Calcutta High Court (Appellete Side)
Jamini Kanta Mondal & Ors vs The State Of West Bengal & Ors on 9 October, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
W.PA. 17650 of 2019
Jamini Kanta Mondal & Ors.
Vs.
The State of West Bengal & ors.
For the Petitioners : Mr. Soumen Kr. Dutta
Mr. Subhash Jana
Mr. Amal Krishna Samanta .......advocates
For the State : Mr. Jayanta Samanta
Mr. Benazir Ahmed ... advocates
Reserved on : 03.10.2023
Judgment on : 09.10.2023
Hiranmay Bhattacharyya, J.:-
1. The petitioners have prayed for issuance of a writ of mandamus to
command the respondents to award and pay appropriate
compensation in view of their detention in connection with
Nandkumar Police Station case no. 173 of 2013 dated 18.06.2013 and
for a further direction to reinvestigate the said case.
2. Petitioner no. 1 is the father-in-law, the petitioner no. 2 is the mother
in law and the petitioner no. 3 is the brother-in-law of the 5th
respondent. The 5th respondent submitted a written complaint before
the Officer-in-Charge Nandkumar Police Station wherein it was stated
that on 11.02.2013 after returning from the house of one of a
neighbour she found her daughter lying dead on the bed. On the basis
of such information Nandkumar Police Station UD Case no. 5 of 2013
dated 11.02.2013 under Section 302 of the Indian Penal Code was
started. Therefore, upon receiving a complaint a case was registered at
Nandkumar Police Station Case no. 175 of 2013 dated 18.06.2013
under Section 302 of the Indian Penal Code. Upon completion of
investigation, chargesheet was submitted under Section 302/34 of the
Indian Penal Code against the accused/ writ petitioners herein. The
learned Chief Judicial Magistrate, Tamluk after taking cognizance
transferred the case to the learned Sessions Judge Purba Medinipur.
The learned Additional District & Sessions Judge 3rd Court, Tamluk,
District Purba Medinipur in S.T. No. -02(01) 2016 passed a judgment
on 12.12.2018 holding that the accused person/ writ petitioners
herein are found not guilty to the offence brought against them under
Section 302/34 of the Indian Penal Code. The writ petitioners were
accordingly acquitted under Section 235 (1) of the Criminal Procedure
Code.
3. After being acquitted in the aforesaid criminal case this writ petition
has been filed alleging that the petitioners were illegally roped in due
to wrong and improper investigation by the investigating agency for
which the writ petitioners had to suffer illegal detention. On such
ground the writ petitioners have prayed for a direction upon the
respondent State to award appropriate compensation and for a
direction upon the respondents to reinvestigate the aforesaid police
case.
4. Mr. Soumen Kumar Dutta learned advocate appearing for the
petitioner submitted that it is the bounden duty of the Court of law to
uphold the truth and for which there has to be a fair investigation. He
submitted that the investigating agency did not investigate the case in
a fair and impartial manner. He contended that this Court in exercise
of powers under Article 226 of the Constitution of India can pass a
direction for further investigation in connection with the death of a
baby. In support of such contention he placed reliance upon a
decision of the Hon'ble Supreme Court in the case of Dharam Pal vs.
State of Haryana and ors. reported at (2016) 4 SCC 160 and
Bharati Tamang vs. Union of India and ors. reported at (2013) 15
SCC 578. He further submitted that since the petitioners were
detained illegally, this Court should pass an order directing payment
of money in the nature of compensation in view of the fact that the
petitioners were deprived of their fundamental right to life and liberty
guaranteed under Article 21 of the Constitution of India. In support of
such contention Mr. Dutta placed reliance upon the following
decisions of the Hon'ble Supreme Court.
(a) Rudul Sah vs. State of Bihar and anr. reported at AIR 1983 SC
(b) Bhim Singh, MLA vs. State of J & K and ors. reported at AIR
1986 SC 494
(c) S. Nambi Narayanan vs. Siby Mathews & ors. reported at
(2018) 10 SCC 804
(d) Ankush Maruti Shinde and ors. vs. State of Maharashtra
reported at AIR (2019) SC 1457
5. Mr. Samanta learned advocate appearing for the State submitted that
the investigation was carried out by the investigating agency in a fair
and impartial manner. The petitioners after being acquitted in the
criminal case have filed this writ petition praying for compensation
and reinvestigation which is not maintainable in the facts of the
instant case. He submitted that this writ petition is liable to be
dismissed.
6. Heard the learned advocates for the parties and perused the materials
placed.
7. The writ petitioners have specifically admitted in paragraph 5 of the
writ petition that during the investigation and after considering the
statement of the private respondent under Section 164 of the Criminal
Procedure Code, the Police found the involvement of the petitioner in
the aforesaid offence and thereby arrested the petitioners. It was also
stated in the said paragraph that subsequently the petitioners were
released on bail.
8. Record reveals that the petitioners approached the learned Additional
District and Sessions Judge, 3rd Court, Tamluk in S.C.Case No. 264
(5) 14 praying for discharging the petitioners from the charge under
Section 302/34 of the Indian Penal Code. Such prayer was rejected by
the learned Trial Judge and challenging the said order the petitioners
approached this Court by filing an application under Section 401 read
with Section 482 of the Criminal Procedure Code which was registered
as CRR 1444 of 2015. The learned Single judge, by a judgment and
order dated 19.11.2015, dismissed the Criminal Revisional
Application thereby affirming the order dated 24.03.2015 passed by
the Additional District and Sessions Judge, 3rd Court, Tamluk in SC
case no. 264 (5) 14.
9. The learned Additional District and Sessions Judge by a judgment and
order dated 12.12.2018 in S.T. No. 02(01) 2016 after considering the
evidence observed that it appears that the prosecution has failed to
prove the case sufficiently and there is doubt regarding the
commission of the offence by the said accused persons. The learned
Additional District & Sessions Judge, bearing in mind the settled
principle of law that no innocent person be punished, gave the benefit
of doubt to the accused persons/ writ petitioners herein. The learned
Additional District & Sessions Judge held that the accused persons
are not found guilty to the offence as brought against them under
Section 302/34 of Indian Penal Code and they were accordingly
acquitted under Section 235(1) of Criminal Procedure Code.
10. In the case on hand the petitioners were taken into custody at the
stage of investigation and subsequently they were released on bail.
The petitioners were found not guilty after trial. The detention of the
petitioner was, thus, in accordance with the procedure established by
law and the same cannot, by any stretch of imagination, be said to be
illegal or unlawful.
11. By referring to the statements made under Section 164 of the CRPC
and those under Section 161, Mr. Dutta would contend that the 5th
respondent have made contradictory statements. By referring to the
post mortem report as well as other materials on record, Mr. Dutta
tried to convince this Court that the investigation was not conducted
in a fair and impartial manner.
12. As observed hereinbefore, the writ petitioners were held not guilty of
the offence brought against them under Section 304/34 of the Indian
Penal Code and they were accordingly acquitted by the learned
Additional Sessions Judge. The judgment dated 12.12.2018 passed by
the learned Additional Sessions Judge has been accepted by the writ
petitioners. A writ court cannot sit in appeal over the findings of the
judgment dated 12.12.2018 passed by the learned Additional District
and Sessions Judge in S.T. No. 02(01) 2016.
13. In course of hearing of this writ petition Mr. Dutta would submit that
the writ petitioners want that appropriate investigation is to be made
to find out the truth about death of a baby who was aged about 5
months only at the relevant point of time. In the event the petitioners
have any materials in their possession to unearth the truth, it will be
open to them to take appropriate steps in accordance with law.
14. In Dharam Pal (supra) the issue which fell for consideration was
whether after commencement of trial a direction for transfer of the
investigation to CBI can be passed. The Hon'ble Supreme Court held
that the power to order fresh, de novo or reinvestigation being vested
with the constitutional courts, the commencement of a trial and
examination of some witnesses cannot be an absolute impediment for
exercising the said constitutional power which is meant to ensure fair
and just investigation. The Hon'ble Supreme Court further observed
that direction for further investigation by another agency has to be
very sparingly issued. The said decision being distinguishable on
facts do not have any manner of application to the case on hand.
15. In Bharati Tamang (supra) a writ of mandamus was prayed for
quashing the chargesheet alleging that the whole investigation which
was initially held by the State police and thereafter by CID and later
by CBI was faulty in all respect. The Hon'ble Judges of the Supreme
Court after noting various relevant features were of the view that the
proceeding of the case by the prosecution either by the State Police or
by CID and after it was taken over by CBI was not carried out in a
satisfactory manner. The Hon'ble Supreme Court further noted that
after occurance of the incident there was serious lapse in
apprehending many of the accused and the fact that the prime
accused were still absconding as on the date of the passing of the
judgment of the Hon'ble Supreme Court it was observed that such fact
disclosed that there was total lack of seriousness by the prosecution
agency and in carrying out the investigation. On such factual
background the Hon'ble Supreme Court observed that the
investigation was continued to be carried out by CBI but shall be
closely monitored by its Joint Director. Apart from the above several
other directions were passed. The said decision being distinguishable
on facts is of no assistance to the petitioner in the case on hand.
16. In Rudul Sah (supra) the petitioner was released from jail more than
14 years after he was acquitted by the learned Sessions Judge. The
detention of the petitioner for such a long period even after being
acquitted was held to be unlawful and for such reason the Hon'ble
Supreme Court after directing payment of compensation as an interim
measure allowed the petitioner therein to bring a suit to recover
appropriate damages from the State and its erring officials. The facts
of the said reported decision is clearly distinguishable and therefore,
the same is of no assistance to the petitioner.
17. Bhim Singh (supra) deals with a case of detention without being
produced before the concerned Magistrate within the stipulated time
limit. The Hon'ble Supreme Court further noted that the orders for
remand to custody were passed even without such person being
produced before the concerned Magistrate. On such facts the Hon'ble
Supreme Court held that there has been a gross violation of the
Constitutional rights under Articles 21 and 22(2). On such factual
background the Hon'ble Supreme Court directed payment of
compensation. The said decision being distinguishable on facts do not
have any manner of application to the case on hand.
18. In S. Nambi Narayanan (supra) the Hon'ble Supreme Court passed a
direction for payment of compensation taking note of the reports
submitted by the CBI wherein it was observed that the entire
prosecution initiated by the State Police was malicious and it has
caused tremendous harassment and immeasurable anguish to the
appellant therein. From the observations made in paragraph 34 of the
said reports it is evident that the principles applied therein while
passing a direction for payment of compensation shall not be
applicable to a case where the accused is kept under custody and
eventually after trial he is found not guilty. The case on hand squarely
falls within the exceptions curved out in the said reports.
19. In Ankush Maruti Shinde (supra) the Hon'ble Supreme Court
awarded compensation to the accused in the peculiar facts and
circumstances of the case and in exercise of powers under Article 142
of the Constitution of India. It is well settled that directions passed
under Article 142 of the Constitution of India do not comprise the
ratio decidendi and, therefore, lose its basic premise of making it a
binding precedent. The Hon'ble Supreme Court in the case of State of
Punjab & ors. vs. Rafiq Masih (Whitewasher) reported at (2014) 8
SCC 883 held thus-
"12. Article 142 of the Constitution of India is supplementary in nature
and cannot supplant the substantive provisions, though they are not
limited by the substantive provisions in the statute. It is a power that
gives preference to equity over law. It is a justice-oriented approach as
against the strict rigours of the law. The directions issued by the court
can normally be categorised into one, in the nature of moulding of relief
and the other, as the declaration of law. "Declaration of Law" as
contemplated in Article 141 of the Constitution: is the speech express or
necessarily implied by the highest court of the land. This Court in
Indian Bank v. ABS Marine Products (P) Ltd., Ram Pravesh Singh v.
State of Bihar, and in State of U.P. v. Neeraj Awasthi, has expounded
the principle and extolled the power of Article 142 of the Constitution of
India to new heights by laying down that the directions issued
under Article 142 do not constitute a binding precedent unlike Article
141 of the Constitution of India. They are direction issued to do proper
justice and exercise of such power, cannot be considered as law laid
down by the Supreme Court under Article 141 of the Constitution of
India. The Court has compartmentalised and differentiated the relief in
the operative portion of the judgment by exercise of powers
under Article 142 of the Constitution as against the law declared. The
directions of the Court under Article 142 of the Constitution, while
moulding the relief, that relax the application of law or exempt the case
in hand from the rigour of the law in view of the peculiar facts and
circumstances do not comprise the ratio decidendi and therefore lose its
basic premise of making it a binding precedent. This Court on the qui
vive has expanded the horizons of Article 142 of the Constitution by
keeping it outside the purview of Article 141 of the Constitution and by
declaring it a direction of the Court that changes its complexion with the
peculiarity in the facts and circumstances of the case."
20. In view of the aforesaid well settled proposition of law the direction for
payment of compensation in Ankush Maruti Shinde cannot be said
to be a binding precedent.
21. From the aforesaid discussion it follows that that though the
Constitutional Courts have the power to order fresh, de novo or
reinvestigation but such directions have to be issued sparingly
depending upon the facts of the case. The petitioners herein have
failed to make out any case for a direction to order fresh investigation
or reinvestigation of the police case. That apart, the petitioners herein
have already been acquitted in the said criminal case after trial. The
prosecution initiated by the State in the case on hand cannot be said
to be malicious. As observed hereinbefore the detention of the
petitioners were in accordance with the procedure established by law
and the same therefore, cannot be said to be illegal or unlawful.
22. Since the detention of the petitioners cannot be said to be unlawful or
illegal, this Court is of the considered view that no direction for
payment of compensation should be passed in the case on hand.
23. For all the reasons as aforesaid the writ petition stands dismissed.
The dismissal of the writ petition shall not preclude the petitioners
from initiating appropriate proceedings in accordance with law.
24. There shall be, however, no order as to costs.
25. Urgent photostat certified copies, if applied for, be supplied to the
parties upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)
(P.A.-Sanchita)
