Calcutta High Court (Appellete Side)
Nilanjan Mitra vs The State Of West Bengal & Ors on 18 September, 2024
Author: Suvra Ghosh
Bench: Suvra Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APELLATE SIDE
The Hon'ble JUSTICE SUVRA GHOSH
CRR 1509 of 2024
Nilanjan Mitra
v/s.
The State of West Bengal & Ors.
For the petitioner: Mr. Jayanta Narayan Chatterjee,
Ms. Moumita Pandit,
Mr. Supreem Naskar,
Ms. Jayashree Patra,
Ms. Ritushree Banerjee,
Ms. Sreeparna Ghosh,
Ms. Pritha Sinha,
Mr. Bhaskar Mondal.
For the State: Ms. Anasuya Sinha,
Ms. Puja Goswami,
For the opposite party: Mr. Rajdeep Mazumder,
Mr. Pritam Roy,
Mr. Soewel Bhattacharjee,
Ms. Triparna Roy
Heard on: 11-09-2024
Judgment delivered on: 18-09-2024
SUVRA GHOSH, J. :-
1) The petitioner seeks quashing of the order passed by the Learned
Additional Chief Metropolitan Magistrate II City Sessions Court, Calcutta
presently re-designated as Learned Additional Chief Judicial Magistrate-
II, Calcutta on 1st April, 2024 in G.R. Case no. 933 of 2023 turning down
the prayer of the petitioner for further investigation under section 173(8)
of the Code of Criminal Procedure.
2) Learned counsel for the petitioner has submitted that the victim who is
his niece died by burn injuries and when the victim was ablaze, her
husband who is the accused/opposite party made a video call to the
victim's cousin and showed her the said scene instead of coming to her
rescue. The said cousin Shukla Choudhary informed the incident to the
family members and sent a car to take the victim to Belle Vue Clinic. The
incident occurred on 24th November, 2023 and the victim succumbed to
her injuries on 5th December, 2023. The petitioner requested the
Investigating Officer to add section 302 of the Indian Penal Code to the
penal sections in respect of which investigation was proceeding, but to no
effect. Initially the case was registered under section 304B of the Code
pursuant to which the petitioner filed a writ petition being W.P.A. 1238 of
2024 wherein this Court, by a judgment delivered on 31st January, 2024,
held that section 304B of the Penal Code had no manner of application in
the case as the incident occurred after seven years of marriage. Upon
holding that the investigation was totally misdirected, investigation was
transferred to the C.I.D. with a direction to conclude the same
expeditiously in accordance with law. Since no charge under section 302
of the Penal Code was added despite the earlier observation of this Court,
the petitioner approached this Court in W.P.A. 6984 of 2024 and by an
order passed on 15th March, 2024 this Court directed the investigating
agency to proceed with an open mind and consider all aspects before
coming to a final conclusion. The investigating agency has not considered
the conduct of the accused/opposite party and has submitted charge
sheet under sections 498A/306/201 of the Penal Code and section 3/4 of
the Dowry Prohibition Act. The petitioner submitted an application before
the learned Magistrate under section 173(8) of the Code of Criminal
Procedure seeking further investigation of the case which was refused by
the order impugned.
3) Learned counsel for the State has referred to the case diary including
statement of witnesses recorded under section 164 of the Code of
Criminal Procedure as well as the admission documents and post-mortem
report of the victim. Learned counsel has submitted that the statement of
the attending doctor indicates that the victim was alert, conscious and
cooperative when she was brought to the hospital by her husband and
stated before the doctor that she set herself ablaze and it was her
husband who doused the fire.
4) Learned counsel for the opposite party has placed reliance on the
statement of Dr. Sanjit Dutta who was the attending doctor, Biswanath
Shaw @ Bablu who was the driver of the victim's father and who took her
to the hospital and Sukla Choudhary who is the victim's cousin and has
submitted that no material under section 302 of the Penal Code has
transpired against the opposite party in course of investigation.
5) Learned counsel has placed reliance on the authority in Pakala Narayana
Swamy v/s. The King-Emperor reported in 1939 Supreme Court Cases
OnLine PC 1 wherein it has been observed that under section 32 of the
Indian Evidence Act, statement of relevant facts made by a person who is
dead is a relevant fact when the statement is made by a person as to the
cause of his death or as to any of the circumstances of the transaction
which resulted in his death, in cases in which the cause of that person's
death comes into question.
6) I have considered the submission made on behalf of the parties and the
material on record.
7) It appears from the material on record, particularly the statement of
Sukla Choudhary, cousin of the victim that the opposite party made a
video call to her and turned the phone towards the victim when she saw
that the victim was ablaze. The video call lasted for a minute. The
opposite party chose to exhibit his burning wife before the cousin instead
of rushing to her rescue which may have contributed to her fate. The
charge sheet records that the victim walked to the vehicle which took her
to the hospital and the opposite party accompanied her in his motorcycle.
As stated by the opposite party, he cleaned the place of occurrence and
threw away the wearing apparel of the victim in the dustbin for which the
same could not be seized. The charge sheet also records that the
statement of the victim could not be recorded since she was unconscious,
disoriented and not in a position to give her statement.
8) On the other hand, the evidence of the attending doctor recorded under
section 164 of the Code of Criminal Procedure demonstrates that the
patient was brought to the bed of the hospital in a wheel chair and she
herself got up from the wheel chair and walked to the bed. She gave her
statement before the doctor in presence of two nurses of the hospital. She
stated that she poured kerosene on her person and set herself ablaze due
to marital discord. On asking, she said that her husband doused the fire.
The persons accompanying the victim told the doctor that it was an
accidental burn and the victim caught fire while cooking in the kitchen.
The admission documents describe the victim to be alert, conscious and
cooperative at the time of her admission on 24th November, 2023 but the
charge sheet indicates that Investigating Officer was unable to record her
statement during investigation. In all probability the condition of the
victim would have deteriorated by then.
9) There are several such discrepancies in the evidence collected during
investigation including statement of witnesses as well as the alleged
version of the victim before the doctor. Though it is a fact that the order
impugned turning down the prayer of the petitioner under section 173(8)
of the Code is bereft of any reason whatsoever, directing further
investigation of the case shall not serve any fruitful purpose, moreso,
since the Investigating Officer, in submitting the charge sheet, sought to
continue investigation under the said provision which was allowed by the
learned Magistrate. It is expected that in terms thereof, the Investigating
Officer has been continuing further investigation of the case and shall
submit supplementary charge sheet, if occasion so arises.
10) The learned trial Court shall, in course of trial, consider whether charge
under section 302 of the Penal Code is made out and shall take necessary
steps in accordance with law in the event relevant evidence surfaces
during trial. Since it is the case of the petitioner that some of the
witnesses who may have supported the prosecution case have not been
examined during investigation, if the names of any such witnesses
transpire in course of trial, the learned trial Court shall be at liberty to
invoke section 311 of the Code of Criminal Procedure upon consideration
as to whether the evidence of such witnesses is required for arriving at a
just decision.
11) With the aforesaid observation and direction, the revisional application
being C.R.M. 1509 of 2024 is disposed of.
12) Case Diary be returned.
13) All parties shall act on the server copy of this judgment duly downloaded
from the official website of this Court.
14) Urgent certified website copies of this judgment, if applied for, be supplied
to the parties expeditiously on compliance with the usual formalities.
(Suvra Ghosh, J)
