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2014 DIGILAW 637 (CAL)

Ram Narayan Bhagat v. State of West Bengal

2014-07-16

DEBANGSU BASAK

body2014
JUDGMENT Debangsu Basak, J. A father of his deceased son moved this Hon’ble Court for making over the investigation in respect of the unnatural death of his only son to the Central Bureau of Investigation (CBI). Prior to the present writ petition, the petitioner had approached this Hon’ble Court with regard to the same incident complaining of no investigation into the death of his son. In the earlier writ petition an Order dated April 12, 2012 was passed directing the Director General, Crime Investigation Department to appoint a competent officer for investigation. According to the petitioner, such Investigating Officer submitted a final report before a Criminal Court stating that, the death occurred due to rash and negligent driving of the car by the son of the petitioner. The petitioner filed a protest petition in such criminal proceedings. The petitioner also made a representation before the Director General of Police on July 16, 2012, and, thereafter moved the present writ petition. It was contended by the petitioner that, upon the present petition being filed an Order dated May 7, 2013 was passed requiring the Police authorities to submit a status report. The report filed in terms of the Order dated May 7, 2013 was considered. Various other proceedings took place in the writ petition. It was submitted on behalf of the petitioner that, the versions of the police with regard to the incident changed dramatically from the first report to the subsequent report. Initially the police sought to form an opinion that, the car in which the petitioner was travelling turned turtle. When such report was discredited by the Court, the Police authorities came with a version that, the car went from one lane to the other at a high speed crossing the divider between the two lanes on National Highway No. 2 and hit the metal beam crash barrier on the other side, as the cause for death. The last report was of the view that, the victim died due to his rash and negligent driving. It was contended on behalf of the petitioner that, the directions contained in the Order dated April 12, 2010 were not followed in the last investigation. At least two points were raised in the Order dated April 12, 2010 requiring the Investigating Officer to explore those two angles while investigating into the cause for death. It was contended on behalf of the petitioner that, the directions contained in the Order dated April 12, 2010 were not followed in the last investigation. At least two points were raised in the Order dated April 12, 2010 requiring the Investigating Officer to explore those two angles while investigating into the cause for death. Those two angles were not investigated into by the Investigating Officer. The first angle was that, the car in which the son of the petitioner was travelling was impacted from the rear. The second angle was that, a co-passenger travelling with the son of the petitioner at the time of the incident and admitted to hospital remained untraceable. The first angle was not considered at all. On the second angle a third passenger was found in the vehicle by the Investigating Officer. Again no clarity as to the whereabouts of the two occupants the car and their relationship with the incident were appearing from the report. It was contended by the petitioner that the post-mortem report showed an injury on the left scalp of the victim. All the reports of the police claimed the petitioner to be driving the car. Injury to the left scalp of a driver in an accident of frontal collision was inconsistent. Photographs of the vehicle were placed to discredit the theory of the police in the last report. The nature of injuries noted in the post-mortem report was highlighted and such injuries were contrasted with the nature of accident claimed by the last report to have taken place. The nature of injuries noted in the post-mortem report, according to the petitioner was not consistent with the nature of accident claimed to have happened. In particular, the petitioner contended that, a vehicle travelling at high speed and driven by the deceased making a frontal impact would necessarily result in the legs of the driver being broken. The post-mortem did not speak of the bones of the legs of the victim being broken. The fact that, in the post-mortem report lot of grease was found in the body of the petitioner was also highlighted. The driving wheel was intact as would appear from the photographs. No viscera report was prepared. The post-mortem did not speak of the bones of the legs of the victim being broken. The fact that, in the post-mortem report lot of grease was found in the body of the petitioner was also highlighted. The driving wheel was intact as would appear from the photographs. No viscera report was prepared. The petitioner also highlighted that, the car which met with the accident was sought to be taken delivery of by a person unknown to the petitioner and that there were two versions of the same order passed by a Court ordering release of the vehicle. The petitioner had obtained certified copy of such order to demonstrate such versions. In such context it was submitted that, an inquiry by the Central Bureau Investigation (CBI) was required. The State authorities resisted the writ petition. It was submitted on behalf of the State that, a final report under Section 173 was filed with the appropriate Court in seisin of the proceedings. In as much as a final report under Section 173 of the Criminal Procedure Code (Cr. P.C.) was filed with the appropriate Court in seisin of the criminal proceedings, this Court ought not to direct further investigation and that, the remedies provided under Section 173 of the Criminal Procedure Code were sufficient, effective and efficious for the petitioner. Reference was made to Section 173 Sub-section (8) of the Criminal Procedure Code and it was submitted that, the petitioner was not remediless. A judgment reported at 1996 Volume 11 Supreme Court Cases Page 582 (All India Institute of Medical Sciences Employees’ Union (Regd.) vs. Union of India & other) was relied upon. Reliance was also placed upon 2006 Volume 4 Supreme Court Cases page 359 (Minu Kumari & another vs. State of Bihar & other) and 2006 Volume 7 Supreme Court Cases page 296 (Popular Muthiah vs. State represented by Inspector of Police) for the proposition that the Court should not intervene when a final report under Section 173 of the Criminal Procedure Code was filed before the appropriate criminal Code. 2011 Volume 3 Supreme Court Cases page 758 (Ashok Kumar Todi vs. Kishwar Jahan & other) was cited at the bar on the point that Court can direct investigation by the CBI. The son of the petitioner died an unnatural death in September 26, 2009. The investigation into the cause for death was unsatisfactory. The petitioner alleged murder. 2011 Volume 3 Supreme Court Cases page 758 (Ashok Kumar Todi vs. Kishwar Jahan & other) was cited at the bar on the point that Court can direct investigation by the CBI. The son of the petitioner died an unnatural death in September 26, 2009. The investigation into the cause for death was unsatisfactory. The petitioner alleged murder. The petitioner moved this Hon’ble Court for reliefs with regard to the investigation as to the unnatural death of his son. In the earlier writ petition an Order dated April 12, 2014 was passed. The present petition was a sequel to such Order dated April 12, 2014. The Order dated April 12, 2014 noted that, the unnatural death of the son of the petitioner happened on September 26, 2009. The post-mortem report was considered in such order. The post mortem report revealed that, the son of the petitioner succumbed to head injuries. Hemorrhage was opined to be the immediate cause of death. The Court noted the laxity in the investigation as to the unnatural death. The Court also noted the allegation of the petitioner that, circumstantial evidence pointed to the murder of his son and that, the investigating agency was bent upon directing attention to establishing culpable homicide not amounting to murder. The Court considered the allegations of the petitioner and called for a report from the Officer-in-Charge, Haripal Police Station. The Court considered such report. It was reported to the Court that, the car overturned on the pitch road. The Court considered few photographs and other materials and came to the finding that, the photographs of the car showed that the car bore no sign of overturning on the road and, therefore, the theory that, the victim suffered head injuries was difficult to accept. The Court was of the view that, there was reasonable ground to believe that the car was dashed from behind and that it had then collided either with some hard object which resulted in the front bumper falling on the road. The Court was of the view that, whether the head injury leading to hemorrhage was possible or not in such a circumstance required investigation. The Court went on to note that, there were another passenger travelling in the car and such passenger was injured and subsequently shifted to Burdwan Medical College and Hospital. The Court was of the view that, whether the head injury leading to hemorrhage was possible or not in such a circumstance required investigation. The Court went on to note that, there were another passenger travelling in the car and such passenger was injured and subsequently shifted to Burdwan Medical College and Hospital. Such co-passenger was not found at his bed and was declared to be an absconder. The Investigating Officer was directed to look into that aspect while he conducted the investigation. By such order the Court directed the Director General, Crime Investigation Department (CID) to appoint a competent officer for investigation of the case for ascertainment of the truth. The Investigating Officer to be appointed by the Director General was directed to conduct a proper investigation keeping in mind such observations and to submit a status report before the Court on June 7, 2013 when the writ petition was directed to be listed again. The Investigating Officer submitted a final report to the Court of the Additional Chief Judicial Magistrate, Chandannagar, Hooghly. The report stated that, the incident happened following rash and negligent driving of the car by the son of the petitioner. The petitioner filed a protest petition before the learned Additional Chief Judicial Magistrate. The petitioner also made a representation before the Director General of Police, CID on July 16, 2012. The learned Additional Chief Judicial Magistrate by an Order dated September 19, 2012 allowed the prayer for re-investigation. The petitioner claimed that, no investigation took place after the Order dated September 19, 2012 necessitating the filing of the second writ petition. Upon the writ petition being filed an Order Dated May 7, 2013 was passed. By such order the Respondent No. 3 was directed to submit a status report in respect of the progress of re-investigation by June 7, 2013. Report was filed and the writ petition considered on June 10, 2013. By the order the learned Judge found that, the report referred to statements of two other occupants of the car at the time of the incidents. Photographs were produced when the matter was directed to appear next on June 17, 2013. The writ petition was taken up for consideration on June 21, 2013, thereafter, in presence of the Investigating Officer as well as the learned Advocate for the State. Photographs were produced when the matter was directed to appear next on June 17, 2013. The writ petition was taken up for consideration on June 21, 2013, thereafter, in presence of the Investigating Officer as well as the learned Advocate for the State. The CID filed a report and produced statements of two other co-passengers of the car at the time of the incident. The CID was of the view that, the car turned turtle upon an accident taking place. The Court considered the photographs of the car produced by the petitioner. On such consideration the Court found that the photographs did not demonstrate that, the car could not have turned turtle and its roof remaining unscathed. The Investigating Officer was directed to obtain further statement of the petitioner. Upon such statement being obtained the Investigating Officer was directed to conduct further inquiry and to file a report thereon. The Investigating Officer submitted a report dated August 5, 2013. The report concluded that, the car suddenly turned towards the road side about two feet deep shallow land being the divider of the up and down lane. The car crossed the divider in high speed and jumped up about 10/12 feet on the down lane and directly hit the eastern side steel fencing of the lane and took left turn on the down lane fencing towards west. In doing so the rear portion of the car dashed in the eastern side steel fencing and stopped there. The eastern side steel fencing was damaged and the damaged portion was replaced/repaired later on. Neither the car did turn over nor did it turn turtle. In continuation of the earlier report dated August 5, 2013 the Investing Officer filed another report dated August 20, 2013. It appeared from the diverse reports filed by the Investigating Officer at different stages that, initially the version of the Police authorities was that, the car turned turtle and as such the son of the petitioner died. The next version of the Investigating Officer, CID was that, the car was travelling at high speed and was driven by the son of the petitioner, jumped up about 10 to 12 feet when crossing the divider between the two lanes on National Highway 2 and had a frontal collision with the metal beam crash barrier first and then death was due to rash and negligent driving. On behalf of the petitioner it was submitted that, the directions contained in the Order dated April 12, 2010 were not complied with. The Court laid down at least two specific angles which the Investigating Officer was required to investigate. One of such angle was whether the head injury leading to hemorrhage could be possible or not in a circumstance where the photographs of the car revealed that, its front and rear portions suffered significant damages reasonably believed to be caused by dashing from behind. The Court was of the view that, the photographs of the car showed the car to be rear ended by a vehicle, on the impact of which the boot and the rear window of the car got damaged and, thereafter, the car collided with some hard object on the front resulting in the front bumper falling off. The second angle was the whereabouts of the co-passenger in the car who was admitted to the hospitals after the incident. It was also pointed out on behalf of the petitioner that, the post-mortem report revealed head injury on the left portion of the head. The photographs of the car revealed that, the steering wheel was intact. Photographs of the car also revealed that, no scratches on the right side door of the car as well as the door behind the driver. The rear bumper was intact. The trunk lid of the car was open and crumpled. Trunk lid being open and crumpled could lead to a conclusion that, a vehicle of a height higher than the rear bumper of the car dashed the car from the rear. The petitioner contended that, the left lobe injury on the skull of the deceased with the steering wheel remaining intact for a driver was unnatural and could not have happened in the circumstances prevailing in the case. There was more to the accident than the report suggested. The petitioner also drew the attention of the Court to various entries in the post-mortem report contending that, the injuries marked in the post-mortem report was not consistent with a road accident. No bone of the leg of the driver was found to be broken. It was natural, contended the petitioner, that a driver would react by trying to break the vehicle when the accident was eminent. No bone of the leg of the driver was found to be broken. It was natural, contended the petitioner, that a driver would react by trying to break the vehicle when the accident was eminent. In circumstances of an accident, both the legs of the driver would be implanted on the foot of the vehicle and, therefore, the legs would bear the initial impact on a frontal collision of the car and would result in the legs of the driver being broken. Such was not the post-mortem report. No bones of the legs were found broken. Another significant aspect highlighted out of the post-mortem report was that, the scalp on the left side was found fractured. Again such a scenario was inconsistent with a driver meeting with a frontal collision on the road. The fact that no viscera report was conducted, was highlighted. A third aspect was highlighted on behalf of the petitioner. It was stated that, the delivery of the car in question was sought to be obtained by a person who was not authorized by the petitioner. The petitioner obtained two certified copies of the same order. The two certified copies bore different versions of the same order. The facts taken together led one to the irresistible conclusion that the investigation was not conducted in terms of the orders of the Court. Various aspect of the unnatural death of the son of the petitioner required further investigation. All India Institute of Medical Sciences Employees’ Union (supra) was concerned about a writ petition filed for the purpose of directing institution of proceedings for alleged cognizable offence punishable under Section 409 of the Indian Penal Code. In that case, the provisions of Chapter XII in particularly Section 154 of the Criminal Procedure Code were noted. Since the petitioner in that case did not adopt the procedure provided under the Criminal Procedure Code it was held that, the petitioner in that case was not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which was not required to investigate into all or every offence. The facts scenario in the present case was different. In the earlier writ petition the Investigating Officer was directed to investigate keeping in view two angles stated therein. The Investigating Officer in spite of earlier order did not consider those angles at all. The facts scenario in the present case was different. In the earlier writ petition the Investigating Officer was directed to investigate keeping in view two angles stated therein. The Investigating Officer in spite of earlier order did not consider those angles at all. In Minu Kumari & another (supra) the Supreme Court was concerned with a proceeding initiated under Section 482 of the Criminal Procedure Code. In such context the Supreme Court noted that the powers possessed by the High Court under Section 482 of the Criminal Procedure Code were very wide and that the very plentitude of the power required great caution in its exercise. The present case involved a direction upon the Police authorities to complete an investigation in terms of an earlier order passed by the Court exercising the same jurisdiction appropriately. Popular Muthiah (supra) was a case where an appeal against a judgment and conviction was carried to the High Court. In such appeal the High Court made various observations and gave directions to the police to conduct an investigation. It was contended before the Supreme Court that the High Court while hearing an appeal could neither exercise any revisional jurisdiction under Section 397 nor its inherent jurisdiction under Section 482 of the Criminal Procedure Code in giving such directions for investigation. The Supreme Court considered whether the High Court while exercising its appellate jurisdiction under Section 374(2) read with Section 386 of the Criminal Procedure Code could direct further investigation of the case and whether the High Court lacked jurisdiction for seeking recourse or of its inherent jurisdiction under Sections 482 and 483 of the Criminal Procedure Code in the facts and circumstances of that case. In such context the Supreme Court was of the view that, the High Court went beyond its jurisdiction in directing the prosecution of the appellant before it. In the instant case none of the earlier orders directed the prosecution to take any stand with regard to the incident. The earlier orders directed an appropriate investigation to be done. Ashok Kumar Todi (supra) emanated out of a writ petition filed before the High Court. In the instant case none of the earlier orders directed the prosecution to take any stand with regard to the incident. The earlier orders directed an appropriate investigation to be done. Ashok Kumar Todi (supra) emanated out of a writ petition filed before the High Court. The Supreme Court was concerned with the question whether the order of the learned Single Judge appointing the CBI to enquire into the unnatural death and further direction giving liberty to CBI to proceed in accordance with the law for filing charge-sheet before the competent Court under Section 173(2) of the Cr. P.C. and to take further investigation before it actually filed the charge-sheet on any point, it may consider necessary in the interest of justice was acceptable and justified. The second question was whether the decision of the Division Bench setting aside the order of the learned Single Judge and directing CBI to start investigation afresh by treating the complaint of the Petitioner No. 2 therein as the First Information Report to register a case of murder was sustainable or not. The Supreme Court was of the view that, the learned Single Judge was fully justified in appointing the CBI to investigate into the unnatural death of Rizwanur Rahaman and submit a report. The Single Judge’s final order accepting the report and granting opportunity to CBI to proceed in accordance with law for filing charge-sheet before the competent Court under Section 173(2) of the Criminal Procedure Code was also accepted. In such circumstances since the directions contained in the Order dated April 12, 2010 were not complied with at all. It would be appropriate to direct the Director General, CID to appoint a competent officer of a rank higher than the officer will submitted the final report to this Court, for further investigation. The Director General, CID will appoint such officer as expeditiously as possible preferably within 2 days from the date of communication of this order on them. Such officer will undertake such investigation into the unnatural death of the son of the petitioner and will be entitled to utilize the materials already collected. The new officer will submit his report within 4 weeks from date. W.P. No. 11590 (W) of 2013 will appear in the list 5 weeks from date.