Sharmistha Chakraborty vs The State Of West Bengal & Ors
2023 Latest Caselaw 5358 Cal

Form J(2)         IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                              Appellate Side


Present :
The Hon'ble Justice Jay Sengupta


                          WPA 18315 of 2023

                        Sharmistha Chakraborty
                                   Vs.
                      The State of West Bengal & Ors.


For the petitioner:       Mr. Sourav Chatterjee
                          Mr. Moyukh Mukherjee
                          Ms. Rajnandini Das
                          Mr. Sayan Mukherjee

For the Private Opposite Party:     Mr. Anirban Dutta
                                    Mr. Bikram Mitra

For the State:            Mr. Amal Kumar Sen
                          Ms. Ashima Das

Item No.50

Heard & Judgment on:           21.08.2023

Jay Sengupta, J.

This is an application under Article 226 of the Constitution of

India praying for a direction upon the respondent authorities to

investigate Garfa P.S. Case No. 152 of 2023 dated 15.07.2023,

especially through a superior lady officer of the rank of Deputy

Commissioner of Police, for adding Section 307 of the Penal Code in

the array of charge and to preserve CCTV video footages in an around

Garfa P.S. for the dates 15.07.2023, 16.07.2023 and 17.07.2023.

Affidavit of service filed on behalf of the petitioner be taken on

record.

Supplementary affidavit filed on behalf of the petitioner is taken

on record. Copies of the same are handed over to the learned counsel

for either side.

Copies of the documents filed on behalf of the private

respondent are taken on record. Copies of the same are handed over

to the learned counsel for either side.

Learned counsel on behalf of the petitioner submits as follows.

The petitioner happens to be a neighbour and relative of the private

respondents. On a particular date, the private respondents inflicted

severe injuries on the petitioner, even on the chest knowing fully well

that she was a chronic heart patient. In spite of this, Section 307 of

the Penal Code was not added as a charge. FIR was registered under

lesser charges. In violation of the proviso to Section 161 of the Code,

her statement was not recorded by a lady officer. In violation of

Section 164(5A) of the Code, a date was fixed for examination of the

victim under Section 164 of the Code after about one and half month.

On several occasions the petitioner went to the police station to hand

over relevant documents including the CCTV video footage, but the

Investigating Officer refused to accept it. If there is any CCTV

footage in and around the police station, recordings would bear this

out.

Learned counsel on behalf of the private respondents submits as

follows. The allegations made in the writ petition are denied. In fact,

the private respondents were the victims. The private respondents

have already co-operated with the investigation by handing over

CCTV footages of the incident available with them.

Learned counsel on behalf of the State submits as follows. As

would appear from the orders passed by the Judicial Magistrate in the

month of July, 2023, it was the learned Magistrate who fixed the

longish dates for examination of the victim under Section 164 of the

Code. The police cannot be faulted for this. On several occasions the

victim was asked to hand over documents like the injury report, but

the same was not done. This prompted the Investigating Officer to go

to the hospital and collect the injury report himself. From the injury

report, no case under Section 307 of the Penal Code is made out by

any stretch of imagination.

I have heard the learned counsels on behalf of the parties and

have perused the writ petition, the supplementary affidavit filed by

the petitioner, copies of the documents filed by the private

respondents and the case diary produced on behalf of the State.

There was indeed a violation of the proviso to Section 161 of

the Code of Criminal Procedure inasmuch as a lady officer was not

made to record the victim's statement.

The violation of Section 164(5A) of the Cr.P.C. cannot be

attributed to the police officer because a long date was fixed by the

learned Judicial Magistrate himself.

The injury report as appended in the writ petition and as

contained in the case diary mentions only about pain over the

assaulted area. It nevertheless records the history given by the

patient herself. It will be for the Investigating Agency to find out

whether at all any serious charge is also made out in this case.

If the petitioner is aggrieved with the outcome of the

investigation, it shall be also open to her to challenge the same by

filing an appropriate petition after the submission of final report.

This is not a case of such a nature where CCTV footages in and

around the police station have to be collected to find out who among

the victim and police officer is telling the truth about co-operating

with investigation. It would suffice if the Investigating Agency takes

proper steps for investigating the case.

Let the investigating agency conduct the investigation

expeditiously and in accordance with law.

With these observations, the writ petition is disposed of.

Urgent photostat certified copy of this order, if applied for, be

given to the learned advocates for the parties on usual undertakings.

(Jay Sengupta, J.)