Chandrima Roy vs State Of West Bengal And Ors.

On submission of Mr. Phiroze Edulji, learned advocate appearing for the petitioner, the mistake cropped up in the name of the petitioner be rectified

and liberty given to correct the cause title.

The writ petitioner Chandrima Roy the widow of Debendra Kumar Roy is seeking transfer of Raiganj Police Station Case No.517 of 2020 dated

13.07.2020 under Section 302/34 of the Indian Penal Code to CBI inter alia, on the ground of inaction on the part of the respondent police authorities in

not conducting a proper and effective investigation in connection with the complaint lodged by the petitioner.

The case of the petitioner in a nutshell is that her husband was an M.L.A. who won election from the ticket of Communist Party and subsequently in

the year 2019 he joined Bharatiya Janata Party and he was working for the development of people in Hemtabad area. He was doing work in his

constituency and helping people. He was a man

having good relationship with everyone and people of the locality loved him for his work. On 13 th July, 2020 at about 1 a.m. at night someone called

her husband and he left house and informed the petitioner while leaving that he will return after some time but in the morning she learnt the shocking

news that the hands of her husband were tied and his body was hanging near to a tea shop situated within 2 kilometers of her house. It is alleged that

for the last few years, this kind of murders are common in West Bengal and many political parties from Bharatiya Janata Party, West Bengal were

killed and hanged in same fashion and till date no proper investigation has been done by the police authority. It is also submitted that within a few

minutes of the incident, the West Bengal Police twitted in their official twitter account stating that a suicide note has been found from the pocket of

the deceased Debendra Nath Roy and two persons were named in the F.I.R. The Superintendent of Police had come to conclude about the theory of

suicide committed by the deceased husband of the petitioner even before the proper investigation.

According to the petitioner, the deceased husband of the petitioner has been murdered and hanged as shown in the photograph annexed to the writ

petition because of the fact that on the very day her husband had spent quality time with her family and there was no depression in his mind and

though he used to stay in separate room during night but it is absurd to believe for any prudent man that a person will leave his house at 1 a.m. and

reach at tea shop which is situated within 2 kilometers from his house to commit suicide. The hands of the deceased were tied as shown in the

photograph as if he has committed suicide near the tea shop. Such apprehension may be reasonable in the mind of the petitioner but the fact remains

that the police station has registered a specific case under Section 302/34 of the Indian Penal Code on the basis of the complaint of the writ petitioner

on the same day which is being investigated. So, it cannot be said that the case was not started instantly for investigation of homicidal death.

Therefore, the allegations of the petitioner that the police is trying to substantiate the theory of suicide with the pre-determined result cannot be viewed

at this preliminary stage of investigation.

I find that the case has been taken over by the C.I.D., Government of West Bengal on the next day on 14.07.2020 as submitted by Mr. Kishore Dutta,

learned Advocate General who submits that Mr. R. S. Chetry, Inspector of Police has been endorsed with the investigation into the matter. It is also

revealed and admitted fact that the inquest has been held on the same day on 13.07.2020 by the investigating officer and after the inquest, the dead

body was sent to the Raiganj Medical College Hospital for Post Mortem. It is further submitted that Dr. Joydeep Khan, Autopsy Surgeon has held

autopsy but the said Post Mortem Report is not placed on record to reveal any opinion of the Autopsy Surgon. The dead body has been admittedly

cremated by now but the viscera have been preserved and sent for forensic report into the matter which is still awaiting. This fact cannot be lost sight

of that the investigation is at the nascent stage and nothing can be opined at this juncture to conclude that the deceased died a suicidal or homicidal

death. It is submitted that a suicide note allegedly found from the pocket of the deceased. The local police might have opined on the basis of alleged

suicidal note recovered from the pocket of the deceased who was found hanging on 13.07.2020. The allegation of Mr. Edulji, the Learned Advocate

for the petitioner is that even before the P.M. report the police opined that it was a case of suicide and the statement of twitter handle of West Bengal

Police shows that the police is investigating the case with pre-determined result.

It would be profitable to reproduce the twitter handle of West Bengal Police as under  ""Today morning the dead body of MLA Hemtabad, Debendra

Nath Roy was detected hanging from the verandah ceiling of a mobile shop at Balia, Deben More Raigunj, Uttar Dinajpur... (1/3- A suicide note is

recovered from the shirt pocket of the deceased. Two persons have been named in the note as responsible for the death.. (2/3) All necessary steps of

investigation such as use of tracker dog, visit of forensic experts are being taken. PM is yet to be done. People are requested not to jump on

speculative, biased and judgmental conclusions and to wait for the investigation to complete. (3/3)"" Having perused the above statement in the twitter

handle of West Bengal Police I find that no opinion has been expressed about the suicide by the deceased ergo, I am unable to agree with Mr Edulji

about the apprehension in the mind of the petitioner. I reiterate that the police has already started a specific case under Section 302/34 IPC. Moreover

the F.I.R. reflects the names of two persons involved into the crime from whom the deceased owed huge sum.

Therefore, the allegation questioning the conduct of the police of foul play cannot be viewed through askance. The contention that the investigation is

going on with a pre-determined result with sole intention to cover up the issue cannot be accepted at this nascent stage of the investigation because as

I have discussed above, the C.I.D. has taken over the investigation, that may be for the purpose of dispelling the misgiving arising in the mind of the

petitioner or any other person. There is no allegation that after Post Mortem the dead body was not handed over to the petitioner for the last rites but

in fact it was consigned to the de facto complainant.

Now, it is submitted by Mr. Edulji learned Advocate for the petitioner that the Post Mortem Report can be judged by an independent medical board

even at this stage of the investigation as in the case of Dhaniakhali. It is understood that the Post Mortem proceedings was videotaped by the Autopsy

Surgeon. So, everything can be viewed by a special medical board with the head of the Forensic Department of the State for final opinion. There is no

quarrel on such issue and the investigating agency should take such steps for constitution of a special medical board to be headed by Head of the

Forensic Department of the Government of West Bengal.

I fully agree with such suggestion of Mr Edulji so as to dispel the misgivings in the mind of the petitioner that at the initial and primary stage of

investigation the police authorities has concluded about theory of suicide on being influenced by any leader of the ruling party. It is pointed out by Mr.

Dutta, learned Advocate General that one of the accused namely, Nilay Singha has been arrested but another accused named in the F.I.R. is yet to be

apprehended as he is on run and the police is taking all possible steps for the arrest of the accused Md. Masud Ali. The photographs annexed to the

writ petition prima facie depicts a case of post mortemhanging or homicidal hanging. I am of the view that it is difficult to a single assailant to carry out

the homicidal hanging unless the victim becomes unconscious by injury or by a drug. Medical jurisprudence points out that homicide should be

suspected, i) where there are signs of violence or disorder of any object around the scene of crime; ii)where clothing of the deceased is torn or

disarranged; iii) where there are injuries either offensive or defensive or the victim has been suffocated to death.

Therefore, in all doubtful cases, circumstantial evidence is important. If any individual is suspended upside down for a long time, the death can occur

due to cardiac or respiratory failure or a combination of both. It must be borne in mind that distinction between murder and suicide may be impossible

by an examination of the body alone. The detailed investigation of the scene, reconstruction of the position of the suspended body, examination of the

rope, the knots, the direction of the fibers on the rope may serve to discover the homicidal hanging. A person may be murdered and the dead body

suspended to stimulate suicide. A ligature applied to the neck within two hours of death will produce ligature mark.

Mr. Dutta further pointed out that there is no allegation as to the delay in the registration of the F.I.R. There is no allegation as such against the C.I.D.

agency or against the police who had twitted the twitter and the contents of the tweet.

It is submitted by Mr Dutta that there is no particular to show that police authority has at all concluded that it was a case of suicide in view of the

conduct of the investigation so far made and that as many as 13 witnesses have been examined including the de facto complainant by the investigating

officer under Section 161 of the Code of Criminal Procedure.

Therefore, according to Mr. Dutta, C.I.D. has taken over the investigating very rightly in view of the provisions of Section 36 of the Code of Criminal

Procedure.

On behalf of the petitioner Mr. Edulji has relied on certain decisions of the Hon'ble Supreme Court in order to advocate the prayer as made on behalf

of the petitioner for transfer of the investigation to the special agency for investigation into the case and relied on a decision in the case of Vinay Tyagi

Vs. Irshad Ali & Ors. reported in 2013 (5) SCC 762 wherein it has been held ""that in any appropriate case

when the Court feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the

facts of the case demand, it is always open to the Court to hand over the investigation to the specialized agency. This principle of law has already

been reiterated with approval in judgments of the Hon'ble Supreme Court in the case of Disha Versus State of Gujarat and Others reported in 2011

Vol.13 SCC 337; Vineet Narain and Ors. Union of India and Ors. reported in 1998 Vol 1 SCC 226 in the case of Union of India & Ors. Vs. Sushil

Kr. Modi & Ors.; 1996 Vol.6 Supreme Court Cases 500 and in the case of Rupabuddin Sk. Vs. State of Gujarat & Ors. Reported in 2010 Vol.2 SCC

200

Reliance also placed in the case of Puja Pal Vs. Union of India & Ors. reported in 2016 Vol.3 SCC 135 wherein the Hon'ble Supreme Court has

observed in paragraph 49 thus, ""49. These notwithstanding, it would still be, in our opinion, imperative to examine as to whether for doing complete

justice and enforcing the fundamental rights guaranteed by the Constitution, the relief of entrustment of the investigation of the case again to CBI is

grantable or not on its own merits. This is chiefly, in view of the intrepid, audacious and fiendish intrusion of human right by the assassins in broad

daylight at a public place, by defiantly violating all canons of law and making a mockery of the administrative regime entrusted with the responsibility

to maintain an orderly society. The terrorising impact of this incident and the barbaric manner of execution of the offence is also a factor which impels

this Court to undertake such a scrutiny in the interest of public safety, a paramount duty entrusted to all the institutions of governance of our

democratic polity. This is more so, where a grisly and intimidatory crime impacting upon the public confidence in the justice delivery system as a whole

is involved, so as to ensure that such outrageous crimes do not go incautiously, unfathomed and unpunished.

Mr. Edulji also submits that the Court has to ensure that the accused persons are punished and that the authority of the state is not used to shield

themselves and their men and it should be ensured that they do not wield such powers, which under the Constitution has to be held only in trust for the

public and society at large. That if any deficiency in investigation or prosecution is visible or can be perceived by lifting the veil covering such

deficiency, the Courts have to deal with the same with an iron hand appropriately within the framework of law, was underlined. This is what has been

observed and declared by Hon'ble Supreme Court in Zahira Habibulla Case.

There is no quarrel on the principle of law as held in the above cited decision but the ratio of decision has to be applied within the facts and

circumstances of a particular case.

It is also argued that the Hon'ble Supreme Court has laid down the principles in regard to the transfer of investigation to special agency with regard to

the investigation of an offence particularly, in the case of Bharati Tamang Vs. Union of India & Ors. reported in 2013 (15) SCC 578 wherein it has

been held as follows

From the various decisions relied upon by the petitioner counsel as well as by respondents' counsel, the following principles can be culled out.

41.1. The test of admissibility of evidence lies in its relevancy.

41.2. Unless there is an express or implied constitutional prohibition or other law, evidence placed as a result of even an illegal search or seizure is not

liable to be shut out.

41.3. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious

deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law.

41.4. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be

miscarriage of justice.

41.5. In order to ensure that the criminal prosecution is carried on without any deficiency, in appropriate cases this Court can even constitute Special

Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to

such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution.

41.6. While entrusting the criminal prosecution with other instrumentalities of State or by constituting a Special Investigation Team, the High Court or

this Court can also monitor such investigation in order to ensure proper conduct of the prosecution.

41.7. In appropriate cases even if the charge-sheet is filed it is open for this Court or even for the High Court to direct investigation of the case to be

handed over to CBI or to any other independent agency in order to do complete justice.

41.8. In exceptional circumstances the Court in order to prevent miscarriage of criminal justice and if considers necessary may direct for investigation

de novo.

In respectful consideration of the observation in paragraph 41 noted above it can be concluded that in appropriate cases even if the charge sheet is

filed it is open for the Hon'ble Supreme Court or for the High Court to direct the investigation of the case to be handed over to CBI or to any other

independent agency in order to do complete justice and in exceptional cases in order to prevent the miscarriage of criminal justice and if considered

necessary, may direct investigation and to monitor such investigation.

In the given facts of the case as I have discussed above that the ratio of decision has to be well nigh within the facts and circumstances of each case

as there is no jacket formula to be applied. As I have discussed in the foregoing paragraph that the police agency has instantly registered the case on

the complaint of the writ petitioner for investigation into the cause of homicidal death of the deceased husband of the petitioner. Moreover, there has

been no delay in undertaking the investigation as on the very date, the situs of crime scene has been displayed by holding inquest on the same day and

the corpus was sent to Autopsy Surgeon for post mortem examination andthat has been done by the video tape recording.

Therefore, there should not be any doubt and suspicion in the mind of any person that the investigation is doubtful at this particular juncture.

Per contra, Mr. Kishore Dutta, learned Advocate General appearing for the State has relied on the decision of Bimal Gurung Vs. Union of India &

Ors. reported in (2018) Vol. 15 SCC 480 and has relied on the observation made in paragraph 28 of the cited decision which runs thus:-

The two-Judge Bench of this Court in Dharam Pal v. State of Haryana [Dharam Pal v. State of Haryana, (2016) 4 SCC 160 : (2016) 2 SCC (Cri)

259] while referring to the principles for transferring investigation has laid down the following in paras 18, 19 and 24: (SCC pp. 168 & 170)

A three-Judge Bench in K.V. Rajendran v. Supt. Of Police [K.V. Rajendran v. Supt. of Police, (2013) 12 SCC 16 480 : (2014) 4 SCC (Cri) 578]

reiterating the said principle stated that: (SCC p. 485, para 13)

'13. ... the power of transferring such investigation must be in rare and exceptional cases where the court finds 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 lacks credibility and it is 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.'

The Court, after referring to earlier decisions, has laid down as follows: (K.V. Rajendran case [K.V. Rajendran v. Supt. of Police, (2013) 12 SCC

480 : (2014) 4 SCC (Cri) 578] , SCC p. 487, para 17)

'17. In view of the above, the law can be summarised to the effect that the Court could exercise its constitutional powers for transferring an

investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as

where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing

them to influence the investigation,and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation

is prima facie found to be tainted/biased.'

Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose

is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely

conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to

exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased,

deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor.

Now, it is clenched position of law that the power of transferring investigation to special investigating agency is not a matter of routine rather the

Hon'ble Supreme Court has emphasized that such a power of the Hon'ble Court is an extraordinary power which should be exercised with great care

and sparingly in exceptional circumstances and where high officials of the State authorities are involved and where the accusation itself is against the

top officials of the investigating agency thereby allowing them to influence the investigation or where the investigation prima facie, is found to be

tainted or biased. I find that there is no involvement of any high officials of the State authorities into this matter at this juncture to construe that

anybody is trying to influence the investigating authority.

I do not find the investigation, prima facie, being tainted or biased because of the fact I discussed above that the F.I.R. has been rightly addressed by

registration of a specific police case under Section 302/34 of the Indian Penal Code by applying obligatory presumption on looking at the photographs

and situs of the dead body at the scene of crime, otherwise the police could have registered the case under Section 306/34 I.P.C. instead of Section

302/34 I.P.C. on the basis of note recovered from the pocket of the deceased. Therefore, I do not find any element of biasness on the part of the

investigating authority.

Mr. Dutta, learned Advocate General has also relied on a case of Arnab Ranjan Goswami Vs. Union of India reported in 2020 SCC Online SC 462 in

which case, the petitioner while invoking Article 32 of the Constitution of India before the Hon'ble Supreme Court of India for transferring of the case

specially made against him in series of cases to a special agency, the Hon'ble Supreme Court in paragraph 36 has clearly observed that the transfer of

an investigation to the C.B.I. is not a matter of routine. Settled decisions of the Hon'ble Supreme Court emphasized for exercise of an extraordinary

power to be used in exceptional circumstances. The Hon'ble Supreme Court has relied on the Constitution Bench decision in the State of West Bengal

vs. Committee for Protection of Democratic Rights, West Bengal (CPDR), West Bengal wherein it has been observed in paragraph 70 that the

transfer of investigation has to be made considering the special case in extraordinary facts and circumstances of the case.

Moreover in the said decision, it has been specifically observed that the accused person does not have right in regard to the mode or manner in which

the investigation should be carried or in regard to the investigating agency. The line of investigation either of the petitioner or of the CFO cannot be

controlled or dictated by the persons under investigation/interrogation.

In P. Chidambaram Vs. Directorate of Enforcement reported in (2019) 9 SCC 24 the Hon'ble Apex Court observed that ordinarily the Court should

refrain from interfering at a premature stage of investigation as that may derail the investigation and demoralize the investigation or to interfere in the

investigation.

Lastly reliance is also placed in case of Director General of Police (West Bengal) & Ors. Vs. Gopal Kumar Agarwal & Anr. in 2020 SCC Online Cal

755 at paragraph 70 to submit that bald allegation of biasness against the investigating agency should not be taken into consideration for the purpose of

transfer of the investigation to a special investigating agency. It has been observed that:

The essence of the case of the writ petitioner is that the State Police authorities are biased in favour of the accused persons and there is malice on

their part against the writ petitioner/de facto complainant. No particulars or plausible reason for the State Police to be biased in favour of the accused

person has been indicated in the writ petition. A bald assertion of bias is not sufficient. It is a serious allegation and must bed supported by tangible

evidence. The mere allegation that defective investigation is indicative of such bias begs the question. Defective investigation, may be due to error of

judgment and infirmities or loopholes in the process of investigation, per se would not unfailingly indicate any unholy entente between the investigating

agency and the accused person. As many as five investigating officers were involved in the present case. It is highly unlikely that all five were biased

against the writ petitioner and in favour of the accused person. The writ petitioner has not attributed bias to any particular investigating officer by

identifying him. An omnibus statement that the entire State police administration is biased in favour of the accused person and against the writ

petitioner is too far a cry and no acceptable.

In the context of what has been discussed hereinabove taking cue from the above cited decisions, I am of the view that the transfer of investigation to

a special agency should not be made in a casual manner.

In the course of argument Mr. Dutta, learned Advocate General has pointed out that the suicide note has been sent to the expert for its examination

for the final expert report as to whether the suicidal note was written by the deceased himself or not and further points out that the admitted document

bearing the hand writing and signature of the deceased has been obtained from the de facto complainant. In this regard Mr. Edulji, learned advocate

for the petitioner raised objection that no such admitted document in the hand writing of the deceased has been received from the de facto

complainant as per the instruction received over phone from the de facto complainant. Mr. Kishore Dutta, learned Advocate General has rectified his

submission on this count and submits that it is true that the admitted document of the deceased has not been procured from the de facto complainant

but the investigating agency has obtained hand writing from the staff of the bank. It is pointed out that the deceased was the Manager of the bank

namely, Barabar Ballia SKUF Ltd. Mini Bank where his hand writing was kept. In this regard, in my considered opinion, the Investigating Officer

ought to have obtained the admitted document bearing the hand writing and signature of the deceased from the wife of the deceased, the writ

petitioner herein and the de facto complainant of the case on whose complaint specific police case was registered. It ought to have been in right

direction and suitable instruction should be given to the investigating agency to obtain admitted document from the writ petitioner for expert

examination of the alleged suicidal note. Since, the investigation is at nascent stage, it is imperative for the investigating officer to obtain admitted

document from the de facto complainant to dispel the misgiving, if any, from any corner and to see to it that there is no loophole left in the investigation

process. The investigating officer ought to have, or if he has not yet placed the de facto complainant for her statement under Section 164 of the Code

of Criminal Procedure before the learned Chief Judicial Magistrate, he should immediately apply to the learned C.J.M., Raiganj for recording the

statement of the de facto complainant/writ petitioner by a Judicial Magistrate. The investigation in every sessions trial offences, is required to be

monitored and supervised by the police chief of a district. Since the investigation has been undertaken by the C.I.D. which in my view is also a special

agency of investigation in a State, the investigation must be monitored and supervised personally by the chief of the C.I.D. namely, the Additional

Director General of C.I.D., West Bengal.

As pointed out by Mr. Edulji that since the video tape recording of the Post Mortem Autopsy Surgeon is already with the investigating agency,

Additional Director General of C.I.D., West Bengal be directed to place the P.M. report and video tape record before the specially constituted

Medical Board consisting of the Head of the Forensic Department of Calcutta Medical College and Hospital as in West Bengal, Calcutta Medical

College and Hospital has Forensic Department which is competent to render final opinion as to the cause of death of the deceased victim.

Bearing in mind, the allegations as made specifically in the F.I.R. against the named accused persons, this Court, therefore, direct the Additional

Director General, C.I.D., West Bengal to see to it that Special Medical Board is constituted for its final opinion to be monitored by the Head of the

Forensic Department of Calcutta Medical College and Hospital and the Additional Director General, C.I.D. West Bengal will particularly see to it that

it is done within a fortnight from the date of this order.

With the above direction and observation made hereinabove, this writ petition is disposed of with a note that I do not find biasness on the part of the

investigating agency undertaken by the C.I.D., West Bengal. However, with liberty to the petitioner to advocate and renew her prayer if the

investigation is concluded with the submission of the final report otherwise tainted with biasness or any undue influence on the investigating agency.

Since, this writ petition is being disposed of without affording opportunity to the respondents for affidavit in opposition, the contentions made in the writ

petition be deemed to be disputed and denied.

Accordingly, the writ petition being, WP 5933 (W) of 2020 is disposed of.

All parties are to act on the official website copies of this order.