immediately handed over to the appropriate authority
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of the National Investigation Agency who on receipt of all the entire
materials shall commence investigation and proceed in accordance with law.
The respondent police are directed to comply with the direction of handing
over all the material to NIA within a period of two weeks from the date of
receipt of the server copy of this order. No costs.
(T.S. SIVAGNANAM)
ACTING CHIEF JUSTICE
I Agree.
(HIRANMAY BHATTACHARYYA, J.)
(P.A- PRAMITA/SACHIN)
