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2017 DIGILAW 457 (CAL)

Protima Dutta v. State of West Bengal

2017-05-11

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2017
JUDGMENT : Re : C.A.N. 4437 of 2017 1. This is an application filed by the applicant with a prayer for adding him as a party to the writ application. The subject matter involved in this writ application is the validity and propriety of the investigation conducted by an officer of the Criminal Investigation Department, Government of West Bengal in connection with the Bally P.S. Case No. 205 of 2011 in the matter of unnatural death of one Tapan Dutta. 2. This writ application is filed by the widow of the above person with a prayer for investigation of the matter by the Central Bureau of Investigation. The applicant is one the accused in the trial bearing Sessions Trial No. 88 of 2012 pending before the Court of learned Additional District and Sessions Judge, Fast Track Court, Howrah. 3. The above trial is arising out of the charge sheet bearing no. 406 of 2011 filed in connection with the above F.I.R. bearing Bally P.S. Case No. 205 of 2011. It was commenced against five accused persons including the applicant showing two other accused persons as absconders. The above trial came to an end by virtue of a judgment and order of acquittal of the accused persons dated December 6, 2014. By a common judgment and order dated April 10, 2017 passed in C.R.A. No. 688 of 2016 with G.A. No. 3 of 2015, the above judgment and order of acquittal were set aside and the matter was remanded back to the trial court for adjudication within the scope and ambit directed in the above judgment. 4. The above judgment and order dated April 10, 2017 was under challenge in Special Leave to Appeal (CRL.) Nos. 3661-3662 of 2017 at the instance of the applicant before the Hon’ble Supreme Court. The above appeals were dismissed by the Hon’ble Supreme Court by an order dated May 8, 2017 as follows: “Upon hearing the counsel the Court made the following ORDER Heard the learned counsel for the petitioner and perused the relevant material. Exemption from filing certified copy of the impugned order is granted. Permission to file lengthy list of dates is granted. We do not find any legal and valid ground for interference. The Special Leave Petitions are dismissed. Exemption from filing certified copy of the impugned order is granted. Permission to file lengthy list of dates is granted. We do not find any legal and valid ground for interference. The Special Leave Petitions are dismissed. We make it clear that all contentions available in law with regard to the issue of further investigation by the CBI raised in the Writ Petition which is pending before the High Court are open to the argued.” 5. Considering the prayer made in the aforesaid Leave Petition, we find that apart from challenging the judgments and orders passed in C.R.A. No. 688 of 2016 with G.A. No. 3 of 2015, the prayer for interim relief, amongst others, made in the above appeals was as follows : “b. Stay the hearing of the writ petition as has been directed by the Hon’ble Division Bench being Writ Petition No. 12526(W) of 2012; and” 6. After disposal of the aforesaid appeals being C.R.A. No. 688 of 2016 with G.A. No. 3/2015, the instant writ application has been taken up for hearing. During the hearing of this writ application, this application is filed by the applicant for his addition as a party respondent to this writ application. 7. It is submitted by Mr. Asish Kumar Sanyal, learned advocate, appearing on behalf of the applicant that the applicant is one of the accused persons in the aforesaid Sessions Trial bearing No. 88 of 2012. This Court is hearing the instant writ application at this stage of post framing of charges against the applicant, amongst other accused persons. Therefore, he has a right to assist this Court with regard to the question of further investigation in view of the order dated May 8, 2017 passed by the Apex Court in connection with Special Leave to Appeal (CRL.) Nos. 3661-3662 of 2017. According to him, after his acquittal in the trial under reference, the judgment and order of acquittal passed by learned Trial Judge has already been set aside. He requires to face the trial within the scope and ambit as directed in the judgment delivered by this Court in C.R.A. No. 688 of 2016 with G.A. No. 3 of 2015. According to him, after his acquittal in the trial under reference, the judgment and order of acquittal passed by learned Trial Judge has already been set aside. He requires to face the trial within the scope and ambit as directed in the judgment delivered by this Court in C.R.A. No. 688 of 2016 with G.A. No. 3 of 2015. Therefore, in the event of reopening of investigation or further investigation in the matter of unnatural death of the deceased person at the instance of the victim as defined under Section 2(wa) Cr.P.C., he has a right to assist the Court with regard to the relevant questions which may arise in the writ application. 8. It is submitted by Mr. Bikash Ranjan Bhattacharya, learned senior advocate, appearing on behalf of the writ petitioner, that accused person in a trial has no right to participate in the hearing of an application under Article 226 of the Constitution of India where the propriety of the investigation conducted by the Investigating Agency is under challenge with a prayer for further investigation in the matter by any Agency. According to him, the Hon’ble Supreme Court dismissed the Special Leave to Appeal (CRL.) Nos. 3661-3662 of 2017 preferred against the judgment and order dated April 10, 2017 passed by this Court in connection with C.R.A. 688 of 2016 with G.A. No. 3 of 2015. According to him, the reason for making it clear that all contentions available in law with regard to issue of further investigation by the C.B.I. raised in the writ petition which is pending before the High Court are open to be argued, is to make observation with regard to the prayer for interim relief of staying hearing of the instant writ petition as has been directed by this Court. 9. Mr. Pradip Kr. Roy, learned advocate, appearing on behalf of the State respondents submits that this writ application has a nexus with the trial conducted against the applicant, amongst other accused persons, in S.T. No. 88 of 2012. Therefore, at the stage of considering the question of further investigation by another Investigating Agency, the applicant has a right to participate in the writ proceeding in the event his right is affected. 10. We have heard the learned advocates appearing for the parties at length and we have considered the facts and circumstances involved in this writ application. Therefore, at the stage of considering the question of further investigation by another Investigating Agency, the applicant has a right to participate in the writ proceeding in the event his right is affected. 10. We have heard the learned advocates appearing for the parties at length and we have considered the facts and circumstances involved in this writ application. It is not in dispute that the subject matter of challenge in this writ application, is the validity and propriety of the investigation in connection with the F.I.R., bearing Bally P.S. Case No. 205 of 2011 dated May 6, 2011 in connection with unnatural death of one Tapan Dutta. The widow of the above deceased person, being the victim, under the definition of Section 2 (wa) Cr.P.C., is the writ petitioner in this writ application. The law relating to the right to participate in a proceeding is well settled. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 11. Reference may be made to the decision of Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar and Anr., reported in AIR l963 S.C. 786 and the relevant portion of the above decision is quoted below: “7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” 12. In order to find out the necessity of making the applicant as a party in this writ application, we find that the questions relating to validity and propriety of the investigation are to be replied by the Investigating Agency, i.e.. the Criminal Investigation Department, West Bengal represented by the learned State counsel. In order to find out the necessity of making the applicant as a party in this writ application, we find that the questions relating to validity and propriety of the investigation are to be replied by the Investigating Agency, i.e.. the Criminal Investigation Department, West Bengal represented by the learned State counsel. There is no scope for the applicant to interfere with any question relating to the validity and/or propriety of the investigation by the Criminal Investigation Department, Government of West Bengal nor his presence is necessary for complete and final decision on the question involved in this writ application. 13. So far as the peculiar facts and circumstances of this case is concerned, i.e. pendency of the trial under reference against the applicant, amongst other accused persons, after setting aside the judgment and order of his acquittal, amongst other, he has every right to participate in the trial to take care his defence in the above trial in accordance with law. The hearing of this writ application at this stage of post framing of charges in the above trial against the applicant, amongst other accused persons, does not make any difference in respect of the above law. It will not be out of context to observe here that no proceeding was initiated at the instance of the applicant for quashing of the charge sheet issued against him at any stage of the trial or in the appeal arising out of the judgment and order of that trial. Necessary order can be passed in this writ application without his presence. Or in other words, his presence in this writ application is not necessary for a complete and final decision on the question involved in this writ proceeding. 14. With regard to the question of observation made by the Hon’ble Supreme Court while dismissing the Special Leave to Appeal (CRL.) Nos. Or in other words, his presence in this writ application is not necessary for a complete and final decision on the question involved in this writ proceeding. 14. With regard to the question of observation made by the Hon’ble Supreme Court while dismissing the Special Leave to Appeal (CRL.) Nos. 3661-3662 of 2017 by order dated April 10, 2017, we find that after paying due consideration to the contentions of the above Special Leave Petition including the prayer for an interim relief for staying the hearing of the instant writ application, the Hon’ble Supreme Court was not inclined to interfere with the hearing of this writ application but was pleased to make it clear that all contentions available in law with regard to the issue of further investigation by the CBI raised in the writ petition, which is pending before the High Court, are open to be argued. That is not an observation with regard to the right of the applicant to participate in this writ proceeding where the validity and the propriety of the investigation by the Investigating Agency is under challenge and the appropriate party to deal with all allegations raised by the writ petitioner is the State respondents and the learned State advocate is present before us to take care of the above interest of the Investigating Agency by whom the charge sheet and the supplementary charge sheet thereto have been submitted in connection with the trial under reference. Validity of any action of the applicant is not under challenge in this writ application. 15. With the above discussions and observations, this application stands dismissed. There will be, however, no order as to costs. Re : W.P. 12526(W) of 2012 Heard the learned advocates for the parties in part. Further hearing stands adjourned for the day. 16. Let this matter appear in the daily supplementary list tomorrow (12.05.2017) under the same heading. 17. The learned advocate for the State is directed to produce the case diary relating to FIR being Bally P.S. Case No. 205 of 2011 dated May 6, 2011 before this Court on the next date of hearing.