State of West Bengal & Ors Vs.
Sampat Lal & Ors [1984] INSC 225 (4 December 1984)
MISRA RANGNATH MISRA RANGNATH BHAGWATI, P.N.
SEN, AMARENDRA NATH (J)
CITATION: 1985 AIR 195 1985 SCR (2) 256 1985
SCC (1) 317 1984 SCALE (2)942
CITATOR INFO :
RF 1985 SC 735 (4) RF 1991 SC1260 (42)
ACT:
Code of Criminal Procedure 1973-Death under
suspicious circumstances-Allegation of murder-lnvestigation still in the hands
of police-High Court appointing a Special officer to inquire into the
offence-Judicial interference in investigation When arises.
"inquiry" and
"investigation"-Difference between.
Natural Justice-Letter to the Chief Justice
of High Court. treated as writ petition-Death under suspicious
circumstances-Allegation of murder-High Court issuing direction lo enquire into
causes of death-No opportunity given to the State Police officers-Whether
violative of principles of Natural justice.
Delhi Special Police Establishment Act
1946-ss. 5 and 6-Whether s.6 applicable when Court gives direction to C.B.I to
conduct an investigation.
HEADNOTE:
The respondents addressed two letters to the
Chief Justice of the Calcutta High Court regarding mysterious death of two
young boys living in Barrackpore area near Calcutta alleging, inter alia, that
the local police was not conducting the investigation into the unnatural death
of the two boys fairly and properly and was trying to make it a case of suicide
and requested the High Court to order a thorough investigation into the
incident by an independent machinery which would command confidence and be
acceptable to the local police. A single Judge of the High Court, before whom
the letters were placed, treated the two letters as a formal petition and,
without giving notice directed issue of a rule to the State of West Bengal and
other authorities to show cause why a writ in the nature of mandamus may not be
issued directing investigation in accordance with law to be conducted over the
unnatural death of the two boys. In the meanwhile the Judge also appointed
Deputy Inspector General, Central Bureau of Investigation to make as inquiry
and report to the High Court as to how 257 the two boys met their death. The
appellants preferred an appeal against the said order before the Division Bench
which also confirmed the order of the Single Judge with the modification that
the DIG, CBI will act as a special officer. Hence this appeal.
The appellants contended (i) that the order
of the Single Judge was vitiated having been made in violation of rules of
natural justice; (ii) that the order was also bad as the learned Single Judge
had not cared to inform himself as to the stage of investigation and if there
was any lacuna therein and he proceeded to act on certain assumptions for which
there was no basis or foundation, (iii) that since there had been no breach of
duty, the court had no jurisdiction to interfere with the investigation which,
under the law, was vested in the police authorities and therefore the
directions given by the Single Judge and upheld with certain modifications by
the Division Bench were not proper.
Allowing the appeal,
HELD: 1. It is clear from the order passed by
the Learned Single Judge that no bearing was afforded to the State Government
or its officers when direction to appoint the special officer in whom power of
inquiry was to be vested was made. There was no basis at that stage to assume
that the contents of the letters as also the facts stated in the columns of the
newspaper had not been contradicted. It was the State Government or its
officers who alone could have authoritatively indicated the facts showing
whether the allegations contained in the letters or the newspaper report were
true and if so to what extent or how the investigation was being carried on and
what stage it had reached so as to enable the court to come to a prima facie
authorities were not discharging properly their statutory obligation to carry
out an investigation But when no notice was given to the State Government and
no opportunity was offered to them, it is difficult to see how an ex parte
order could be made on such an assumption. If the facts stated in the letter or
the writ petition are credible and there is such urgency that the ends of
justice might be defeated by not making an ex parte order or giving of notice
without ex parte order might lead to aggrevation of oppression or exploitation
or removal or elimination of evidence, the court would certainly be justified
in making an ex parte order. But in the instant case, there were no such
circumstances at all and the court could have very well issued notice to the
respondents and tried to find out whether there wag any necessity directing the
appointment of DIG, CBI to act as a Special officer and requiring the police
authorities of the State to extend all possible help as may be required by him.
[270C-H: 271A] (2) The appointment of a Special officer with a direction to
enquire into the commission of an offence can only be on the basis that there
has not been a proper investigation. There is a well defined hierarchical
administrative set up of the police in the State of West Benga1 as in all other
States and lo have created 3 new channel of inquiry or investigation is likely
to create an impression that everything is not well with the statutory agency
258 and it is likely to cast a stigma on the regular police hierarchy. In the
facts and circumstances of the instant case and the nature of the order made in
view, the direction to appoint a Special officer with powers to inquire should
not have been made until the appellants has been given a hearing and the court
had the papers of investigation laid before it for being prima facie satisfied
that the investigation had either not been proper or adequate. [271C- E] (3)
Under the Code of Criminal Procedure which lays down the procedure to be followed
when report of an offence is lodged with the police, the power to investigate
is vested in the police. The procedure laid down in the Code is clear and
definite. Investigation is a matter for the police under the scheme of the
Code. Judicial opinion seems to be settled and there are several authorities of
the Supreme Court where interference by the Court into police investigation has
not been approved. There is however.
residuary jurisdiction left in the court to
give directions to the investigating agency when it is satisfied that the
requirements of the law are not being complied with an investigation is not
being conducted properly or with due haste and promptitude. The court has to be
alive to the fact that the scheme of the law is that the investigation has been
entrusted to the police and it is ordinarily not subject to the normal
supervisory power of the court. But in the instant case, the material placed
before the court did not justify an exception to be made to the rule indicated
by the Supreme Court and the appointment of a Special officer was not called
for at this state. [262D; 270B; 278H; 279A-C] State of West Bengal v. S.N.
Basak [1983] 2 S C.R. 52 S.N. Sharma v. Bipin Kumar Tiwari & Ors.[1970] 3
S.C.R 946.
State of Bihar v J. A. C. Saldanha & Ors.
[1980] 2 S.C-R. 16 followed.
kings Emperor v. Khwaja Nazir Ahmed [1944]
L.R. 71 referred to.
Bhagwant Singh v. Commissioner of Police,
Delhi [1983] 3 S C.C. 344 held not applicable.
(4) 'Inquiry' and 'investigation' are
statutory terms defined in the Code. In the instant case whatever name the work
entrusted to the Special officer be called, there can be no dispute that he was
required to ascertain facts from the witnesses and documents, if any, in regard
to the death of the two boys. This process necessarily involved a fact finding
inquiry by ordinarily tapping the same sources as the investigating agency was
expected to contact. This, therefore, necessarily involved a duplicate
investigation.
In view of the fact that there were two
separate channels Placed in active charge of investigation to be conducted
contemporaneously, confusion was bound to occur and working of the two channels
at a time was likely to prejudice the proper investigation making the exposing
of the truth buried under mystery more difficult. Carrying this duplicate
process was not likely to serve the cause of justice nor help in achieving the
object for which it had been set up.
The Special officer was not to exercise the
power under s.5 of the Delhi Special Police Establishment Act 1946, and if be
wanted any real 259 assistance in the matter of investigation, it had to be
carried through the police officers of the State Administration. This was likely
to bring in futher confusion in as much as the witnesses were likely to be
contacted by the same police office on more than one occasion-once in the
course of investigation conducted by the police and again to meet the
requirements of the Special officer. We are sure that the High Court never
intended the cause of justice to be prejudiced and the serious attempt to find
out the truth to be aborted. [273D-F; H; 274A-C] (5) While section 6 of the Delhi
Special Police Establishment Act 1946 would require the consent of the Slate
Government before jurisdiction under s.5 of that Act is exercised by officer of
that establishment, when a direction is given by the court in an appropriate
case, consent envisaged under s.6 of the Act would not be a condition precedent
to compliance with the court's direction Section 6 of the Act does not apply
when the court C gives a direction to the C.B.I. to conduct an investigation.
In this view, the impugned order of the learned single judge and the appellate
decision of the Division Bench appointing DIG, CBI to inquire into the matter
would not be open to attack for want of sanction under s.6 of the Act. [269B-D]
(6) ln the instant case, the Court allowed the appeal and set aside the order
of appointment of the Special officer and observed that the investigation
carried out has not been quite satisfactory. However, in the facts and circumstances
of the case, there is no necessity to take away the investigation from the
hands of the State Police machinery which is the statutory agency. The court
pointed out that though there are occasions when death remains a mystery in
spite of the best of efforts, it hopes that with an honest attempt and since
efforts made, the truth would be found out and the police authorities of the
State would be in a position to give a creditable account of themselves.
The court also suggested that the Director
General of Police, West Bengal, will appoint a competent supervisory officer
from the higher ranks of the State police with expertise in investigation to
supervise the investigation in the present case. [279D; 282E-H]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.
570 of 1983.
From the Judgment and order dated 27the
September, 1983 of the Calcutta High Court in C.R. No. (W) of 1983 arising out
of original order Tender No. 1583 of 1983.
WITH
Petition for Special Leave to Appeal (Crl.) No. 2671 of 1983. From the Judgment
and order dated 27th September, 1983 of the Calcutta High Court in C.R. No. (W)
of 1983 arising out of original order Tender No. 1 583 of 1983.
260 Somnath Chatterjee, HK Puri, S. Ghosh and
VK Behl for the petitioners.
Ashok Sen, Shankar Das Banerjee, DN Das and
Shri Narain, for the respondents.
KG Bhagat, Additional Solicitor General. RN
Poddar Miss Halida Khatoon for the Union of India.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. The appeal is under Article 134 (a) with leave from the
Calcutta High Court and is directed against the judgment of a Division Bench of
that Court dated September 27, 1983. The Special Leave Petition is under
Article 136 of the Constitution and is also directed against the same decision.
Both these matters are thus connected and arise out of the incident relating to
the death of two young boys of Barrackpore area near Calcutta. This judgment of
ours will dispose of both the matters.
Two letters, one by one Sampat Lal,
respondent I in the criminal appeal and another by respondents l (a) to I (n),
both dated June 1, 1983, were received by the learned Acting Chief Justice of
the Calcutta High Court. The letter sent by Sampat Lal alleged that two young
boys by names Tirthankar Das Sharma and Sanjib Chatterjee, living in
Barrackpore area, were missing since the afternoon of March 2, 1983.
Information was given at the local police
station late at night on the same day and wide publicity that the two boys were
missing but no information about their whereabouts was received till April 5,
1983. On that day it transpired that dead bodies of two boys had been found
from the railway track near Pandua railway station and they had been disposed
of by the local police without taking any steps for their identification.
Verification of the photographs maintained by the Railway Police at Bandel and
the wearing apparel of the two boys kept at the police station clearly
indicated that the dead bodies were of the two missing boys. The letter alleged
that the parents of the two boys had approached several authorities including
the Chief Minister of the State. Without taking any serious notice of the
matter, the Chief Minister was alleged to have made a statement to the effect
even before completion of the investigation that it was a case of suicide.
From the A reports published in a Bengali
newspaper it appeared that the two boys had been murdered. The letter further
alleged that the local police had been threatening the parents of the deceased
and other people living in the locality. The local people were, therefore,
feeling insecure and had lost confidence in the administration. They wanted
that investigation should be conducted by an independent machinery which would
command confidence and be acceptable to the local people. They also asked for
adequate protection to be given to the residents of the area.
In the second letter similar allegations were
made but certain details not given in the first letter were given regarding the
incident C and the following relief was claimed:
"Hence on behalf of residents of
Barrackpore our humble prayer to the Honourable Chief Justice is that the
Government should instruct some neutral organisation like C.B.I., to
investigate in search of unnatural death and solve the mystery to satisfy the
people of this area and the soul of State. This is apparent from delay in
investigation, its incidents and in flow of publicity that when some neutral
active investigation the reason of such death or who is the murderer or what is
the real mystery cannot be known definitely. After C.B.I. Or some such
organisation con ducts the investigation, we the residents of Barrackpore
promise to help them with heart and soul. Our humble submission is that you may
kindly accept our requests and try to stop the police from this negligence in
investigation and also stop them from submitting motivated false informations
and also we submit that through neutral investigation the real mystery should
be exposed to our contention. In case the police or some persons have some kind
of motivation behind this the Honourable Court may take a role to set a
precedence by ordering investigation into that." (Translated from the
original letter in Bengali).
On June 6, 1983, the learned Acting Chief
Justice directed the letters to be treated as a writ petition and asked the
same to be placed before Borooah, J. On June 7, 1983, the matter appeared 262
before the learned judge. Mr. Ghosh appeared on behalf of the persons who had
written the letters. Mr. Shankar Das Banerjee appeared on behalf of Ananda
Bazar Patrika, a widely circulated Bengali daily from Calcutta, in two issues
of which dated May 12 and May 18, 1983 detailed reports about the incident on
the basis of investigation said to have been carried by a private detective
agency known as 'The Secret Eye'. Borooah, J. read the letters and the reports
in the two issues of the newspaper, heard Mr. Ghosh as also Mr. Shankar Das
Banerjee and observed, inter alia:
"When an unnatural death occurs or a
prima facie case of the commission of a cognizable offence is brought to the
notice of the police authorities, it is their duty under the Code of Criminal
Procedure to conduct an investigation and ascertain the cause of the death.
Reading the letters and the newspaper reports
which do not appear to have been contradicted by any authoritative statement
from the police authorities, I, in the interest of justice, treat the two
letters as formal petition under Article 226 of the Constitution after
dispensing with the necessary formalities .. " He ordered that a rule
should issue to the State of West Bengal and other State authorities to, show
cause why a writ in the nature of mandamus may not be issued directing
investigation in accordance with law to be conducted over the unnatural deaths
of Tirthankar Das Sharma and Sanjib Chatterjee. He also directed cause to be
shown as to why a direction may not be given for production of all the records
relating to investigation conducted till then. He further directed:
"Pending disposal of this rule, I direct
the Deputy Inspector General Bureau of Investigation, 13 Lindsay Street,
Calcutta-16 to cause an enquiry to be made and report to this Court by the 23rd
of June 1983 as to how the two boys met their death. The police authorities of
the State will extend all possible help as required by the Central Bureau of
Investigation, and the Ananda Bazar Patrika will also make available to the
Central Bureau the reports submitted to the newspaper by the Detective
Agency." Borooah, J. further directed the Superintendent of Police, 24 263
Pargans, to issue necessary instructions so that the proper protection A may be
given to the people of the locality of Barrackpore and threats would not be
meted out to them. He prohibited publications relating to the death of the two
boys in any newspaper within the State of West Bengal.
On June 9, 1983, an oral prayer was made on
behalf of the State of West Bengal for staying operation of the orders and on
the following day an appeal was preferred against the order of Borooah J. and
the appeal was placed before a Division Bench consisting of Mr. Justice Pyne
and Mr. Justice S. C. Sen. Grievance was made on behalf of the State of West
Bengal that Borooah, J. had made his order without giving any notice to it and
without finding out if the investigation conducted by the police authorities
under the law was not adequate, and as to whether the manner of investigation
was such that it required the Deputy Inspector General of the Central Bureau of
Investigation at Calcutta to be appointed to enquire into the incident. At the
appellate stage on behalf of the State Government materials were placed before
the Court in support of its contention that adequate investigation had been
undertaken as would be expected in the ordinary course over an incident of the
type under consideration. Long arguments were advanced before the Division
Bench and the two learned judges devoted considerable attention to the matter
and wrote out two separate and lengthy E judgments-Pyne, J. held that:
"I respectfully agree with the
observations made by the Supreme Court in the facts and circumstances of the
above case (Bhagwant Singh v. Commissioner of Police, Delhi, [1983] 3 S.C.C.
344). I am also of the view that in the facts and circumstances of the instant
case it would not be proper for me to speculate as to whether the unnatural
death of the two boys was caused by suicide or murder. I am, however, very much
concerned with the question whether the investigation into the cause of the
unnatural death of the two boys by the appellants is being conducted fairly and
properly and after taking all materials, evidence and circumstances into
consideration in accordance with law.. In the instant case the Deputy Inspector
General, Central Bureau of Investigation is not called upon to exercise any
power or to investigate into any 264 matter under Delhi Special Police
Establishment Act or any other statuts. In view of what has been stated herein before
and in the fact and circumstances of the case, I appoint Deputy Inspector
General, Central Bureau of Investigation as the Special officer in this case.
The Special officer will make the enquiry about the correctness of the facts,
allegations and inferences contained in the reports of 'Secret Eye' dated 8th
and 14th May, 1983, as well as those in the two letters of the respondents both
dated 1st June, 1983, copies whereof are Annexures 'A' and 'B' respectively to
the affidavit of Bappaditya Roy affirmed on 20th June, 1983 and in the reports
published in the two issues of Ananda Bazar Patrika dated May 12 and 18, 1983.
I, therefore, direct Deputy Inspector General, Central Bureau of Investigation
to make necessary enquiry along the line aforesaid. For the purpose of making
such enquiry and report Deputy Inspector General, Central Bureau of
investigation will be entitled to take into consideration fresh evidence, oral
or documentary, materials and statements, if any, offered to him. The report of
the Deputy Inspector General, Central Bureau of Investigation will be submitted
to the trial court within three weeks from date. The police authorities of the
State and the respondents will extend all possible help as required by. the
Deputy Inspector General, Central Bureau of Investigation in the matter of
enquiry.. " Sen, J. took note of the fact that no opportunity had been
given to the State and its officers by Borooah, J.
before he made the order dated June 7, 1983.
He also came to hold:
"In my opinion, in a case like this, an
interim order directing the CBI to make a report should not have been passed
without giving a hearing to the State Government. No case of urgency was made
out at any stage. In my opinion, an order of the magnitude of a CBI enquiry should
not have been passed without giving a hearing to the State Government."
Sen, J. took notice of the fact that allegations contained in the 265 letters
had not been supported by affidavit before the learned A single judge. He also
took notice of the fact that the materials said to have been obtained on
investigation by the detective agency had not been produced before the Division
Bench and no affidavit of any competent person had been filed. Only two
affidavits which came before the Division Bench were one by Sampat Lal and the
other from the law officer of the newspaper. He, therefore. concluded:
"Mr. Chatterjee is right in his
contention that not an iota of evidence has been brought out in the two
affidavits that have been filed and also the two newspaper reports on the basis
of which the interim .order was passed. CBI enquiry into a matter which is
already under investigation of the State police is a very serious step. There
must be very strong legal grounds for ordering such an enquiry." According
to Sen, J. the writ petition was not maintainable on the strength of the two
letters and the two newspaper reports. Though conclusions of Sen, J. were very
different from those of Pyne, J., yet he concluded by saying:
"Under the order proposed to be passed,
the CBI or any other agency of the Central Government has not been entrusted
with the job of investigation. It has been made clear that the DIG, CBI is
being appointed the Special officer and not the CBI. The Special officer will
be at liberty to appoint his own staff for the purpose of investigation. The
costs, charges and expenses will be borne by the respondents. There is no
question of employing the men and resources of the CBI for the purpose of
carrying out the investigation. The officers of the CBI are not being entrusted
with the police power or the police function in the State of West Bengal in any
manner whatever." G "The DIG, CBI has already indicated his
unwillingness to carry out the investigation as directed by the learned trial
judge. Nobody can be compelled to be a Special officer or a Receiver against
his free will and volition. The DIG, CBI is not obliged to act as a Special
officer of the Court 266 and if he is still unwilling to carry out the duties
of a Special officer. he is free to decline it. Specific provisions have been
made in the order proposed. The parties have been directed to mention the
matter to the Court if the DIG, CBI declines to work as Special officer. In
that event, some other Special officer will have to be appointed. I agree to
the order that is now sought to be passed by my learned brother." The
Division Bench consisting of Pyne and Sen, JJ.
granted leave to appeal to this Court and the
criminal appeal has in due course been filed by the State of West Bengal.
As already pointed out, the special leave
petition under Article l 36 of the Constitution at the instance of the State
covers almost the same field as the criminal appeal and, therefore, it had been
tagged to be heard alongwith the appeal. It is not necessary to refer to any
particular facts in regard to that special leave petition.
Though Sen, J. had indicated doubts about the
maintainability of the writ petition on the basis of letters sent to the Court,
Mr. Chatterjee fairly conceded before us that he would not dispute the position
that it is open to a High Court to entertain grievances received through postal
communication and register the same as a writ petition. Mr. Chatterjee,
however, suggested and we think that there is great force in, the submission,
that when such information is laid before the Court, care and caution should be
adopted to ensure that the process of the Court is not abused or misused. The
Court should be prima facie satisfied that the information laid before the
Court is of such a nature that it calls for examination and this prima facie
satisfaction may be derived from the credentials of the informant, namely, what
is the character or standing of the informant or from the nature of the
information given by him namely, whether it is vague and indefinite or contains
specific allegations as a result of survey or investigation or from the gravity
or seriousness of the complaint set out in the information or from any other
circumstance or circumstances appearing from the communication addressed to the
Court or to a judge of the Court on behalf of the Court. Where the Court is so
satisfied prima facie, the Court may not insist on the filing of an affidavit
and may proceed to investigate into the allegations with a view to meting out
justice to the persons on whose behalf the communication is 267 addressed. This
would be so particularly where to insist upon an A affidavit at the initial
stage may lead to perpetration of injustice or may give rise to a situation
where from a practical point of view the doors of justice would be closed to
the poor and the disadvantaged. We may, however, point out that where the Court
is not so prima facie satisfied,the Court may before issuing notice to the
opposite party, ask the lawyer appointed amicus curiae to contact the informant
and file an affidavit or a regular writ petition. These are the different
procedures which have been adopted by this Court while dealing with
communications complaining of violation of the rights of the deprived and
vulnerable sections of the community. Since Mr. Chatterjee, has not disputed
the validity of the practice of registering of writ petitions on the basis of
letters and/or information received by the Court, we arc not called upon to
examine this aspect of the matter any longer.
Mr. Chatterjee appearing in support of the
appeal maintained that under the Code of Criminal Procedure which lays down the
statutory procedure to be followed when report of an offence is lodged with the
police, the power to investigate is vested in the police. Chapter XII of the
Code of Criminal Procedure ('Code' for short) contains provisions regarding the
lodging of information with the police as also their power to investigate. It
is maintained that as soon as such information was lodged with the police,
action as would be proper in the facts of the case, was taken. According to Mr.
Chatterjee, all possible steps that could be taken were taken without lapse of
any time, Borooah, J. did not call upon the State to produce the papers
relating to investigation and without informing himself as to what action had
been taken on the report lodged with the police, proceeded to make an interim
order which had far reaching effect. According to learned counsel, the Court
had no jurisdiction to interfere with the investigation which under the law was
vested in the police authorities had so long as there had been no breach of
duty, the Court had no power to intervene particularly when the matter was
still in the hands of the investigating agency. No opportunity was given to the
local police, or for the matter of that, to the State Government, to produce
the records of investigation. Thus, without informing himself of the actual
stage and position of the investigation already undertaken by the local police,
the learned single judge proceeded to act on certain assumption for which there
was no basis or foundation. It has been the submission of H 268 Mr. Chatterjee
before us that the State Government was entitled to notice before the impugned
direction on June 7, 1983, was made and the real effect of the direction being
to disturb the investigation by introducing a new channel of inquiry, the rules
of natural justice required that the State and the police authorities in whom
vested the statutory jurisdiction to investigate should have been provided a
hearing. Mr. Chatterjee also canvassed that between 'inquiry' and
'investigation' there was a clear distinction under the Code and while
investigation referred to the procedure of collection of evidence conducted by
a police officer or by any other person authorised by a Magistrate in that
behalf, 'inquiry' referred to inquiry other than a trial conducted by a
Magistrate or a Court. The main distinction, therefore, was that inquiry was a
magisterial process while investigation was the process of collection of
evidence through the police machinery and the net effect of the impugned order
of the learned single judge was actually the setting up of an investigating
agency.
Though in the order there was reference to
appointment of the DIG, CBI as a Special officer, what he was to carry out was
referred to as an inquiry. Continuance of investigation through two separate
machineries-one by the agency of the CBI and the other by the normal
investigating agency of the police was bound to create confusion and prejudice
the investigation into the truth of the allegations.
Mr. Ashoke Sen appeared for the respondents
who had written the letters to the High Court while Mr. Shankar Das Banerjee
represented the Ananda Bazar Patrika. Learned Additional Solicitor General
appeared before us on behalf of the Union Government. Mr. Sen and Mr. Banerjee
refuted the contentions advanced on behalf of the appellants by Mr. Chatterjee.
Before we proceed to closely examine the
submissions advanced by counsel for the parties, it is proper to clear the
ground and formulate the exact points which require examination. It is
certainly not for this Court at the present stage to examine and come to a
conclusion as to whether this was a case of suicide or murder. If as a result
of investigation, evidence is gathered and a trial takes place the Sessions
Judge will decide that controversy and it may be that in due course such
controversy may be canvassed before this Court in some form or the other. It
would, therefore, be wholly inappropriate at this stage to enter such a
question. One of the controversies which loomed large before the Division Bench
269 Of the Calcutta High Court was as to the appointment of the DIG, CBI to
inquire into the matter in the absence of proper consent of the State
Government. That question has not been recanvassed before us and it has been
accepted by counsel for all the parties including the Additional Solicitor
General that while section 6 of the Delhi Special Police Establishment Act,
1916 ('Act' for short) would require the consent of the State Government before
jurisdiction under s. 5 of that Act is exercised by officers of that
establishment, when a direction is given by the Court in an appropriate case,
consent envisaged under s. 6 of the Act would not be a condition precedent to
compliance with the Court's direction. In our considered opinion, s. 6 of the
Act does not apply when the Court gives a direction to the CBI to conduct an
investigation and counsel for the parties rightly did not dispute this
position. In this view, the impugned order of the learned single judge and the
appellate decision of the Division Bench appointing DIG, CBI to inquire into
the matter would not be open to attack for want of sanction under s. 6 of the
Act.
Four questions appear to survive for
examination:
(1) Effect of violation of the Rules of
Natural Justice on the order:- This can be sub-divided into two aspects:
(i) Whether the order of the single judge is
vitiated having been made in violation of rules of natural justice ? (ii)
Whether that order is also bad as the learned single judge had not cared to
inform himself as to the stage of investigation and if there was any lacuna
therein ? (2) What exactly is the role meant to be played by the Special officer
and whether the inquiry contemplated to be carried on by him would affect the
investigation which was being conducted by the local police authorities? (3) Is
it open to the Court to interfere with the investigation which is still
proceeding and what are the circumstances in which such interference, if any,
is possible, and the guidelines to be followed in such matter? 270 (4) Whether
in the facts and circumstances of this case the direction given by the single
judge and upheld with certain modifications by the Division Bench was proper?
As already point out, power vests in the police authorities of the State
Government for conducting investigation into allegations relating to an
offence.
However, the stand taken by the respondents
was that the State Government and the police authorities had not acted properly
and the investigation was not being conducted as required by law. As appears
from the order of June 7, 1983, Borooah, J. directed notice to issue to the
State of West Bengal as also to the other authorities concerned to show cause
against the issue of a writ. No hearing was, however, afforded to the State
Government or its officers when direction to appoint the Special officer in
whom power of inquiry was to be vested, was made. There could be no scope for
appointing a special officer unless the statutory channel of investigation was
found not to have functioned properly. There was no basis at that stage to
assume that the contents of the letters as also the facts stated in the columns
of the newspaper had not been contradicted It was the State Government or its
officers who alone could have authoritatively indicated the facts showing
whether the allegations contained in the letters or the newspaper reports were
true and if so, to what extent, or how the investigation was being carried on
and what stage it had reached so as to enable the Court to come to a prima
facie conclusion that the State Government and the police authorities were not
discharging properly their statutory obligation to carry out an investigation.
But when no notice was given to the State Government and no opportunity was
offered to them, it is difficult to see how an ex-parte order could be made on
such an assumption When we say this, we do not wish to be understood to say
that in no case an ex-parte order can be made by the Court If the faces stated
in the letter or the writ petition are credible and there is such urgency that
the ends of justice might be defeated by not making an ex - parte order or
giving of notice without ex-parte order might lead to aggravation of oppression
or exploitation or removal or elimination of evidence, the Court would
certainly be justified in making an ex-parte order. But here there were no such
circumstances at all and the Court could have very well issued notice to the
Respondents and tried to find out whether there was 271 any necessity for
directing the appointment of DIG, CBI to act as A a Special officer and
requiring the police authorities of the State to extend all possible help as
may be required by him. We are of the view that Borooah, J.
should have issued notice to the State
Government, afforded a reasonable opportunity to it and its officers who were
already in session of the investigation to make a report in regard to the
action taken by them and after making an overall judicial assessment of the
situation, the need for appointing a Special officer should have been
considered.
The appointment of a Special officer with a
direction to inquire into the commission of an offence can only be on the basis
that there has not been a proper investigation.
There is a well defined hierarchical
administrative set up of the police in the State of West Bengal as in all other
States and to have created a new channel of inquiry or investigation is likely
to create an impression that everything is not well with the statutory agency
and it is likely to cast a stigma on the regular policy hierarchy. We are
inclined . to agree with Mr. Chatterjee for the appellant that in the facts and
circumstances of the case and keeping the nature of the order made in view, the
direction to appoint a Special officer with powers to inquire should not have
been made until the appellants had been given a hearing and the Court had the
papers of investigation laid before it for being prima facie satisfied that the
investigation had either not been proper or adequate.
The procedure laid down in the Code is clear
and definite. It may be that in a given case the Court on being prima facie
satisfied from circumstances appearing from the record that the statutory
agency has not worked in an effective way or the circumstances are such that it
may reasonably be presumed or inferred that the statutory agency may not be
able to discharge its function of investigation fairly and impartially might
reasonably consider supplementing the procedure, but as we have already
indicated, there was no adequate material on the record for the learned single
G judge to be satisfied that the facts warranted appointment of a Special
officer.
Borooah, J. did not describe the DIG, CBI as
a Special officer. It is in the judgment of Pyne, J. that we find reference to
this term. In his judgment Pyne, J. noted;
272 "In view of what has been stated
here in before and in the facts and circumstances of the case, I appoint Deputy
Inspector General, Central Bureau of Investigation as the Special officer in
this case." (underlining is by us) Having thus appointed him as a Special
officer, he proceeded to indicate that the Special officer will make an enquiry
about the correctness of the facts, allegations and inferences contained in the
reports of 'Secret Eye' dated the 8th and the 14th May 1983 as well as those in
the two letters of the respondents both dated 1 June, 1983, copies whereof are
Annexures A' and 'B' respectively to the affidavit of Bappaditya Roy affirmed
on 20th June, 1983, and in the reports published in the two issues of Ananda
Bazar Patrika dated May 12 and 18, 1983. Sen, J. in his separate judgment made
it clear that under the order proposed to be passed, the CBI or other agency of
the Central Government was not being entrusted with the job of investigation.
Investigation into the allegations had
already been undertaken and the papers which have been produced before us
indicate that the first information lodged with the police was a missing report
dated March 21, 1983. Even when such a report had been given contemporaneous
steps were taken to trace the two missing boys. the dead bodies were recovered
from the railway track on the following day and were independently dealt with
as the link between the information about missing of the two boys and the two
dead bodies had not been established at that point of time. Autopsy was
conducted in due course and as the dead bodies had not been claimed by any
relation, the same had been duly disposed of through the contractor for
unclaimed bodies. For the first time, on 5th and 6th April, 1983 the link was
established when the relatives of the two deceased boys went two Bandel GRPS
and identified the clothes kept at the police station to be those that had been
worn by the missing boys, and the photographs of the dead boys placed the
matter beyond dispute that the two young boys whose dead bodies had been
recovered from the railway track and which had been cremated were the missing
boys. The parents of the boys met the Chief Minister on April 8, 1983. The
Chief Minister issued directions to the police for proper investigation.
273 It is stated that on April 14, 1983, the
Chief Minister made a statement on the floor of the Assembly wherein he had
Indicated that the incident appeared to be a case of suicide and not murder.
This statement of the Chief Minister was subjected to a lot of criticism in the
columns of the newspapers as also in the body of the letters under reference.
In course of hearing Mr. Chatterjee produced before us the official text of the
Chief Minister's statement. It appears that he had only said that the
Investigation carried on up to that stage appeared to indicate that it was a
case of a suicide. It may not be out of place to point out that the Doctor
conducting post-mortem examination had opined that it could be a case of
suicide.
Obviously the statement on the floor of the
Legislative Assembly was on the basis of that medical report which was apparently
available to the Chief Minister.
'Inquiry' and 'investigation' are statutory
terms defined in the Code. We were told in the course of hearing by counsel for
the parties that under the West Bengal Police Manual the terms have different
meanings given to them. It is not necessary for our purpose to go into the
question any further. By whatever name the work entrusted to the Special
officer be called, there can be no dispute that he was required to ascertain
facts from the witnesses and documents, if any, in regard to the death of the
two boys.
This process necessarily involved a fact
finding inquiry by ordinarily tapping the same sources as the investigating
agency was expected to contract. This, therefore, necessarily involved a
duplicate investigation.
The police had already commenced
investigation into the allegations. Under the patronage of the Ananda Bazar
Patrika the private defective agency had also started investigating into the
matter and as would appear from the two reports in the Ananda Bazar Patrika and
the materials now placed on the records of the High Court and this Court, some
investigation had definitely been carried out by the State agency. This meant
that three separate channels were put into operation almost contemporaneously.
Over the activity of the private detective agency the Court would ordinarily
have no jurisdiction to exercise but in view of the fact that there were two
separate channels placed in active charge of investigation to be conducted
contemporaneously, confusion was bound to occur and working of the two channels
at a time was 274 likely to prejudice the proper investigation making the
exposing of the truth buried under mystery more difficult.
Carrying this duplicate process, in our
opinion, was not likely to serve the cause of justice nor help in achieving the
object for which it had been set up. The Special officer was not to exercise
the powers under s. 5 of the Act and if he wanted any real assistance in the
matter of investigation, it had to be carried through the police officers of
the State administration. This was likely to bring in further confusion
inasmuch as the witnesses were likely to be contacted by the same police
officer on more than one occasion-once in the course of investigation conducted
by the police and again to meet the requirements of the Special officer. We are
sure that the High Court never intended the cause of justice to be prejudiced
and the serious attempt to find out the truth to be aborted.
The next aspect to be considered is whether
it is open to the Court to interfere with the investigation which is still
proceeding. It has been conceded before us and rightly in our view, that
investigation is a matter for the police under the scheme of the Code. Judicial
opinion seems to be settled and we have several authorities of this Court where
interference by the Court into police investigation has not been approved. This
question arose before a Division Bench of three judges in an appeal carried by
the same State of West Bengal in the case of State of West Bengal v. S. N. Basak,(1)
Kapoor, J. quoted with approval the observations of the Judicial Committee in
the case of king Emperor v. Khwaja Nazir Ahmad,(2) where the Privy Council
observed:
"The functions of the judiciary and the
police are complementary, not overlapping, and the combination of individual
liberty with a due observance of law and order is only to be obtained by
leaving each to exercise its own function, always, of course, subject to the
right of the Court to intervene in an appropriate case when moved under s. 491
of the Criminal Procedure Code to give directions in the nature of habeas
corpus. In such a case as the present, however, the Court's functions being
when (1) [1963] 2 S.C.R. 52.
(2) [1944] L.R. 71.
275 a charge is preferred before it, and not
until then. It has A sometimes been thought that s. 561A (now s. 482) has given
increased powers to the Court which it did not possess before that section was
enacted. But this is not so, the section gives no new powers, it only provides
that those which the court already inherently possesses shall be preserved and
is inserted as their Lordships think, lest it , should be considered that the
only powers possessed by the Court are those expressly conferred by the
Criminal Procedure Code and that no inherent powers had survived the passing of
that Act." The Court added: "With this interpretation, which has been
put on the statutory duties and powers of the police and of the powers of the
Court, we are in accord." on a finding that the High Court had exceeded
jurisdiction in interfering with the investigation, the appeal of the State of
West Bengal was allowed.
The question again arose in the case of S. N.
Sharma v. Bipin Kumar Tiwari & Ors.(8) on this occasion the Court was
called upon to examine the scope of magisterial power. After referring to the
relevant sections, the Court concluded that:
"The scheme of these sections, thus,
clearly is that the power of the police to investigate any cognizable offence
is uncontrolled by the Magistrate, and it is only in cases where the police
decide not to investigate the case that the Magistrate can intervene and either
direct an investigation or, in the alternative, himself proceed or depute a
Magistrate subordinate to him to proceed to enquire into the case The power of
the police to investigate has been made independent of any control by the
Magistrate." Then came the case of State of Bihar v. J.A.C. Saldanha &
ors.(2) In a peculiar set of fact this Court was again called upon to adjudacte
upon the scope of judicial interference over investigation. Speaking on this
aspect of the matter, Desai,J. spoke for the Division Bench thus:
(1) [1970] 3 S.C.R. 946.
(2) [1980] 2 S.C.R. 1 6.
276 "There is a clear cut and well
demarcated sphere of activity in the field of crime detection and crime
punishment. Investigation of an offence is the field exclusively reserved for
the executive through the police department, the superintendence over which
vests in the State Government. The executive which is charged with a duty to
keep vigilance over law and order situation is obliged to prevent crime and if
an offence is alleged to have been committed it is its bounden duty to
investigate into the l offence and bring the offender to book. Once it
investigates and finds an offence having been committed it is its duty to
collect evidence for the purpose of proving the offence for the purpose of
proving the offence. Once that is completed and the investigating officer
submits report to the Court requesting the Court to take cognizance of the
offence under s. 190 of the Code its duty comes to an end. On a cognizance of
the offence being taken by the Court the police function of investigation comes
to an end subject to the provision contained in s. 173(8), there commences the
adjudicatory function of the judiciary to determine whether an offence has been
committed and if so, whether by the person or persons charged with the crime by
the police in its report to the Court, and to award adequate punishment
according to. law for the offence proved to the satisfaction of the Court.
There is thus a well defined and well demarcated function in field or crime
detection and its subsequent adjucation between the police and the
Magistrate." The observation of the Privy Council which we have already
extracted were again quoted with approval, Desai, J. adding:
"This view of the Judicial Committee
clearly demarcates the functions of the executive and the judiciary in the
field of detection of crime and its subsequent trial and it would appear that
the power of the police to investigate into a cognizable offence is ordinarily
not be interfered with by the judiciary." (underlining ours) This seems to
have been the well accepted judicial opinion on 277 the subject. It is
appropriate at this stage to refer to a later decision of this Court which has
been relied upon by the Division Bench of the High Court, being the case of
Bhagwat Singh v. Commissioner of Police, Delhi.(l) That case arose out of what
is now being described as the notorious bride burning incidents. Investigation
had come to an end and a conclusion of the case being one of suicide had been
reached. At this stage the Minister of State of Home Affairs in the Government
of India (the case related to the Union Territory of Delhi) had taken a
decision to entrust the investigation again to the C.B.I. A writ petition was
filed before this Court making allegations against the police authorities with
reference to the investigation. The conclusion of the investigating agency that
it was a case of suicide was challenged. This Court clearly indicated:
"It is not possible in this case, nor
indeed would it be right for us to do so, to enter into the question whether
Gurinder Kaur committed suicide or was murdered. That is a matter which is properly
involved in the trial of a criminal charge by a court possessing jurisdiction.
We are concerned here only with an examination of the question whether, after
being informed of Gurinder Kaur's death, the police authorities conducted
themselves as law and justice required of them." The Court after dealing
with the material placed before it, came to the conclusion:
"Two inferences follow irresistibly from
the material before us. One is that the investigation by the police following
the occurrence was desultory and lackadaisical, and showed want of appreciation
of the emergent need to get at the truth of the case.. The other inference
which disturbs us is that the entries in the police case diary (set forth in
the annexure to the counter-affidavit on the record) do not a appear to have
been entered with the scrupulous completeness and efficiency which the law
requires of such a document.
The haphazard maintenance of a document of
that (1) [1983] 3 S.C.C. 344.
278 status not only does no credit to those responsible
for maintaining it but defeats the very purpose for which it is required to be
maintained. We think it to be of the utmost importance that the entries in a
police case diary should be made with promptness, in sufficient detail,
mentioning all significant facts, in careful chronological order and with
complete objectivity..' The Court concluded by observing:
"We have referred to some of the
important features of the case. We have done so not for the purpose of
determining whether the girl was murdered or had committed suicide, but solely
with the object of drawing attention to the manner in which the investigation
of the case was conducted. Disappointing as it may seem to those who have
desired the institution of criminal action on the basis that a crime has been
committed, we do not think that on the material before us we can go that far.
The investigation of the case was transferred from the police administration of
Delhi to the Central Bureau of Investigation at the instance, we understand, of
the petitioner. We hope and trust that this investigation has been completed.
If not we would request the Central Bureau of Investigation to complete the
investigation within three months from today and take such action as may be
warranted by the result of the investigation. " Nothing has been said in
this decision which runs counter to the well settled proposition laid down by
the Judicial Committee of the Privy Council and approved on three occasions by
this Court.
The investigation in the present case is
still pending as we were told at the Bar. It is quite likely that someday, and
we hope and trust that there would be no further delay, the Court of competent
jurisdiction would be in seisin of the matter and would be called upon to
decide whether it was a case of murder or suicide. We have, therefore, thought
it proper exercise of discretion not to enter into the facts and express any
opinion one way or the other so as to prejudice the trial that might take
place. It is sufficient to indicate that there is residuary jurisdiction left
in the Court to give directions 279 to the investigating agency when it is
satisfied that the requirements A of the law are not being complied with an
investigation is not being conducted properly or with due haste and promptitude.
The Court has to be alive to the fact that the scheme of the law is that the
investigation has been entrusted to the police and it is ordinarily not subjeci
to the normal supervisory power of the Court. We are inclined, on the facts of
the case as placed before us, to take the view that the materials placed before
the Court did not justify an exception to be made to the rule indicated by this
Court and the appointment of a Special officer was not called for at this
stage.
What then should be the nature of the order
to be made in the case, is the next aspect for consideration. On the conclusion
which we have indicated above, the appeal has to be allowed and the order of
appointment of the Special officer has to be set aside.
Certain observations to our mind are
appropriate and called for regarding further conduct of the investigation by
the police authorities. We must indicate also that the investigation carried
out has not been quite satisfactory.
As already pointed out, the Chief Minister
had very appropriately ordered that a thorough and careful investigation should
be made into the unfortunate death of Tirthankar and Sanjeeb. Papers were
produced before us at time of hearing which indicated. that pursuant to the
orders of the Chief Minister, the Home Secretary had addressed letters to the
top police officers conveying the serious concern of the Chief Minister as also
his direction that a thorough and proper investigation should be taken up. From
the materials placed before us, we have a feeling that in the conduct of
investigation the police authorities have been more concerned with trying to
establish that the reports furnished by Secret Eye as appearing in the issues
of the Ananda Bazar Patrika were not based on correct materials and that proper
conclusions had not been drawn rather than into carrying on an intensive
investigation in an objective manner. It further appears that as the police
authorities during their investigation could not find any clue to establish the
kidnapping of the two boys, they formed a tentative opinion that the two boys
had committed suicide. This was based mere upon suspicion than upon any clue
obtained during investigation. Once having formed that opinion, it appears 280
from the materials produced before us that they laboured to justify the same.
The facts and circumstances leave an impression in our mind that the
investigation was channelised for collecting materials to support that view
only.
It is indeed unfortunate that in spite of the
missing report of the two boys having been properly lodged with the appropriate
police authorities and the fact that the two boys were missing have been
sufficiently publicised as ordinarily done, the bodies of the two boys were
allowed to be cremated even before an attempt for identification had been made.
There is some material in the records of investigation indicating that two
railway tickets from Barrackpore to Pandua had been found in possession of the
two dead boys and for non-seizure of those two tickets the Assistant Sub-Inspector
incharge had actually been suspended. It is indeed difficult to understand why
the Assistant Sub-Inspector should not have seized the two tickets if they were
found on the dead bodies of the two boys, even if he felt it was a case of
suicide. Assuming that this fact of recovery of two tickets from the dead
bodies of the two young boys was true, a clue was available than that two boys
had travelled from Barrackpore and when this link through the railway tickets
was available, it is incomprehensive why the police officers failed to contact
the police authorities at Barrack pore. If that had been done, there would have
been a possibility of the link being established. particularly when the missing
report was available and the investigation of the case could have taken a
different turn.
It is necessary that the investigating agency
must disabuse its mind of the tentative conclusion that death was suicide. Our
saying so does not mean that after a proper investigation they may not reach
the same conclusion. All that we intend to point out is that conclusion should
not have been the basis upon which the a investigation should have proceeded.
Nor had the stage come to draw that conclusion without further investigation.
There are aspects which militate against the theory of suicide. Normally one
would not commit suide unless there are strong and compelling reasons for it.
Thus, ordinarily there has to be a very pressing motive behind every case of
suicide.
Sufficient material to prima facie establish
the existence of such a motive has not yet been 281 brought on the record of
investigation. Both the deceased boys were teenagers. Tirthankar has been
pictured as a bright boy good at his studies and appeared to be responsive in
nature-took active interest in various fields of life appropriate for his age.
The picture of Tirthankar as a disappointed and frustrated lover is again not
supported by much evidence. The reactions of human mind have no set. form and
it may be that Tirthankar was an unusual boy full of sentiments and could have
acted in an unusual manner. But that cannot be a conclusion drawn either on
suspicion or on materials which do not readily fit into that theory. Even if
the view of the investigating agency in regard to Tirthankar's motive is
accepted, there does not appear to be any motive at all so far as his associate
is concerned, except that as a loyal friend he was prepared to act the way
Tirthankar went. For Sanjeeb to have chosen to commit suicide the material
collected till now seems to be very weak. There have been rare instances where
loyalty has known no limitations but there is no justify material to credit
Sanjeeb as possessing such a rare quality.
If suicide had to be committed it did not
require the two boys to travel to such a distance and die at an unknown place
on the railway track. The place where the dead bodies were found was not indeed
very lonely and the apprehension of being detected before the attempt to commit
suicide would be successful could not be eliminated. The two boys were sufficiently
grown up to be credited with logical behaviour.
There has been a lot of criticism and
explanation advanced before us relating to the mode of travelling to reach
Pandua. Some railway tickets were sold for Pandua and there is conclusion as to
whether the sale related to two or 2 tickets. The material relating to the time
of sale is also not very clear. If proper investigation is made and further
attention is devoted, it is quite likely that more material would come to light
on the basis of which one or the other of the competing explanations for the
death can find credibility and the investigation can then proceed in the right
direction.
There is another aspect to which we must
immediately turn. Affidavits and other materials were placed before us
regarding the investigation-both by the private agency, namely, Secret Eye, and
the statutory channel. The language used by the top police offers 282 in the
official reports is indeed unfortunate. They have expressed themselves not only
in intemperate and improper language but have even gone to the extent of being
abusive in their approach. The language used in the reply of Shri Debabrat
Dhar, Director of Secret Eye to the report is equally bad. The investigation
conducted by the private agency as also official channel was intended to find
out the truth. While both these agencies were-or were required-to devote their
entire attention in unearthing the truth, they should not have got themselves
entangled in a battle of words. We indicate our strong disapproval of the
attitude adopted by both.
Public mind appears to have been greatly
shaken and agitated on account of the mysterious death of the two boys.
This is an event over which the people of the
State are justifiably concerned. They do reasonably expect the police
authorities to concentrate their full attention and by using the expertise at
their command to unearth the mystery and proceed on the basis of the truth
discovered by them. It is, therefore, necessary that greater candour should be
exhibited and the investigating agency should with an open mind, collect all
the material available and then only eliminate that which has to be discarded
and retain the rest to be used for their 15 purpose. We are alive to the
position that there are occasions when death remains a mystery in spite of the
best of efforts. But we hope and trust that with an honest attempt and sincere
efforts made, the truth would be found out and the police authorities of the
State would be in a position to give a creditable account of themselves.
We do not think there is any necessity to
take away the investigation from the hands of the State police machinery which
is the statutory agency. . We would, however, suggest that the Director General
of Police, West Bengal, will appoint a competent supervisory officer from the
higher ranks of the State police with expertise in investigation to supervise
the investigation in the present case. The police authorities will, we hope,
avail of any credible/material collected by Secret Eye, if such material is
made available to the police authorities. We hope and trust that a determined
effort would be made by the State Government and its Police authorities to get
at the truth and in the event of this case appearing 283 to be a case of
murder, the murderer would be proceeded against the A dealt with according to
law. We are sure that the police authorities would take it as a matter of
challenge, rise to the occasion and by their performance, justify their stand
in these proceedings that they were competent to investigate and there was no
necessity of the CBI being called in, as was done by the High Court.
In view of what we have decided, no orders
are necessary in the connected special leave petition.
M.L.A. Appeal allowed.
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