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2015 DIGILAW 34 (CAL)

Sakti Pada Ghosh v. State of West Bengal

2015-01-16

ASHIM KUMAR ROY

body2015
JUDGMENT : Ashim Kumar Roy, J. The petitioner, the father of the victim, is the de facto complainant of Bizpur Police Station Case No. 26/2014 under section 302/34 IPC and under section 25/27 of the Arms Act. According to the allegations made in the aforesaid First Information Report, annexed with this criminal revision, on January 16, 2014 at around 9.30 p.m. at night, he was informed by his brother-in-law that about an hour back his son Banti @ Saikat was shot at TMC Party Office situated at Bakultala, Bijay Nagar Colony, Halisahar, has been removed to Kalyani JNM Hospital in a critical condition. Having received such information he rushed to the Hospital and found his son has been taken to the operation theatre and at that time he came to learn from his son's attending Doctor, his son disclosed to him that while he was at the TMC Party Office, three accused persons viz. Bapan, Samar and Sonai called him from there and when he came out to attend their call, they fired two shots at him, while one shot missed but another hit him. At the same night at around 12.30 a.m., his son was declared dead. The FIR was registered against three miscreants viz. Bapan, Samar and Sonai and they were arrested and charge sheeted. 2. Now, it is the case of the petitioner since due to some political pressure, police tried to screen the real offenders as also the said accused persons and refused to examine some of the vital independent eyewitnesses, the petitioner finding no alternative, approached this court invoking its extraordinary writ jurisdiction and moved a writ petition being W.P. No. 8281(W) of 2014. It is his further case, about 36 persons gave a mass petition to the police and in such petition they categorically disclosed besides the aforesaid three accused persons, there were other miscreants with them and they also took active party in commission of the offence and volunteered and offered to give their evidence to the police and although reminders were sent to the police but the Investigating Officer paid no heed to that. The police was deliberately delaying recording of statement of vital witnesses and even the de facto complainant of the case was not examined and the said mass petition was annexed with the writ application. 3. The police was deliberately delaying recording of statement of vital witnesses and even the de facto complainant of the case was not examined and the said mass petition was annexed with the writ application. 3. It appears from records when the writ application was admitted the Hon'ble Justice Dipankar Dutta directed the first six signatories in the mass petition to remain present in court on the next date fixed for hearing. Pursuant to the aforesaid order on March 13, 2014, the fifth signatory attended the court and after interacting with him, the Hon'ble Justice Dipankar Dutta found that the said witness appeared to be an eye witness to the occurrence. On the next date of hearing on April 4, 2014 the writ petitioner was directed to file an affidavit disclosing out of 36 signatories to the mass petition, how many of them were interrogated by the police and their statement was recorded under Section 161 CrPC. Finally, on June 11, 2014, the aforesaid writ application was disposed of, since charge sheet has already been submitted, with liberty to the petitioner if aggrieved to move the concerned Magistrate in accordance with law. 4. It is now contended by the learned advocate of the petitioner that after receipt of the copy of the charge sheet since it was found there were various lacunas in the investigation and the same was totally perfunctory, the petitioner moved an application before the learned Additional Chief Judicial Magistrate, Barrackpore praying for further investigation in the case. However, the prayer for further investigation was declined. It is contended that the order of rejecting the prayer for further investigation is totally erroneous, illegal and against the materials on record and therefore immediate interference by this court is necessary for ends of justice. On the other hand, the learned Public Prosecutor opposed this application and denied that investigation was perfunctory. He further submitted all the FIR named accuseds whose names were included in the dying declaration of the victim and by the eyewitnesses have not only been charge sheeted, their trial has also commenced. Already charge has been framed and the date for recording of evidence has been fixed. He further contended if at this stage any order for further investigation is made that will stall the progress of the trial. the learned Public Prosecutor also produced the case diary containing the charge sheeted materials. 5. Already charge has been framed and the date for recording of evidence has been fixed. He further contended if at this stage any order for further investigation is made that will stall the progress of the trial. the learned Public Prosecutor also produced the case diary containing the charge sheeted materials. 5. Heard the learned counsel appearing on behalf of the parties. Considered their respective submissions and perused the charge sheeted materials from the case diary. 6. It is already noted that the FIR of the case was registered against the three accuseds viz., Bapan, Samar and Sonai, on the complaint of the petitioner which was based on a dying declaration of the victim made to his attending Doctor. Furthermore, during the course of investigation more materials were collected, viz., the statements of the eyewitnesses to the occurrence who identified the said accused persons as the assailants and recovery of the offending weapon at the behest of the accuseds. 7. The sole question arises for decision in this criminal revision, whether at this stage when charge has been framed against the accused persons named in the FIR and in the dying declaration of the victim and in the statement of the eyewitnesses to the occurrence and recording of evidence has not been started, any order for making further investigation is still needed or not? 8. Perusal of the charge sheeted materials, undoubtedly, satisfies this court that so far as the accused persons who have been placed on trial to answer charges for allegedly committing the murder of the son the victim, there is hardly any need for further investigation. Apart from the dying declaration of the son of the victim made to his attending doctor at the hospital disclosing the identity of the assailants which is the part of the charge sheeted materials, police examined total 20 eyewitnesses. After arrest pursuant to the statements of the accuseds, firearms were recovered in presence of the witnesses and the statement of the accused leading to discovery as also the statement of the seizure witness are also the part of the charge sheet. Out of total 36 persons who are signatories in the mass petition and claimed to have seen the occurrence, total 20 have been examined by the police and their statements are also the part of the charge sheeted materials. Out of total 36 persons who are signatories in the mass petition and claimed to have seen the occurrence, total 20 have been examined by the police and their statements are also the part of the charge sheeted materials. Merely because police has not examined all the 36 persons, signatories in the mass petition, no further investigation is necessary for their examination. It is well recognised maxim "evidence to be weighed and not counted". According to the provisions of section 134 of the Evidence Act, "no particular number of witnesses shall in any case be required for the proof of any fact". 9. However, the question of further investigation cannot be denied in the above backdrop if it is found that there is sufficient indications from the materials collected during investigation that apart from the above three accused persons some others are likely be involved in the offence and their identity is required to be unfolded. This is court is of the opinion if the answer comes in affirmative then in that case the power of this court, while exercising its inherent jurisdiction is untrammeled by the fact that in connection with the said case three accused persons have already been charged in a Sessions trial and the recording of evidence against them is on the card. In the case of Hasanbhai Valabhai Qureshi v. State of Gujarat and others reported in 2004 SCC (Cri) 1603, the Apex Court observed, whether a further investigation is warranted, the hands of the investigating agency or the court should not be tight down on the ground the further investigation made delay the trial, as the ultimate object is to arrive at the truth. In the case of Ramlal Narayan v. State (Delhi Administration) reported in (1979) 2 SCC 332, the Apex Court amongst others observed when defective investigation comes to light during the course of trial, it may be cured by further investigation, if circumstances so permitted. It was also observed when fresh fact comes to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as expeditious disposal of the matter by the court. It was also observed when fresh fact comes to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as expeditious disposal of the matter by the court. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and to do real and substantial as well as the effective justice. 10. This is a case where the de facto complainant being aggrieved by the investigation moved a naraji petition before the court where charge sheet was submitted and after rejection of his prayer now challenged the said order in this criminal revision. In the meantime, the case has been committed, charge has been framed and the date for recording of evidence has been fixed but has not commenced. 11. Now from the perusal of the statements of the eyewitnesses to the occurrence Sukalyan De, Manoj Sen, Shyama Pada Mondal, Amit Das, Smt Santi Dutta, Subhankar Paul, Prionka Sen and others, it is found after assaulting the victim Banti @ Saikat, the aforesaid three accused persons run away towards Bakultala Crossing and at that time when they were chased by those witnesses and others the accused persons threatened them with the firearms in their hand and after walking some distance they boarded in a new car parked there and fled away. However, no investigation was made by the police to identify the car in question, viz., what was the registration number of the car, whether number plate was genuine or false, to whom such car was belonging. No attempt was made from the side of the police to ascertain besides three aforesaid accused persons if there was any other person and who drove the car. It was also not enquired whether the car was taken on hire or by any other means or there were any other person who provided the car to get the victim killed. During investigation the statements of all the three accused persons were recorded. It was also not enquired whether the car was taken on hire or by any other means or there were any other person who provided the car to get the victim killed. During investigation the statements of all the three accused persons were recorded. Those statements may not be admissible in evidence during the trial but their importance to give clue to the police to unfold the involvement of the accused persons and others cannot be discarded. According to the statements of those accused persons they fled away with the car to Digha and stayed there. Police never enquired where they took shelter at Digha, whether in a hotel concealing their identity or they were harbored there. Police has also not ascertained at Digha who arranged for their shelter. Making no investigation as to the aforesaid facts manifest serious lapse on the part of the investigating officer of the case and raised a question as to the capability and efficiency of the investigating officer if not there is any manipulation on his part. Because of the aforesaid lapses, undoubtedly, this is a fit case where further investigation is essential and necessary for ends of justice so that the identity of the others involved in the crime be unfolded and they be brought before the court of law as expeditious disposal of the trial is essential. 12. The learned Magistrate rejected the petitioner's prayer for further investigation on the ground, no such prayer was made by the Investigating Agency and the petitioner's grievances against non-examination of the witness, as desired by him, may be considered, if necessary, taking recourse to the provisions of section 311 CrPC at the appropriate stage. The approach of the learned Magistrate is totally wrong, the learned Magistrate is not bound by the conclusion arrived at by the Investigating Agency. Neither, the facts that Investigating Agency has not approached the court for further investigation, nor the fact that witness may be examined under section 311 CrPC is a ground for rejection of the prayer for further investigation made by the de facto complainant taking out a substantive application in the form of naraji petitioner. The learned Magistrate is well within his authority to arraign anybody as an accused and send him for the trial, even when he is not chargesheeted, if from the materials collected during investigation his involvement transpires. The learned Magistrate is well within his authority to arraign anybody as an accused and send him for the trial, even when he is not chargesheeted, if from the materials collected during investigation his involvement transpires. He is also equally empowered to direct further investigation in a case where from the materials collected during investigation, the chances of involvement of other persons in the commission of the offence cannot be disregarded. It may be noted that during the hearing when the aforesaid lapses were put to the learned Public Prosecutor he also conceded to the necessity of further investigation. In the result, this criminal revision succeeds and the order impugned is quashed. The prayer for further investigation is allowed. This court is, however, of unhesitated opinion that further investigation be conducted by the CID, West Bengal and by a Police Officer, not below the rank of Inspector of Police, under the direct supervision of the DIG, CID. It is further directed all endeavours must be made to conclude the investigation within coming 4 months and if not by that time but by next 2 months with prior permission for extension of time to be obtained from this Court. All further proceedings of the Sessions Case No. 343 of 2014 now pending before the learned Additional Sessions Judge, 2nd Court, Barrackpore, North 24-Parganas shall remain stayed still the further investigation is completed. This order be communicated to the DIG, CID through the learned Registrar General of this Court. Urgent xerox certified copy of this order be given to the parties, if applied for, as early as possible.