Calcutta High Court (Appellete Side)

Hasana Begam vs The State Of West Bengal & Ors on 26 September, 2024

Author: Rajarshi Bharadwaj

Bench: Rajarshi Bharadwaj

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


Present:    THE HON'BLE JUSTICE RAJARSHI BHARADWAJ


                                       W.P.A 17480 of 2024


                                       Reserved on  : 13.09.2024
                                       Pronounced on: 26.09.2024


     Hasana Begam
                                                      ...Petitioner

                                     -Vs-


     The State of West Bengal & Ors.
                                                         ...Respondents

Present:-

Mr. Prabir Kumar Mitra Mr. Pinak Kumar Mitra Mr. Subhanwita Ghosh ... ... for the petitioner Mr. Somnath Ganguly Ms. Kalpita Pauli ... ... for the State

Rajarshi Bharadwaj, J:

1. The petitioner's son, Sk. Hossain Ali, aged about 24 years, was

arraigned as an accused in connection with Tamluk Police Station Case No.

505/24 dated 10th June, 2024, under Sections 163 and 365 of the Indian

Penal Code, as per the allegations set forth in a formal written complaint

lodged by one Mina Begam. This matter corresponds to G.R. No. 1971/24. The

aforementioned accused was produced before the Learned Additional Chief

Judicial Magistrate, Nalagarh, District Solan, Himachal Pradesh, on 28th

-JWPA 17480 of 2024 -2- - -

June, 2024, whereupon the prosecution sought a seven-day transit remand

for the said accused. The said prayer was duly granted by the Learned Court.

2. Subsequently, on 01st July, 2024, the petitioner's son, being the

accused, was presented before the Learned Chief Judicial Magistrate, Tamluk,

Purba Medinipur, where he was remanded to judicial custody until 12th July,

2024, pursuant to the order passed by the Learned Chief Judicial Magistrate.

Notably, on the same day, the victim was also produced before the Learned

Court and an order was passed directing the Learned Judicial Magistrate,

First Court, Tamluk, to record the statement of the victim under Section 164

of the Code of Criminal Procedure, which was duly recorded on 04th July,

2024.

3. During the period of remand, the Superintendent of Tamluk Sub-

Correctional Home sought post-facto approval for the transfer of the undertrial

prisoner, Sk. Hossain Ali, from Tamluk Sub-Correctional Home to Medinipur

Central Correctional Home for medical treatment, as reflected in the order

dated 05th July, 2024.

4. On 05th July, 2024, at approximately 11:55 hours, the Inspector-in-

Charge of Kotwali Police Station, Paschim Medinipur, received formal

communication from the Superintendent of Medinipur Central Correctional

Home, informing that the undertrial prisoner, Sk. Hossain Ali, was found

deceased, having allegedly hanged himself with a gamcha (cloth) from a tree

near the medical kitchen of the correctional home, at around 9:15 a.m. on the

same day. Pursuant to this information, an Unnatural Death Case, being

Kotwali Police Station U.D. Case No. 482/24 dated 05th July, 2024, was

registered.

5. The said information was thereafter communicated via email to the

Inspector-in-Charge of Tamluk Police Station, Purba Medinipur, at

approximately 1:15 p.m. on 05th July, 2024, for the purpose of informing the

deceased's family members.

-JWPA 17480 of 2024 -3- - -

6. The petitioner, being aggrieved by the actions and/or inactions of the

respondent authorities, alleges gross miscarriage of justice in failing to comply

with statutory provisions of law, thus infringing upon the fundamental rights

of the petitioner and her deceased son, as guaranteed under the Constitution

of India has preferred the present petition.

7. Learned Counsel appearing for the petitioners submits that from the

photographic evidence submitted by the State, it is evident that markings in

the deceased's neck and other portions of the body raises serious questions

regarding the plausibility of the police's version of events. It is

incomprehensible how an individual purportedly suffering from severe back

pain, as claimed by the police authorities, a condition severe enough to

warrant his transfer between correctional facilities could have tied multiple

knots with gamch around his neck and hang himself from the dilapidated

portion of the correctional home. The physical limitations arising from such a

condition would have severely hindered his ability to carry out such actions,

thereby casting doubt on the alleged suicide narrative. Furthermore, the

physical condition of the body as depicted in the photographs deviates from

the typical indicators associated with a death caused by suicide, further

suggesting foul play or irregularities that merit deeper investigation.

8. Additionally, the Investigating Officer (IO) has committed multiple

procedural lapses. Notably, in the forwarding report dated 01st July, 2024, the

IO stated that a notice under Section 41A of the Criminal Procedure Code

(CrPC) was affixed to the wall of the petitioner's residence, but the notice

conspicuously lacked a date. This omission contravenes established legal

principles. The Hon'ble Supreme Court, in its authoritative rulings in Arnesh

Kumar v. State of Bihar reported in (2014) 8 SCC 273 and Satender Kumar

Antil v. CBI reported in (2022) 10 SCC 51, unequivocally held that for

offenses punishable with imprisonment of less than seven years, the prior

permission of the Magistrate is a precondition for arrest. The failure of the IO

-JWPA 17480 of 2024 -4- - -

to adhere to this legal mandate renders the arrest of the petitioner's son illegal

and void ab initio.

9. Further compounding the procedural irregularities, the IO did not make

any prayer for police custody, which is the usual course in such

investigations. Instead, the IO anomalously sought judicial custody (JC),

deviating from standard investigative procedures, thus raising concerns about

the legitimacy and thoroughness of the investigation.

10. Moreover, the petitioner's son was transferred from Tamluk Sub

Correctional Home to Paschim Medinipur Central Correctional Home on 04th

July, 2024 without prior notification to the petitioner or his family, a clear

violation of Section 45(3) of the West Bengal Jail Code. This provision

mandates that the relatives of a prisoner be informed of such a transfer. In

addition, the local Magistrate was not notified before the transfer, further

highlighting the State's blatant disregard for statutory procedures. Similarly,

Rule 46(1) of the West Bengal Jail Code and Rule 259(2)(a) require that the

family of a deceased prisoner be informed of the death promptly and that the

body be retained for no more than 24 hours. These provisions were flagrantly

ignored, as no intimation was given to the petitioner's family.

11. Significant procedural lapses were also observed during the inquest.

Inquest conducted by the Executive Magistrate, between 3:35 p.m. and 4:15

p.m. on 05th July, 2024, failed to mention the presence of the petitioner's

relatives, in direct violation of Section 176(4) CrPC. Moreover, the inquest

report raises doubts about its credibility, as it contains detailed observations

of the body even though it was still in a hanging position at the time. Such

inconsistencies call into question the veracity of the findings.

12. Furthermore, it is submitted that the Health Screening Report dated

04th July, 2024 indicated that the petitioner's son was in good health. Yet, the

subsequent referral to Tamluk Hospital for lower back pain, which was treated

with minor medication, raises doubts about the necessity of transferring him

-JWPA 17480 of 2024 -5- - -

to another correctional home. This inconsistency, coupled with the absence of

any complaints or specific timings in the report from Midnapore Central

Correctional Home on 06th August, 2024, casts further suspicion on the

State's narrative. Additionally, the report submitted by the State respondents

on 12th July, 2024 confirms the absence of CCTV cameras at Tamluk Sub

Correctional Home. The lack of video surveillance in a high-security

environment exacerbates concerns about the conditions under which the

petitioner's son was held and the events leading up to his death.

13. Furthermore, the death certificate issued by the Medical Officer at

Midnapore Central Correctional Home vaguely cites "probably by hanging" as

the cause of death without even pulling down the body for proper

examination. This ambiguous declaration, coupled with the aforementioned

procedural lapses, significantly undermines the credibility of the State's

version and necessitates a comprehensive and impartial investigation into the

true cause of death.

14. In addition to the aforementioned discrepancies, it is also submitted

that the State is attempting to delay the course of justice under the guise of

awaiting NHRC involvement. This tactic is a clear attempt to stall proceedings,

thereby causing significant delays in the filing of the FIR. Such delays would

create an opportunity for the respondents to tamper with or destroy crucial

evidence, further obstructing a fair and impartial investigation.

15. The Learned Counsel for the State submits that the petitioner's

arguments lack merit and do not undermine the procedural integrity of the

investigation. First, the petitioner's son might have climbed a staircase

adjacent to the scene and hanged himself, as evidenced by the three knots

found around his neck. The physical capacity to tie these knots is not

inconsistent with the deceased's medical condition and reports have been

produced before the Court supporting the suicide claim. All relevant

procedures, including guidelines by the NHRC, specifically Guideline no.27

-JWPA 17480 of 2024 -6- - -

regarding conducting of Magisterial Enquiry in cases of Death in Custody or in

the course of police action, have been followed meticulously by the police

authorities and the final report from the NHRC is awaited before proceeding

further, including the lodging of an FIR.

16. Addressing the concerns regarding discrepancies in the case diary, the

State submits that the issue of timing was purely a human error committed by

the Sub-Inspector (SI), and it does not reflect any malintent. Furthermore, the

petitioner's claims about procedural lapses are unfounded. Rule 861 of The

West Bengal Jail Code clearly states that transfers for health benefits should

only occur for prisoners who, though not suffering from active diseases, are

expected to recover in a healthier environment. In this case, the deceased was

in good health at the time of transfer, satisfying the rule's requirements.

17. Regarding allegations of misconduct by the Investigating Officer (IO), the

State emphasizes that there was no breach of protocol in the handling of the

case. The notice under Section 41A Cr.P.C, though missing a date, was

properly affixed as required by law.

18. Additionally, the petitioner's son's transfer between correctional facilities

on 04th July, 2024 was executed according to standard procedures, and while

notification of the petitioner's family was delayed, this was not indicative of

any foul play. The inquest conducted by the Executive Magistrate adhered to

legal guidelines, and although the petitioner questions its credibility, it is

imperative to wait for the final NHRC report, which will clarify any remaining

concerns.

19. Moreover, the State firmly denies any allegations of delaying justice. The

involvement of the NHRC is crucial to ensuring an impartial investigation, and

any delays are a result of awaiting their findings, not due to obstruction or

manipulation by the respondents.

20. On perusal of the documents brought before this Court and considering

the submission made on behalf of the parties, it is observed that the

-JWPA 17480 of 2024 -7- - -

petitioner's son, died under suspicious circumstances while in judicial

custody, allegedly by suicide. In light of the post-mortem report, as delineated

in Modi's "Medical Jurisprudence," 24th Edition at Page -453, it is imperative

to note that:

"Post-mortem Appearance- Post-mortem appearance are external and internal.

External Appearance-The external appearances are those due to the constricting force applied to the neck, and those due to asphyxia.

(b) Appearances due to Asphyxia. The face is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips are blue. Bloody foam escapes from the mouth and nostril and sometimes, pure blood issues from the mouth, nose and ears, especially if great violence has been used.

The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of the neck. The hands are organs may be congested and there may be discharge of urine, faeces and seminal fluid. usually clenched. The genital organ may be congested and there may be discharge of urine, faeces and seminal fluid."

However, there are several inconsistencies in the state's version of the

events, such as the presence of multiple knots in the gamcha (cloth) on the

deceased's neck and his alleged medical condition that cast doubt on his

ability to commit suicide. These discrepancies, combined with inadequate

procedural adherence, lead to the breakage of a chain link of circumstances,

pointing towards possible foul play or negligence.

21. Several procedural lapses have been highlighted, including the failure to

properly notify the petitioner/petitioner's family about the transfer of the

deceased between correctional homes, violations of the West Bengal Jail Code,

failure to seek police custody and the absence of CCTV surveillance at Tamluk

-JWPA 17480 of 2024 -8- - -

Correctional Home. These raise concerns regarding the thoroughness and

fairness of the investigation conducted by the state police authorities.

22. According to Guideline no.27 of the National Human Right Commission

it has been categorically mentioned that:

"III. Annexure to be attached with the report:-

a) The statements of the family members/relatives of the deceased, concerned doctors who rendered medical treatment/conducted post mortem, concerned police/prison official, co-prisoners, independent witnesses and other such relevant persons.

b) All other external reports which have been referred to or relied upon by the enquiry magistrate in his/her magisterial enquiry."

Therefore, the inquest conducted by the Magistrate raises doubts as it lacks to

mention the presence of the deceased's relatives, as required by law.

Additionally, conflicting health reports further weaken the state's narrative,

suggesting the need for an impartial investigation to determine the true cause

of death.

23. Additionally, as per D.O. No. 237/11/6/2017-JCD/FC of the National

Human Right Commission (NHRC) dated 24th April, 2019 the post-mortem

examination must be done by a Board of at least three doctors, preferably

from different institutions as the doctors from the same institution are likely,

in some cases, to be influenced by their senior members in the Board

impeding independence of the other members; and all doctors doing post-

mortem must be holding a post-graduate degree in forensic medicine and

must have at least experience of five years in the speciality of post-mortem

examination. However, in the instant case, the post-mortem was conducted by

only two doctors of the same institution thereby violating the guidelines laid

down by NHRC.

24. The substantial delay in lodging the FIR, coupled with the State's

reliance on the pending NHRC report, raises serious apprehensions regarding

potential tampering of evidence and obstruction of justice. When a specific

-JWPA 17480 of 2024 -9- - -

allegation is made against police officers, implicating them in a cognisable

offense of culpable homicide, it is imperative that an FIR be registered under

the relevant provisions of the Indian Penal Code. Such cases should be

entrusted to the State CID or another specialized investigative body for

thorough scrutiny. Considering the procedural lapses, inconsistencies in the

State's account, and concerns over potential bias, this Court finds it essential

to transfer the investigation to the Criminal Investigation Department West

Bengal (CID) to ensure an impartial, transparent, and exhaustive inquiry. The

CID, being a specialized investigative agency, is well-positioned to handle

sensitive cases of custodial deaths, especially when there are allegations of

misconduct by state officials.

25. It has been reiterated by the Supreme Court in R.S. Sodhi v. State of

U.P reported in 1994 SCC (Cri) 248 that:

"2.... We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice to entrust the investigation to the Central Bureau of Investigation...."

26. For the forgoing reasons, CID being the respondent no. 3 in the instant

application, shall register a case and conduct an investigation into the

circumstances of the petitioner's son's death. CID shall forthwith appoint an

officer to receive from the respondents, all records relating to the petitioner's

son and the respondents shall immediately hand over such records to such

-JWPA 17480 of 2024 -10- - -

officer. The investigation shall be completed as expeditiously as possible. The

Registry shall forward a copy of this judgment and order to the Director, CID,

West Bengal.

27. With the above directions, the writ petition being WPA 17480 of 2024 is

disposed of.

28. Urgent Photostat certified copies of this judgment, if applied for, be