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2001 DIGILAW 728 (CAL)

LEELA DAS v. UNION OF INDIA

2001-12-04

ASHIM KUMAR BANERJEE

body2001
A. K. BANERJEE, J. ( 1 ) THE writ petitioner is the widow of one Swapan Kumar Das, S. I of Police posted at Diglipur Police Station who unfortunately died during a raid conducted by the police to tackle the Burmese poachers. According to the writ petitioner, Swapan was murdered on 19th November, 1995 by the officials of the police force led by one Raghubir Singh, Deputy Superintendent of Police, involved in the raid. According to the police Swapan fell from the boat while the boat was approaching the port after arresting the Burmese poachers and died. The body of Swapan was brought with a drowning certificate issued by Dr. Naresh Lal. However, when the body was brought and handed over to the family members, injury mark was found causing suspension to the family members. According to the writ petitioner, Swapan was murdered by the officials of the police led by Shri Raghubir Singh who hatched a criminal conspiracy as the Swapan was hostile to them. It was further alleged that the said Raghubir Singh and the erring officials, in effect were helping those Burmese poachers for personal gains. There has been spate of litigation and ultimately the case was handed over to the CBI for investigation. The investigation is not complete even after six years. ( 2 ) THE present writ petition has been filed by the petitioner, inter alia. on the following grounds:- (I)the investigation should be carried out by an officer not below the rank of Deputy Superintendent of Police as the same is now being conducted by an ordinary Inspector who is likely to be influenced by the said Raghubir Singh, an accused in this case, who is an influential official of the CBI. (ii)for last six years the writ petitioner is moving from pillar to post. Even then no fruitful purpose has been served and there has been tremendous harassment and hardship caused to her which is amounting to constitutional tortous act and as such, she is entitled to pecuniary damages. ( 3 ) MR. (ii)for last six years the writ petitioner is moving from pillar to post. Even then no fruitful purpose has been served and there has been tremendous harassment and hardship caused to her which is amounting to constitutional tortous act and as such, she is entitled to pecuniary damages. ( 3 ) MR. Haradhan Banerjee, learned counsel appearing for the writ petitioner, in support of his contention raised three issued: (I)there has been an order by the concerned Magistrate passed on 10th July, 2000 directing the investigation to be conducted by an officer not below the rank of Deputy Superintendent of Police as he was not satisfied with the earlier investigation which, according to him, was done in a perfunctory April 2001. Hence, the CBI is obliged to have the investigation conducted by an officer not below the rank of Deputy Superintendent of police. (ii)under Article 16/224 of the CBI Manual such investigation is to be carried out by an officer not below the rank of Deputy Superintendent of Police, the CBI authority is, thus, obliged to adhere to the guidelines incorporated in the same manual. (iii)immense harassment has been caused to the writ petitioner for last six years and as such, she is entitled to pecuniary damages. ( 4 ) IN support of his contention, Mr. Banerjee. learned counsel cited the following decisions. 1997 (9) Supreme, 279, 1998 Supreme Court Cases Volume VIII 507, 2001 (2) Calcutta High Court Notes 98, 1999 (6) Supreme Court Cases 667, All India Reporter 1992 Supreme Court 604 and 1997 (10) Supreme, 476. ( 5 ) MR. Ranjan Roy, learned counsel appearing for the CBI authority, submitted that the order of the Magistrate inter alia, directing the CBI authority to have the investigation conducted by an officer not below the rank of Deputy Superintendent of Police, although affirmed by the High Court, is under challenge in a Special Leave Petition before the apex Court. Hence, the writ petitioner is not entitled to claim any relief on that score. Mr. Roy, learned counsel, further submitted that the guidelines embodied in the CBI Manual is to be followed as far as practicable ad possible. According to him, there is only one Deputy Superintendent of Police posted at Calcutta office and is entrusted with various administrative jobs and it is not possible for him to conduct the subject investigation. Mr. Roy, learned counsel, further submitted that the guidelines embodied in the CBI Manual is to be followed as far as practicable ad possible. According to him, there is only one Deputy Superintendent of Police posted at Calcutta office and is entrusted with various administrative jobs and it is not possible for him to conduct the subject investigation. ( 6 ) WITH regard to compensation and/or damages, Mr. Roy, submitted that the decisions cited by Mr. Banerjee on the said score do not have any application whatsoever in the instant case. In those cases before the apex Court as well as before the High Court damage was awarded for unnecessary harassment of the writ petitioner by implicating him or her in frivolous criminal proceeding and or other sufferance which violated the principle of natural justice. In the instant case, the writ petitioner has prayed for an investigation has already been directed to be conducted by the CBI. The investigation is not yet complete. The veracity of the allegations has not yet been proved. Hence, question of harassment does not arise. Further more, there is no latches and or delay caused by the CBI authority which can be termed as "constitutional tortous act" caused to the writ petitioner entitling her to claim damages before writ Court. In support of his contention Mr. Roy, learned counsel, cited the following decisions:-2001 Supreme Court Cases (Criminal) page 1280, 2001 Supreme Court Cases (Criminal) page 1361. ( 7 ) TO decide the issue, let me first take up the prayer for investigation by an officer not below the rank of Deputy Superintendent of Police. ( 8 ) APEX Court depreciated the practice for naming the official by the Magistrate in the case of Hemant Dhasmana reported in 2001 Supreme Court cases (Criminal) page 1280. The relevant extract of the apex Court decision is quoted below:"20, when the Special Judge has opted to order for a further investigation the High Court should have stated to CBI to comply with that direction, Nonetheless, we are in agreement with the observation of the learned single Judge of the High Court that the Special Judge or the Magistrate could not direct that a particular Police Officer or even an officer of a particular rank should conduct such further investigation. It is not within the province of the Magistrate while exercising the power under section 173 (8) to specify any particular officer to conduct such investigation, not even to suggest the rank of the officer who should conduct such investigation. " ( 9 ) IN my view, the issue is now res-integra at this end and is awaiting final adjudication by the apex Court. ( 10 ) THE Magistrate in accordance with the provision set out in the CBI Manual directed investigation to be carried out by an officer not below the rank of Deputy Superintendent of Police. The said article is relevant herein and is quoted below:-"important cases against Gazetted Officers and other important cases should, as far as possible, be investigated by Deputy Superintendents of Police. The Superintendent of police should personally supervise the investigation through perusal of case diaries and records, discussion with investigating officers, examination of important witnesses, visiting the scene of offence, issuing memos of instructions, etc. In appropriate cases, a Superintendent of Police may also be instructed by his superior officers to conduct the investigation personally. " ( 11 ) FOLLOWING the said CBI Manual the Magistrate had given such direction which was considered and affirmed by the High Court in its criminal revisional jurisdiction by an order dated April 6, 2001 against which a special leave petition is pending and awaiting its disposal at the apex Court. In such view of the matter, it is not necessary for the writ Court to give further direction which would be a mere repetition and more so, when the issue is pending before the apex Court. ( 12 ) HENCE, in my view, the writ petitioner is not entitled to any relief on the said score. I, however, refrain from making any comment on the question of entitlement of the writ petitioner on that score. ( 13 ) LET me now consider the question of compensation and or damages. ( 14 ) AS I have discussed that Mr. Banerjee, learned counsel, on that score has cited catena of decisions referred to (supra) although Mr. Roy, learned counsel, has doubted the applicability of those. May I approach this issue from a different angle. According to the writ petitioner, her husband was murdered as a result of a criminal conspiracy. The said allegation has not yet been approved. Banerjee, learned counsel, on that score has cited catena of decisions referred to (supra) although Mr. Roy, learned counsel, has doubted the applicability of those. May I approach this issue from a different angle. According to the writ petitioner, her husband was murdered as a result of a criminal conspiracy. The said allegation has not yet been approved. Although CBI was entrusted to carry on investigation on that score, the investigation is not complete, earlier report submitted by CBI was not acceptable to the Magistrate. Hence, he has ordered a fresh investigation to be carried out. Unless and until such investigation is complete and charges are framed it cannot be said that the allegations of the writ petitioner are of substance even on prima facie basis. It is most unfortunate that CBI is causing immense delay which might be causing worries and anxiety to the writ petitioner who is eagre to have the investigation complete. In my view, the stage has not come, to decide whether the writ petitioner's allegation is prima facie correct and whether the sufferance of the writ petitioner entails her to get compensation and/or damages through a writ Court. This issue, in my view, should be decided at a particular stage. Such stage, in my view, has not yet come and this writ petition is premature on the said score. ( 15 ) THE cases cited by Mr. Banerjee, learned counsel would depict that in all such incidents the writ Court awarded compensation for unnecessary harassment and/or sufferance caused to the writ petitioner which was beyond doubt. Such is not the case herein. ( 16 ) THE issue of compensation and/or damage is thus, left open to be decided at an appropriate stage. ( 17 ) THERE is another aspect which cannot be overlooked. Although the incident was an unfortunate one and inordinate delay caused by the CBI is a matter of fact, even if the Court is of the view that an appropriate compensation and or damages should be awarded. It is difficult for this Court at this stage to come to a final conclusion on the said score as I have held hereinbefore that such stage has not yet come. Moreover, with all humilities, may I say that the writ Court is neither competent enough to assess the compensation not is moving such infrastructure to award appropriate damages and/or compensation to the writ petitioner. Moreover, with all humilities, may I say that the writ Court is neither competent enough to assess the compensation not is moving such infrastructure to award appropriate damages and/or compensation to the writ petitioner. However since I have held that the question of claim for compensation and/or damage is premature, I do not wish to deliberate on the said issue any further. In the result, the writ petition fails and is hereby dismissed. There would be no order as to cost. Petition dismissed.