Central Bureau Of Investigation vs The State Of West Bengal & Ors
2023 Latest Caselaw 3058 Cal

                 IN THE HIGH COURT AT CALCUTTA
                  Constitutional Writ Jurisdiction
                             Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                        WPA 27799 of 2022
                           CAN 1 of 2023
                           CAN 2 of 2023
                   Central Bureau of Investigation
                                Versus
                   The State of West Bengal & Ors.


For the CBI              : Mr. D.P. Singh, Ld. Special Counsel, CBI
                          Mr. S.K. Kantiwal
                          Mr. Manu Mishra
                          Mr. Samrat Goswami
                          Ms. Shreya Dutt
                          Ms. Suprita Sankhel
                                              .....Advocates
For the State            : Mr. Anirban Ray, Ld. Government Pleader
                           Mr. S.G. Mukherjee, Ld. Public Prosecutor
                           Mr. Rudradipta Nandi
                           Mr. Debhasish Ghosh
                           Mr. Debraj Sahu
                           Mr. Arka Nag
                           Ms. Munmun Ganguly
                                              .....Advocates
For the added respondent : Mr. Subir Ganguly

Mr. Fazrul Haque .....Advocates

Heard lastly on : 05.04.2023

Judgment on : 01.05.2023

Jay Sengupta, J.:

1. This is an application under Article 226 of the Constitution of India,

inter alia, praying for direction for transfer of investigation in Rampurhat

Police Station Case No. 612 of 2022 dated 13.12.2022 under Sections 448,

323, 325, 302, 385, 386, 504, 427, 120B of the Penal Code from the present

Investigating Agency to the Central Bureau of Investigation or to any other

independent agency.

2. Mr. Singh, learned senior counsel representing the petitioner,

submitted as follows.

2.1 The dynamics at play in the State of West Bengal and overall hostile

conduct of respondent no. 1 and the State towards investigation of cases by

the petitioner herein was required to be understood. These background facts

were essential to adjudicate the need for transfer of investigation. The

catastrophic Bogtui Carnage Case was a result of political rivalry. This Court

took suo motu action to ensure a fair investigation. When the external and

political factors influencing the investigation at hand came to light,

including suspicions regarding role of officers of the State/respondent no. 1

themselves, this Court, vide Order dated 25.03.2022 in WPA (P) 130 of

2022, was pleased to direct transfer of investigation from respondent no. 1

to the CBI.

2.2 During the course of investigation of the Bogtui Carnage Case, the

petitioner arrested 16 of accused persons and filed a charge sheet/final

report and a supplementary charge sheet against 26 in all. In the further

investigations, Lalan Sk., earlier absconding, was arrested. His other family

in the area, and a number of police officers/officials of PS Rampurhat, were

also linked to the present case (RC0562022S0006) and a cross case

(RC0562022S0006), who were suspects and/or their complicities were likely

to emerge in these two cases. Unfortunately, Lalan Sk. committed suicide on

12.12.2022 while he was in CBI custody after his visit to his village in

Bogtui where his house was situated. Therefore, a fair investigation was

required into his reasons for suicide. However, from the series of suspicious

events starting from the inquest proceedings to the registration of the case,

it seemed that the Government machinery and people responsible for the

Bogtui Massacre saw it as an opportunity to discredit the petitioner. After

the suicide, the petitioner duly complied with the procedure and protocol

and reported the death of the accused to the State. However, it later came to

know that an FIR No. 612 of 2022 under Sections 448, 323, 325, 302, 385,

386, 509, 427, 120(B) was registered against officers of the petitioner

allegedly on the complaint of the wife of Late Lalan Sk. i.e., the respondent

no. 2.

2.3 The petitioner was informed of the death of Lalan Sk. at around 04:30

p.m. on 12.02.2022, and the information was given to the police around

4:57 p.m. on the same day. Subsequently, the senior officers of the

petitioner also spoke to the senior officers of respondent no. 1. The Sub-

Inspector, Rampurhat PS of respondent no. 1 and the Executive Magistrate

came to the spot at 09:30 p.m. on 12.12.2022 for conducting inquest.

However, no inquest was conducted at the spot. Since there was extensive

videography of the same, a lame excuse had been given only by way of an

affidavit of the respondent no. 1 saying that there was no light and no one to

identify the body. Inquest was conducted on the next day i.e., on 13.12.2022

at 13:40 hours wherein it had been recorded by the Executive Magistrate

that he was informed about the death of Lalan Sk. at 08:49 a.m. on

13.12.2022. No note about the visit on the previous day had been recorded.

The inquest reports of the Magistrate and the Sub-Inspector were part of the

record. It was recorded that there were no visible signs of any injury except

post-mortem staining even on the dependent areas of the body i.e., sole of

feet, legs, abdominal region. The post-mortem was conducted on the next

date after the inquest, which was also suspicious and clearly showed that it

was done under influence of the Government machinery.

2.4 The controversy around malafide registration of FIR could be

described as under :

a) Although respondent no. 2, Reshma Bibi came to know of the death of

Lalan Sk. in the evening itself on 12.12.2022, yet the FIR was registered at

04:25 a.m. on 13.12.2022.

b) On the asking of this Court, the respondent no. 2 could not tell who the

scribe of the FIR was.

c) The respondent no. 2 also could not explain why such an odd time was

chosen to register the FIR.

d) During the course of hearing, pleadings by respondent no. 1 showed that

respondent no. 2 was admitted to the hospital on 13.12.2022 at 03:44 a.m.

purportedly for a simple injury on the shin. When this point was raised

before this Court, the respondent no. 1 made every effort to show by

different means that her admission in the hospital was done at 05:44 a.m.

on 13.12.2022. There was clearly an overwriting of records to support the

false version of the registration of the malicious FIR.

e) The records also showed that respondent no. 2 remained admitted in

hospital till about 04:30 p.m. on 13.12.2022. Either which way, in such

scenario, the respondent no. 2 being a witness to the inquest and to the

post-mortem report became suspicious.

f) There were overwritings on the front page of the FIR and there was no

mention of the UD case, which stood registered prior to the FIR. This was an

contravention of the applicable Bengal Police Regulations, 1943.

g) The pleadings of respondent no. 1 also showed that they could not verify

and authenticate the signatures of respondent no. 2 on the FIR in question.

h) The tone and tenor of the FIR, the fluency of the FIR and the manner in

which the FIR was written, clearly showed that the rustic and uneducated

complainant could not have dictated or stated the contents of it. The naming

of unrelated officers of the petitioner and casting a wider ring by including

its SPs and DIGs in a blanket manner showed that someone from the State

Government was at play.

i) Seeking CID i.e., the respondent no. 1 to be the investigating agency and

that being granted on the same day also showed the interestedness of the

State Government and Police Officers.

j) Despite the FIR being registered before the initiation of inquest and PMR,

there was no inquest or PMR done in the FIR in question. Since the inquest

and PMR continued to be done under UD Case, and coupled with suspicions

as mentioned above, it was clear that the FIR had in fact been registered

after conducting the Post Mortem Report.

k) It was clear that the police had done some nefarious activities which was

not unknown, and filled the first page of the FIR without the accompanying

or attached complaint. In this way, the ground for the registration of the

case was made in the morning while the shape to the FIR and complaint was

given subsequently after elaborate discussions with officers of the State

machinery as a whole, including the local police and the CID. The fact that

no magisterial enquiry was sought by the local police at the earliest nor the

copy of the FIR sent to the Magistrate in time also pointed a finger to that

fact.

l) The signatures and last paragraph of the complaint allegedly filled by

respondent no. 2 clearly showed that the FIR had been registered by the

complainant at a belated stage after being asked by the authorities to do the

same. The assumptions made in the FIR were hearsay and did not make out

any cognizable offence.

2.5 The dead body was removed from the place of occurrence

clandestinely with a view to change the true findings. The change of the

place gave the State Police and the respondent no. 1 the following

advantages that the Respondent no. 1 could use the opportunity to tamper

with the body; it presented as an opportunity to not record the surroundings

and conditions in which the body was found and the details of the condition

of the body at the spot; and it also gave an opportunity not to have the CRPF

officers, who were independent, to be witness to the inquest.

2.6 The Post-Mortem was done after more than 20 hours. In the

meantime, between 12.12.2022 and the post-mortem, there were as many

as three independent assessment(s) of Lalan Sk. On 12.12.2022, before the

death, on an examination by government doctor, no external injuries were

found. Even after the death, the inquests by the Executive Magistrate and

the Sub-Inspector showed no injuries. The Post-Mortem Report on the

contrary, recorded 18 injuries. Although the reason of death was asphyxia

due to ante-mortem hanging, the word "violent mechanical asphyxia" was

deliberately used. Two independent reports sought by this Court from the

S.S.K.M, Hospital, Kolkata and the AIIMS, Delhi showed that the word

violent had been loosely used and the cause of death was actually asphyxia

due to ante-mortem hanging which could be suicidal in nature. The AIIMS,

Delhi had seen that the injury i.e., the ligature mark was dissected, however

all other injuries had been merely referred on observation. The AIIMS, Delhi

report also did not dwell deeper into it as it was against the settled law and

medical practices to determine if the injuries were different from the post-

mortem staining without dissecting the same, more specifically since post

mortem staining was usually mistaken as injuries. A casual look at the body

on the spot would be sufficient to determine that the cause of result was

asphyxia due to hanging and there were no injuries. Interestingly, in the

entire State of West Bengal including many accused persons in this case

have been in CBI custody and there was not even a solitary instance of

custodial torture before such allegations were made in the present case.

2.7 The State of West Bengal and the respondent no. 1, in particular, had

taken this unfortunate death as an opportunity to discredit the petitioner

and settle scores with the agency, pressurize officers of the petitioner and

prevent them from discharging their duties. The family members of the

complainant including the complainant and some police officers in the area

were suspected to be part of commission of offences in the Bogtui Massacre

Case. Complaints in this regard of pressure and threat to life were also being

received by the petitioner from the villagers. The respondent no. 2 using the

CID Cover, was threatening many witnesses of the case for falsely deposing

against the CBI Officers, else they would be falsely implicated in cases of the

CID. The location from the telephone records of all the concerned people

associated with the case, whether the accused, or investigators or witnesses,

would shed light on the authenticity of the allegations made in the FIR. It

was reasonably apprehended that the investigation was being done under

influence and the recording of the statements were done after various

rounds of tutoring and recording. Another FIR bearing no. 614 of 2022, was

also registered on the alleged complaint of respondent no. 2 against

"unknown miscreants", after the 'no-coercive' direction was granted by this

Court on 14.12.2022, to overreach the orders of this Court. One Anubrata

Mondal, a close associate of the Government and local heavyweight of the

TMC in the same district, was under arrest and two of the officers who were

responsible for his arrest had been specifically named in the FIR in

question. The Division Bench of this Court took notice of this fact while

rejecting the bail of Anubrata Mondal.

2.8 The complainant, although made statements all over the media, had

not filed reply to most of the applications or affidavits in the captioned case.

Even when the Court had insisted the complainant to file her reply to the

writ petition in the captioned case, such reply was nothing but a plain

denial. A stark silence on the complainant's part spoke volumes about the

authenticity of the complaint in the present FIR.

2.9 As the complainant could not choose the investigator of her choice,

the Court should take into consideration transferring the investigation to the

Specialized Central Unit of CBI at the Headquarters of the petitioner under

direct supervision of Joint Director/Additional Director, CBI or form a

Special Investigation Team comprising of officers outside the State of West

Bengal. The Hon'ble Courts had time and again exercised such power on

various grounds, which include -

i. Investigation by State police lacked credibility or was mala fide;

ii. When high ranking State officials and authorities were involved and

were likely to influence investigation;

iii. When investigation was tainted/biased, and where the interest might

have national and international ramifications;

iv. Where such an order might be necessary for doing complete justice

and forcing the fundamental rights.

2.10 The right to fair trial, forming part of Article 21, included right to fair

investigation. If the investigation itself was tainted, the possibility of truth

being uncovered was rather bleak. This Court time and again dealt with the

issue under what circumstances the investigation could be transferred from

the State investigating agency to any other independent investigating agency

like CBI. It had been held that the power of transferring such investigation

must be in rare and exceptional cases where the Court found 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 lacked credibility and it was

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. [K.V. Rajendran versus CBCID,

(2013) 12 SCC 480]. Thus, it was evident that this Court had transferred the

matter to CBI or any special agency only when the Court was satisfied that

the accused had been a very powerful and influential person or State

authorities like high police officials were involved and the investigation had

not been proceeded with in a proper direction or it had been biased. [Disha

Versus State of Gujarat, (2011) 13 SCC 337]. The Court held that wherever

a charge-sheet had been submitted to the Court, even this Court would not

ordinarily reopen the investigation especially by entrusting it to a specialized

agency. However, in a proper case, when the Court felt that the investigation

by the police had not been in the proper perspective and that in order to do

complete justice, where the facts of the case demand that the investigation

be handed over to a specialized agency, a superior Court was not bereft of

the authority to do so. [Naresh Kumar Mangla Versus Anita Agarwal, 2020

SCC Online SC 1031]. The superior Courts were vested with the power of

transferring investigation from one agency to another, provided the ends of

justice so demand such action. Of course, it was also a settled principle that

this power had to be exercised by the superior Courts very sparingly and

with great circumspection. What ultimately was the aim or significance of

the expression "fair and proper investigation" in criminal jurisprudence? It

had a twin purpose: first, the investigation must be unbiased, honest, just

and in accordance with law; and secondly, the entire emphasis on a fair

investigation had to be to bring out the truth of the case before the Court of

competent jurisdiction. [Vinay Tyagi Versus Irshad Ali, (2013) 5 SCC 762].

The State agencies had clearly failed to effectively investigate the crime and

bring the actual culprits to book. There was thus, an urgent and immediate

need to instil public faith in the investigation and trial, which provided

sufficient impetus for the change in the investigation agency. This Court's

mind was not free from doubt that the murder in question might have been

the result of a rivalry and a conspiracy. The victim might have been

obstructing huge monetary and/or political gain that some persons were

after. Such persons were politically powerful and well connected. A fair and

effective investigation would indeed open a can of worms, or expose any

likely role of influential persons. The pressure on the State police and the

investigation agencies to shield certain persons and their nefarious actions

could not therefore be ruled out. Change of the investigating and

prosecuting agency in the instant case was also necessary to instil faith in

the family of the victim and the public at large. [Dharam Pal Versus State of

Haryana, (2016) 4 SCC 160; Protima Dutta Versus State of West Bengal,

2022 SCC Online Cal 1459].

2.11 The petitioner already initiated an inquiry into the cause of custodial

death and suspended the officers holding charge.

3. Mr. Ray, learned counsel for the State, submitted as follows.

3.1 In accordance with the scheme envisaged under the Constitution of

India, more particularly the letter of law laid down in Schedule VII, List II,

an investigation of a crime should be conducted by the police of the

concerned State. Furthermore, any prayer for transfer of investigation

should not be acceded to in a routine manner. Constitutional Courts

exercised the power of transfer of investigation in exceptional and/or

extraordinary circumstances in order to preserve the sanctity and

administration of the criminal justice system. Averments made in the writ

petition went on to show that the allegations levelled against the State

respondent were without any particulars and solely on the basis of

surmises, conjectures and aspersions. Further, it was trite law that an

accused could not maintain any proceeding for the transfer of any criminal

case or choose its investigating agency. The petitioner admittedly herein had

espoused the cause of the accused persons in preferring the instant petition

and acted as an agent. The petitioner miserably failed to set out particulars

of malice and/or hardships allegedly being faced by the petitioner.

3.2 The petitioner herein had levelled various allegations with respect to

the manner and mode of investigation being conducted by the State

respondent. It had been alleged that the FIR had been fostered at the behest

of the State respondent and in collusion with the respondent no. 2 with an

intention to falsely implicate the petitioner and its officers. Unfortunately,

most of these allegations had been made with an intention to gain access to

the case diary. The petitioner had relied upon an extract of the discharge

register of the hospital appearing at page no. 23 of the second

supplementary affidavit filed by the petitioner. It appeared that the

petitioner herein had undertaken parallel investigation in connection with

the FIR. The respondent no. 2 was admitted to the hospital after the

registration of the FIR and the Investigating Agency collected enough

materials to prove the same. Such materials formed part of the case diary of

the Investigating Agency. Further, it was alleged by the petitioner that the

State respondent had manipulated the discharge register of the Rampurhat

Government Medical College and Hospital to show that the respondent no. 2

was admitted to the said hospital after the registration of the FIR. The

Investigating Agency seized the aforesaid register pursuant to the order of

this Court. Further the hospital maintained digital records in connection

with admission of the patients and the same was reproduced manually on a

register as well. Such digital records showed that the respondent no. 2 was

indeed admitted to the hospital after the registration of the FIR. The

petitioner had alleged the inquest and post-mortem proceedings were not

conducted diligently and as per the established norms. Not only were the

aforesaid proceedings videographed, but the report filed by the AIIMS, Delhi

on 20th February 2022 with respect to custodial death of the deceased, in

pursuance of the direction passed by this Court dispelled all doubts and

suspicion revolving around the post-mortem of the deceased. The

respondent no. 2 was not found on her bed since 1:00 p.m. The said

material formed part of the case diary. Furthermore, the reason as to why

the respondent no. 2 was not found at the said hospital was because she

was present during the inquest proceedings of the deceased husband with

her relatives at the mortuary of the same hospital. Statements of the

respondent no. 2 and her relatives evidencing the above stated fact had been

recorded, videographed and formed a part of the case diary. Further the

entire inquest proceedings and post-mortem of the deceased had been

videographed as well.

3.3 The Hon'ble Supreme Court of India in several judgment held that

transfer of criminal case was not to be given just for asking. When an

investigation be transferred the Hon'ble Supreme Court of India had dealt

with the aforesaid issue in the matter of Arnab Ranjan Goswami Vs. Union

of India and Ors. reported in (2020) 14 SCC 12 and also in Rhea

Chakraborty Vs. State of Bihar and Ors. reported in (2020) 20 SCC 184. The

accused could not choose the investigating agency. [Rhea Chakraborty

(supra)]. The Court should refrain from interfering or demoralising the

investigation. [Director, Central Bureau of Investigation and Others Vs.

'NIYAMAVEDI' represented by its MEMBER, K. Nandini, Advocate and

Others reported in (1995) 3 SCC 601]. There was a distinction between the

duty of the Court and an investigating agency [P. Chadambaram Vs.

Directorate of Enforcement reported in (2019) 9 SCC 24.] The Hon'ble

Supreme Court of India in its judgment clearly defined the seggregated role

of an investigating agency vis-a-vis that of a judiciary/court. It was not the

function of the Court to mandate an investigating agency, as long as the

investigation did not violate any provision of investigation. There should be

no transfer of any case without mala fides. [State of Haryana and Ors. Vs.

Bhajanlal and Others reported in (1992) Supp 1 SCC 335].

3.4 The petitioner had alleged that pending inquest, the registration of FIR

was mala fide, the reasons whereof, there should be a transfer of

investigation. For such purpose, the State respondent referred to the case of

Lalita Kumari Vs. Government of Uttar Pradesh and Others reported in

(2014) 2 SCC 1. It was the duty of the police to register the FIR.

3.5 The Constitutional Writ Rules of this Hon'ble Court under Rule 5

clearly provided that the provision of the Code of Civil Procedure, 1973

applied to affirmation of an affidavit and the same had to be on the basis of

knowledge and/or records. The allegations made in the writ petition about

the mala fide in registration of the FIR had not been affirmed in such

fashion. [A.K.K. Namibar Vs. Union of India and another reported in (1969)

3 SCC 86]. The writ petition was only limited to transfer and not quashing.

The petitioner was concerned about the inquest not being held properly or

not as well as difference between suicidal hanging or homicidal hanging. The

petitioner was in requirement of mini trial before this Court. This was not

possible since the investigation was still continuing and the

petitioner/accused would always in a position to take their defence on

merits before the trial Court. Further, the writ petition was restricted to

transfer of the case and not quashing. Accordingly, the writ petition ought to

be dismissed. It might be germane to mention that while the high ranking

officers of the CBI had not even been summoned in this case, the other

accused officers were avoiding physical interrogation. Incidentally, the CBI

and two other accused filed an application under Section 482 of the Code for

quashing of the instant proceeding.

4. Mr. Ganguly, learned counsel representing the added respondent

submitted as follows.

4.1 The writ petition being W.P.A. No. 27799 of 2022 was not at all

maintainable in view of the fact that the persons who had been arraigned as

accused in connection with Rampurhat FIR No. 612/2022 dated 13.12.2022

had not filed the said writ application before this Hon'ble Court, inter alia,

praying for transfer of investigation of such case to any other independent

agency. On the contrary, it was the Central Bureau of Investigation, which

by itself is an investigating agency, that had come up before this Court

seeking transfer of the aforesaid criminal case to some other independent

agency. The instant writ application and the reliefs sought therein were

nothing but a desperate attempt on the part of CBI to shield its officers.

Physical interrogation was a part and parcel of investigation. Until and

unless, the officers of CBI were allowed to be interrogated physically the

investigation process might not reach its finality and as such, physical

interrogation was badly needed for the sake of proper investigation.

4.2 The de facto complainant had objection to any possible exhumation of

the deadbody of the victim for further post mortem examination.

5. I heard the learned counsels for the parties and perused the writ

petition, the applications, the affidavits and the written notes of

submissions. Perused the copy of the case diary in 5 volumes filed earlier on

behalf of the State on 27.04.2022 and 28.04.2022 in my chamber and had it

re-sealed.

Copy of the same shall remain with the record in sealed envelopes.

The question of maintainability

6. In the present case, the Central Bureau of Investigation (CBI, for

short), a premier Investigating Agency of the country investigating several

important cases, has prayed for transfer of investigation of the present case

to it or to another independent Investigating Agency on certain grounds. Its

prime contention is that the officers of the CBI have been implicated as

accused in the instant case of custodial death, out of whom some had

nothing to do with the investigation of the case in respect of which the death

took place and some were extremely high ranking officials not connected

anyway with the day to day investigation of the said case. The CBI is a

juristic entity which can surely prefer an application before this Court. It

can fairly be aggrieved if it feels that its officers investigating sensitive cases

were being needlessly and maliciously dragged into the instant case where

they had no role to play. It will be for this Court to see whether such

apprehensions are well-founded.

6.1 Had the accused themselves come up with such an application for

transfer of investigation, the question of maintainability of such petition

would have assumed some significance. Afterall, the accused cannot choose

the agency which would investigate them.

6.2 Interestingly, the concept of locus standi, when it relates to criminal

law, is quite volatile. An example is the de-facto doctrine propounded by the

Hon'ble Apex Court in respect of lodging FIR or filing complaint. The concept

of locus was held to be alien to criminal law [AR Antulay, (1984) 2 SCC 500,

Sheonandan Paswan, (1987) 1 SCC 288]. In R Rathinam, (2000) 2 SCC 391,

a group of lawyers was permitted to seek cancellation of bail of an accused.

In recent times, the concept of locus has been liberally treated even in the

writ jurisdiction. On this, reliance may be placed on Nand Kishor Sonkar

versus Howrah Municipal Corporation & Ors., (2005) 3 CHN 140 (Cal).

6.3 The present petition is, thus, found quite maintainable, especially vis-

a-vis the locus of the CBI to maintain such application.

Mini Trial?

7. There is hardly any reason or scope to conduct mini trial in an

application under Article 226 of the Constitution for transfer of

investigation. It is in a proceeding which could have the tendency of putting

an end to a criminal case like in an application for quashing under Section

482 of the Code or a revisional application challenging an order of framing of

charge that the question of whether a mini trial is being conducted or not

becomes more relevant. It is trite law that a mini trial cannot be conducted

at such stage and one has to leave the trial for the Trial Court to conduct.

7.1 However, if such allegations are levelled, as in the present case, that

the investigation is tainted and is being maliciously done to falsely implicate

officers or agencies so as to dissuade them from performing their duties in

other important and sensitive cases, then it will be incumbent upon this

Court to look into the relevant aspects, touch upon relevant issues and even

sift materials collected for the limited purpose of finding out whether there is

even a semblance of truth in such allegations. If the allegations are found

credible, the wrong has to be forthwith remedied. Otherwise, the same

would amount to the worst form of travesty of justice.

7.2 It is obvious that in deciding such an application, care has to be taken

not to make unnecessary findings of fact that could impact a trial, if any, or

to disclose identities of witnesses hitherto unknown or mention the details

of evidence collected during investigation.

Prefatory facts

8. On 21.03.2022 a group of miscreants burnt to death at least ten

persons in the village Bogtui by setting them on fire. Bombs were hurled.

With extreme depravity, men, women and innocent children were put to

death. The present petitioner was a prime accused in this case. He was

arrested and was in the custody of the CBI at the relevant time, the

investigation of the case having been transferred to the CBI earlier by an

order of this Court.

8.1 After arrest and even on the date of incident, the present victim Lalan

Sk. alias Boro Lalan was purportedly examined by the doctors at the local

State hospital and no injuries were found on him, as claimed by the CBI.

The CBI further claimed that when the officers of the CBI were not present

in the temporary camp and the camp was being guarded by the CRPF and

the CBI personnel, the victim wanted to take a bath and went to bathroom

with a towel. The towel was quite long. After sometime the victim was found

hanging from the upper portion of the shower with the said towel. Intimation

was sent to the police and other authorities. Thereafter, the State authorities

removed the deadbody.

Inquest not done promptly and at the spot

9. Although information was sent to the police authorities soon after the

incident and the police officials and the learned Executive Magistrate visited

the place, they did not conduct the inquest there purportedly on the ground

that the light was not sufficient. The body was removed from the spot. The

petitioner claimed that this was deliberately done so that the body could be

manipulated with injuries, the local witnesses need not be examined and a

trumped up version of the case could be foisted.

9.1 It is not uncommon for police or Executive Magistrate not to conduct

an inquest on the ground that light is insufficient. Whether the light was

actually insufficient and whether the shifting would have had any effect on

the preservation of the body is not for this Court to determine. At this stage,

these facts, per se, do not seem to cast much doubt on the intent of the

investigating agency.

Initiation of the FIR

10. Although the death took place on 12.12.2022 in the afternoon and the

same very soon got well publicised, the FIR could be lodged purportedly by

the wife of the victim only on 13.12.2022 at about 4.25 a.m. On this, the

petitioner has levelled several allegations. It has come up with a document

that apparently showed that the informant was admitted in the State

hospital at the relevant time when she was supposedly lodging the FIR at

the police station. After such point was taken, the State came up with an

explanation that this was a result of mere overwriting in the manual

hospital register and the recording in the electronic mode bore out the

mistake. The CBI also alleged subsequent filling up of the later portion of

the FIR as would be evident from the spacing of the lines. The petitioner

vehemently contended that the names of Investigating Officers of other cases

and high ranking officials of the CBI like the DIG have been taken at

someone's dictation only to corner the petitioner. The scribe of the FIR was

also not named. In fact, the de facto complainant stated in Court that she

did not know his name.

10.1 If the above facts culminate in a charge-sheet, the same will have to

be tested at an appropriate stage. However, at this stage this Court is only

concerned about whether the above contentions as alleged are indicative of

any deliberate bias or malice in the investigating agency.

10.2 It is very strange indeed that the Investigating Agency, even after the

issue regarding mismatch with the hospital records was pointed out on

behalf of the CBI in its second supplementary affidavit on 17.02.2023, did

not choose to immediately investigate into such aspect. It was only after this

Court directed seizure of relevant documents in this regard on 20.02.2023,

that the same was done. The contention of the State that electronic record

supported the altered noting in the register is to be assayed on the anvil of

whether the former was ordinarily expected to follow the manual register or

not.

10.3 It may also appear quite uncanny that much after such well-

publicised incident and in the wee hours of the dawn of the next day, the de

facto complainant would go to the police station to lodge an FIR and do so

without knowing or later remembering the scribe of the FIR. But, these are

questions of fact that would perhaps be more relevant in an application for

quashing or during trial. In fact, one may even contend that the alleged

malice of an informant may not necessarily be equated with that of an

investigator.

10.4 However, after a careful perusal of the Case Diary, it can be found

that there is more than what meets in the eyes. These were several

statements of the informant recorded at different times, besides the FIR.

Much after it was contended by the petitioner that the scribe of the FIR was

not named and even after the de facto complainant related her ignorance

about the name of the scribe in open Court, the present investigator went on

to record her further statement regarding the scribe's identity where she

gave all the details. If the intention were to bring out the truth, only the

scribe would have been examined after identifying him from other sources.

Moreover, no reason was forthcoming for recording such subsequent

statement of the informant like the informant having approached them

again after obtaining information about the scribe or the like. One is then

left to ponder about what could be the reason that prompted her to be re-

examined on this issue.

10.5 What is also of concern is that in the body of the FIR there is the

specific implication of high ranking officers of the CBI like the DIG and some

officers of other sensitive cases on a rather farfetched hearsay account that

the victim had overheard the conversion of the local officers with someone

influential about extracting confession from him and, in turn, related this to

the de facto complainant during their supposedly fleeting meetings while the

victim had remained in CBI's custody. Yet, not much investigation has been

done in this regard, at least in terms of not just collecting, but also

analysing the call records of the concerned individuals namely, the

informant, the CBI officers and even the scribe.

10.6 The non-mentioning of the FIR number in the inquest report or the

Post-Mortem Report is, however, quite a commonplace error and is at least

at this stage not necessarily indicative of any wrongdoing.

Injuries on the victim

11. It will not be prudent to discuss the statements of witnesses from the

victim's neighbourhood or of another co-accused about the alleged infliction

of assault on the victim. Suffice it to say that such statements are present in

the case diary. For deciding the present lis, more emphasis ought to be given

to the documentary evidence like the injury reports, the inquest report and

the post-mortem report and the like and the manner in which they were

dealt with. As the old adage goes, witnesses may lie, but documents and

circumstances do not.

11.1 Although the purported immediately preceding reports negated the

presence of injury on the victim's person and the inquest reports also did

not show external injuries except for the obvious ligature mark and the like,

the post-mortem report showed presence of injuries. The petitioner has

explained these as injuries received after transportation of the body from the

spot and by claiming that these were at best post-mortem staining while the

State strongly relied on the post-mortem report. At the risk of repetition, it is

reiterated that all these and their ultimate effect need not be evaluated at

this stage.

11.2 However, what is unfortunate is that the Investigating Agency, even

after transfer of investigation to the DIG, CID, did not examine the doctors

who had purportedly certified that the victim was not having any injury

before his death.

Post-mortem report

12. At the first glimpse of the post-mortem report what struck this Court

was the use of the expression 'violent mechanical asphyxia' present in the

opinion of the post-mortem doctor. Ordinarily, such adjectives as 'violent' is

not used in the opinion part of a post-mortem report and at best, the post-

mortem doctor elaborates about all these during his testimony before the

trial Court. Of course, such expression may very well be used even in the

opinion part of a post-mortem report when the reason is so very obvious and

is supported by attending circumstances like existence of severe

corresponding injuries or marks of vital reactions. The purpose of discussing

about this issue is not to make a finding of fact, but only to find out whether

there is any probable credence in the petitioner's allegations that the

investigation was being done with a view to fix someone. Ideally the

investigating officers then should have gone for another opinion. Upon query

by this Court, the Investigating Agency sent the post-mortem report for the

opinion of a five members Board of the local State Hospital. The said Board

made a painstaking effort to support the view of the post-mortem doctor as

regards the use of the word 'violent'. It formulated a bizarre logic, which is

quoted as follows - "In this case 'hanging' has been caused by an outside

mechanical force. So this was a case of mechanical asphyxia and as it has

caused death, so definitely it was violent in nature. So the phrase 'violent

mechanical' was used." This Court was then constrained to ask the

Investigating Agency to send the post-mortem report to the AIMS, New Delhi

and to the SSKM, Kolkata for their respective opinions. Medical boards were

formed. The said medical boards effectively deleted the word 'violent' from

their opinions as to the cause of death. The AIIMS, Delhi held that "The

deceased had died due to asphyxia as a result of ante mortem hanging by a

ligature, which could be suicidal. Circumstantial evidences are to be

considered."

12.1 The other finding in the post-mortem report about the intact ligature

mark around the neck producing a 'V' is for the Investigating Agency to take

note of.

12.2 It is for the Investigating Agency to arrive at a prima facie satisfaction

about the nature of death and then press a charge, if any. The effort of the

Investigating Agency should be to dispassionately collect the best evidence.

But, this Court finds dearth of such endeavour.

Non-examination of persons near the camp

13. Apart from the officials of the CBI connected to the temporary camp,

there would be the workers of the host organization where the camp is

situate. Such witnesses would provide the best evidence of what went on

there. They ought to have been examined and not merely for seizure of lathi

(stick).

Motive

14. Although it is not necessary to prove motive in every case, it is

nevertheless important for the investigating agency to find out the motive

behind a crime so as to arrive at the truth. It is of utmost importance to find

out as to why was the instant crime committed if it was not for the victim

himself to have committed suicide and if at all, who was to gain from this?

14.1 There is hardly any material forthcoming from the investigators in this

regard.

Conclusions

15. The quality and direction of the investigation done in the instant case

by the present dispensation are not much different from the earlier one.

Papers are galore in the case diary like three witnesses for the seizure of a

lathi(stick). The case diary is replete with statements made by relatives,

acquaintances and neighbours of the victim herein. But, the earnest request

of the Court to give the best effort regardless of what might have gone on

earlier seems to have gone unheard. The direction of the investigation

remains one-track, thus smacking of an implicit bias. It lacks keeness in

collecting the best evidence and is more bent on somehow countering the

points that were being taken up by the petitioner and even the fallout of a

purported disclosure made before this Court for whatever it was worth.

15.1 Among other things, the following specific infractions of far-reaching

consequences are noticed in the investigation done thus far -

(i) Non-examination of the doctor/s purportedly giving fit certificate to

the victim immediately before the incident.

(ii) Non-examination of witnesses from the organization hosting the CBI

camp, except for a formal purpose.

(iii) Failure to suo motu seize the records of the Hospital showing alleged

discrepancy regarding the de facto complainant's admission immediately

after the point was raised by the petitioner.

(iv) Failure to explore the reason behind linking the CBI officer of the

other case or the DIG, especially given the fact that the Investigating Agency

has not reportedly found it necessary even to issue notice to them.

(v) Failure to provide any clue about the motive behind the alleged crime.

(vi) Sitting tight over the arguably flawed 'opinion' in the Post-Mortem

Report by the earlier investigator and subsequently, simply accepting a

similar report of the first medical Board. Such opinion goes to the root of the

matter and may have a determining effect on the whole outcome of

investigation.

15.2 A custodial death is one of the most condemnable events in the annals

administration of criminal justice. No less heinous would be an attempt to

frame an innocent. The Court also has sympathy for the de facto

complainant for she has lost her husband. Therefore, it is the bounden duty

of this Court to ensure that a fair and effective investigation is carried out,

truth prevails and justice is done to all concerned.

15.3 In view of the above discussions, to instil confidence in all and for

securing the ends of justice, this Court is of the considered view that further

investigation of the case should be done by a fresh set of investigators.

15.4 The death having taken place in the custody of the CBI cannot be the

only reason not to transfer the investigation to them as so many such

deaths in the custody of the State Police are investigated by them. But, this

is also not a case where investigating officers from other States have to be

involved. Among other things, it would cause more delay and logistical

hurdles. A joint investigation team including the officers of the State and the

CBI was also being contemplated. However, regardless of the CBI's strong

conviction about their innocence, it is quite strange the CBI had chosen to

be a co-applicant in an application for quashing of proceeding along with

some co-accused officers. So, it would also not seem proper to involve them

in the further investigation of the instant case at least at this stage. Afterall,

justice should not only be done, but should be shown to have been done.

15.5 Therefore, this Court is left with the other efficacious option of

directing a Court-monitored investigation by a Special Investigation Team

constituted by the police officers of the State. For this, the Court has gone

through a list of very eminent officers and arrived at two specific names

upon considering their vast experience and expertise.

15.6 Monitoring of investigation is not the same as supervising it. The

concern and interest of the Court in such Court monitored cases is that

there is no undue delay in the investigation and the investigation is done in

a free and fair manner with no external interference. On this, reliance is

placed on Manohar Lal Sharma versus the Principal Secretary & Ors.,

(2014) 2 SCC 532.

Directions

16. In view of the above and in the interest of justice, this Court is

inclined to pass the following directions -

(i) A Special Investigation Team shall further investigate the present case

being Rampurhat Police Station Case No. 612 dated 13.12.2022.

(ii) The Special Investigation Team shall be headed by an IPS officer of

repute serving in the State namely, Dr. Pranav Kumar, presently posted as

the Inspector General of Police, Swami Vivekananda State Police Academy,

Barrackpore, West Bengal. He shall be assisted, among others, by Shri

Bireswar Chatterjee, the Officer-in-Charge, Homicide Section of the

Detective Department, Kolkata Police. Dr. Kumar shall chose his team of

other officers from the Kolkata Police and/or West Bengal Police for assisting

him in investigation. However, the Team shall not include any officer who

was earlier involved in the investigation of this case. The State shall extend

full co-operation in this.

(iii) The Team shall be constituted within a week from this date and the

present Investigating Agency shall hand over the case diary and other

relevant materials to the Team at the earliest. Till such Special Investigation

Team is formed, the present investigators shall not conduct any more

investigation and can only take routine administrative steps.

(iv) The Special Investigation Team shall not report to the State and shall

file regular reports before the jurisdictional Court/Magistrate. However, no

report in final form shall be filed without the leave of this Court.

(v)     This Court shall monitor such investigation.

(vi)    All steps taken during investigation shall be videographed.

(vii) The petitioner and the accused officers of the CBI shall co-operate

with the investigation of the case in full measure.

(viii) The direction passed earlier not to take any coercive steps against the

accused officers of the CBI shall continue until further orders. However, it is

clarified that this does not amount to a blanket exemption from physical

interrogation as opposed to virtual one.

(ix) After the Special Investigation Team takes over charge within a week

from this date, it shall file a report to that effect before this Court.

16.1 The connected applications, thus, stand disposed of without any

further order.

17. The State of West Bengal, through the office of the learned

Government Pleader, shall communicate this order to Dr. Pranav Kumar

and to Shri Bireswar Chatterjee forthwith.

18. List this matter for report by the Special Investigation Team on

15.05.2023 at 2 p.m. under the heading 'To Be Mentioned.'

19. Parties shall act on a server copy of the order obtained from the

official website of the High Court at Calcutta.

(Jay Sengupta, J.)

S.M