Kabir Shankar Bose vs The State Of West Bengal

2024 INSC 930 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA EXTRA-ORDINARY ORIGINAL JURISDICTION WRIT PETITION (Crl.) No. 416 OF 2020

KABIR SHANKAR BOSE …PETITIONER (S)

VERSUS

STATE OF WEST BENGAL & ORS. …RESPONDENT (S)

JUDGMENT

PANKAJ MITHAL, J.

1. We have heard Shri Mahesh Jethmalani, learned Senior

Counsel for the petitioner, Shri Tushar Mehta, learned

Solicitor General of India for the CBI, Shri Vikramjeet

Banerjee, learned Additional Solicitor General of India, for

the CISF, Ms. Astha Sharma, learned Standing Counsel

for the State of West Bengal and Shri Zoheb Hossain,

learned counsel for respondent No. 7.

2. The petitioner who is an advocate by profession as also

being in politics contends that he has a fundamental

right to have a fair investigation in connection with FIR Signature Not Verified

No.400 of 2020 dated 07.12.2020 lodged against him Digitally signed by geeta ahuja Date: 2024.12.04 16:54:21 IST Reason:

with Police Station Serampore, West Bengal under

1 Sections 341, 323, 325, 326, 307, 354, 504, 506, 34 of

Indian Penal Code1 and FIR No. 401 of 2020 dated

07.12.2020 again with Police Station Serampore, West

Bengal under Section 341, 325, 354A, 34 IPC. He

therefore, has invoked the jurisdiction of this Court

under Article 32 of the Constitution of India seeking a

writ in the nature of mandamus commanding the

respondent authorities to transfer the investigation in

pursuance of the above FIRs to any independent agency

other than the local police, namely, the Central Bureau of

Investigation2 or Special Investigation Team3.

3. The Writ Petition was entertained by the three Judge

Bench of this Court. On 13.01.2021 while issuing notice

to the State-respondents, proceedings in pursuance to

the aforesaid FIRs were stayed. Thereafter, the

respondents i.e. State of West Bengal, Central Industrial

Security Force4 and the CBI have filed separate replies to

the writ petition. Another counter-affidavit has been filed

by the private respondent No.7 opposing the writ petition.

1 In short ‘IPC’ 2 In short ‘CBI’ 3 In short ‘SIT’ 4 In short ‘CISF’

2

4. Ordinarily we would have relegated the petitioner to the

High Court to seek appropriate remedy in connection

with the reliefs claimed here in this petition but we

refrain from doing so after the petition had been

entertained and the parties have exchanged the

necessary pleadings which are sufficient to adjudicate the

matter on merits.

5. It may be pertinent to mention here that on account of

the interim order passed in this petition on 13.01.2021,

the local police had not proceeded in this matter and as

such no investigation has been done pursuant to the

above FIRs.

6. The petitioner alleges that he was married on 18.11.2010

to the daughter of Mr. Kalyan Banerjee, respondent No.7,

a sitting Member of Parliament5 from Serampore Lok

Sabha constituency but the said marriage could not last

long and was dissolved in terms of the settlement

between the parties vide order dated 06.03.2018 passed

by this Court in Transfer Petition (C) No. 1988 of 2015

wherein apart from dissolving the marriage, it was

5 In short ‘MP’

3 ordered that all pending litigations between the parties

would stand quashed. However, the father of the

petitioner’s ex-wife continued to harass the petitioner and

pressurized the state administration to victimise and

torture him.

7. Accordingly, on the request of the petitioner on

11.01.2019, he was granted CISF security owing to

political vendetta and threats extended to him allegedly

by the State Government and his ex-father-in-law.

8. The petitioner alleges that on 06.12.2020 his house and

car were surrounded by 200 Trinamool Congress6 goons

when he was about to leave his house at Serampore

along with CISF security guards. His life was saved by his

guards who also suffered injuries in the melee to protect

him. The local police failed to take any action, rather,

under political pressure, FIR No.400 of 2020 was

registered against the petitioner at the behest of one

Santosh Kumar Singh @ Pappu Singh on 07.12.2020

with Police Station Serampore, West Bengal under

Sections 341, 323, 325, 326, 307, 354, 504, 506, 34 IPC.

6 In short ‘TMC’

4

9. It was followed by another FIR No.401 of 2020 on

07.12.2020 with Police Station Serampore, West Bengal

under Sections 341, 325, 354A, 34 IPC which was lodged

by one Tanushree Singh.

10. In connection with aforesaid FIRs, at around 1 O’clock in

the afternoon of 07.12.2020, the petitioner was arrested

by the local police but was ordered to be released on bail

by the Court of Additional Chief Judicial Magistrate,

Serampore vide order dated 07.12.2020 in case No. 400

of 2020.

11. The petitioner contends that on account of the fact that

the petitioner is actively involved in politics as a BJP7

worker/spokesperson; that respondent No.7, sitting MP

wants to settle scores with him; and as the atmosphere in

the State is politically charged, the petitioner apprehends

that the local police would not carry out a fair

investigation in the matter, thus, infringing upon his

fundamental right to have a fair investigation and trial.

12. The petitioner, at the very outset, has detailed as to how

he had been victimized and subjected to extreme torture

7 Bharatiya Janta Party

5 by the administrative authorities of the State of West

Bengal. He has tried to emphasize the complete misuse of

power and use of the State machinery as a “private army”

against him. He has further asserted that the State

machinery is acting at the behest of the political masters

as he happened to be the prominent spokesperson of a

party in opposition in the State of West Bengal.

13. The petitioner also alleges that he has actively worked

and canvassed on behalf of the BJP in Serampore, West

Bengal, during the Lok Sabha election from where

respondent No.7 was the TMC candidate. He has also

highlighted that the member of Ramesh Mahato gang had

threatened him with dire consequences.

14. He has been continuously receiving threats from the

family members of respondent No.7, the sitting MP of

TMC party.

15. It is the result of the above oppressive acts of the State

and respondent No.7 that the aforesaid FIRs have been

mala fidely lodged and registered against the petitioner

and even the security personnel belonging to CISF.

6

16. The respondent No.8-CISF has filed a counter affidavit of

its Deputy Inspector General, Greater Noida, Uttar

Pradesh. The said affidavit states that the court vide

order dated 18.12.2020 had required the CISF to file

Special Incident Report as the petitioner was under its

protection. Accordingly, a report was filed on 06.01.2021.

The report submitted pursuant to the order of the court

reveals that the vehicle of the petitioner (Mahindra

Scorpio bearing Registration No.WB 74 AD 9822) was

severely damaged in the alleged incident. Thereafter,

notice was issued to the CISF to file counter affidavit.

17. The CISF in the counter affidavit accepts that the

petitioner is a practicing advocate and is on the panel of

the Central Government. He is an active spokesperson for

BJP whereas respondent No.7 is a sitting MP of the TMC

party from Serampore, West Bengal.

18. Petitioner’s marriage was solemnized with the daughter of

respondent No.7 in the year 2010 but eventually on a

divorce petition, the marriage was dissolved in the year

2018. The petitioner is being provided with ‘X’ category

security since 10.04.2019 because of the perception of

7 threat, both on account of his enmity with the sitting MP

due to matrimonial feud as well as his alliance with the

party at the Centre.

19. The counter affidavit of the CISF further states that on

the date of incident i.e. 06.12.2020 at about 08:15 pm,

an unruly crowd led by respondent No.7 gathered in front

of the house of the petitioner and tried to manhandle him

and the accompanying CISF personnel. The crowd

resorted to use of blunt objects in which one of the CISF

personnel Mahesh Singh sustained minor injuries. The

CISF personnel took the petitioner to a shelter of the

premises on the second floor. The petitioner was kept in a

separate flat above his own flat under CISF security. The

local police, present at the scene, did not permit the CISF

reinforcement team which had arrived from Kolkata led

by two officers namely Vikas Chaudhary and Yadram

Yadav to enter the premises. The next day, two FIRs came

to be lodged. The local police insisted on the arrest of the

petitioner. The CISF personnel deployed with the

petitioner were substantially withdrawn and sent to the

CISF headquarters at Greater Noida.

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20. On behalf of the State administration-respondent Nos.1,

3, 4 and 5, a separate counter affidavit has been filed by

the Inspector of Police, Government of West Bengal

denying all the allegations made by the petitioner in the

writ petition. In the preliminary submissions, it has been

stated that the FIRs against the petitioner are in relation

to cognizable offences which involve the CISF officials as

well. The allegations against the petitioner are serious,

inter alia, causing grievous hurt to the complainants and

others and relating to outraging the modesty of a woman.

The petitioner is refusing to co-operate with the

investigation and is an absconder. The petitioner in the

writ petition has narrated a fabricated version to give a

political colour to the said incident.

21. The State administration further submitted that since the

FIRs disclosed the commission of cognizable offences, the

police was bound to register the FIRs. It has enclosed the

injury reports of some persons who were grievously hurt

in relation to the above incident and submits that due to

the stay order dated 13.01.2021, no further investigation

could be conducted in pursuance of the aforesaid FIRs

9 and that the investigation is still at a nascent stage.

Therefore, under the facts and circumstances and in view

of the law laid down by the Apex Court, there is no

necessity for transferring the investigation from the local

police to any independent agency.

22. Respondent No. 7 has filed his independent counter

affidavit denying the averments made in the writ petition

and has submitted that the petition is liable to be

dismissed on the ground of non-joinder of necessary

parties as the complainants of the FIRs have not been

arrayed as the respondents and that the petitioner has no

right to intervene in the matter of investigation and the

mode of prosecution. The investigations are not supposed

to be transferred to CBI in a routine manner. The

petitioner cannot bypass the alternative remedies

available to him and cannot directly invoke the writ

jurisdiction of this Court under Article 32 of the

Constitution.

23. Respondent No.7 further submits that he is also a

practicing lawyer of the Calcutta High Court who has

been designated as a senior counsel. He was elected as

10 an MLA in 2001 and then as an MP. He was also member

of various committees of the Parliament.

24. It is further averred that on account of the marital

discord and as the answering respondent stood by his

daughter, the petitioner is having a strong grudge against

him and is unnecessarily trying to malign the answering

respondent No.7. The respondent No.7 came to know that

in the said incident, five CISF personnel entered into an

argument with the complainants and later took out rods

and sticks and assaulted them. He was also informed

that the lady worker of the party was also molested. The

entire story, as narrated by the petitioner in the writ

petition, is all concocted and fabricated. The petition is

misconceived and is liable to be dismissed.

25. The undisputed facts as revealed from the pleadings of

the parties are as under: -

(i) The petitioner and respondent No. 7 are both

practicing advocates as well as politicians of some

repute belonging to the State of West Bengal;

(ii) The petitioner was married to the daughter of

respondent No. 7 but the said marriage ended in a

11 decree of divorce, as such, there is bitter enmity

between the two;

(iii) To add fuel to the fire, the petitioner belongs to BJP

party whereas respondent No. 7 belongs to the

ruling party in the State of West Bengal. The

petitioner has canvassed against respondent No. 7

during the election campaign when he was

contesting as an MP from Serampore constituency;

(iv) The political scenario in the State of West Bengal is

apparently opposed to the party in power at the

Centre; and

(v) There is no denial to the alleged incident involving

CISF officials attached to the petitioner.

26. In the above admitted position, the possibility that the

petitioner may not get a fair investigation at the hands of

the local police or that the local police may not behave

cordially with him in the course of investigation may not

be baseless and cannot be brushed aside outrightly or

lightly.

27. Now, the sole question which falls for our consideration,

in the aforesaid admitted facts and circumstances, is

12 whether the investigation pursuant to the two FIRs

against the petitioner are necessary to be transferred to

some independent agency like CBI or Special

Investigation Team.

28. We are conscious of the legal position that no party,

either the accused or the complainant/informant, is

entitled to choose the investigating agency or to insist for

investigation of a crime by a particular agency.

29. The power to transfer an inquiry or a trial is exercised

through the intervention of the constitutional courts in

exceptional circumstances and the constitutional courts

are expected to use the said extraordinary power

sparingly, cautiously and in exceptional situation where

it becomes necessary to provide credibility and instil

confidence in the investigation or where the incident may

have national or international ramifications or where it is

necessary for doing complete justice and enforcing

fundamental rights as is explained in State of West

Bengal vs. Committee for Protection of Democratic

Rights8. In other words, transfer of any investigation may

8 (2010) 3 SCC 571

13 not be ordered by the court in a routine/perfunctory

manner or merely for the reason that one party makes

allegations against the other.

30. In Rubabbuddin Sheikh vs. State of Gujarat9, it has

been concluded that in an appropriate case when the

court feels that the investigation by the police authorities

is not in the proper direction, and in order to do complete

justice in the case when the high profile officials are

involved in the crime, it is always open to the court to

handover the investigation to an independent agency like

CBI. It may be noted that constitutional courts can even

direct for further investigation by some other

investigating agency to ensure completion of fair

investigation and fair trial.

31. In K.V. Rajendran vs. CBCID10, it has been observed

that where high officials of the State authorities are

involved or the accusation itself is against the top officials

of the investigating agency who may probably influence

the investigation, and where the investigation is bound to

be tainted, to instil confidence in the investigation, the

9 (2010) 2 SCC 200 10 (2013) 12 SCC 480

14 constitutional courts ought not to be shy in exercising

power of transferring an investigation from the State

agency to any other independent agency like CBI.

32. It is well recognised that investigation should not only be

credible but also appear to be credible vide R.S. Sodhi

vs. State of U.P.11. Even otherwise, the law requires that

justice may not only be done but it must appear to have

been done. Thus, following the above dictum, to ensure a

fair investigation in the matter, there appears to be

weight in the argument of the learned counsel for the

petitioner to transfer the investigation in relation to the

two FIRs to an independent agency, more particularly

keeping in mind the factual background and

circumstances of the case.

33. It is admitted on record that the investigation in

pursuance of the two FIRs is at a nascent stage and that

it had not proceeded any further, due to the interim order

dated 13.01.2021, till date. Therefore, it is but natural to

get the investigation completed at the earliest. The

11 1994 Supp (1) SCC 143

15 primary object is to ensure fair completion of the

investigation so that, if necessary, the trial may proceed.

34. The matter of entrusting investigation to a particular

agency is basically at the discretion of the court which

has to be exercised on sound legal principles. Therefore,

the presence of complainant/informants are not very

necessary before the Court. We do not feel that any

prejudice would be caused to either of the parties if the

investigation is conducted by an independent agency

other than the State police. Thus, looking to the facts of

this case particularly, that respondent No. 7 is a

parliamentarian from the ruling party in the State of West

Bengal and that the petitioner belongs to the ruling party

at the Centre, the politically charged atmosphere in the

State of West Bengal may not be very conducive to a fair

investigation being conducted in the instant case. It is,

hence, considered appropriate that instead of keeping the

investigation pending for an indefinite period, the

investigation be transferred to the CBI.

35. The case involves the investigation of the role of CISF or

its personnel which cannot be left in the hands of the

16 local police also for reasons of conflicting interests. Thus,

in our view, it is not appropriate to permit the local police

to examine the conduct of CISF personnel in the instant

case.

36. Accordingly, for all the above reasons and in the peculiar

facts of this case, a writ of mandamus is issued to the

State-respondents to handover the investigation

pursuant to the two FIRs aforesaid to the CBI along with

all records, for its completion so that, if necessary, the

trial may commence and justice is done to the parties.

37. The writ petition is allowed accordingly.

...................………………………….. J.

(B. V. NAGARATHNA)

.............……………………………….. J.

(PANKAJ MITHAL) NEW DELHI;

DECEMBER 04, 2024.

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