TMI Blog1984 (12) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents l (a) to I (n), both dated June 1, 1983, were received by the learned Acting Chief Justice of the Calcutta High Court. The letter sent by Sampat Lal alleged that two young boys by names Tirthankar Das Sharma and Sanjib Chatterjee, living in Barrackpore area, were missing since the afternoon of March 2, 1983. Information was given at the local police station late at night on the same day and wide publicity that the two boys were missing but no information about their whereabouts was received till April 5, 1983. On that day it transpired that dead bodies of two boys had been found from the railway track near Pandua railway station and they had been disposed of by the local police without taking any steps for their identification. Verification of the photographs maintained by the Railway Police at Bandel and the wearing apparel of the two boys kept at the police station clearly indicated that the dead bodies were of the two missing boys. The letter alleged that the parents of the two boys had approached several authorities including the Chief Minister of the State. Without taking any serious notice of the matter, the Chief Minister was alleged to have made a statement to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irculated Bengali daily from Calcutta, in two issues of which dated May 12 and May 18, 1983 detailed reports about the incident on the basis of investigation said to have been carried by a private detective agency known as 'The Secret Eye'. Borooah, J. read the letters and the reports in the two issues of the newspaper, heard Mr. Ghosh as also Mr. Shankar Das Banerjee and observed, inter alia: When an unnatural death occurs or a prima facie case of the commission of a cognizable offence is brought to the notice of the police authorities, it is their duty under the Code of Criminal Procedure to conduct an investigation and ascertain the cause of the death. Reading the letters and the newspaper reports which do not appear to have been contradicted by any authoritative statement from the police authorities, I, in the interest of justice, treat the two letters as formal petition under Article 226 of the Constitution after dispensing with the necessary formalities .. He ordered that a rule should issue to the State of West Bengal and other State authorities to, show cause why a writ in the nature of mandamus may not be issued directing investigation in accordance with l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the facts and circumstances of the above case (Bhagwant Singh v. Commissioner of Police, Delhi, [1983] 3 S.C.C. 344). I am also of the view that in the facts and circumstances of the instant case it would not be proper for me to speculate as to whether the unnatural death of the two boys was caused by suicide or murder. I am, however, very much concerned with the question whether the investigation into the cause of the unnatural death of the two boys by the appellants is being conducted fairly and properly and after taking all materials, evidence and circumstances into consideration in accordance with law.. In the instant case the Deputy Inspector General, Central Bureau of Investigation is not called upon to exercise any power or to investigate into any matter under Delhi Special Police Establishment Act or any other statuts. In view of what has been stated herein before and in the fact and circumstances of the case, I appoint Deputy Inspector General, Central Bureau of Investigation as the Special officer in this case. The Special officer will make the enquiry about the correctness of the facts, allegations and inferences contained in the reports of 'Secret E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation of the State police is a very serious step. There must be very strong legal grounds for ordering such an enquiry. According to Sen, J. the writ petition was not maintainable on the strength of the two letters and the two newspaper reports. Though conclusions of Sen, J. were very different from those of Pyne, J., yet he concluded by saying: Under the order proposed to be passed, the CBI or any other agency of the Central Government has not been entrusted with the job of investigation. It has been made clear that the DIG, CBI is being appointed the Special officer and not the CBI. The Special officer will be at liberty to appoint his own staff for the purpose of investigation. The costs, charges and expenses will be borne by the respondents. There is no question of employing the men and resources of the CBI for the purpose of carrying out the investigation. The officers of the CBI are not being entrusted with the police power or the police function in the State of West Bengal in any manner whatever. G The DIG, CBI has already indicated his unwillingness to carry out the investigation as directed by the learned trial judge. Nobody can be compelled to be a Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insist on the filing of an affidavit and may proceed to investigate into the allegations with a view to meting out justice to the persons on whose behalf the communication is addressed. This would be so particularly where to insist upon an A affidavit at the initial stage may lead to perpetration of injustice or may give rise to a situation where from a practical point of view the doors of justice would be closed to the poor and the disadvantaged. We may, however, point out that where the Court is not so prima facie satisfied,the Court may before issuing notice to the opposite party, ask the lawyer appointed amicus curiae to contact the informant and file an affidavit or a regular writ petition. These are the different procedures which have been adopted by this Court while dealing with communications complaining of violation of the rights of the deprived and vulnerable sections of the community. Since Mr. Chatterjee, has not disputed the validity of the practice of registering of writ petitions on the basis of letters and/or information received by the Court, we arc not called upon to examine this aspect of the matter any longer. Mr. Chatterjee appearing in support of the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted by a Magistrate or a Court. The main distinction, therefore, was that inquiry was a magisterial process while investigation was the process of collection of evidence through the police machinery and the net effect of the impugned order of the learned single judge was actually the setting up of an investigating agency. Though in the order there was reference to appointment of the DIG, CBI as a Special officer, what he was to carry out was referred to as an inquiry. Continuance of investigation through two separate machineries-one by the agency of the CBI and the other by the normal investigating agency of the police was bound to create confusion and prejudice the investigation into the truth of the allegations. Mr. Ashoke Sen appeared for the respondents who had written the letters to the High Court while Mr. Shankar Das Banerjee represented the Ananda Bazar Patrika. Learned Additional Solicitor General appeared before us on behalf of the Union Government. Mr. Sen and Mr. Banerjee refuted the contentions advanced on behalf of the appellants by Mr. Chatterjee. Before we proceed to closely examine the submissions advanced by counsel for the parties, it is proper to cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted by the local police authorities? (3) Is it open to the Court to interfere with the investigation which is still proceeding and what are the circumstances in which such interference, if any, is possible, and the guidelines to be followed in such matter? (4) Whether in the facts and circumstances of this case the direction given by the single judge and upheld with certain modifications by the Division Bench was proper? As already point out, power vests in the police authorities of the State Government for conducting investigation into allegations relating to an offence. However, the stand taken by the respondents was that the State Government and the police authorities had not acted properly and the investigation was not being conducted as required by law. As appears from the order of June 7, 1983, Borooah, J. directed notice to issue to the State of West Bengal as also to the other authorities concerned to show cause against the issue of a writ. No hearing was, however, afforded to the State Government or its officers when direction to appoint the Special officer in whom power of inquiry was to be vested, was made. There could be no scope for appointing a special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the State of West Bengal as in all other States and to have created a new channel of inquiry or investigation is likely to create an impression that everything is not well with the statutory agency and it is likely to cast a stigma on the regular policy hierarchy. We are inclined . to agree with Mr. Chatterjee for the appellant that in the facts and circumstances of the case and keeping the nature of the order made in view, the direction to appoint a Special officer with powers to inquire should not have been made until the appellants had been given a hearing and the Court had the papers of investigation laid before it for being prima facie satisfied that the investigation had either not been proper or adequate. The procedure laid down in the Code is clear and definite. It may be that in a given case the Court on being prima facie satisfied from circumstances appearing from the record that the statutory agency has not worked in an effective way or the circumstances are such that it may reasonably be presumed or inferred that the statutory agency may not be able to discharge its function of investigation fairly and impartially might reasonably consider supplementing the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter beyond dispute that the two young boys whose dead bodies had been recovered from the railway track and which had been cremated were the missing boys. The parents of the boys met the Chief Minister on April 8, 1983. The Chief Minister issued directions to the police for proper investigation. It is stated that on April 14, 1983, the Chief Minister made a statement on the floor of the Assembly wherein he had Indicated that the incident appeared to be a case of suicide and not murder. This statement of the Chief Minister was subjected to a lot of criticism in the columns of the newspapers as also in the body of the letters under reference. In course of hearing Mr. Chatterjee produced before us the official text of the Chief Minister's statement. It appears that he had only said that the Investigation carried on up to that stage appeared to indicate that it was a case of a suicide. It may not be out of place to point out that the Doctor conducting post-mortem examination had opined that it could be a case of suicide. Obviously the statement on the floor of the Legislative Assembly was on the basis of that medical report which was apparently available to the Chief Minister. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice to be prejudiced and the serious attempt to find out the truth to be aborted. The next aspect to be considered is whether it is open to the Court to interfere with the investigation which is still proceeding. It has been conceded before us and rightly in our view, that investigation is a matter for the police under the scheme of the Code. Judicial opinion seems to be settled and we have several authorities of this Court where interference by the Court into police investigation has not been approved. This question arose before a Division Bench of three judges in an appeal carried by the same State of West Bengal in the case of State of West Bengal v. S. N. Basak,( [1963] 2 S.C.R. 521) Kapoor, J. quoted with approval the observations of the Judicial Committee in the case of king Emperor v. Khwaja Nazir Ahmad,[1944] L.R. 71. where the Privy Council observed: The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the l offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under s. 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in s. 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to. law for the offence proved to the satisfaction of the Court. There is thus a wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disturbs us is that the entries in the police case diary (set forth in the annexure to the counter-affidavit on the record) do not a appear to have been entered with the scrupulous completeness and efficiency which the law requires of such a document. The haphazard maintenance of a document of that status not only does no credit to those responsible for maintaining it but defeats the very purpose for which it is required to be maintained. We think it to be of the utmost importance that the entries in a police case diary should be made with promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity..' The Court concluded by observing: We have referred to some of the important features of the case. We have done so not for the purpose of determining whether the girl was murdered or had committed suicide, but solely with the object of drawing attention to the manner in which the investigation of the case was conducted. Disappointing as it may seem to those who have desired the institution of criminal action on the basis that a crime has been committed, we do not think that on the material before us we can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been quite satisfactory. As already pointed out, the Chief Minister had very appropriately ordered that a thorough and careful investigation should be made into the unfortunate death of Tirthankar and Sanjeeb. Papers were produced before us at time of hearing which indicated. that pursuant to the orders of the Chief Minister, the Home Secretary had addressed letters to the top police officers conveying the serious concern of the Chief Minister as also his direction that a thorough and proper investigation should be taken up. From the materials placed before us, we have a feeling that in the conduct of investigation the police authorities have been more concerned with trying to establish that the reports furnished by Secret Eye as appearing in the issues of the Ananda Bazar Patrika were not based on correct materials and that proper conclusions had not been drawn rather than into carrying on an intensive investigation in an objective manner. It further appears that as the police authorities during their investigation could not find any clue to establish the kidnapping of the two boys, they formed a tentative opinion that the two boys had committed suicide. This was based mere upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide. Sufficient material to prima facie establish the existence of such a motive has not yet been brought on the record of investigation. Both the deceased boys were teenagers. Tirthankar has been pictured as a bright boy good at his studies and appeared to be responsive in nature-took active interest in various fields of life appropriate for his age. The picture of Tirthankar as a disappointed and frustrated lover is again not supported by much evidence. The reactions of human mind have no set. form and it may be that Tirthankar was an unusual boy full of sentiments and could have acted in an unusual manner. But that cannot be a conclusion drawn either on suspicion or on materials which do not readily fit into that theory. Even if the view of the investigating agency in regard to Tirthankar's motive is accepted, there does not appear to be any motive at all so far as his associate is concerned, except that as a loyal friend he was prepared to act the way Tirthankar went. For Sanjeeb to have chosen to commit suicide the material collected till now seems to be very weak. There have been rare instances where loyalty has known no limitations but there is no justify material to cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary that greater candour should be exhibited and the investigating agency should with an open mind, collect all the material available and then only eliminate that which has to be discarded and retain the rest to be used for their 15 purpose. We are alive to the position that there are occasions when death remains a mystery in spite of the best of efforts. But we hope and trust that with an honest attempt and sincere efforts made, the truth would be found out and the police authorities of the State would be in a position to give a creditable account of themselves. We do not think there is any necessity to take away the investigation from the hands of the State police machinery which is the statutory agency. . We would, however, suggest that the Director General of Police, West Bengal, will appoint a competent supervisory officer from the higher ranks of the State police with expertise in investigation to supervise the investigation in the present case. The police authorities will, we hope, avail of any credible/material collected by Secret Eye, if such material is made available to the police authorities. We hope and trust that a determined effort would be made by the State Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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