Calcutta High Court (Appellete Side)
Chandana Roy vs The State Of West Bengal & Ors on 11 July, 2019 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Before:- THE HON’BLE JUSTICE RAJASEKHAR MANTHA W.P. No. 30188 (W) of 2013 CHANDANA ROY VERSUS THE STATE OF WEST BENGAL & ORS. For the Petitioner : Mr. Ashok Kumar Banerjee, Advocate Mr. Bhaskar Prosad Banerjee, Advocate Mr. Sandip Bhattacharya, Advocate Mr. Sourav Chatterjee, Advocate Mr. Parashar Baidya, Advocate Mr. Dipta Banerjee, Advocate For the State : Mr. Kishor Dutta, Ld. Advocate General. Mr. Sakhya Sen, Advocate Mr. Sourav Chatterjee, Advocate Mr. Amrita Lal Chatterjee, Advocate Hearing concluded on : 28/06/2019 Judgment on : 11/07/2019 2 Rajasekhar Mantha, J.:- 1. The writ petitioner is the mother of one Koushik Roy who died on 26th September 2009. A case unnatural death was lodged with the Burdwan Police Station and investigation was started. A final report came to be filed before the ACJM concerned declaring that the death of Koushik Roy was a result of a Road Traffic Accident. The petitioner was not satisfied with the manner of investigation and conclusion arrived at by the Burdwan Police and filed the instant writ petition.
2. Upon receiving the report as directed to be filed a Co-ordinate Bench of this Court in order dated 13th Nov, 2013 (Sanjib Banerjee, J.) found the police investigation to be perfunctory and directed the CID West Bengal to take over and conduct the investigation.
3. The CID West Bengal filed a report on 12th March, 2014 parroting the report of the Burdwan Police and concluding that the death of Koushik Roy occurred as a result of a Road Traffic Accident. Strangely the CID filed the report under Section 174 of the Cr.P.C. instead of the provisions of Section 173, as directed by the Co-ordinate Bench in the order dated 13.11.2013.
4. The matter was taken up again by another Co-ordinate Bench of this Court (Debangshu Basak, J.), who by order dated 10th July, 2014, inter alia held as follows:-
“The conduct of the Investigating Officer, Criminal Investigation Department entrusted with the investigation of the case at hand left lot to be desired. The Criminal Investigation
3 Department mis-interpreted the order dated November 13, 2013. The order dated November 13, 2013 directed an investigation into a crime by the Criminal Investigation Department. The Investigating Officer went ahead with an enquiry under Section 174 of the Code of Criminal Procedure in spite of a previous report under Section 174 of the Code of Criminal Procedure being on record. The conduct of the Investigating Officer was baffling to say the least.” (Emphasis added) 5. From the above abundantly clear that the investigation even by the CID, West Bengal was casual and an attempt to approve the investigation by the Burdwan Police and to undermine the orders of this Court and the writ petition. The CID made no attempt to conduct any independent investigation or comply with orders of this Court. It is clear from the writ petition and order passed thereunder that the petitioners were alleging murder of their son and not a Road Accident and orders were passed by this Court to investigate a homicide. The said Co-ordinate Bench had directed in the said order dated 10th July, 2014, that the investigation was to be conducted by an officer of a higher rank than the said Investigating Officer and the SP CID was directed to file a report within four weeks thereafter.
6. The Inspector CID filed a second report on 24th August, 2014 directly before the Chief Judicial Magistrate at Burdwan as prepared by an Inspector of the Burdwan CID West Bengal. This was once again in violation of the order of Court dated 10th July, 2014, which directed the SP CID West Bengal to file such report and that too before this Court.
7. On 16th November, 2018, when the State was not represented, a Co-

ordinate Bench of this Court issued a show cause as to why the
4 investigation into the matter should not be handed over to the CBI, similar to an investigation into the unnatural death of a close friend of the deceased Koushik Roy, directed by order dated 9th November, 2017 passed in W.P. 11590 (W) of 2013. A 3rd report dated 28th November, 2018 was also filed by the CID on the 30th November, 2018 when the matter was taken by another Co-ordinate Bench of this Court.
8. The CID’s version similar to the Burdwan Police is that Koushik Roy, 18 years age and his friend Sukesh Sarkar went to visit Durga Puja idols on a motor cycle and met with an accident at or about 1:00 pm on 26th September, 2009.The accident is stated to have occurred when Koushik Roy tried to free his entangled trousers from the tyres of the motor cycle, lost control and hit a divider on the National Highway on Delhi Road near Burdwan. In the first report of the CID it was stated that the pillion rider Sukesh took Koushik Roy to CAMRI Hospital near Burdwan where he was admitted into the emergency ward. In view of the seriousness of the injuries he was subsequently shifted to Burdwan Medical College Hospital. There are two versions that have an emerged from the reports and documents filed by the State police and the CID.

One that Sukesh took Koushik to the CAMRI hospital and another that local people brought him to the hospital.
9. It is equally surprising to note that CAMRI Hospital has stated in a letter dated 10th July, 2014 that no such admission took place and they do not have any record of Koushik having been brought in for treatment. It is equally intriguing to note that Sukesh, the pillion rider
5 on the same bike who also suffered injuries could physically lift Koushik Roy and take him for medical treatment.
10. Koushik was brought to Burdwan Medical College Hospital and is stated to have died at 3:00 pm. Hospital records also indicated that Sukesh was admitted to the hospital by his mother at or about 3:40 pm on the same day with injuries. It transpired that Sukesh left, absconded and escaped from the hospital on the same evening without being discharged. The hospital also noticed his absence only on 10 am on the following day.
11. The Burdwan police out post near the hospital was not informed of the death of Koushik until 7:55 pm on 26th September, 2009, when a case of unnatural death case being UD/101709 was registered only at 8:00 pm. There are other discrepancies found here. The superintendent of the Burdwan Medical College said that the deceased was admitted at 2:00 am. whereas the P.M. report recorded that Koushik was admitted to the Burdwan CMO Hospital at 2:00 pm. 12. The Surathal/Inquest was conducted at the emergency ward of the hospital. The inquest report Bed and head ticket of the hospital were signed by one Pradip Dey stated to be relative of the deceased. The State police in their affidavit in opposition have stated that Pradip Dey member of the locality. Admittedly report of such inquest is to be signed either by a Medical Officer or the local SDO/Executive Magistrate and not by any relative. In the first report of the CID it was stated that the said that Pradip Dey was not employee of the hospital but was a
6 relative one such employee. Pradip Dey himself admittedly had a criminal record.
13. The original post mortem report was conducted by one Dr. R.N.

Karmakar. The said report is dated 27th September 2009. No conclusive opinion was given as to the cause of death. It was only stated that the death was due to injuries which were ante-mortem nature. After the report of the Investigating Officer Arup Sen was rejected, a second opinion on the original post mortem report was taken from one Dr. D.

Sarkar on 11th February, 2014. Dr. R.N. Karmakar is stated to have declined to give a further opinion since he had retired from service and was not approached through official channels. As to why the CID, West Bengal did not approach the Burdwan Medical Hospital to reach Dr. Karmakar and obtain a further opinion on the post mortem report remains unexplained.
14. Two separates reports were filed by the Burdwan Police before the ACJM under Section 174 of Cr.P.C. on the same day i.e. 16th December, 2009, at the same point of time. This Court is unable to appreciate as to why there was need for two separate reports in respect of the same FIR. The wearing apparel of the victim was also not seized. There was no laceration mentioned in the inquest report. It is not understood as to how the conclusion as regards fractures was arrived at.
15. Given the inconclusive original post mortem report submitted by Dr. Karmakar and the subsequent one page opinions of Dr. Sarkar on 11th February, 2014, the petitioners obtained and independent 3rd party
7 medical opinion from one Dr. A.K. Gupta who is a retired Professor of Forensic Medicine and was on the panel of the CID West Bengal. The said Dr. Gupta is admittedly a highly acclaimed expert on forensic medicine often relied by the CID West Bengal and other police authorities in all complicated medico legal cases.
16. In a 57 page report Dr. Gupta opined that the CID West Bengal ought to have taken an appropriate opinion from Dr. R.N. Karmakar, the original autopsy surgeon as to the nature of death. Dr. Sarkar from whom a second opinion was taken by the CID West Bengal was the junior most in teaching rank (Administrator) in the Burdwan Medical College, Department of Forensic Medicine.
17. Dr. Gupta opined that the injury suffered by deceased Koushik Roy was a result direct hit by a blunt elongated rough and heavy object like a wooden club lathi or iron rod and was homicidal in nature. The injuries could not have been sustained from motorcycle accident. That it is extremely suspicious as to why the original autopsy surgeon Dr. Karmakar was not approached to give a further opinion. That the injury reports of Sukesh Sarkar the pillion rider must be fabricated since the same were not consistent with the injuries likely to be sustained by the pillion rider given the nature of the injuries sustained by the driver of the vehicle.
18. It was pointed out by the Counsel for the petitioners that photographs of the motorcycle after the alleged accident were not available. No report of Motor Vehicle inspector was available or relied upon by the
8 Burdwan police or the CID West Bengal. The whereabouts of the motorcycle or the particulars of repairs conducted thereon were not ascertained by the CID.
19. In the background of the aforesaid the likelihood of the deceased having suffered a homicidal death and the contentions of the petitioner that two of his other friends who also died in the same at a day at a different location in the state and a probable connection between the death of Kaushik and his other friends canvassed by the petitioners could be a theory or angle for investigation. This has not been explored by the State or the CID.
20. The learned Advocate General in reply to the petitioners arguments submitted firstly that it is common for a mother who has lost a son to become emotional and level wild allegations against the investigating authority. He would submit that successive reports of the Burdwan Police and CID West Bengal having come to the conclusion that the death was by accident, must be taken as the only possible conclusion.

He further submits even the higher officials who conducted the investigation have concurred with the investigation report submitted by the subordinate officers of the CID and the report of the Burdwan Police. Since the forensic reports of two forensic doctors are similar there can be no scope for any other conclusion and hence the question of referring the investigation to the CBI does not arise.
21. Ld. Advocate General further submits that The Code of Criminal Procedure 1973, sufficiently contains the procedure for investigation
9 and also prsecribes measures to enable a dissatisfied complainant to seek remedies. The ACJM can always order further investigation as has been done once in this case. He relies upon a judgment of the Hon’ble Supreme Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh and Others reported in (2008) 2 Supreme Court Cases 409:

He relies upon paragraphs 16,17,31, 32, 33 and 34 that are set out hereunder.
“The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna AIR 1980 SC 326 (para 19).

In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.

In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of Inquiry held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry.
10 In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide para 6) , this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.

In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of suicide.”

22. On the same proportion of law learned Advocate General next relies upon the case Popular Muthaiah Vs. State Represented by Inspector of Police reported in (2006) 7 Supreme Court Cases 296, where it was laid down as follows :-
“The Code of Criminal Procedure provides is an exhaustive Code providing a complete machinery to investigate and try cases, appeals against the judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence of the High Court as would be evident from the following:

(iii) When a charge sheet is filed, the court can refuse to accept the same and proceed to take cognizance of the offence on the basis of the materials on record. The Court can direct further investigation into the matter (iv) The Magistrate may treat a protest petition as a complaint and proceed to deal therewith in terms of Chapter XV of the Code of Criminal Procedure.”

23. Learned Advocate General next relies upon the case of Gangadhar Janardan Mhatre Vs. State of Maharashtra reported in (2004) 7 SCC 768, particularly paragraphs 9,10,13,14. In the said decision
11 Hon’ble Supreme Court reitereated the need to avail the provisions of the Criminal Procedure Code, as enunciated in the Popular Muthiah (supra) & Sakiri Vasu (supra) decisions.
24. The learned AG next relies upon the case of Bimal Gurung Vs. Union of India and Others reported in (2018) 15 Supreme Court Cases 480. He placed the following paragraphs:-
“27. Before we apply the above principles laid down by this Court to find out whether the facts of the present case are rare and exceptional where this Court has to exercise power under Article 32 to transfer enmass cases to other agency, we need to advert what is the nature and extent of democratic and peaceful demonstration as protected by our Constitution violation of which may raise violation of fundamental rights of a person.

28. Article 19 of the Constitution of India guarantees some of most important fundamental rights to the citizens. Article 19 protects important attributes of personal liberty. Right to freedom of speech and expression as guaranteed under Article 19(1)(a) and the right to assemble peaceably and without arms as protected by Article 19(1)(b) are the rights which in reference to the present case have importance. The right of freedom of speech and expression coupled with right to assemble peaceably and without arms are rights expression of which are reflected in carrying demonstration on several occasions.
Freedom to air once view is the life line of any democratic institution. The word freedom of speech must be broadly construed to include right to circulate once view by word or mouth or through audio visual instrument. Right of public speech is one form of expression which is also a part of freedom of speech and expression. Demonstrations are also a mode of expression of the rights guaranteed underArticle 19(1)(a). Demonstrations whether political, religious or social or other demonstrations which create public, disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. From the very nature of things a demonstration may take various forms; “it
12 may be noisy and disorderly”, for instance stone-throwing by a
crowd may be cited as an example of a violent and disorderly
demonstration and this would not obviously be within Article
19(1)(a) or (b). We in the present case are concerned with the
demonstrations and the bandh call given by GJM.

29. A full Bench of the Kerala High Court in Bharat Kumar Vs.
State of Kerala & Ors., AIR 1997 Ker. 291 had occasion to
consider fundamental rights and bandh given by political
parties. The Kerala High Court while describing call for bandh
held that call for a bandh is distinct and different from call for
a general strike or the call for hartal. The intention of the callers
of the bandh is to ensure that no activity either public or private
is carried on that day. The full Bench considered different
aspects of bandh in reference to fundamental rights of other
persons under Article 19(1). In paragraph 17 full Bench of
Kerala High Court laid down following:

“No political party or organisation can claim that it is entitled to
paralyse the industry and commerce in the entire State or
nation and is entitled to prevent the citizens not in sympathy
with its viewpoint, from exercising their fundamental rights or
from performing their duties for their own benefit or for the
benefit of the State or the nation. Such a claim would be
unreasonable and could not be accepted as a legitimate
exercise of a fundamental right by a political party or those
comprising it. The claim for relief by the petitioners in these
original petitions will have to be considered in this
background.”

30. An appeal was filed against the said judgment before this
Court. A three-Judge Bench of this Court in The Communist
Party of India (M) vs. Bharat Kumar & Ors., (1998) 1 SCC 201,
affirmed the judgment of the Kerala High Court. While affirming
the judgment following was laid down in paragraph 3:

“3. On a perusal of the impugned judgment of the High Court‡,
referring to which learned counsel for the appellant pointed out
certain portions, particularly in paras 13 and 18 including the
operative part in support of their submissions, we find that the
judgment does not call for any interference. We are satisfied
that the distinction drawn by the High Court between a “Bandh” and a call for general strike or “Hartal” is well made
out with reference to the effect of a “Bandh” on the
fundamental rights of other citizens. There cannot be any doubt
that the fundamental rights of the people as a whole cannot be
subservient to the claim of fundamental right of an individual
or only a section of the people. It is on the basis of this
distinction that the High Court has rightly concluded that there
13 cannot be any right to call or enforce a “Bandh” which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. We may also add that the reasoning given by the High Court, particularly those in paragraphs 12, 13 and 17 for the ultimate conclusion and directions in paragraph 18 is correct with which we are in agreement. We may also observe that the High Court has drawn a very appropriate distinction between a “Bandh” on the one hand and a call for general strike or “Hartal” on the other. We are in agreement with the view taken by the High Court.”

25. On the independent expert evidence produced by the petitioners i.e. the opinion of Dr. Gupta, learned Advocate General would submit that even if such opinion is inconsistent with the reports with the CID the same cannot be deemded sacrosanct by this Court as evidence of an expert is weak evidence unless there is corroboration.
26. The following principles of Law can be culled out of the decisions cited by the Ld Advocate General.
a) The Cr.P.C. is a complete code and provides for adressing a case of a poor or insufficient investigation.

b) The investigating officers powers are not restricted and he can conduct any furthur investigation if he so deems.

c) When a final report/charge sheet is filed the Magistrate can independently frame charges on the basis of the materials on record. The Magistrate is not bound by the conclusion of the police.

d) In a given case the Magistrate can treat the protest petition (Narazi) as a complaint itself and proceed to deal with the same under Chapter V of the CrPC.
14 e) In addition to the power of the IO the Magistrate can order furthur investigation if he is not satisfied with the investigation conducted by the IO f) A CBI investigation is ordered only in exceptional cases when the High Court is prima facie satisfied that existing investigation is inadequete or improperly done.

g) The Magistrate does not have the power to order a de novo or fresh investigation as the same is under the Scheme of the CrPC h) It is only in the light of protection of rights under Article 21 of the Constitution that the Courts can order a fresh investigation.

i) Before ordering a fresh investigation under Article 226 or Article 32 the Court must record an opinion on the investigation alread conducted.

j) There must be a prima facie satisfaction that the investigation conducted, is unfair or malafide or tainted or smacks of foul play.

k) The expressions, re-investigation, fresh investigation, de-novo investigation are all synonimous to each other when the High Court exercises powers under Article 226 of the Constitution or under Section 482 of the CrPC.

l) The Police under Section 173(2) of the CrPC cannot conduct a fresh investigation or a re-investigation. The Magistrate also cannot order the same. The only power on the police is to conduct a furthur investgation and the Magistrate can only order the same.

m) A magistrate is not epowered under the CrPC, to order the investigation to be transferred to the CBI from the State Agencies.

n) A CBI investigation is ordered in exceptional circumstances and when the same is necessary to provide credibility to Investigation and instill confidence in the citizens in the State enforcement Machinery, or for doing
15 complete justice or for enforcing Fundamental Rights. It is also ordered when a matter has national or international ramifications.

27. This court is today at the stage of deciding the nature and quality of the investigation conducted by the CID West Bengal and that of the Burdwan Police. Admittedly the ACJM himself was not satisfied with the final report submitted by the Burdwan Police and ordered further investigation. A Co-ordinate Bench of this Court has already found the first report of the CID West Bengal to be perfunctory and hence a second report was called for from a higher authority. The second report examined by this Court does not address any of the inconsistency in the investigation or the loopholes under the earlier investigations and reports. Instead a concerted attempt has been made to parrot findings in the earlier report and to somehow of the other come to a conclusion of accidental death.
28. In this regard it would be useful to refer to the decisions relied upon by the writ petitioner. The first case is a decision of the Hon’ble Supreme Court in the case of State of West Bengal Vs. Committee For Protection of Democratic Rights reported in (2010) 2 SCC (Cri) 401 and (2010) 3 SCC 571 at paragraph 68 and 69 the Hon’ble Supreme Court held as follows:
“68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows: (i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic
16 structure doctrine. The actual effect and impact of the law on
the rights guaranteed under Part III has to be taken into
account in determining whether or not it destroys the basic
structure.

(ii) Article 21 of the Constitution in its broad perspective
seeks to protect the persons of their lives and personal
liberties except according to the procedure established by law.
The said article in its broad application not only takes within
its fold enforcement of the rights of an accused but also the
rights of the victim. The State has a duty to enforce the
human rights of a citizen providing for fair and impartial
investigation against any person accused of commission of a
cognizable offence, which may include its own officers. In
certain situations even a witness to the crime may seek for
and shall be granted protection by the State.

(iii) In view of the constitutional scheme and the jurisdiction
conferred on this Court under Article 32 and on the High
Courts under Article 226 of the Constitution the power of
judicial review being an integral part of the basic structure of
the Constitution, no Act of Parliament can exclude or curtail
the powers of the constitutional courts with regard to the
enforcement of fundamental rights. As a matter of fact, such a
power is essential to give practicable content to the objectives
of the Constitution embodied in Part III and other parts of the
Constitution. Moreover, in a federal constitution, the
distribution of legislative powers between Parliament and the
State Legislature involves limitation on legislative powers and,
therefore, this requires an authority other than Parliament to
ascertain whether such limitations are transgressed. Judicial
review acts as the final arbiter not only to give effect to the
distribution of legislative powers between Parliament and the
State Legislatures, it is also necessary to show any
transgression by each entity. Therefore, to borrow the words
of Lord Steyn, judicial review is justified by combination of “the principles of separation of powers, rule of law, the
principle of constitutionality and the reach of judicial review”.

(iv) If the federal structure is violated by any legislative action,
the Constitution takes care to protect the federal structure by
ensuring that the Courts act as guardians and interpreters of
the Constitution and provide remedy under Articles 32 and
226, whenever there is an attempted violation. In the
circumstances, any direction by the Supreme Court or the
High Court in exercise of power under Article 32 or 226 to
uphold the Constitution and maintain the rule of law cannot
be termed as violating the federal structure.
17 (v) Restriction on Parliament by the Constitution and
restriction on the executive by Parliament under an
enactment, do not amount to restriction on the power of the
Judiciary under Articles 32 and 226 of the Constitution.

(vi) If in terms of Entry 2 of List II of the Seventh Schedule on
the one hand and Entry 2-A and Entry 80 of List I on the
other, an investigation by another agency is permissible
subject to grant of consent by the State concerned, there is no
reason as to why, in an exceptional situation, the Court would
be precluded from exercising the same power which the Union
could exercise in terms of the provisions of the statute. In our
opinion, exercise of such power by the constitutional courts
would not violate the doctrine of separation of powers. In fact,
if in such a situation the Court fails to grant relief, it would be
failing in its constitutional duty.

(vii) When the Special Police Act itself provides that subject to
the consent by the State, CBI can take up investigation in
relation to the crime which was otherwise within the
jurisdiction of the State police, the Court can also exercise its
constitutional power of judicial review and direct CBI to take
up the investigation within the jurisdiction of the State. The
power of the High Court under Article 226 of the Constitution
cannot be taken away, curtailed or diluted by Section 6 of the
Special Police Act. Irrespective of there being any statutory
provision acting as a restriction on the powers of the Courts,
the restriction imposed by Section 6 of the Special Police Act
on the powers of the Union, cannot be read as restriction on
the powers of the constitutional courts. Therefore, exercise of
power of judicial review by the High Court, in our opinion,
would not amount to infringement of either the doctrine of
separation of power or the federal structure.

69. In the final analysis, our answer to the question referred
is that a direction by the High Court, in exercise of its
jurisdiction under Article 226 of the Constitution, to CBI to
investigate a cognizable offence alleged to have been
committed within the territory of a State without the consent
of that State will neither impinge upon the federal structure of
the Constitution nor violate the doctrine of separation of
power and shall be valid in law. Being the protectors of civil
liberties of the citizens, this Court and the High Courts have
not only the power and jurisdiction but also an obligation to
protect the fundamental rights, guaranteed by Part III in
general and under Article 21 of the Constitution in particular,
zealously and vigilantly.”
18 29. The next decision relied upon by the petitioners is the case of State of Maharashtra Vs. Farook Mohammed Kasim Mapkar reported in (2010) 8 SCC 582 where the Committee For Protection decision (supra) was relied upon and with the approval. At paragraph 29 it was held as follows:-
“29. About the direction by the High Court, in exercise of its jurisdiction under Article 226, requesting CBI to investigate a cognizable offence within the territory of a State without its consent was considered recently by a Constitution Bench in a decision reported in State of W.B. v. Committee for Protection of Democratic Rights which reads as follows: (SCC p.602, para 69) “69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.”

In view of the above pronouncement, we hold that in order to protect civil liberties, fundamental rights and more particularly Article 21, this Court and High Courts can very well exercise the power, no doubt, must be sparingly, cautiously and in exceptional situations as observed in para 70 of the said judgment.”
30. The petitioner also relied upon the decision in the case of Irshad Ali Alias Deepak and Others Vs. Vinay Tyagi reported in (2013) 4 SCC (Cri) 557 and (2013) 5 SCC 762. In the said decision of Supreme Court laid down as follows:-
19 “23.However, in the case of a ‘fresh investigation’, ‘reinvestigation’ or ‘de novo investigation’ there has to be a
definite order of the court. The order of the Court
unambiguously should state as to whether the previous
investigation, for reasons to be recorded, is incapable of being
acted upon. Neither the Investigating agency nor the
Magistrate has any power to order or conduct ‘fresh
investigation’. This is primarily for the reason that it would be
opposed to the scheme of the Code. It is essential that even
an order of ‘fresh’/’de novo’ investigation passed by the higher
judiciary should always be coupled with a specific direction as
to the fate of the investigation already conducted. The cases
where such direction can be issued are few and far between.
This is based upon a fundamental principle of our criminal
jurisprudence which is that it is the right of a suspect or an
accused to have a just and fair investigation and trial. This
principle flows from the constitutional mandate contained in
Articles 21 and 22 of the Constitution of India. Where the
investigation ex facie is unfair, tainted, mala fide and smacks
of foul play, the courts would set aside such an investigation
and direct fresh or de novo investigation and, if necessary,
even by another independent investigating agency. As already
noticed, this is a power of wide plenitude and, therefore, has
to be exercised sparingly. The principle of rarest of rare cases
would squarely apply to such cases. Unless the unfairness of
the investigation is such that it pricks the judicial conscience
of the Court, the Court should be reluctant to interfere in
such matters to the extent of quashing an investigation and
directing a ‘fresh investigation’.”
26.Further, in R.S. Sodhi v. State of U.P., where allegations
were made against a police officer, the Court ordered the
investigation to be transferred to CBI with an intent to
maintain credibility of investigation, public confidence and in
the interest of justice. Ordinarily, the courts would not
exercise such jurisdiction but the expression “ordinarily”
means normally and it is used where there can be an
exception. It means in the large majority of cases but not
invariably. “Ordinarily” excludes extraordinary or special
circumstances. In other words, if special circumstances exist,
the court may exercise its jurisdiction to direct “fresh
investigation” and even transfer cases the courts of higher
jurisdiction which may pass such directions.
31.Referring to the provisions of Section 173 of the Code, the
Court observed that the police has the power to conduct
20 further investigation in terms of Section 173(8) of the Code
but also opined that even the trial court can direct further
investigation in contradistinction to fresh investigation, even
where the report has been filed. It will be useful to refer to the
following paragraphs of the judgment wherein the Court while
referring to Mithbhai Pashabhai Patel v. State of Gujarat held
as under : (CBI case, SCC pp. 191-92, para 23) “23. ……… ’13. It is, however, beyond any cavil that “further
investigation” and “reinvestigation’ stand on different footing.
It may be that in a given situation a superior court in exercise
of its constitutional power, namely, under Articles 226 and 32
of the Constitution of India could direct a “State” to get an
offence investigated and/or further investigated by a different
agency. Direction of a reinvestigation, however, being
forbidden in law, no superior court would ordinarily issue
such a direction. Pasayat, J. in Ramachandran v. R.
Udhyakumar opined as under: (SCC p.415, Para 7) “7. At this juncture it would be necessary to take note of
Section 173 of the Code. From a plain reading of the above
section it is evident that even after completion of investigation
under sub-section (2) of Section 173 of the Code, the police
has right to further investigate under sub-section (8, but not
fresh investigation or reinvestigation.”
A distinction, therefore, exists between a reinvestigation and
further investigation.
15. The investigating agency and/or a court exercise their
jurisdiction conferred on them only in terms of the provisions
of the Code. The courts subordinate to the High court even
do not have any inherent power under Section 482 of the
Code of Criminal Procedure or otherwise. The pre-cognizance
jurisdiction to remand vested in the subordinate courts,
therefore, must be exercised within the four corners of the
Code.

43. At this stage, we may also state another well-settled
canon of the criminal jurisprudence that the superior courts
have the jurisdiction under Section 482 of the Code or even
Article 226 of the Constitution of India to direct “further
investigation”, “fresh” or “de novo” and “reinvestigation”. “Fresh”, “de novo” and “reinvestigation” are synonymous
expressions and their result in law would be the same. The
superior courts are even vested with the power of transferring
investigation from one agency to another, provided the ends of
21 justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.”
31. The writ petitioners next relied upon decision of the Hon’ble Supreme Court in the case of Pooja Pal Vs. Union of India and others reported in (2016) 3 SCC 135, where it was stated as under :-
“50. The authorities cited at the Bar present the precedential spectrum of the curtain jurisprudence in the context of entrustment of investigation to an instrumentality other than the local/State police agencies.
75. That the extraordinary power of the constitutional courts under Articles 32 and 226 of the Constitution of India qua the issuance of direction to CBI to conduct investigation must be exercised with great caution, was underlined in committee for Protection of Democratic Rights as adverted to hereinabove. Observing that although no inflexible guidelines can be laid down in this regard, it was highlighted that such an order cannot be passed as a matter of routine or merely because the party has levelled some allegations against the local police and can be invoked exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national and international ramification or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights.

95. Adverting to the role of the police to be one for protection of life, liberty and property of citizens, with investigation of offences being one of its foremost duties, it was underscored in Monohar Lal Sharma v. Union of India that the aim of investigation is ultimately to search for truth and to bring the offender to book. The observations of Lord Denning in his rendering in The Due Process of Law, First Indian Reprint, 1993, p. 102 were alluded to as under: (SCC p.553, para25) “……..In safeguarding our freedoms, the police play a vital role. Society for its defence needs a well-led, well-trained and well-disciplined force of police whom it can trust: and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.
22 The police, of course, must act properly. They must obey rules of right conduct. They must not extort confessions by threats or promises. They must not search a man’s house without authority. They must not use more than the occasion warrants.

96. The avowed purpose of a criminal investigation and its
efficacious prospects with the advent of scientific and
technical advancements have been candidly synopsised in the
prefatory chapter dealing with the history of criminal
investigation in the treatise on Criminal Investigation – Basic
Perspective by Paul B. Weston and Rnneth M. Wells:
“Criminal investigation is a lawful search for people and things useful in reconstructing the circumstances of an illegal act or omission and the mental state accompanying it. It is probing from the known to the unknown, backward in time, and its goal is to determine truth as far as it can be discovered in any post-factum inquiry.

Successful investigations are based on fidelity, accuracy and sincerity in lawfully searching for the true facts of an event under investigation and on an equal faithfulness, exactness, and probity in reporting the results of an investigation. Modern investigators are persons who stick to the truth and are absolutely clear about the time and place of an event and the measurable aspects of evidence. They work throughout their investigation fully recognising that even a minor contradiction or error may destroy confidence in their investigation.
The joining of science with traditional criminal
investigation techniques offers new horizons of efficiency in
criminal investigation. New perspectives in investigation
bypass reliance upon informers and custodial interrogation
and concentrate upon a skilled scanning of the crime scene
for physical evidence and a search for as many witnesses as
possible. Mute evidence tells its own story in court, either by its
own demonstrativeness or through the testimony of an expert
witness involved in its scientific testing. Such evidence may
serve in lieu of, or as corroboration of, testimonial evidence of
witnesses found and interviewed by police in an extension of
their responsibility to seek out the truth of all the
circumstances of crime happening. An increasing certainty in
solving crimes is possible and will contribute to the major
deterrent of crime-the certainty that a criminal will be
discovered, arrested and convicted.
23 101. Judged in these perspectives we are of the firm opinion that notwithstanding the pendency of the trial and the availability of the power of the courts below under Section 311 and 391 of the Code read with Section 165 of the Evidence Act, it is of overwhelming and imperative necessity that to rule out any possibility of denial of justice to the parties and more importantly to instil and sustain the confidence of the community at large, CBI ought to be directed to undertake a de novo investigation in the incident. We take this view, conscious about the parameters precedentially formulated, as in our comprehension in the unique facts and circumstances of the case any contrary view leave the completed process of crime detection in the case wholly inconsequential and the judicial process impotent. A court of law, to reiterate has to be and involved participant in the quest for truth and justice and is not expected only to officiate a formal ritual in a proceeding far-seeing and inevitable end signally travesty of justice. Mission justice so expectantly and reverently entrusted to the judiciary would then be reduced to a teasing illusion and a sovereign and premier constitutional institution would be rendered a suspect for its existence in public estimation. Considering the live purpose for which judiciary exists, this would indeed be a price which it cannot afford to bear under any circumstance.”
32. The law laid down by the Hon’ble Supreme Court as prescribed under Article 141 of the Constitution of India , in the above and other decisions can be summarized as follows :-
i) Article 21 of the Constitution guarantees not only the rights of the accused but also the rights of the victim.
ii) The right to a fair and impartial investigation against an accused and at times even against the officers of the State, is part of the human rights of a citizen.
iii) The power of Judicial Review which is part of the basic structure of the Constitution, must extend to test whether one wing of the Democratic Machinery is transgressing on the other.
iv) The Power of Judicial Review is not subservient to or curtailed by the restrictions imposed on the Parliament or the Executive by the Constitution.
24 v) The power of Judicial review under Article 32and 226 must be exercised to ensure the basic rights of citizens and the Federal Structure should not stand in the way of such exercise. This is so since the frame work of the Constitution is sufficient to address such the preservation of the Federal Structure and prescribes the safeguards to ensure the same.
vi) The requirement of the State’s consent under Section 6 of the Special Police Act cannot restrict or curtail the powers of the Constitutional Courts from exercising power to direct the CBI to investigate a matter if the same is necessary to protect the fundamental and human rights of the Citizens.
vii) The restrictions imposed by the parliament in statues cannot bind the powers under Article 226 and Article 32 in a case where it is found that Constitutional guarantees appear to be violated.
33. Applying all the aforesaid principles culled out from the said cases, let us now see what emerges from the case at hand. A fair trial completely and wholly depends on the quality of investigation. Investigation is required to be done with full devotion, dedication, seriousness and honesty of purpose. It is only an investigation having been done in the manner above that it would lead to a fair trial and the real culprits would be dealt with as per law. The ultimate object, to achieve a crime free society, can only happen after a fair and unbiased investigation that would result in a successful trial. This would instil confidence amongst citizens in the State law enforcement machinery.
34. There is also another consequence of faulty, perfunctory, half-hearted and dishonest investigation. It would lead to the guilty and antisocial elements being allowed to go scot free thereby leading to an unsafe society. This would also seriously impair the faith of the citizens in the state machinery. A proper investigation and trial restores faith in the public at large in the establishment. While it is true that the Hon’ble
25 Supreme Court has cautioned against casual transfer of investigations to the CBI, it is equally true that in a given case where a court itself finds a deliberate attempt on the part State agencies to suppress the truth by a causing a perfunctory investigation, this Court under article 226 of the Constitution of India would be failing in its duties, if such investigation is not transferred to a 3rd Party independent body.
35. The following serious lacunae are seen in the investigation of the CID and the State Police.
a) Vital evidence not collected by the Police.
i) The Motorcycle involved in the accident is missing.

ii) Photograph of the vehicle are not available or examined or not even taken by the State Police or the CID.

iii) The inspection report of the vehicle by a motor vehicle inspector is not on record nor not taken by the police/CID.

iv) The repair details of the damaged motorcycle are not on record and not even obtained by the State police/CID.
b) The wearing apparel of the victim has not been seized and not available and no reason is on record in that regard.
c) There are glaring discrepancies between the autopsy report and the Post-mortem Report.
d) The cause of death is not clearly mentioned in the Post-mortem Report.
e) There are discrepancies in the Hospital records as to the time of admission of the victim.
26 f) There is a discrepancy in the records as to who brought Koushik Roy from the accident site to CAMRI Hospital and then to Burdwan Medical College Hospital.
g) The injury reports of Sukesh the pillion rider rider do not match and are not consistent with the injury reports of the victim Koushik.
h) The original PM doctor Dr. Karmakar was suspiciously not approached through proper channels or even interrogated to ascertain the cause of death. Instead a rank junior doctor’s half page cryptic opinion was obtained to support the conclusion of the State Police and CID.
i) How come Sukesh was admitted to the Hospital by his mother and not the person who brought the victim to CAMRI Hospital and later to Burdwan Hospital.
j) The victim died at 3.00 pm in the Burdwan Hospital but the police at the outpost at the Hospital were informed only at 7.55 pm on that day.
k) The dead body was received at the police morgue without a dead body challan.
l) The Bed Head Tickets of the victim and Sukesh are missing from the Hospital, yet they were obtained by the petitioners under the RTI Act.
27 m) The Surathal/Inquest was conducted by the Hospital and not the Police/Executive Magistrate/SDO.
n) The Hospital records say that Koushik was admitted at 2.00 pm by Sukesh, when Sukesh was admitted by his mother at 3.40 pm. o) Sukesh is supposed to have called his brother after the incident, which was not counter verified the CID, with call records.
p) The Bed Head Tickets of the Burdwan Medical College Hospital were signed by one Pradip Dey, an outsider and relative of Hospital staff. It is not known how he could prepare the BHT and sign it.

The petitioner and her late husband were present at the time. The victim’s parents were not called to present at the time of the inquest. The said Pradip Dey a part had criminal records.
q) The independent medical expert Dr. Ajay Kumar Gupta, a renowned Forensic Expert who was always consulted by the CID WB for decades has stated in some parts of his report as follows :-
“Comments on the Post-Mortem Report and Diagram of the Injuries Prepared by me:

It is not clear from the column: “Opinion as the cause of death” noted by Dr. R. N. Karmakar, Autopsy Surgeon, as to why he simply mentioned that the death of Koushik Roy was due to the effects of Injuries mentioned in the Post-Mortem Report and the Injuries are ante-mortem in nature. It is further astonishing to note that, being a Senior Professor and Head of the Department of Forensic and State Medicine of Burdwan Medical College, why he did not consider the instructions mentioned in the Post Mortem Form: i.e. on the “let side” of “his opinion as to cause of death”, i.e. below the column marked as “Opinion of the medical officer as to cause of death,” i.e. “N.B. – In the case of wounds, note whether there is an indication of the wounds being Homicidal, Suicidal
28 or Otherwise”. This clearly denotes that even when a Medico-
legal Post-Mortem Examination is carried out by an Assistant
Surgeon i.e. General duty Medical Officer of District or Sub
Division, the Autopsy Surgeon is always duty bound to write
in case of wounds, definite comments regarding the manner
of death (i.e. Accidental/ Homicidal/Suicidal) as instructed in
the Post-Mortem Form i.e. either in affirmative or negative by
c0onsidering the Injuries/Wounds found etc. on Post-Mortem
Examination.

In other words, Dr. R. N. Karmakar, Autopsy Surgeon,
should have been further proactive by mentioning that he will
submit “the further opinion as to whether ante-mortem
injuries noted on the body of Koushik Roy were consistent
with a case of suffering injuries due to motorcycle accident or
otherwise; i.e. by carefully considering instruction given in the
lower left portion of Post-Mortem Report Form while
submitting the “Opinion of the Medical Officer as to the cause
of death”. In other words, if he could not indicate about the
manner of death i.e. whether death was accidental or
otherwise, he should have been further proactive by
mentioning that he would like to submit further opinion as to
whether injuries suffered by Koushik Roy were consistent or
inconsistent with the history of suffering injuries following a
motor cycle accident or not after observing as per
Internationally accepted norms, the damage suffered by
motorcycle after the alleged accident and evidences available
at the place of occurrence of alleged motor cycle accident and
compare them with Injuries/Wounds on the body of the
deceased Koushik Roy.

It is not clear why Autopsy Surgeon Prof. (Dr) R. N.
Karmakar did not review the injuries on Cranium i.e. “Scalp-
Skull and Vertebrae”: Scalp and Skull – as noted [i.e. external
injury number :- 3 and on dissection (O/D) injuries number 1
and 2.] – i.e. it can be inferred that all the three injuries
occurred simultaneously by application of single blunt force
trauma with great force; this clearly indicates that Koushik
Roy suffered these injuries i.e. lacerated wound in the scalp,
Depressed comminuted fracture of bone on left side of Head
(Cranium) with Internal (Subdural) haemorrhage all over the
Brain, due to hit directly over the head (Cranium) by some
elongated hard blunt or rough object viz. lathi/iron rod with
moderate weight over his head. Similarly the injuries like
abrasion over face, chest and abdomen and their inter-related
position and distribution over the body taken together also
indicate that those injuries over those body parts in all
probability resulted from assaulting Koushik Roy with fists,
kicks and blows and that they cannot result from either by
the impact against the road surface or by colliding against
29 some hard blunt object like railing/road divider or against
any vehicle result from after being thrown off from the
motorcycle as a result of motorcycle accident.

Nature and size of Injuries over the forearm wrist etc. i.e.
External Injuries No. (7) and (8) i.e. over back and outer
aspect of Left forearm and upper from aspect of Right forearm
further suggests that these injuries in all probably resulted
from an act or attempt of defending the attack on him
(Koushik Roy) while being pounced upon his head by the
assailant/s with a hard blunt and rough object with great
force to cause injury over head.

V) From the Memo No. BMCH/646 dated 02/03/2012,
issued by the Medical Superintendent Cum Vice Principal,
Burdwan Medical College & Hospital, Burdwan, it is seen
that, in his reply to the queries he has mentioned the
followings:

“1) Sri Sukesh Sarkar, S/o – Sri Balaram Sarkar was
admitted at B.M.C.H. as indoor patient.

2) The time of admission is 3.40 PM.

3) Sri Sukesh Sarkar had taken admission for treatment of
injuries due to Road Traffic Accident.

4) The person who brought Sri Sukesh Sarkar to get
admission is Bani Sarkar.

5) Not applicable.

6) I] Local Swelling & tenderness at Rt. Hand.

II] Fingure Movement – + III] Multiple abrasion.

IV] # 2nd metatarsal bone.

7) No. the patient was not referred. He rather absconded on
27/09/09 at around 10 A.M.”.

Below this there was signature of Medical Superintendent,
BMCH Burdwan.
Comments on the above mentioned Report:

It is not clear why local Police Station was informed with a
copy of Injury Report on the body of Sukesh Sarkar.
30 There is no Medical or Legal provision that Formal Injury Report of a Patient treated in the Hospital specially Medical College & Hospital with Information to Police need not be made in the Injured Patient absconded from the Hospital.

It is pertinent to note that while Koushik Roy alleged Driver of the Motor Cycle suffered lethal/fatal injuries, how Sukesh Sarkar as co-rider (Pillion Rider) of the same Motor Cycle could receive such type of injuries which were very very less serious so much so that he could abscond from the Hospital. In other words nature of injuries on the body of Koushik Roy as Drier of the Motor Cycle and nature of injuries on the body of Sukesh Sarkar as a pillion rider on the same motorcycle were not consistent with each other i.e. injuries on both of them cannot occur simultaneously in a single motor cycle accident.

Thus injuries on the body of Sukesh Sarkar alleged to be ro- rider (Pillion Rider) were definitely fabricated in nature and was done by some interested person with criminal intention to mislead the Police Investigation and Court of Law.”
The above are only some of the discrepancies noted in this investigation of the CID.
36. From the above it appears to this Court finds that the investigation conducted both by the Burdwan police and the CID, West Bengal on as many as three occasions is embarrassingly poor and shoddy. The Court’s mind is not free from doubt that the investigation has been deliberately compromised for collateral purposes. The manner in which the CID has conducted itself in the instant litigation is equally surprising and shocking. Even after repeated orders on this Court the CID has not addressed elementary questions and has refused to collect vital evidence. Indeed this is an exceptional case warranting interference by this Court. A case of this nature and the omissions of the CID narrated hereinabove squarely comes within a category of an
31 exceptional case and it is absolutely imperative to refer this matter to the CBI for further investigation reinvestigation and or investigation afresh.
37. Hence, the writ petition stands allowed. The Burdwan police and the CID, West Bengal are directed to handover, to Principal Officer of the Central Bureau of Investigation located at Kolkata all the papers, documents, case diary, statements, reports and every piece of evidence in the investigation into the death of Koushik Roy and the Sukesh Sarkar to the CBI, positively within 10 days from the date.
38. There shall be no order as to costs.
39. Urgent Photostat Certified server copy of this Judgment, if applied for, be supplied to the parties on urgent basis.
(Rajasekhar Mantha, J.)

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