Calcutta High Court (Appellete Side)

The State Of West Bengal vs Union Of India & Anr on 6 October, 2024

06.10.2024                IN THE HIGH COURT AT CALCUTTA
Item no.1                          Criminal Revisional Jurisdiction
Court No. 35.
dc.
                                        CRR No.4515 of 2024

                                        The State of West Bengal
                                                  -vs-
                                         Union of India & Anr.


                      Mr. Kishore Dutta, Ld. A.G.,
                      Mr. Debasish Roy, Ld. P.P.,
                      Mr. Rudradipta Nandy, Ld. A.P.P.,
                      Ms. Sanjana Saha,
                                                    ...for the petitioner/ State

                     Mr. Dhiraj Trivedi, Ld. D.S.G.I.,
                     Mr. Bankim Pal
                                                      ... for the Union of India.
                     Mr. Billwadal Bhattacharyya,
                     Mr. Chandan Kumar Saha,
                     Mr. Gautam Sardar,
                     Mr. Bhaskar Bhattacharyya,
                     Mr. Apurbo Mondal,
                     Mr. Dibakar Biswas,
                     Mr. Raj Sharma,
                     Mr. Pradip Kumar Mondal
                                                      ... for the Opposite Party No.2
                     Mr. Samim Ahmed,
                     Mr. Chandan Hossain,
                     Mr. Rajit Lal Moitra,
                     Mr. Arnab Sinha,
                     Mr. Arka Ranjan Bhattacharyya,
                     Mr. Arya Bhattacharyya,
                     Ms. Ambiya Khatun,
                     Mr. Enamul Islam.

... for the family member of the deceased.

. Affidavit-of-service filed by the petitioner be kept with the

record.

Vakalatnama filed on behalf of the opposite party no.2 be also

kept with the record.

The State of West Bengal has approached this Court with an

application under Section 482 read with Section 401 of the Code of

Criminal Procedure, 1973/ Section 528 read with Section 442 of the

Bharatiya Nagarik Suraksha Sanhita, 2023. The subject matter of

challenge before this Court relates to the order dated 5th October,

2024 passed by the learned A.C.J.M., Baruipur in connection with

Joynagar Police Station case no. 793 of 2024 dated 5th October, 2024

under Sections 137(2)/140(3) of the Bharatiya Nyaya Sanhita, 2023,

subsequently added Sections 103/238 of the Bharatiya Nyaya

Sanhita, 2023.

The investigating agency advanced a prayer before the learned

Additional Chief Judicial Magistrate, Baruipur, South-24-Parganas for

conducting the post mortem examination in presence of a Judicial

Magistrate at Mominpur Police Morgue Hospital on 6th October, 2024

which was turned down by the learned Magistrate by its order dated

5th October, 2024.

There was a prayer also by the father of the deceased wherein

he requested that necessary arrangements be made for post mortem

examination before a hospital supervised and controlled by the

Central Government.

Learned Advocate General appeared on behalf of the State along

with the learned Public Prosecutor.

The Union of India is represented by Mr. Trivedi, learned

D.S.G.I.

Mr. Bhattacharyya, learned advocate represents the opposite

party no.2/father of the deceased.

Mr. Ahmed, learned advocate represents the family member of

the deceased.

The learned Advocate General submitted that the State has

infrastructure, but in order to respect, honour and instil confidence,

prayer of the opposite party no.2 for conducting the post mortem at a

Central Government Hospital has been accepted by the State and as

such, the prayer in the present revisional application has been

amended from that which was advanced before the learned Additional

Chief Judicial Magistrate, Baruipur and State has come up before this

Court so that in presence of a Judicial Magistrate in a Central

Government Hospital, the post mortem examination of the deceased can

be conducted.

Mr. Bhattacharyya, learned advocate appearing for the opposite

party no.2/father of the deceased has relied upon two unreported

judgments of this Hon'ble Court which are as follows:

(i) Smt. Amrita Pandey -Vs. - The Union of India & Ors. [WPA (P)

209 of 2022];

(ii) Prasenjit Bhunia -Vs. - The State of West Bengal & Ors. [WPA

10909 of 2023].

Relying upon the aforesaid judgments, Mr. Bhattacharyya insists

that the post mortem examination be held at the Command Hospital,

Kolkata.

Mr. Trivedi, learned DSGI, appearing for the Union of India

sought assistance from the Major of the Command Hospital who

expressed that they have limitations in conducting such post mortem

examination because of various reasons.

Accordingly this Court thought it fit and proper to seek

instructions as to whether any facility is available at AIIMS, Kalyani.

Mr. Trivedi took initiative and Dr. Ajoy Mallick, Medical

Superintendent, AIIMS, Kalyani immediately joined virtually and gave

his consent. Although, he said that there is limited infrastructure they

would require assistance and infrastructure of a hospital for conducting

such post mortem examination. So far as the Medical Experts are

concerned, such Medical Experts are available with AIIMS, Kalyani.

In course of hearing, this Court perused the Case Diary and the

materials which were produced by the State before this Court,

particularly the inquest report. This Court, prima facie, is of the

opinion, that at the initial stage of investigation prior to the post

mortem examination having been conducted, the inquest report suggest

acts of sexual offences being committed upon the person of the

deceased, so appropriate provisions of law under relevant statutes

should have been incorporated by the investigating agency.

Accordingly, this Court directs that henceforth the accused be

produced before the Special Court under the POCSO Act, Baruipur for

further directions to be obtained in course of investigation.

So far as the post mortem examination is concerned this Court is

inclined to pass the following directions:

1) The person of the deceased be escorted by the police authorities

with proper documentation including the guidelines laid down by

Swasthya Bhawan/Medical Council of West Bengal and be

handed over by 11.45 A.M. on 7th October, 2024 to Dr. Ajoy

Mallick, Medical Superintendent of AIIMS, Kalyani.

2) If the infrastructure is available, the post mortem examination

will be conducted at AIIMS, Kalyani. In case there is some

deficiency in the infrastructure, the Superintendent of JNM,

Kalyani would be communicated immediately. The District

Magistrate will also communicate to the Superintendent of JNM,

Kalyani so that arrangements are made after a request is

advanced from AIIMS, Kalyani to provide all assistance for

conducting the post mortem examination only by the doctors of

AIIMS, Kalyani by using the infrastructure of JNM, Kalyani. I

direct that no complaint should be received from the doctors who

would be conducting the post mortem examination, if required at

JNM, Kalyani.

3) Appropriate police arrangements be made while the dead body is

being shifted from Mominpur Police Morgue to AIIMS, Kalyani or

JNM, Kalyani. To that effect, the police authorities of the State

will take adequate measures.

4) If a request is advanced by the father and the mother of the

deceased for observing the proceedings virtually when the post

mortem examination is being conducted, in that case the

investigating officer would make an arrangement outside the

room where the post mortem examination is being conducted. If

the parents are not at all interested, they may be provided a

place which is segregated outside the room where they will feel

comfortable and this Court requests the doctor, conducting the

post mortem examination of AIIMS, Kalyani, that after

completion of post mortem examination they would

inform/interact with the parents of the deceased.

5) The learned Additional Chief Judicial Magistrate, Baruipur is

directed to make himself available at 11.45 A.M. on 7th October,

2024. The investigating officer of the case will communicate this

order in course of the day to the learned Additional Chief Judicial

Magistrate, Baruipur and arrangements be also made so that the

learned Magistrate reaches AIIMS, Kalyani and communicate

with the Medical Superintendent of AIIMS, Kalyani. The learned

Magistrate should be physically present when the post mortem

examination is being conducted.

Needless to state that in ordinary course of events, the Magistrate

although cannot interfere with an investigation, she/he is empowered to

monitor the investigation.

The spirit of BNSS also reflects the same and as such, the

Magistrate in course of investigation conducts T.I. Parade, records

statements under Section 183 of BNSS (confessional statement or

statement of witnesses) as also under Section 349 of the BNSS

supervises specimen signature, hand writing samples being obtained by

the investigating officer and the added provisions in the new Sanhita,

i.e. the finger print as well as the voice samples.

The learned Magistrate is aware about his responsibilities as a

monitoring authority which is akin to his functions as stated above. A