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2007 DIGILAW 813 (CAL)

KISHWAR JAHAN v. STATE OF WEST BENGAL

2007-10-16

SOUMITRA PAL

body2007
( 1 ) THIS writ petition has been filed by the petitioner Nos. 1 and 2, Kishwar jahan and Rukbanur Rahman praying for a direction that the investigation in connection with the unnatural death of Rizwanur Rahaman, being case UD no. 183 of 2007, be handed over to the Central Bureau of Investigation and that it should submit a report on such investigation before this Court, and upon such investigation appropriate orders be passed. ( 2 ) LEARNED senior Counsel appearing on behalf of the petitioner reiterating the statements in the writ petition and referring to sections 154 (3) and 156 (1)of the Code of Criminal Procedure, 1973 and the Police Regulations of Calcutta, has submitted that law authorises the Deputy Commissioner of Police, Detective department, respondent No. 4, to take interest in the prosecution of the case and not in its investigation. The D. C. , D. D. and D. C. , Headquqarters had unauthorisedly intervened in the matter. Since there was no allegation of abduction against the deceased and although assuming the said D. C. , D. D. and D. C. , Headquarters were having jurisdiction, the authority of the said respondents to intervene and to mediate between the deceased and his in-laws was questioned. Since the Officer-in-Charge of the Karea Police Station had visited the residence of the deceased and the statute authorises the Officer-in-Charge to probe into the matter or to delegate another officer to investigate, the intervention by the D. C. , D. D. in the conjugal life of the deceased was uncalled for. Attention has been drawn to the judgement of the Supreme Court directing the administration/ police authorities to see to it that spouses of inter-religious marriages are not harassed or subjected to threats. Moreover, instead of allowing investigation to take its course in accordance with the provisions of law, the Commissioner of Police had made comments, widely reported, that the reaction of the parents to the marriage was natural and death was due to suicide. Such a comment by no less a person than a Commissioner of Police is bound to prejudice the process of investigation. Moreover, an unholy nexus between the top brass of the police with the respondent No. 12 is evident since a company owned by respondent No. 12 had sponsored a rally of the Detective department of Kolkata Police and the police authorities were beneficiaries of undue favours. Moreover, an unholy nexus between the top brass of the police with the respondent No. 12 is evident since a company owned by respondent No. 12 had sponsored a rally of the Detective department of Kolkata Police and the police authorities were beneficiaries of undue favours. Submission has also been made that no fair investigation under the CID is possible in a matter where the allegation is against the highest brass of the Kolkata Police and the Kolkata Police are limbs of the State. It has, therefore, been contended that for a fair investigation an investigation by cbi under the direction of the Court is necessary since justice should not only to be done but seen to be done. According to him, in suchcircumstances the mother and the brother, the petitioners, have the right to move the petition seeking a probe by the CBI under the orders of the Court. Learned Advocate had relied on the judgements of the Apex Court and High Courts in support of his case. ( 3 ) LEARNED Advocate General of the State of West Bengal has submitted that the writ petition is not maintainable. As such no order can be passed. Referring to the statements in the petition it has been submitted that to decide the issues affidavits are required to be exchanged. To invoke writ jurisdiction there must exist legal and personal injury. Personal injury suffered by the mother and the brother of the deceased, the petitioners, are different in nature from one that the deceased might be having before his death. It has also been argued that mere allegations of threat is not a cognizable offence. There was no complaint before the police except of the letter dated 18th September, 2007 by one Sadiq Hossain which did not mature. Therefore, the provisions of section 154 (1) of the Code are not attracted. Further, there is no material to the effect that death was due to violence and there was also no basis to suspect the same. Assuming there was threat and mental pressure on the deceased, the appropriate remedy under the statute would have been a complaint before the magistrate and not a petition under Article 226 of the Constitution before this court since the petitioners must demonstrate that they have a legal and personal right which has been violated. Assuming there was threat and mental pressure on the deceased, the appropriate remedy under the statute would have been a complaint before the magistrate and not a petition under Article 226 of the Constitution before this court since the petitioners must demonstrate that they have a legal and personal right which has been violated. Powers exercised by the senior Police Officers, if at all, was in consonance with the provisions of section 36 of the Code. Moreover, steps have been taken. CID is carrying on an enquiry though not an investigation into the cause of unnatural death. Interrogations are being conducted and there is no reason for CBI to intervene. CID is an independent body and the Kolkata police has no hand in its administration and operation. Drawing attention to article 33 (b) of the Constitution and some of the provisions in the Code it was submitted that there is no violation of fundamental rights of the petitioners under Articles 19 and 21 of the Constitution, The learned Advocate General placed reliance on the judgements of the Supreme Court in support of his cotentions. ( 4 ) MR. Sengupta, learned Advocate appearing on behalf of the respondent nos. 3, 5, 7, 8 and 9 adopting the submissions advanced by the learned Advocate general and denying the allegations of threat, has submitted that the allegations are an afterthought done maliciously, as though the names of some of the respondents appear at paragraph 23 of the writ petition yet the names of the respondent Nos. 3, 5, 7, 8 and 9 do not appear in the intimation dated 21st september, 2007. ( 5 ) REITERATING the submissions made by the learned Advocate General, Mr. Bagchi, learned Advocate appearing on behalf of the respondent No. 12 has argued that since there was no information to the police station regarding the commission of cognizable offence, a writ petition cannot supplant the normal process of remedy under the law. Moreover, no case has been made out that the law enforcing machinery of the State has failed to act. Questioning the maintainability of the writ petition, it was submitted that entertaining the same would be against the spirit of Article 14 of the Constitution of India. Referring to the prayers in the petition it is argued that no final relief has been sought for. Questioning the maintainability of the writ petition, it was submitted that entertaining the same would be against the spirit of Article 14 of the Constitution of India. Referring to the prayers in the petition it is argued that no final relief has been sought for. The prayer for declaration should have been followed by consequential relief which is absent. Further, pleadings are insufficient to warrant relief. Referring to the judgement of Supreme Court it has been argued that merely because CID is a limb of the State, its function and integrity cannot be called into question and CBI cannot be asked to intervene. Mr. Bagchi referred to the various decisions in support of his submissions. ( 6 ) ADOPTING the arguments put forward by the learned Advocate General and Mr. Bagchi, Mr. Mukherjee, learned Advocate appearing for the added respondent has submitted that the statements made in paragraph 15 of the supplementary affidavit are on the basis of press reports. Apart from the said report there is no whisper about the nexus of the added respondent with the respondent No. 12. The respondent had come to know the Commissioner of police, Kolkata due to his activities in the playing arena. There was no intent of malice or it was not motivated by any factor. Prayer was made for expunging the name of the added respondent. ( 7 ) IN reply, it has been submitted by Mr. Bandyopadhyay that the State respondent and the respondent No. 12 have not denied the fact that the deceased and the petitioner No. 2 were summoned. Assuming that the police officers were having powers under section 36 of the Code four officers at Lalbazar could not simultaneously jump into an inquiry. Moreover, as there was no complaint of abduction, this verbal summons was in violation of the fundamental right under Article 21. According to him though on 21st September, 2007 a case of unnatural death was reported by the petitioner No. 2 to the Kareya Police station which was an information under section 157 of the Code, yet the police failed to act. The provisions of sections 157, 158 and 159 were not adhered to. The petitioners were thus deprived of an enquiry by a Magistrate. The provisions of sections 157, 158 and 159 were not adhered to. The petitioners were thus deprived of an enquiry by a Magistrate. Submission has also been made that though as submitted on behalf of the State that the criminal Investigation Department is carrying on an inquiry it is in reality an investigation and not an inquiry. Drawing attention to an intimation/ summons dated 10th October, 2007, which is on record, it has been submitted such an investigation under section 175 of the Code is impermissible since section 174 postulates summoning of persons only prior to post-mortem. In this case post-mortem was conducted on 22nd September, 2007 and CID was entrusted to investigate after two/ three days - on 24th/ 25th September, 2007. Thus, under the guise of an inquiry an investigation is being conducted of an unnatural death without registering a case under the Code. Unless a cognizable case is registered there is no scope to investigate which is being done to shield the respondent No. 12 and the senior police officers. Submission was facts have been withheld. Referring to the judgements of the Apex Court it has been submitted that the receipt and recording of information report by the police are not a condition precedent to the setting in motion of a criminal investigation. Investigation by the CID without registering a case is not permissible in law. It was argued that although the State itself had contended that there was no a cognizable case, it is obvious that an investigation is on in lines with cognizable case and thus, there is an implied cognizable case although the same has not been registered. Articles 14 and 21 of the Constitution, it was further submitted were also violated. While the written intimation dated 31st August, 2007 by the deceased and his wife was ignored and their worst fears came true, the senior police Officers, respondents herein, overstepped their jurisdiction at the instance of respondent Nos. 12 and 13 and on 1st September, 2007 had summoned the deceased. This also proved the easy access of the respondent No. 12 to the senior Police Officers at Lalbazar who are the respondents. Citing decisions it was submitted that a denial of interim order would lead to removal of evidence. ( 8 ) AT the preliminary stage two issues fall for consideration. This also proved the easy access of the respondent No. 12 to the senior Police Officers at Lalbazar who are the respondents. Citing decisions it was submitted that a denial of interim order would lead to removal of evidence. ( 8 ) AT the preliminary stage two issues fall for consideration. Whether the petitioners - the mother and the brother have Constitutional and legal right to move a petition under Article 226 of the Constitution and secondly whether the petitioners have made out a case for an interim order as prayed for. In my view, prima facie, the deceased and his wife on 31st August, 2007 had drawn the attention of the various police stations apprehending threats with dire consequences. On 21st September, he was found dead under unnatural circumstances. The deceased can no longer seek redressal for any personal injury caused to him. In such circumstances, it is only his near relations who can make a prayer by filing a petition under Article 226 of the Constitution. In this case the mother and the brother of the deceased have filed the petition praying for an investigation by the CBI. The death of a son in the prime of his youth has caused a void and a wound to the mother which time can never heal. It is a shock and a loss grievous an irreparable of unimaginble magnitude. The death has permanently deprived her of a right to happy life with her son, since deceased, which is an inalienable part under Article 21 of the Constitution of india. The shock bereavement and grievance of the brother is also to be noted. Therefore, the petitioners have a Constitutional right to move the instant petition and the petition is thus maintainable. Let affidavit-in-opposition to the writ petition as well as to the supplementary affidavit be filed by 30th november, 2007. Reply, if any, by 10th December. 2007 Thereafter, parties are at liberty to mention for hearing upon notice. So far as the prayer for interim relief in the writ petition is concerned, following facts need to be looked into. That on 18th August, 2007 the deceased and Priyanka got married. Thereafter, on 31st August, 2007 the deceased and his wife drew the attention of the police stations that respondent No. 12 could threaten them with dire consequences. Prima facie it appears despite the intimations the police gave the deceased no protection. That on 18th August, 2007 the deceased and Priyanka got married. Thereafter, on 31st August, 2007 the deceased and his wife drew the attention of the police stations that respondent No. 12 could threaten them with dire consequences. Prima facie it appears despite the intimations the police gave the deceased no protection. Instead the deceased and the petitioner No, 2 were summoned to the Lalbazar. Subsequently, the deceased on 21st September. 2007 was found dead under unnatural circumstances and, thereafter, it appears the commissioner of Police, Kolkata had made some comments on the cause and nature of death and that such comments, prima facie, have every livelihood of prejudicing any enquiry into the cause of death. During argument it was submitted on behalf of the State that the CID is conducting an inquiry. Persons have been summoned. It appears from the summons dated 10th October, 2007 that an investigation is being done in terms of section 175 of the Code. Section 175 should be read in conjunction with section 174. Enquiry under section 174 is permissible till inquest. Therefore, in my prima facie view, the investigation carried out by the CID is not in accordance with the provisions of the Code. Hence, considering the facts and circumstances of the case, I am of the opinion, prima facie, a case has been made out for passing an interim order. Therefore, let there be an interim order directing the CBI to investigate into the cause of unnatural death of Rizwanur Rahaman and the CBI shall file a report in a sealed cover before this Court within two months from the date of service of authenticated copy of this order. C. B. I. investigation directed.