Kishwar Jahan & Anr vs State Of West Bengal & Ors

Heard on : 18.3.08, 19.3.08, 20.3.08, 25.3.08, 26.3.08, 27.3.08, 28.3.08, 1.4.08, 2.4.08, 3.4.08, 7.4.08, 8.4.08, 23.4.08, 29.4.08, 30.4.08, 6.5.08 and 12.5.08.

Judgment on : 14.8.08

Rizwanur Rahman (hereafter Riz), since deceased, son and brother of the

petitioners 1 and 2 respectively, was laid to rest in September last. The

suspicious circumstances in which he died, the role of the State Police agencies

in investigating the cause of his death, the conduct of certain police officers of Kolkata Police both before and after his death, alleged involvement of his father-

in-law Ashok Todi (respondent no.12) and his uncles-in-law Anil Saraogi

(respondent no. 13) and Pradeep Todi (not a party to the petition) in connection

with his unnatural death, investigation conducted by the Central Bureau of

Investigation (hereafter the CBI) being directed by this Court - all these and much

more, have exercised thoughtful consideration of this Court on the face of

eloquent arguments advanced by learned Senior Counsel for the petitioner, the

State, the accused police officers and the respondent no.12 and learned Counsel

for the CBI and the respondent no.13, both on factual as well as legal points,

based on erudition and developed by great industry. The valuable assistance

rendered to the Court needs to be appreciated at the outset.

It is discerned from the materials on record that Riz, a computer graphic

engineer working at Arena Multi Media (a computer training centre) had a love

affair with his student Priyanka Todi (hereafter Priyanka), daughter of respondent

no.12, which matured in a marriage on 18.8.07 under the Special Marriage Act,

1954. Their marital relationship had the possibility of souring the relation

between the father and the daughter and as such was not disclosed to the

respondent no.12 immediately thereafter. The couple apprehended that

respondent no.12 might interfere in their marital relationship and accordingly

they had jointly addressed a letter dated 30.8.07 to the Commissioner of Police,

Kolkata Police. The letter reads as follows: "Sub : Registry Marriage information.

We would like to inform you that we, Rizwanur Rahman s/o Late Rezaur Rahman, resident of 7/B, Tiljala Lane, Kolkata-19 and Priyanka Todi, d/o Ashok Kr. Todi, resident of CG 235, Salt Lake, Kolkata-91, got married under the presence of Marriage Officer, Sipra Ghosh, on 18th August, 2007. The copy of our Marriage Certificate is being enclosed for your kind perusal. This marriage was performed with our own wish and not under the influence of any external pressure. We are also enclosing copy of our birth certificates as proof that we are both matured. We are presuming that our Father in Law/Father, Mr. Ashok Kr. Todi may threaten us with dire consequences or create pressure or can send antisocial elements or goondas to kidnap us. In view of this we hope to get protection from your end if required."

Letters with similar contents were also addressed to the Deputy

Commissioner of Police (South Division), the Officers-in-Charge, Karaya Police

Station, Entally Police Station and Bidhannagar Police Station, and others.

The Officer-in-Charge, Karaya Police Station upon receipt of the letter

jointly written by Riz and Priyanka dated 30.8.07 had endorsed the same to S.I.,

Pulak Dutta on 31.8.07. Acting on the basis of such endorsement, S.I. Pulak

Dutta had conducted an enquiry and his report submitted to the Officer-in-

Charge, Karaya Police Station reads as follows:

"Ref : the attached letter vide L/P(y)1226/07 dt. 31.8.07

An enquiry into the attached petition was made. During enquiry the u/sd. had been to premises no.7B, Tiljala Lane, Kol-19 and contacted Mr. Rizwanur Rahaman s/o lt. Rezaur Rahaman of 7B, Tiljala Lane Kol-19 and Mrs. Priyanka Todi d/o Ashok Kr. Todi of CG-235, Salt Lake, Kol-91 and they stated that they are both adult and married each other with their mutual concent as per Special Marriage Act and they have no complaine against each other. The u/sd. also found father of Priyanka Todi, Mr. Ashok Kr. Todi with other relatives are also present inside the premises and talking with them. The uncle of Rizwanur Rahaman was also present there. Documents in support of their marriage was verified. Since both are them are adult and made no complaine against each other. Hence we may keep watch. This is for your kind information."

On 31.8.07 itself, Priyanka had been taken to Riz's residence at Tiljala.

Respondent no.12 was given such information whereupon he had been to the

residence of Riz to persuade Priyanka to return. The effort failed. Despite

respondent no.12 being aware of the fact that his daughter had started staying

with Riz, on the following day, Pradeep Todi (brother of respondent no.12) lodged

a complaint with the Deputy Commissioner of Police (Detective Department),

Kolkata Police alleging that Riz had abducted Priyanka. The relevant part of the

complaint reads as follows:

"My niece Smt. Priyanka Todi daughter of Ashoke Todi having completed Graduation from Ashok Hall joined a course in Arena Multimedia situated at 60A, J.L. Nehru Road, Kolkata 20. On 31st August, 2007, she left her home as usual for her course at Arena Multimedia and did not return home. Then we searched for her at our relative's house and other probable places, but did not find her. Then we had been to her training center at 60A, J.L. Nehru Road and found Rizewanoor Rahman - the teacher of the said institution absent. Meanwhile on enquiry we came to know that the said teacher namely Rizewanoor Rahman took her to his residence at 7B, Tiljala Lane, Kolkata-19 by deceitful means with intent to marry her and detained her. We immediately reached the residence of Rizewanoor Rahman at 7B, Tiljala Lane, Kolkata-19 and found him there. Being asked Rizewanoor Rahman confirmed that Priyanka Todi is within in his residence and he is going o marry her. But inspite of our best efforts we failed to see Priyanka there which created a suspicion in our mind that my niece may have been shifted to somewhere else. Being scared and thinking safety and security of my niece and adverse publicity we came back home. We searched in our house for any notes written by my niece, if any, but in vain."

The complaint was marked to Sukanti Chakraborty, the respondent no.8

apparently by the Deputy Commissioner of Police on 1.9.07 itself, who in turn

marked it to Krishnendu Das, the respondent no.9. On 3.9.07, the respondent

no.9 submitted the following report:

"As ordered, a preliminary enquiry into the enclosed letter of complaint has been done. Rizwanur Rahaman s/o Lt. Rezaur Rahaman of 7B, Tiljala Lane, Kolkata-19 and Priyanka Todi d/o Ashok Todi of CG-235, Salt Lake City, Kolkata-91 stated that they got married on 18/08/2007 as per section 13 of Special Marriage Act before the Marriage Officer Sipra Ghosh of 26, Rameswar Shaw Road, Kolkata-14. It also appeared that both of them are adults. However a Xerox copy of the concerned marriage certificate has been produced by Rizwanur Rahaman, which appears to be genuine. As such, she is staying with him at his place at 7B, Tiljala Lane, Kolkata-19. This is for favour of your kind information."

Pradeep Todi followed up his complaint dated 1.9.07 with another

complaint dated 8.9.07, also addressed to the Deputy Commissioner of Police,

Detective Department. This complaint was also marked to the respondent no.9

through the respondent no.8. The complaint reads as follows:

"In continuation to my previous complaint of abduction dated 01/09/07, further this is to inform you that after meeting with Priyanka on 04/09/07 Ashoke Todi, father of Priyanka tried to communicate with her several times but denied free access to her daughter. Ashok Todi who is having a background of heart disease fell ill as he could not tolerate such mental pressure. As such he was admitted in Apollo Hospital yesterday (07/09/07). Yesterday her aunt went to Rizwanur's residence at 7B, Tiljala Lane, Kolkata and informed Priyanka to visit her father who was admitted in Apollo Hospital being seriously ill. She agreed but subsequently she told that she would not go with her aunt but with others. Unfortunately she did not visit her father on 07/09/07. As such I think that she has been detained under pressure of Rizwanur Rahman who is not allowing her to visit her father with some ulterior motive. I suspect that there is some foul play behind her confinement which might be under threat or coercion by Rizwanur and his family members."

In the meantime, while referring to the letter dated 30.8.07 addressed,

inter alia, to the Deputy Commissioner of Police (South Division) and the Officer-

in-Charge, Karaya Police Station, Riz and Priyanka jointly addressed a letter

dated 3.9.07 to them claiming protection in view of certain overt acts of

respondent no.12. The letter is reproduced below:

"Sub : General Diary

Kindly refer to our earlier letter dated 30.08.07 regarding information of our marriage which was done on 18.08.07. The copy of our marriage certificate was also enclosed for your kind perusal. We are presuming that our father-in-law/father may engage some anti-socials/criminals to kidnap us or may try to forcefully abduct us. Some antisocials are coming to our place and threatening us of dire consequences if we continue to stay together at our place, i.e. 7B, Tiljala Lane, Kolkata-19. They are trying to threaten and bribe our people so that somehow the girl is sent back to her parents. Please be informed that if anything happens to us the person who will be responsible is Mr. Ashok Kumar Todi. We are also requesting you to provide us protection and should also see that no such incident should take place. This is for your information and record. Your prompt action will be highly appreciated by us."

The Officer-in-Charge, Karaya Police Station marked it to S.I. Pulak Dutta,

once again. He then submitted a report dated 5.9.07 to the following effect: "As ordered by you the u/sd. maintained watch in the vicinity of 7B Tiljala Lane, Kol - 19. The Police person who are perform duty at 'kiosk' was informed to maintain watch on time to time in and around of 7B Tiljala Lane, Kol - 19, they were briefed. Nothing untoward took place till date. Contacted the relatives of Rizwanur Rahaman they stated that the situation is peaceful and normal. This is for your information."

While these facts surface from the records produced before this Court, it is

alleged by the petitioners in paragraph 10 of the petition that Riz and Priyanka

were called upon by the then Deputy Commissioner of Police (Headquarters)

Gyanwant Singh, the respondent no. 7 to attend at Lalbazar on 4.9.07, where in

the presence of respondent no.12 and his wife, the petitioner no.2 and uncles of

Riz, he created pressure on Priyanka to return to her parents but she did not

succumb to such pressure. Respondent no.7 then directed Riz, Priyanka,

respondent no. 12, the petitioner no. 2 and his uncles to the respondent no.8

who again held out threats. Certain stamp papers containing statements were

placed before Riz by the respondent no.12 in the presence of respondent no.8

and other officers of the Anti-Rowdy section for his signature. Neither Riz nor the

petitioner no.2 and his uncles were allowed to peruse the contents of the stamp

papers. However, Riz and Priyanka having protested, they failed to obtain Riz's

signature thereon.

It is further alleged in paragraph 12 of the petition that on 8.9.07, the

respondent no.9 arrived at the petitioners' residence to convey that Riz and

Priyanka were required to attend Lalbazar to meet the Deputy Commissioner of

Police, Detective Department and they should accompany him. Around 3.30 P.M., Riz and Priyanka met Ajoy Kumar, the respondent no.5 at Lalbazar. The

petitioner no.2 and his uncles also accompanied them and were present to find

the respondent no.5 become furious the moment Riz and Priyanka entered his

chamber. While shouting, he threatened that if Priyanka did not return to her

parents' house, Riz would be arrested and she sent back home. Riz having

protested, the respondent no.5 became more furious and gave Riz two options.

While one option was that Priyanka must return to her parents for seven days

otherwise Riz would be arrested on charges of abduction and stealing of

valuables, the other option given to Riz was to approach the Court of law. Riz

accepted the first option having become nervous being constantly pressurized by

the respondents 5, 8 and 9. Riz was then directed to the Anti-Rowdy section

alongwith the respondents 8 and 9 and when he alongwith the petitioner no.2

reached there, they found Anil Saraogi, the respondent no.13 (uncle of Priyanka)

present. The respondent no.13 wrote on a plain white paper that Priyanka was

being taken by him to her parents for seven days. Contents thereof, signed by

Riz, Priyanka and the respondent no.13, read as follows:

"I Anil Saraogi uncle of Priyanka Todi aged about 23 years daughter of Ashok Todi of CG 335, Salt lake City, Kolkata - 91 do hereby take charge of my niece Priyanka todi since her father has been admitted in Apollo Hospital, Bypass and his condition is precarious. I shall again produce her after 7 days at 7/B, Tiljala Lane, Kolkata - 19. During her stay in her house her sustenance, safety and security will be looked into properly.

Thanking you, I agree (illegible) for 7 days Yours faithfully, from today at my parent's Sd/-Anil Saraogi place. 8/1 Alipore, Sd/- Priyanka Todi 8/9/07 Kolkata -27. Received copy and I have no 8/9/07. objection. Sd/- Rizwanur Rahman Illegible"

Priyanka did not return. Requests of Riz to let her return fell on deaf years.

A dead body was found on 21.9.07 on the rail tracks between Sealdah and

Bidhannagar stations, under Sealdah Division of Eastern Railway, believed to be

that of Riz.

A written complaint dated 21.9.07 was lodged by the petitioner no.2 before

Karaya Police Station on 22.9.07 alleging that he suspected the hands of

respondent no.12 behind the death of his brother's unnatural death. The

complaint lodged by him reads as follows:

"Re : unnatural death of Rizwanur Rahman of 7B, Tiljala Lane, Kolkata-17.

My younger brother Rizwanur Rahman has an unnatural death and his body was found near Dum Dum Station by G.R.P. My said brother was married with Priyanka Todi, daughter of Ashok Todi of CG-235, Salt Lake City, Kolkata-91. That several times said Ashoke Todi threatened my brother with dire consequence. That we suspect the hands of said Ashoke Kr. Todi behind the death of my brother."

Riz's death hurt the sentiments of the public at large and led to disruptions

in public life. This prompted the then Commissioner of Kolkata Police Prasun

Mukherjee, respondent no.3 to hold a press conference. According to the

petitioners (based on newspaper reports), he declared, inter alia, that Riz had committed suicide and this was transparent, although report on post mortem

was yet to be received.

Enquiry into the unnatural death of Riz was initially conducted by the

Dum Dum G.R.P.S. within whose jurisdiction his dead body was found.

Thereafter such enquiry was handed over to the Criminal Intelligence

Department (hereafter the CID) by the State Government The police officers

arrayed as respondents 3, 5, 7, 8 and 9 herein, however, were transferred soon

after the death of Riz.

Alleging that Riz was killed on 21.9.07 by anti-social elements hired by

respondent no.12, in concert with the concerned police officers being the

respondents 3, 5, 7, 8 and 9 and apprehending that fair and proper investigation

into the unnatural death of Riz cannot be conducted in view of involvement of

police officers of Kolkata Police holding high ranks, the petitioners' invoked the

writ jurisdiction of this Court by preferring the instant petition praying for, inter

alia, the following relief:

"(a) A Writ in the nature of Mandamus directing that the investigation in connection with the unnatural death of Rizwanur Rahman of 7B, Tiljala Lane, P.S. Karaya, Kolkata-700 019, for which UD Case No.183 of 2007 has been started and the allegations made by the petitioners in this petition against Sri Ajay Kumar, DC, DD I; Sri Sukanti Chakraborty, Assistant Commissioner of Police (Anti-Rowdy Section), Lal Bazaar and Krishnendu Das, Sub-Inspector, Anti-Rowdy Section be forthwith be handed over and be conducted by the Central Bureau of Investigation and with a further direction to the Central Bureau of Investigation to submit a report of such investigations before the Hon'ble Court and on perusal of such report the Hon'ble Court may be pleased to pass appropriate order/orders as this Hon'ble Court may deem fit and proper; (b) A Writ in the nature of Certiorari do issue directing the Respondents to produce all records in respect of the allegations made by the petitioners in the petitions so that the same may be perused and appropriate Orders be passed so that conscionable justice be done; (c) A Declaration do issue declaring that the acts and/or actins as complained in the petition against Respondent Nos. 4 to 9 are ultra vires Article 21 of the Constitution of India; (d) Rule NISI in terms of prayers (a), (b) and (c) above; (e) An Order directing that the investigation in connection with the unnatural death of Rizwanur Rahman of 7B, Tiljala Lane, P.S. Karaya, Kolkata-700 019, for which UD Case No.183 of 2007 has been started and the allegations made by the petitioners in this petition against Sri Ajay Kumar, DC, DDI; Sri Sukanti Chakraborty, Assistant Commissioner of Police (Anti-Rowdy Section), Lal Bazaar and Krishnendu Das, Sub-Inspector, Anti-Rowdy Section be forthwith be handed over and be conducted by the Central Bureau of Investigation; (f) An Order do issue directing the respondents to give police protection to the petitioners; (g)Ad-interim Order in terms of prayer (e) and (f) above"

It is on record (supplementary affidavit of the petitioners) that the Chief

Minister had appointed a retired Judge of this Court to hold an enquiry under

the Commissions of Enquiry Act, 1952.

The Court received the petition. Parties were duly heard. By an interim

order dated 16.10.07, it was held as follows:

"*** At the preliminary stage two issues fall for consideration. Whether the petitioners- the mother and the brother have Constitutional and legal right the petitioners have made out a case for an interim order as prayed for. In my view, prima facie, the deceased and his wife on 31st August, 2007 had drawn the attention of the various police stations apprehending threats with dire consequences. On 21st September, he was found dead under unnatural circumstances. The deceased can no longer seek redressal for any personal injury caused to him. In such circumstances, it is only his near relations who can make a prayer by filing a petition under Article 226 of the Constitution. In this case the mother and the brother of the deceased have filed the petition praying for an investigation by the CBI. The death of a son in the prime of his youth has caused a void and a wound to the mother which time can never heal. It is a shock and a loss grievous an irreparable of unimaginable magnitude. The death has permanently deprived her of a right to happy life with her son, since deceased, which is an inalienable part under Article 21 of the Constitution of India. The shock bereavement and grievance of the brother is also to be noted. Therefore, the petitioners have a Constitutional right to move the instant petition and the petition is thus maintainable. Let affidavit-in-opposition to the writ petition as well as to the supplementary affidavit be filed by 30th November, 2007. Reply, if any, by 10th December, 2007. Thereafter, parties are at liberty to mention for hearing upon notice. So far as the prayer for interim relief in the writ petition is concerned, following facts need to be looked into. That on 18th August, 2007 the deceased and his wife drew the attention of the police stations that respondent No.12 could threaten them with dire consequences. Prima facie it appears despite the intimations the police gave the deceased no protection. Instead the deceased and the petitioner No.2 were summoned to the Lalbazar. Subsequently, the deceased on 21st September, 2007 was found dead under unnatural circumstances and, thereafter, it appears the Commissioner of Police, Kolkata had made some comments on the cause and nature of death and that such comments, prima facie, have every likelihood of prejudicing any enquiry into the cause of death. During argument it was submitted on behalf of the State that the CID is conducting an inquiry. Persons have been summoned. It appears from the summons dated 10th October, 2007 that an investigation is being done in terms of section 175 of the Code. Section 175 should be read in conjunction with section 174. Enquiry under section 174 is permissible till inquest. Therefore, in my prima facie view, the investigation carried out by the CID is not in accordance with the provisions of the Code. Hence, considering the facts and circumstances of the case, I am of the opinion, prima facie, a case has been made out for passing an interim order. Therefore, let there be an interim order directing the CBI to investigate into the cause of unnatural death of Rizwanur and the CBI shall file a report in a sealed cover before this Court within two months from the date of service of authenticated copy of this order. ***".

The order was not appealed against. The CBI proceeded to register a case

of murder [RC. 8(S)/2007-SCU.I/CBI/SCR.I/New Delhi] and, thereafter,

commenced investigation. Though the respondents had prayed for opportunity to file counter

affidavits to the writ petition and such prayer had been granted, counter

affidavits were not filed. Prayer for extension of time was made and granted. Even

then, the respondents chose not to file their counter affidavits.

In the meanwhile CBI concluded its investigation. Report of investigation

was filed before this Court in terms of direction passed by it earlier.

Concluding portion of the report was read out in open Court. It reads as

under:

CONCLUSION

" In view of the facts and circumstances narrated above, the CBI has decided to take the following action :

a) Prosecution of Ashok Todi, Pradip Todi, Anil Saraogi, S.M. Mohiuddin @ Pappu, Ajoy Kumar, the then DC/DD, Sukanti Chakraborty, the then AC/ARS and SI Krishnendu Das u/s 120-B r/w 306/506 IPC. Ashok Todi, Pradip Todi, Anil Saraogi and S.M. Mohiuddin @ Pappu are liable for further prosecution for the substantive offences u/s 306/506 IPC. Ajoy Kumar, Sukanti Chakraborty and Krishnendu Das are liable to be prosecuted for the substantive offence punishable u/s 506 IPC. b) RDA for Major Penalty is being recommended against Gyanwant Singh, the then DC/HQ, Ajoy Kumar, the then DC/DD, Sukanti Chakraborty, the then AC/ARS and SIs Krishnendu Das, Jayanta Mukherjee and Pulak Kumar Dutta. c) Such action as deemed fit is being recommended against Shri Prasun Mukherjee, the then Commissioner of Police, Kolkata.

PRAYER (i) As directed, a detailed report after conclusion of the investigation is submitted for perusal by this Hon'ble Court; (ii) the CBI may be permitted to file Police Report/Charge Sheet before the appropriate Court as per provisions of Cr.P.C.; and (iii) the Hon'ble Court, may pass any other appropriate order or direction as it deems fit and proper in the interest of justice".

Prayer was then made by the State as well as the petitioners and other

respondents for furnishing them a copy of the report of the CBI to enable them

file their respective counter affidavits to the petition. Such prayer was opposed by

learned Counsel for the CBI. The same was turned down by an order dated

28.2.2008. Liberty was again given to them to file counter affidavits. However, it

was observed that the issue of furnishing copy of report would remain open and

would be considered again when the writ petition is heard finally.

The State, and the respondents 3, 5, 7, 8, 9, 12 and 13 filed separate sets

of counter affidavits and the petition was then taken up for final consideration.

Owing to the fact that the CBI had filed its report and had prayed therein

for leave of Court to file charge sheet before the competent court having

jurisdiction, learned Counsel for the respondents barring the CBI were called

upon to address the Court making a departure from the usual rule of allowing

the petitioners to address the Court first. Mr. Pal, learned Senior Counsel for the

respondents 3, 5, 7, 8 and 9, however, was heard in two phases, once before and

once after the petitioners were heard. Mr. Balai Chandra Ray, learned Advocate General representing the State

and the other official respondents contended that there is no merit in the writ

petition and as such the same merits dismissal. Arguments advanced by him on

various points are noted below:

On the conduct of the CBI

(i) Vide order dated 16.10.07, this Court had directed the CBI to investigate

the cause of unnatural death of Riz. By the very nature of the order passed, it

was a fact finding enquiry which was directed to be conducted. However, the CBI

by registering First Information Report (hereafter FIR) under Section 302 of the

Indian Penal Code (hereafter the IPC) had acted ultra vires the order of the Court

in the sense that it had acted in excess of authority conferred. Having exercised

powers which were not conferred on it, the report, being the consequence of such

investigation, is ultra vires and a nullity in the eye of law. For the proposition

that any act done in good faith but contrary to provisions of law is ultra vires,

reliance was placed on the decisions reported in 1905 Law Reports 426 : Mayor,

&c., of Westminister vs. London and North Western Railway Company, AIR 1967

SCC 295 : Barium Chemicals Ltd. Vs. Company Law Board, (1989) 4 SCC 187 :

Supreme Court Employees' Welfare Assn vs. Union of India, (2003) 2 SCC 111 :

Bhavnagar University vs. Palitana Sugar Mill (P) Ltd., (1990) 3 SCC 223 : Shri

Sitaram Sugar Co. Ltd. Vs. Union of India, (2002) 1 SCC 633 : Commissioner of Income Tax vs. Anjum M.H. Ghaswala, 1875 Law Reports 653 : Directors, & C.,

The Ashbury Railway Carriage & Iron Company Limited vs. Hector Riche.

(ii) The order of Court is also law. What is applicable in respect of statutes is

also applicable for orders of Court. Case of murder that was registered by the CBI

is in disobedience of the order of the Court. The Court's order being the source of

power to investigate the cause of unnatural death, the CBI ought not to have

transgressed into a province not authorized by the order. It should have

conducted investigation in the manner directed by the Court, or not at all. The

CBI ought to have directed investigation to find out the cause of death. If it

transpired to be a case of unabetted suicide or accident, the same should have

been reflected in its report; on the contrary, if it transpired to be a case of

homicide only then could the CBI have launched into further investigation upon

obtaining orders from Court. It had no independent authority to act except within

the parameters of the order of this Court. Power having been exercised by the

CBI in a manner contrary to the directions of Court, the entire investigation

stands vitiated. For the proposition that if an act in terms of the statute is

required to be performed in a particular manner, it has to be done in that

manner alone and that all other modes are strictly forbidden, the decisions

reported in AIR 1975 SC 915 : Ramchandra Keshav Adke vs. Govind Joti

Chavare and AIR 1936 PC 253(2) : Nazir Ahmed vs. The King Emperor were relied

on.

(iii) There has been colourable exercise of power by the CBI. Under the

pretext of the order which was the source of its power, the CBI camouflaged the real power conferred on it and exercised power without authority of law which

appears on piercing the veil. To support the contention that any act in colourable

exercise of power cannot sustain in law, reliance was placed on the decisions

reported in (1991) 3 SCC 498: Ashok Kumar vs. Union of India, AIR 1953 SC

375 : K.C. Gajapati Narayan Deo vs. State of Orissa, AIR 1959 SC 308 :

Gullapalli Nageswara Rao vs. A.P. State Road Transport Corpn.

(iv) The report filed by the CBI is a hybrid report. Its conclusion indicates

that it is not in conformity with the order of Court. The Court did not empower

the CBI to make recommendations in relation to drawing up major penalty

proceedings against any police officer.

(v) While directing investigation into the cause of unnatural death of Riz,

the Court had not reached any conclusion that a cognizable offence had been

committed. Information relating to death is not the same as information

disclosing murder. In such circumstances, there was no information relatable to

Section 299 or 300 of the IPC and hence no FIR could have been registered for

homicide or murder. Lodging of FIR by the CBI alleging murder is absolutely

unauthorised in view of the fact that there were no materials before it at the

material point of time. Neither the post mortem report was before it nor did it

approach the CID for making available the evidence that had been collected by it.

Registration of a case of murder by the CBI amounts to usurpation of power.

Without a formal FIR, investigation could have commenced since recording of an

FIR is not a condition precedent for conducting investigation. The decision

reported in AIR 1945 PC 18 : Emperor vs Khwaja Nazir Ahmad was relied on for the proposition that receipt and recording of an information report is not a

condition precedent to the setting in motion of a criminal investigation which is

supported by Section 157 of the Code. Reliance was also placed on the decisions

reported in (1985) 1 SCC 317 : State of West Bengal vs. Sampat Lal, AIR 1992 SC

604 : State of Haryana vs. Bhajan Lal and AIR 2008 SC 178 : Rajinder Singh

Katoch vs. Chandigarh Administration in support of the contention.

(vi) FIR lodged by the CBI does not satisfy Section 154 of the Criminal

Procedure Code (hereafter the Code) for, none had reported a case of murder

before the writ petition was filed. Since commission of cognizable offence was not

reported to the police at any point of time, the CBI suo motu could not have

registered an FIR in relation to commission of murder.

(vii) CBI had treated service copy of the writ petition as the basis for

registering FIR. It could not have done so. The writ petition does not disclose

ingredients of murder. The service copy was not signed by any of the petitioners

and as such requirement of Section 154(1) of the Code had not been fulfilled. In

this connection reference was made to the meaning of the word 'information' as

given in the New Shorter English Dictionary which is "knowledge or facts

communicated about particular subject, event, etc.". Since the word 'information'

appearing in Section 154(1) of the Code has not been defined therein, stress was

laid on accepting the lexical meaning.

Even otherwise, information collected from copy of the writ petition could

not be the basis for registering an FIR, suo motu, because Chapter X of the CBI

Manual (hereafter the Manual) requires verification of information prior to registration of FIR and there was no verification of information by the CBI before

registration of FIR. Registration of FIR by the CBI is thus malafide.

(viii) Registration of FIR under Section 302 of the IPC is also bad because

the CBI having already formed the view that Riz was murdered, nothing remained

to be done to comply with the order of the Court. The FIR reflects the cause of

death and hence the direction of the investigation was to ascertain how Riz was

murdered and who murdered him. The investigation conducted by it is thus

beyond the periphery of the limits set by the Court by order dated 16.10.07 and,

therefore, is a blatant disobedience of the order of the Court.

(ix) The CBI had no implied power to register FIR and proceed to conduct

investigation. The report is neither in accordance with the Code nor in

accordance with the order of the Court. The FIR itself suffers from a number of

infirmities. Copy of information was neither sent to any police station, nor to the

jurisdictional Magistrate. The petition of complaint is not signed by the

petitioners. Signing of FIR by the officer of CBI is without authority.

On the conduct of the petitioners

The complaint dated 21.9.07 lodged by the petitioner no.2, received by the

Karaya Police Station on 22.9.07 at best amounts to criminal intimidation

punishable under Section 506 of the IPC which is a non-cognizable offence.

Neither any further complaint alleging commission of cognizable offence was

lodged before the police nor was any Magistrate approached. Without availing of

the statutory remedies for redress, directly the Writ Court was approached seeking investigation by the CBI although the petitioners have no right in law to

choose an investigating agency.

The petitioners appear to be well-aware of the provisions of the Code which

provides specific remedies. It is not open to the petitioners who are conversant

with law not to take recourse to the statutory remedies available to them. Instead

of availing the same, they have approached the Court of Writ. Efficacious

alternative remedy provided by the Code was not exhausted and the writ petition

is not maintainable in view of the decisions reported in (2007) 6 SCC 171 :

Aleque Padamsee vs. Union of India, (1996) 11 SCC 582 : All India Institute of

Medical Sciences Employees'' Union(Regd.) vs. Union of India, (2006) 5 SCC 733 :

Hari Singh vs. State of U.P., 1991 Cr L J 2583 : Surinder Singh Ahluwalia vs.

Delhi Spl. Police Establishment, (2008) 2 SCC 409 : Sakiri Vasu vs. State of U.P.

Approach of the Court in directing CBI investigation

(i) Having regard to the facts and circumstances presented before the Court

on 16.10.07, no order directing investigation by the CBI ought to have been made

particularly when the CID was in seisin of enquiry. If no cognizable offence is

made out, police is not bound to investigate, and for this proposition the

decisions in State of West Bengal vs. Swapan Kumar Guha : AIR 1982 SC 949

and Bhajan Lal (supra) were relied on.

(ii) That apart, law and order problem being a State subject under List II of

Schedule VII of the Constitution, the investigating agency of the State could not have been jettisoned. In terms of the Delhi Special Police Establishment Act

(hereafter the DSPE Act), consent of the State is a sine qua non for the CBI to

conduct investigation within its territory. Ordering of CBI investigation by the

Court without the consent of the State, though not consciously, is a threat to its

republican character and it ought to be undone at the final hearing.

(iii) At the stage the writ petition was moved, there was no scope to entrust the

CBI with investigation. Prima facie view recorded by the Court is incorrect

because police has the power to conduct preliminary enquiry. Section 174 of the

Code read with Section 175 thereof gives wide powers and inquest is not

terminated once the dead body is sent for post mortem. There is no provision of

foreclosure in Sections 174 and 175; object thereof is to serve social performance

and, therefore, has to be liberally construed. Power of investigation of unnatural

death case subsisted until reason of death was ascertained or it was found to be

unascertainable. Enquiry could not have come to an end upon sending the dead

body for post mortem. The Court's attention was invited to Reg.299 of the Police

Regulation of Bengal, 1943 (hereafter the said Regulation) to justify the action of

the State Police agency. It was submitted on the basis thereof that further

enquiry during inquest is not prohibited and enquiry may continue for more than

a day. Therefore, no illegality was committed in the present case.

Submissions made by him in respect of other points are noted below: Since a question had arisen as to whether the order dated 16.10.07 would

operate as res judicata or not in respect of issues decided therein, learned

Advocate General submitted that only the point of maintainability of the writ

petition had been decided by the learned Judge finally and such decision could

only be questioned in an appeal from the final decision on the writ petition, if

preferred, and cannot be raised at subsequent stages of the same proceeding.

According to him all other findings were prima facie and, therefore, had not

attained finality and could be decided by this Court. Decisions cited by him in

support of his contentions in this regard are reported in 7 Moore's Indian Appeal

282 (1857-60): Maharajah Moheshur Singh vs. The Bengal Government and AIR

1960 SC 941 : Satyadhan Ghosal vs. Deorajin Debi.

On the sequence of steps taken by the State Police in respect of

investigation of unnatural death of Riz, he submitted that initially the GRP, Dum

Dum caused an inquest into cause of death of an unknown person on 21.9.07,

which later on was identified as the dead body of Riz. The complaint lodged by

the petitioner no.2 with Karaya Police Station of even date had been transmitted

to the G.R.P.S. which had already started an unnatural death case. Having

regard to the public interest which was generated consequent to death of Riz and

the media publicity over the issue, the State Government had considered it

proper to hand over investigation to the CID. The CID started investigation from

the stage the GRP, Dum Dum reached. The only provision available to the CID to

compel attendance of witnesses was Section 175 of the Code and as such notices thereunder were issued whenever necessary. The CID had collected considerable

material and was on the verge of completing the investigation when this Court by

order dated 16.10.07 ordered investigation by the CBI.

Regarding fate of the report of the CBI, he contended that the report of the

CBI is a nullity and is practically useless. Tested with reference to Section 6 of

the DSPE Act, it is made in violation thereof. Even the CBI disregarded

regulations 9.3 and 10.1 of Chapters 9 and10 of the Manual respectively. Since

parties were not furnished with copies of the report, he expressed inability to

make submissions in respect of its contents but contended that in the event the

State is required to take further action in terms of the report against some of the

city police officers, non-furnishing thereof would amount to principles of natural

justice and reliance in this connection was placed on the decisions reported in

(1993) 3 SCC 259 : D. K. Yadav vs. J.M.A. Industries Ltd., (1993) 4 SCC 10 :

Ratan Lal Sharma vs. Managing Committee, Dr. Hari Ram (Co-Education) Higher

Secondary School and AIR 1970 SC 150 : A.K.Kraipak vs. Union of India. It was

also urged with utmost respect that apart from anything else, parties are entitled

to have copy of the report on the principle that it might create an influence on the

mind of the Court unknowingly.

In conclusion, it was submitted that the writ petition be dismissed. Mr. Pradip Ghosh, learned Senior Counsel for the respondent no.12

commenced his argument by submitting that his client had become the victim of

the writ petition, finding himself in an unenviable position. Till date, he has not

been found guilty of any offence though as a result of publicity by the media over

the death of Riz, his right to life protected by Article 21 of the Constitution has

been thoroughly abrogated. The ordeal faced by respondent no.12 due to media

publicity whereby he has already been found guilty though proof thereof by

evidence is not yet established has had serious repercussions since the image

and prestige of the respondent no.12 has been lowered in the eyes of everyone.

Without any finding of guilt recorded against him by a competent court and

despite being entitled to all safeguards provided in the Constitution as well as in

the other laws, the report of the CBI indicting the respondent no.12 has violated

his basic human rights. Relying on the decision reported in (2002) 5 SCC 521 :

Secretary, Minor Irrigation and Rural Engineering Services, U.P. & Ors. Vs.

Sahngoo Ram Arya, it was contended that for a direction to the CBI for

conducting enquiry, the High Court must reach a conclusion on the basis of

pleadings and material on record that a prima facie case has been made out and

the right to life under Article 21 of the Constitution includes the right of a person

to live without being hounded by the police or CBI to find out whether he has

committed any offence or is living as a law abiding citizen.

According to him, situations for entrusting investigation with the CBI are

when the Court directs it to act as its instrumentality and when directed by the Apex Court in exercise of power conferred by Article 142 of the Constitution. For

entrusting the CBI with an investigation, there has to be overriding reason as

justification for making a departure from the ordinary laws. A person who is

otherwise not guilty of blameworthy conduct must not be made vulnerable to

investigation. He submitted that the writ petition does not make out any case for

investigation by an extra-ordinary body such as the CBI, bypassing the ordinary

investigating agency, since information given by the petitioner no.2 by letter

dated 21.9.07 addressed to the Officer-in-Charge, Karaya Police Station in

relation to unnatural death of Riz does not by itself disclose commission of any

offence (unnatural death not being an offence within the meaning of the IPC).

Since the letter dated 21.9.07 did not disclose any cognizable offence, the police

was not bound to register any FIR on the basis thereof and thus there was no

reason for the petitioners to claim an order from this Court that the CBI ought to

be entrusted with investigation into cause of unnatural death of Riz. In fact, the

Court itself was not sure about any cognizable offence having been committed.

No direction in that behalf thus could be issued and it is for this reason that

instead of a direction to investigate a cognizable offence, the cause of unnatural

death of Riz was directed to be investigated.

He then submitted that the CID was well within its right to conduct

preliminary enquiry for ascertaining whether information given to the police had

any substance or not. Conducting of preliminary enquiry by the CID, without

registering any FIR after post-mortem had been conducted was contended not to be contrary to the provisions of law. That the police before recording FIR and

conducting investigation on the basis thereof is empowered to collect information

was supported by placing reliance on the decision of the Apex Court in Rajinder

Singh Katoch (supra).

Mr. Ghosh next contended that involvement of some police officers in the

alleged offence was sought to be made out a ground for asking the CBI to

investigate without specific averments that all the police officers of the State

police including the officers of the CID would be biased and thus would not be

able to conduct investigation properly. If the petitioners' plea is to be accepted,

then on every occasion when an offence is committed by a police officer, a special

investigating agency has to be called on to investigate such offence. CID being an

independent body subordinate to the Director General, West Bengal Police and

having no connection whatsoever with the Kolkata Police, he submitted that

there was hardly any cause for apprehension that investigation being carried out

by the CID would be influenced by the then Commissioner of Police, Kolkata

Police and other senior officers. In this connection he referred to the decisions

reported in AIR 1960 SC 1073 : H.N.Narayan vs. State of Mysore, (2005) 5 SCC

363 : People's Union for Civil Liberties vs. Union of India and (1993) 3 SCC 71 :

State of Maharashtra vs. Budhikota Subbarao (Dr).

Assuming that at the initial stage presence of the respondent no.3 as

Commissioner of Police could have influenced the investigation conducted by the

officers of the CID, he contended that the likelihood of bias affecting the investigation to be conducted by the State police agency which prompted the

Court to pass the interim order no longer survived with the transfer of the police

officers concerned to inconsequential posts and the petitioners could obtain relief

under ordinary law in the changed circumstances.

According to him, departure from the ordinary procedure of investigation

resorted to by the Court was not warranted on facts and in the circumstances.

Remedy under Section 156(3) of the Code could be invoked by the petitioners.

The interim order had spent its force and in the interest of justice, injustice

caused to a party by an interim order ought to be undone. The interim order is in

aid of a final order and it is settled law that once the Court takes up hearing of a

petition finally, it has the power, at the time of passing final order, to take a view

different from the one taken at the stage interim order was passed and to undo

any wrong that has occasioned by the interim order, as far as it lies within its

power, in the interest of justice. He asserted that it would be within the

competence of the Court to recall the order having regard to the changed factual

position as well as the present legal position. Reliance in this connection was

placed on the decisions reported in (2003) 9 SCC 671 : National Bal Bhawan vs.

Union of India and 1984 (4) SCC 251 : Probodh Verma vs. State of U.P. in this

connection.

Next, he adopted the submissions of the learned Advocate General in

relation to existence of efficacious speedy alternative remedy and while relying on the decisions cited by him additionally relied on the decision reported in AIR

1970 SC 898 : Tilokchand Motichand vs. H.B. Munshi.

The respondents having disputed the allegations made in the writ petition,

he next contended that disputed questions of fact have surfaced for

determination and the Writ Court should be loath to adjudicate on the basis of

such disputed questions of fact. Reference in this connection was made to the

decision reported in 2000 SCC (Cri) 1248 : Pinki Basra vs. State of Punjab & ors.

On the extent of Court's power to direct CBI investigation, Mr. Ghosh

submitted that undoubtedly the Writ Court has the power to entrust the CBI with

an investigation of any particular case but such direction can be given only in the

rarest of rare cases where there is sufficient material to come to a prima facie

conclusion that there is a need for investigation by the CBI. There being a well-

defined hierarchical administrative set up of the police in the State which is the

appropriate investigating agency, direction to the CBI to investigate is likely to

create an impression that all is not well with the statutory agency which is likely

to cause a stigma. He referred to the decisions in Sahngoo Ram Arya (supra),

Sampat Lal (supra), and Common Cause, A Registered Society vs. Union of India

& ors. reported in (1999) 6 SCC 667.

He referred to the interim order dated 16.10.07 passed by this Court on

this petition to emphasize the point that the Court had directed investigation of

the unnatural death of Riz by the CBI and nothing more. He criticised the action

of the CBI in registering FIR under Section 302 of the IPC and causing investigation of alleged murder. In this connection he echoed the submissions of

the learned Advocate General that the actions of the CBI are ultra vires and its

conclusions, as indicated in the report, are a nullity. Since the CBI acted in a

manner which is at variance with the direction of the Court and overreached the

order of the Court, the entire investigation stands vitiated. In this connection, he

relied on the decisions reported in AIR 1962 SC 486 : Bidi Leaves & Tobacco

Merchants Association vs. State of Bombay, (1985) 4 SCC 337 : Savitri vs.

Govind and AIR 1955 SC 25 : Edward Mills Co. Ltd. Vs. State of Ajmer.

He proceeded to argue that the CBI could, without registration of any FIR,

investigate the case. In support of such submission reference was made to the

Manual which provides for a preliminary enquiry without registering any FIR as

also the decision reported in (2007) 1 SCC 630 : Sashikant vs. CBI wherein

provisions of the Manual were noted.

It was then contended by him that the Court having directed CBI to

ascertain the cause of death, it should have acted as an agency entrusted to find

facts like a Special Officer appointed by the Court. The order did not inhibit

conducting of enquiry but registration of FIR amounts to usurpation of power by

overreaching the limits and as a result, a fact finding enquiry has been sought to

be converted into a regular police case. Reference in this regard was made to the

decision reported in AIR 1984 SC 802 : Bandhua Mukti Morcha vs. Union of

India.

Investigation by the CBI in the present case, according to him, has violated

respondent no.12's fundamental rights guaranteed by Articles 14 and 21 of the Constitution of India. What was meant to be a fact finding enquiry for the

purpose of ascertaining the cause of death of Rizwanur was converted into an

investigation under Section 157 of the Code without following the safeguards

provided in the statute thus exposing a person like the respondent no.12 to an

extra-ordinary procedure which is harsher and more onerous than ordinary

procedure mandated in law which by itself amounts to violation of Articles 14

and 21 of the Constitution of India. Reference was also made to the decision in

A.R. Antulay vs. R.S. Nayak reported in (1988) 2 SCC 602 for the proposition that

if a discrimination is brought about by judicial perception and not by executive

whim, if it is unauthorized by law it would be in derogation of the right of the

respondent no.12 and that when injustice is brought to the notice of the Court it

should not feel shackled and decline to rectify that injustice or otherwise the

injustice noticed will remain for ever a blot on justice.

The report of the CBI, he continued, is nothing but a culmination of illegal

exercise of power and hence is vitiated. The Court had directed enquiry, limited

in the sense that the cause of death has to be ascertained and the CBI having

come to a finding that Riz had committed suicide, the matter ought to have been

allowed to rest awaiting further orders of Court. According to him, suicide in

itself is not an offence but attempt to suicide is, and for every suicide it cannot be

said that there must be an abettor of such suicide. The CBI, according to him,

had gone out of its way to record that it is a case of suicide abetted by some of

the respondents. Next, he contended that every citizen has a right to obtain copy of FIR

which is a public document and it is settled law that the FIR itself can be

challenged. Reliance in this connection was placed on the decision reported in

1982 (1) SCC 561 : State of West Bengal vs. Swapan Kumar Guha. In terms of

Section 157 of the Code, the Officer-in-Charge of the Police is obliged to send the

report to the jurisdictional Magistrate without any delay so that while the

Magistrate is kept informed of registration of the case, the accused has a right to

obtain necessary copy of the FIR for approaching the appropriate Court of law for

remedy. But in the instant case though FIR was lodged surreptitiously, the same

was not sent to the learned Magistrate having jurisdiction thereby making it

impossible for the respondent no.12 to seek a legal remedy before the appropriate

Court in terms of provisions contained in the Code. Since fact of registering a

case on the basis of the FIR lodged by CBI was kept under wraps till such time it

was disclosed by the CBI in its affidavit, respondent no.12 was precluded from

laying his hands on it. Copy of the FIR not having been sent to the jurisdictional

Magistrate, it was contended that there has been non-compliance with the

provisions of the Section 157 of the Code which is fatal. Reliance in this

connection was placed on the decision in Rajeevan vs. State of Kerala reported in

(2003) 3 SCC 355. The misadventure of the CBI has caused serious prejudice to

the rights of the respondent no.12 who, though is shown as an accused, is also

entitled to equal protection of the law. Decisions in Bhajan Lal (supra), Roy V.D.

vs. State of Kerala reported in (2000) 8 SCC 590 and AIR 1962 SC 63 : Delhi

Administration vs. Ram Singh were relied on in support of the proposition that the investigation carried out by the CBI was not legally competent and Court has

ample power to invalidate such investigation by quashing the FIR.

He reiterated his claim that the CBI having filed a report before this Court,

the respondent no.12 is entitled to a copy thereof in consonance with principles

of natural justice and fair play. Disclosure of report, according to him, is not

impermissible and he urged that the parties may be allowed to deal with it.

Reference was made to the decision reported in (1994) 1 SCC 536 : Maniyeri

Madhavan vs. Sub-inspector of Police in this regard.

It was then argued that when the statutory investigation was not allowed

by the Court and investigation was directed to be conducted by an incompetent

authority, the result cannot be relied on. Other than vague allegations, there are

no other tangible materials to make out a case against him the respondent no.12.

He also contended that the action of the CBI is in violation of Article 20(3)

of the Constitution of India. The respondent no.12 was never informed that he

had been named as an accused in the FIR till such time the Court had made an

observation in this behalf in course of hearing. Having been named as an

accused, the respondent no.12 was entitled to the fundamental right against self-

incrimination under Article 20(3). In this connection, the decisions reported in

AIR 1954 SC 300 : M.P.Sharma & ors. Vs. Satish Chandra DM Delhi, (1978) 2

SCC 424 : Nandini Sapathy vs. P.L. Dani, and (1966) 384 US 436 : Miranda vs.

State of Arizona were relied on.

According to him, the CBI had served upon respondent no.12 a notice

under Section 160 of the Code calling upon him to appear as a witness without stating that an FIR had already been registered and that the respondent no.12

was named as an accused therein. There was thus concealment of facts by the

CBI. There was also violation on the part of the CBI not to extend protection

available under Article 20(3) and it amounts to fraud.

Before parting, he submitted that the role of the media in the present case

has definitely interfered with administration of justice. A pure and simple suicide,

as a result of media glare was presented as murder. He questioned the propriety

of the actions of the media and urged this Court, relying on the decision reported

in (2005) 2 SCC 686 : M.P. Lohia vs. State of West Bengal to deprecate

interference by the media in respect of matters which are subjudice.

He concluded by submitting that registering an FIR and investigation

pursuant thereto were unwarranted and without any authority of law and

consequently the report submitted by the CBI is illegal, unauthorised, void and

cannot be acted upon in law and liable to rejection. No case for grant of relief by

the Writ Court had been made out by the petitioners and the writ petition,

accordingly, is liable to be dismissed.

Mr. Joymalya Bagchi, learned Counsel represented the respondent no.13.

He adopted the arguments of the learned Advocate General and Mr. Ghosh and

argued a few other points. According to him, parameters for substituting ordinary

investigating/law enforcement agency by another agency requires an exceptional

case. Since the writ petition was moved a week after unfortunate death of Riz, the

core question which arises for determination is as to whether such an

exceptional case was made out or not which called for entrusting the CBI with investigation of the cause of his unnatural death. He urged that the Court must

examine as to whether the prayers, interim and final, made by the petitioners

could have and presently can be allowed.

While referring to the complaint lodged by the petitioner no.2 dated

21.9.07, he submitted that on that date the petitioner no.2 was not aware of the

cause of death of Riz. However, the petitioners had pleaded in the petition that

Riz had been killed/murdered. What warranted the change in perception of the

petitioners, according to him, has not been disclosed.

If there be change of mind emanating from additional information, that

ought to have been communicated to the Officer-in-Charge of the police station.

As on date of presentation of the petition, communication of a cognizable offence

having been committed was not made. The transformation in the mind of the

petitioner no.2 was not made clear by stating anything in the writ petition

regarding alleged murder of Riz.

There being no exceptional case for investigation by the CBI, he contended

that the order dated 16.10.07 was not warranted on facts.

Next, it was contended that law and order being a subject included in List

2 of the VIIth Schedule of the Constitution, separation of powers which is a basic

feature of the Constitution was sought to be interfered with or at least suspended

by reason of the order dated 16.10.07. The facts were not such that a case for

investigation by CBI had been made out. The Court, therefore, erred in passing

such an order. Even otherwise, he contended, by the order dated 16.10.07 the CBI was

not directed to investigate any crime. The primary duty of a citizen to

communicate commission of a cognizable offence was not fulfilled. Therefore, the

condition precedent for exercise of power under Section 154(1) of the Code was

non-existent. Therefore, registration of an FIR by the CBI is absolutely illegal.

Next, he referred to paragraph 26 of the writ petition where the petitioners

had assigned reason as to why a CBI probe was necessary. According to him,

very wide of proposition of law had been canvassed. Fact that one police officer

may be biased cannot end in a conclusion that the entire cadre would be biased

and the entire police force in the State would act in concert. The Commissioner of

Police, Kolkata Police is neither the head of organisation like CID nor any case of

brotherhood of uniform has been made out. In this connection reliance was

placed on the decision reported in AIR 1988 SC 747 : Darshan Singh vs. State of

Punjab. By reason of changed circumstances, he argued, likelihood of bias is

rendered remote which is an important factor to be taken into consideration.

Reference was made to the decision reported in AIR 1997 SC 243 : State Bank of

Bikaner & Jaipur vs. Srinath Gupta. Since the petitioners had not pleaded that

the CID investigation is contrary to the provision of the Code, likelihood of bias

stood obliterated.

On the authority of the decision in Shasikant (supra) and Rajendra Singh

Katoch (supra), he urged the Court to appreciate that the action of the CID in

conducting preliminary enquiry cannot be branded as contrary to law. By relying on the decisions in Sampat Lal (supra), Rubabbuddin Sk.(1) vs.

State of Gujarat : (2007) 4 SCC 318 and Rubabbuddin Sk.(2) vs. State of Gujarat

: (2007) 4 SCC 404, it was contended that direction to CBI to enquire and/or

investigate must be preceded by a prima facie satisfaction that the statutory

investigative agency has not been discharging its duties properly and that if it is

difficult to come to a conclusion that investigation is not proceeding towards the

correct direction, CBI investigation should not be ordered.

It was then contended that unless there is a specific direction by the Court

to register an FIR on disclosure of cognizable offence and to conduct investigation

in respect thereof, the CBI is precluded from registering an FIR on its own

without obtaining permission from any Court. He referred to the decision of the

Division Bench of this Court reported in 2007 (4) CHN 842 : Association For

Protection of Democratic Rights vs. State of West Bengal and referred to

paragraph 160 thereof to contend that a specific direction was given by the

Division Bench to register and/or initiate a criminal proceeding in accordance

with law which was conspicuously absent in the order dated 16.10.07. The CBI

within six days of the order dated 16.10.07, without having any additional

material, had lodged a case/FIR under Section 302 of the IPC. By so doing, the

CBI already reached a conclusion that it is a case of murder and as the cause of

death is already known, the whole purpose of investigation as to the cause of

death was rendered meaningless. The CBI could not have register a case for

murder even on the date of investigation since information given to Karaya Police Station was one of unnatural death and not of any cognizable offence. Therefore,

registration of the FIR by the CBI is contrary to law.

He continued by submitting that there being no authorisation by the

Court, the report of the CBI following investigation conducted on the basis of

such an FIR is unauthorised and nonest. CBI not having the statutory authority

to investigate a crime in the present case, prayer for filing police report travels

beyond the authority delegated to it and cannot form the basis of any

prosecution. Report of cause of death was called for in aid of the present

proceeding and the order was not meant to supplant the ordinary investigative

process.

There being absence of a case of failure to discharge statutory duty by the

investigative machinery of the State, the likelihood of any bias in conducting

investigation not surviving with the transfer of the concerned police officers and

the petitioners having the liberty of approaching the appropriate forum, he

contended that the terms of the interim order do not warrant continuation. In the

result, the writ petition is liable to be dismissed.

Mr. Pal, learned Senior Counsel representing the respondents 3, 5, 7, 8 and

9 put forth the following submissions.

On the point of maintainability of the writ petition, he submitted that the

writ petition does not disclose a cause of action, it involves hotly disputed facts,

and verification of the contents of the writ petition is defective since paragraphs 2

and 23 thereof and contents of paragraphs 4, 6 and 15 of the supplementary

affidavit have been affirmed as true to the knowledge of the deponent which is ex facie bad and incurable. Reliance in this connection was placed on the decisions

of the Apex Court reported in AIR 1952 SC 317 : State of Bombay vs.

Purushottam Jog Naik and 1988 (Supp) SCC 655 : Savithramma vs. Cecil

Noronha. Based thereon, he urged that the writ petition not being maintainable

deserves to be dismissed.

Preliminary submissions made by him are noted below:

1) Since an interim order can only be in aid of the final relief and not

beyond it, the interim order dated 16.10.07 ought to be construed as

limiting the CBI investigation as prayed for in the writ petition and not

against either Prasun Mukherjee or Gyanwant Singh.

2) Having regard to the law laid down in Common Cause (supra), the

prayer in the writ petition for investigation by CBI into the acts and

conduct of these persons and to find out whether or not they have

committed any offence cannot be granted since it is not permissible in

law.

3) No criminal case was filed by the petitioners (i.e. complaint under

Section 200 of the Code or petition under Section 156(3) of the Code)

and no complaint was lodged with the police station disclosing

commission of cognizable offence by any of the police officers. The

complaint dated 21.09.07 lodged by the petitioner no.2 does not contain

any reference to these police officers and the entire grievance is against

respondent no.12. The impleadment of the police officers is only an

afterthought. The petitioners have therefore failed to make out any case of inaction of the State to conduct any investigation into any offence

that might have been committed by these police officers.

On the Court's order dated 16.10.07, he contended that the order directing

CBI to investigate is ultra vires the Constitution which makes law and order an

exclusive State subject in List II of the 7th Schedule of the Constitution. CBI has

no power and jurisdiction to investigate in respect of offences of murder,

homicide, aiding and abetting suicide as it has done in the instant case. Detailed

submissions were made in this connection by referring to the provisions of the

DSPE Act and particularly Sections 3, 5 and 6 thereof.

It was further submitted by him that the conclusion arrived at by the Apex

Court in Sampat Lal (supra) is not law declared under Article 41 of the

Constitution : conclusion therein is virtually based on the consent given by the

learned lawyer for the State. No consent having been granted by the State of West

Bengal under Section 6 of the DSPE Act for exercise of power and jurisdiction by

the CBI in the State of West Bengal in respect of offences under Section

306/506/120B of the IPC, the observations in the report of the CBI regarding

recommendation of charges under the aforesaid sections against the respondents

5, 8 and 9 is totally beyond its jurisdiction, illegal and ultra vires the

Constitution.

He adopted the submissions of Learned Advocate General to contend that

the CBI has proceeded on a misreading of the order dated 16.10.07 and

consequently its action and report are ultra vires. He next contended that the interim order dated 16.10.07 cannot in any

way restrict the scope of the final order. According to him reasons disclosed in

the interim order are ex facie erroneous. According to the scope of

enquiry/investigation under Sections 174/175 of the Code, it could have been

carried on upto the date of receipt of post-mortem report finally. It is his

contention that only after obtaining such post mortem report can the final report

of a reported case of unnatural death under Section 174 of the Code be filled in

and submitted to the appropriate Magistrate. It is a matter of record that the

State Investigating Agency (at that time CID) could not complete its investigation

under Section 174 since prior thereto interim order dated 16.10.07 was passed

by this Court. As a result, the final report of the unnatural death case could not

be submitted. Reference in this connection was made to page 7 of the affidavit

dated 5.3.08 and Annexure "R-2" thereto filed on behalf of the State wherefrom it

would appear that the portion of the form of final report has been kept blank

which could only be filled up after receiving the post mortem report finally. These

could not have been known to the learned Judge at the time of passing interim

order since these were not placed before the Court.

Regarding the CBI's actions after order dated 16.10.07, it was submitted

that the Court by order dated 16.10.07 while directing CBI to investigate into the

cause of unnatural death of Riz did not allow the petitioners' other prayer for

handing over investigation by CBI in relation to allegations made against

respondents 5, 8 and 9. Though the first part of prayer (e) of the petition was

allowed by the Court, the other part was not allowed and, therefore, should be deemed to have been rejected by the Court. Thus CBI acted without jurisdiction

in purporting to investigate into allegations made against the police officers.

Also, the CBI had no jurisdiction to investigate in view of the bar under

Section 6 of the DSPE Act. The scope of the order of the Court was restricted to

investigation of unnatural death of Riz in relation to U.D. Case No.183/07, to be

carried out under Section 174 of the Code for finding out the cause of unnatural

death and nothing more. Consequently, the order dated 16.10.07 lifted the bar of

Section 6 in relation to this limited investigation, and for any offence beyond

investigating into the cause of death, the bar of Section 6 would apply and hence

the CBI had no jurisdiction to cause any investigation beyond this limited scope.

CBI report is without jurisdiction in so far as it extends beyond investigation of

unnatural death case. All findings and observations in the CBI report against the

police officers are thus ultra vires and illegal.

The action of the CBI in straightway registering an FIR without a

preliminary enquiry was also subjected to criticism by Mr. Pal. According to him

the Manual in Chapter 9 (clause 9.3) contemplates preliminary enquiry in case of

an unnatural death. Without any such enquiry, the CBI took the unusual step of

registering murder case under Section 302 which is contrary to the Manual. It

was also contended that the FIR allegedly drawn up by the CBI was made over to

the Court of the learned Chief Metropolitan Magistrate, Calcutta on or about

17.11.07 after an unexplained delay of 30 days of its registration and that the

CBI did not approach the jurisdictional Magistrate at Sealdah. Since the writ petitioners did not allege that the accused police officers are guilty of abetment of

suicide, the CBI by arriving at such finding proceeded beyond the writ petition.

With regard to non-disclosure of report of the CBI to the parties, it was

contended that the scope of the writ petition cannot be expanded by virtue of

such which was not made available to the respondents represented by him as a

result whereof they had no chance to indicate their stand in relation thereto. The

CBI report being a subsequent event and the respondents not having had the

opportunity to consider it or deal with it and in the absence of averments in the

writ petition or in the affidavits, the Court may not reach a conclusion that

further steps are required to be taken on the basis thereof which may contain

observations/findings against the respective respondents. In this connection,

reliance was placed on the decision reported in (1998) 7 SCC 469 : Rani

Laxmibai Kshetriya Gramin Bank vs. Chand Behari Kapoor.

Next, he contended that non-disclosure of the report of the CBI is violative

of principles of fairness and would render this proceeding illegal and void. Such

non-disclosure is a fatal defect in that it is contrary to basic canons of justice.

Once the adjudicator of a proceeding looks into a document, irrespective of the

result that such look might produce, a litigant simultaneously must be allowed

access to such document and failure would constitute violation of principles of

natural justice. The authorities relied on in this connection are reported in (1975)

1 SCC 155 : State of Punjab vs. Bhagat Ram; (1986) 3 SCC 229 : Kashinath

Dikshita vs. Union of India; (1994) 5 SCC 118 : Mohd. Quaramuddin vs. State of

A.P.; (1993) 1 SCC 13 : State Bank of India vs. D.C. Aggarwal; (1974) 3 SCC 459 : S. Parthasarathi vs. State of A.P.; (1976) 1 CLJ 571 : (2006) 11 SCC 356 :

Inderpreet Singh Kahlon vs. State of Punjab; (2007) 1 SCC 110 : M.C. Mehta

(Taj Corridor scam) vs. Union of India; (1982) 2 SCC 376 : State of U.P. vs. Mohd.

Sharif; and (1991) 1 SCC 588 : Union of India vs. Mohd. Ramzan Khan

He contended that no privilege was claimed in respect of the report of the

CBI and not allowing the parties access thereto would be contrary to law. The

decision in S.P.Gupta vs. Union of India : AIR 1982 SC 149 (paragraphs 55-69)

was referred to in this connection.

The recommendation of the CBI in relation to initiation of disciplinary

proceedings against the respondents 5,7, 8 and 9 was also severely criticized by

him by submitting that the CBI transgressed its limit. Service conditions,

including disciplinary proceedings and penalty that can be imposed against them

are governed by statutory rules subject to Articles 310 and 311 of the

Constitution. Whether or not a disciplinary proceeding should be initiated

against a particular officer is the exclusive domain of the respective disciplinary

authorities of the officers. Reliance in this connection was placed on the decision

reported in AIR 1991 SC 1507 : Nagaraj Shivarao Karjagi vs. Syndicate Bank.

Referring to the Manual of the CBI, it was contended that it is fallacious to refer

thereto as the source of power of CBI to recommend disciplinary action, since the

Manual cannot enlarge the scope of the DSPE Act which does not empower CBI

to recommend disciplinary action. In any event, it was contended that the

investigation conducted by police agency under the provisions of the Code can

only end in a report in final form and not in recommendation of disciplinary proceedings. The recommendation being totally beyond the jurisdiction of the CBI

and ultra vires the Constitution, he urged the Court to set it aside.

No case, it was submitted, had been made out against Prasun Mukherjee,

respondent no.3. The petitioners had not made any prayer for investigation by

the CBI in relation to any allegation against respondent no.3. That apart, neither

any declaration was prayed for against him on the basis of Article 21 of the

Constitution nor Rule Nisi has been prayed for against him. Therefore, the writ

petition is liable to be dismissed against respondent no.3 with compensatory

costs. In this connection he referred to the decision reported in (2008) 3 SCC 183

: Ganapati Madhav Sawant vs. Dattur Madhav Sawant for the proposition that

scope of the writ petition has to be restricted to what has been pleaded therein

and its scope cannot be expanded without amendment.

By referring to the transcript of the press conference of Prasun Mukherjee

as produced by Kolkata T.V. in compliance with the Court's order, it was

contended that respondent no.3 had never stated that it was transparent that Riz

had committed suicide, as alleged in the writ petition; on the contrary, he had

commented in such press conference that Riz seemed to have committed suicide

apparently. Further, the word transparent was used by the respondent no.3 in

the press conference in a different context and not in respect of the cause of

death. No conclusive opinion as to cause of death was given by the respondent

no.3 at the press conference and it stands established from the transcript

produced in Court. The observations made by the learned Judge in the interim order dated

16.10.07 to the effect that the Commissioner of Police had made comments

which, prima facie, have every likelihood of prejudicing any enquiry into cause of

death is not based on records which have now been made available to the Court.

Therefore, it was submitted with respect that the Court can and should hold that

there was no ground for displacing the State machinery of investigation and to

hand over investigation to the CBI.

Countering the allegation of failure on the part of the respondent no.3 to

act on the letter dated 30.8.07 written by Riz and Priyanka, it was contended that

the allegation is absolutely incorrect. The said letter was addressed to the

Commissioner of Police and not personally to respondent no.3. It was received by

the receiving section of police headquarters at Lalbazar but was never placed

before the respondent no.3 as it was routed out of police headquarters at

Lalbazar to another police station on the point of jurisdiction. It was ultimately

routed back to Kolkata Police headquarters on 25.9.07. By that time, Riz had

died. It was further submitted that respondent no.3 having been transferred from

Kolkata Police immediately after death of Riz is not in a position to substantiate

the course of the said letter dated 3.8.07.

Next, it was urged that the petitioners had also failed to make out any case

against Gyanwant Singh, respondent no.7 for CBI investigation into his conduct

and, therefore, the acts and conduct of respondent no.7 could not have been

made the subject matter of CBI investigation. While defending respondent no.7, Mr. Pal contended that allegations made

against him are to be found in paragraph 10 of the writ petition in relation to the

incident that purportedly took place on 4.9.07 and paragraph 6 of the

supplementary affidavit. It was denied that the respondent no.7 had called Riz

and Priyanka at Police Headquarters, Lalbazar and that he had ever met Riz or

any of his family members. In respect of the allegation regarding T-shirts, the

stand of the respondent no.3 as expressed in paragraph 12 of his affidavit-in-

opposition was adopted. According to him, no act or conduct of respondent no.7

could be construed as violative of rights of Riz protected under Article 21 and,

therefore, the Court ought not to make any order affecting respondent no.7.

On behalf of respondents 5, 8 and 9 it was submitted by him that since

they have been accused of a criminal offence, Article 20(3) of the Constitution

gives them immunity from being compelled to be a witness against themselves

and as such they are entitled to exercise their right to remain silent with regard

to the purported events of 1.8.07, 4.8.07 and 8.9.07. Any finding by this Court

vis-à-vis prayer (c) of the petition would necessarily involve adjudication of

disputed questions of fact and prejudice their right as accused persons apart

from being in violation of Article 20(3). In this connection, decisions in M.P.

Sharma (supra), Collector of Customs vs. Cal. M. & Cycle Co. : AIR 1958 Cal 682,

K. Joseph Augusthi vs. M.A. Narayanan : AIR 1964 SC 1552 and Nandini

Satpathi (supra) were relied on.

While referring to the written complaints made by Pradip Todi, it was

contended on behalf of the respondents 5, 8 and 9 that they clearly acted in discharge of their official duties. In view of these complaints, neither of their acts

and conduct could be construed as violative of Article 21 of the Constitution nor

have the writ petitioners been able to show any. According to him, there is

therefore no scope of any action of these officers being declared to be violative of

any right of anyone under Article 21 of the Constitution. In this connection, it

was contended that the police is not barred to give advice and to ensure that

there is no confrontation. The people at large with their own private problems

approach the police authorities with the expectation that the very presence of the

police would act as a deterrent in the escalation of such problems which

otherwise have the potentiality of leading to undesirable consequences involving

commission of offence. This, he submitted, is statutorily recognised in Section

149 of the Code and 23 of the Police Act. Reference was also made to the Indian

Standards of Code of Conduct for the Police - Human Rights, International

Challenges, by Dr. S. Subramanian (page 262).

He also contended that after 8.9.07, even according to the writ petitioners,

Riz till his death on 21.9.07 had no contact with Kolkata Police. It is further

revealed from the writ petition that Riz was in touch with Priyanka during this

period and, therefore, any nexus or link between the death of Riz on 21.9.07 and

the alleged action of respondents 5, 8 and 9 admittedly 13 days prior to that does

not arise and thereby the requirement of offences of abetment is not met. Even in

the letter to the Karaya Police Station dated 21.09.07, the petitioner no.2 did not

air any grievance against the police despite he being present in each of the

interactions between Riz and Priyanka on the one hand, and the police officers and respondent no.12 on the other hand. He cannot thus claim to be unaware of

the alleged actions of the police and the allegations that have been made are

clearly an afterthought in order to sensationalise the matter.

He concluded by submitting that the writ petition should be dismissed in

limine with penal costs and the report of the CBI prepared without due authority

of law should also be set aside.

Answering the contentions raised on behalf of the State, the city police

officers and the private respondents, Mr. Bandopadhyay, learned Senior Counsel

appearing for the petitioners advanced elaborate arguments touching factual

incidents vis-à-vis legal points preceding and following the death of Riz, and on

other relevant issues.

According to him, after Riz married Priyanka on 18.8.07, a joint letter was

written by them on 30.8.07 addressed to the Commissioner of Police informing

him of their marriage which was solemnised according to their wishes and not

under the influence of any pressure and an apprehension was expressed that

respondent no.12 might threaten them with dire consequences and anti-social

elements/goondas might be hired to kidnap them. They sought for protection of

the police. Letters with the same contents were also sent to other police officers

in the State, namely the Deputy Commissioner of Police (South Division), the

Superintendent of Police, 24 Parganas (South), Officers-in-Charge of Entally,

Bidhannagar and Karaya Police Stations as well as to the Chairman of the West

Bengal Human Rights Commission. Immediately thereafter Priyanka started residing in her matrimonial home

and also informed the respondent no.12 of the same. On 31.8.07, the respondent

no.12 visited the residence of Riz and persuaded him and the petitioners to send

Priyanka back, to which she did not accede. On the same night, two police

officers attached to Karaya Police Station viz. Jayanta Mukherjee and Pulak

Dutta visited the residence of Riz and created mental pressure on Priyanka and

Riz to persuade her to return to her parents' house which was again turned down

by her.

Instead of providing assistance and protection to Riz and Priyanka, the

authorities of Kolkata Police summoned them on 1.9.07, 4.9.07 and 8.9.07 at

Lalbazar. No complaint disclosing commission of cognizable offence by Riz was

lodged at any police station and even if lodged, no FIR was registered. In the

absence of registering an FIR for commission of cognizable offence and in the

absence of any order from a competent Magistrate directing investigation of a

cognizable offence under Section 156(3) of the Code, the authorities of Kolkata

Police had no authority whatsoever to summon Riz at Lalbazar. Referring to the

decision reported in AIR 1955 SC 196 : H.N.Rishbud vs. State of Delhi which

explains what "investigation" under the Code would consist of, it was contended

that examination of persons should also fall within the ambit and scope of

investigation but in the absence of an FIR, no investigation could have been

conducted and calling Riz at Lalbazar was thoroughly illegal.

Respondents 1, 2, 4, 6, 10, 11, 14 and 15 did not make their versions

available while countering statements made in the writ petition up to the incidents of 8.9.07 and therefore the averments made by the petitioners remain

uncontroverted. Similar is the position with respondents 3, 5, 7, 8 and 9 who

chose not to controvert the material allegations levelled against them by the

petitioners. Reliance was placed on the decision reported in AIR 1993 SC 2592 :

Smt. Naseem Bano vs. State of U.P. for applying the doctrine of non-traverse.

In course of strenuously urging that the police officers as well as the

private respondents had violated Riz's right protected under

Article 21 of the Constitution, reliance was placed on the decisions reported in

(2003) 6 SCC 1 : Kapila Hingarani vs. State of Bihar, AIR 1986 SC 180 : Olga

Tellis vs. Bombay Municipal Corporation, AIR 1978 SC 597 : Maneka Gandhi vs.

Union of India and AIR 1963 SC 1295: Kharak Singh vs. State of U.P. Reference

was also made to the decisions of the Allahabad High Court reported in 2002 Cr.

L.J. 3588 : Samsher Alam alias Sheru vs. State of U.P. and AIR 2006 ALL 60 :

Smt. Pooja Arya vs. State of U.P. for the proposition that the right to life under

Article 21 of the Constitution guarantees the right to privacy as also the right to

adult citizens of this country the freedom to marry according to their own wishes

and that such sacrosanct privilege should not be allowed to be rendered non-

functional by the police authorities in their effort to dislodge or undo inter-

religious marriages. For the proposition that if one does not break a law, the right

to life and liberty would include the right not to be disturbed and the right to be

left alone is recognised to be a right under Article 21 of the Constitution, the

decision reported in (2008) 2 SCC 370 : Directorate of Revenue vs. Mohammed

Nisar Holia was relied on. The aforesaid decisions clearly lay down the law that in case of inter-religious marriage if a police officer or any other person interferes

with the marital life of a couple, the same shall amount to violation of Article 21

of the Constitution.

Reliance was also placed on the decision reported in AIR 2006 2522 : Lata

Singh vs. State of U.P. to buttress the contention that the police officers had no

business to interfere in the conjugal life of an adult couple and that the Apex

Court had directed initiation of criminal proceedings against those who try to

break up inter-caste or inter-religious marriages.

In this connection reliance was also placed on the decision in Dr. Dinesh

Kumar & Ors. Vs. Motilal Nehru Medical College, Allahabad reported in (1990) 4

SCC 627 (paragraph 8) for the proposition that directions of the Apex Court are

not intended to be brushed aside or overlooked or ignored and meticulous

compliance is the only way to respond to such directions. Reference was also

made to Article 144 of the Constitution of India which ordains that all

authorities, civil and judicial, shall act in aid of the Supreme Court. The police

officers and respondent no. 12 having harassed Riz and Priyanka and having

committed acts of violence, order on the concerned authorities to institute

appropriate criminal proceedings against them in view of the directions given by

the Apex Court in Lata Singh (supra) was prayed.

The police officers have interfered in the conjugal life of Riz and Priyanka

without valid cause and, therefore, have exposed themselves to the risk of having

a declaration against them that they have acted against right to life and liberty.

By summoning Riz at Lalbazar without there being a cognizable case to be investigated on registration of FIR, the respondents 5, 7, 8 and 9 acted ultra vires

the provisions of the Code and invaded the rights of Riz as protected by Articles

21 and 14 of the Constitution and, therefore, their impugned actions are

unconstitutional. The decision reported in 2001 Cr.L.J. 238 : Smt. Soubhagya vs.

The Chief Secretary, State of Karnataka was relied on while urging the Court to

direct the State to take appropriate disciplinary action against the erring police

officers.

Inspection of copy of documents seized by the CBI reveal awareness of the

respondent 12 as well as the police officers that Riz and Priyanka were living

together as husband and wife and hence there was no scope to entertain any

complaint that Riz by deceitful means had persuaded Priyanka to stay with him

or for the police officers of Kolkata Police to summon Riz and Priyanka, unless of

course they were forced upon to create a situation to break the marriage between

Riz and Priyanka under the influence of the respondents 12 and 13.

It was further contended that soon after Riz had been reported to be dead,

the petitioner no.2 had lodged a written complaint with the Karaya Police Station

expressing in unequivocal terms that hands of the respondent no. 12 was

suspected behind such death. In spite thereof, no cognizable case was started

against respondent no.12. Enquiry was undertaken by the CID into the

unnatural death of Rizwanur, as submitted by the learned Advocate General

before the learned Judge who passed the interim order on 16.10.07, which was

thoroughly illegal. In terms of Section 154 of the Code, FIR relating to a cognizable case was required to be registered and investigation of the same ought

to have been conducted.

He submitted that inquiry according to the Code means every inquiry

conducted thereunder, other than a trial by a Magistrate or Court. There was no

order of the Magistrate to conduct enquiry in the case of unnatural death of Riz

and question of conducting enquiry did not arise. After Riz's expiry, post-mortem

of his dead body was conducted on the following date and the corpse was

interred on that day itself. In terms of Section 174 of the Code read with Section

175 thereof, there was no scope to conduct any enquiry into the unnatural death

of Riz after the inquest was over. Scope of investigation under Section 174 of the

Code is restricted till inquest. Section 175 has to be read in conjunction with

Section 174 and thus can be invoked only during inquest of the dead body. The

CID had started enquiry, according to the State, on and from 27.9.07 after the

corpse of Riz had been interred and there was thus no scope for the CID to

summon any person for investigation under Section 175. The CID had in fact

conducted investigation in connection with unnatural death of Riz without

registering a cognizable case on the basis of complaint dated 21.9.07 which is per

se illegal.

Regarding the scope of Section 174 of the Code, the decisions reported in

(1975) 2 SCC 570 : Kodali Purnachandra Rao vs. Public Prosecutor and (1975) 4

SCC 153 : Pedda Narayana vs. State of A.P. were relied on.

It was next contended that in case of commission of a cognizable offence,

the provisions contained in the Code do not confer any power on the police officers to hold preliminary enquiry. According to him, the submissions of learned

Advocate General and other learned Senior Counsel for the parties that CBI

ought to have conducted preliminary enquiry before recording an FIR under

Section 302 of the IPC has no substance at all. Decisions relied on by him for the

proposition that preliminary enquiry is unheard of in the scheme of the Code are

reported in 1994 Cr. L.J. 2502 : Kuldip Singh vs. State; AIR 1967 Cal 47 :

Mannalal Khatic vs. The State; 2003 Cr. L.J. 1710 : Shiv Parshad Pandey vs.

CBI; 2002 Cr. L.J.337: P.Raghuthaman vs. State of Kerala; 2001 Cr. L.J. 2587:

Mahindro vs. State of Punjab; 1994 Cr. L.J.1833 : Mrs. Vidya Stokes vs. State of

Himachal Pradesh; 2002 Cr. L.J. 2113 : Giridharilal Kanak vs. State; 1999 Cr.

L.J. 274: Udaybhan Shuki vs. State of U.P.; and AIR 1971 SC 520 : P.Sirajuddin

vs. State of Madras.

The decision in Shashikant (supra) was relied on in support of the

proposition that registration of a case is sine qua non for starting an

investigation. The decision reported in (2001) 7 SCC 536 : Hemant Dhasmana vs.

CBI was heavily relied on in support of the contention that police referred to in

Chapter XII of the Code, for the purpose of investigation, would apply to the

officer/officers of the DSPE Act and that on completion of investigation, report

has to be filed by it in the manner provided in Section 173(2) of the Code.

According to him conducting of preliminary enquiry into an offence has been

introduced by way of judicial verdict since the same is not recognised in the

Code. On the basis of the aforesaid submissions, he contended that the CBI had not committed any illegality by registering a case under Section 302 of the Code

without making any preliminary enquiry.

It was submitted that sequence of events would suggest a clear tendency

on the part of the State's investigating agency of not disabusing its mind that

death of Riz was suicidal based on comments made by respondent no.3. As a

result, no cognizable case on the basis of the complaint lodged by petitioner no.2

was recorded and there was no investigation at all in respect of such complaint.

In aid of the contention that the police authorities should have disabused their

mind, reliance was placed on paragraph 29 of the decision in Sampat Lal (supra)

as also the decision reported in 1989 Cr.L.J. 1898 : Patel Lilabhai Ambalal vs.

Patel Kanubhai Mafatlal wherein the police was directed to register the written

complaint as FIR for offence punishable under Section 302 of the IPC and other

sections and to conduct investigation.

Reliance was also placed on the decision reported in AIR 1982 SC 826 :

Bhagwant Singh vs. Commissioner of Police to contend that there is similarity in

conducting of lackadaisical investigation by the police authorities which was

admonished by the Apex Court. Paragraph 49 of the decision in Bhajanlal (supra)

was relied on for the proposition that "reasons to suspect" has to be governed

and dictated in the facts and circumstances of each case and at that stage the

question of adequate proof of facts alleged in the FIR does not arise. Based

thereon it was submitted that this would demolish the submission of learned

Senior Counsel for the respondents that the complaint lodged by the petitioner

no.2 did not disclose any offence. It was contended that the police has no absolute and unfettered discretion whether to prosecute an accused or not and in

this connection reliance was placed on the decision reported in (1987) 1 SCC 288

: Shivananda Paswan vs. State of Bihar.

In support of the contention that the High Court has the power to direct

CBI to investigate, reference was made to the decisions in Sampatlal (supra),

Sakiri Vasu (supra), Central Bureau of Investigation vs. State of Rajasthan :

(2001) 3 SCC 333, Gudalure M.J. Cherian vs. Union of India : (1992) 1SCC 397,

R. S. Sodhi vs. State of U.P. : AIR 1994 SC 38 and Central Bureau of

Investigation vs. State of Gujarat : AIR 2007 SC 2522. Committee for Protection

of Democratic Rights vs. State of West Bengal reported in 2001 (2) CHN 98,

Association for Protection of Democratic Rights (supra) and State of West Bengal

vs. Jawahar Singh reported in 2008 (1) CHN 559 are the Division Bench

decisions of this Court which were relied upon for the same effect. Reliance was

also placed on the decisions in 1994 Supp (1) SCC 145 : Mohammed Anis vs.

Union of India and (1996) 3 SCC 682 : State of Bihar vs. Ranchi Zila Samta Party

for the proposition that pendency of reference before Constitution Bench of the

Apex Court does not bring everything to a grinding halt.

On the point that existence of alternative remedy is not an absolute bar to

entertain a writ petition, reliance was placed on the decisions reported in AIR

1971 SC 1021 : Century Spinning & Manufacturing Co. Ltd. vs. The Ulhasnagar

Municipal Council, AIR 1966 SC 142 : Sales Tax Officer, Jodhpur vs. M/s. Shiv

Ratan G. Mohatta, (1998) 8 SCC 1 : Whirlpool Corporation vs. Registrar of Trade

Marks, AIR 2005 SC 3454 : Mrs. Sanjana M. Wig vs. Hindusthan Petro Corporation Ltd., (2004) 3 SCC 553 : ABL International Ltd. vs. Export Credit

Guarantee Corporation, 2007 AIR SCW 2010 : M/S. Popcorn Entertainment vs.

City Industrial Development Corporation, 2007 AIR SCW 6879 : BCPP Majdoor

Sangh vs. N.T.P.C. and (2008) 1 SLR 5 : M.P. State Agro Industries Development

Corporation Ltd. vs. Jahan Khan.

He also urged the Court to lay down the law that in a particular case where

State action is challenged on the ground of violation of Article 21 and the Article

226 petition is not entertained on the ground of availability of an efficacious

alternative remedy, that would amount to exclusion of a person's right to seek

relief from Court which would hit the basic structure of the Constitution. In this

connection he also referred to the decision of the Apex Court reported in (1997) 3

SCC 261 : L. Chandra Kumar vs. Union of India for the proposition that no law

can take away the power exercisable by the Court under Article 226. If that is so,

that would hit the basic structure of the Constitution.

The decisions of the Apex Court reported in AIR 66 SC 81 : Dwarkanath vs.

Income Tax Officer, (1986) 2 SCC 679 : Comptroller & Auditor General of India

vs. K.S. Jagannathan, (1999) 4 SCC 526 : K. Venkatachalam vs. A. Swamickan

and AIR 1989 SC 1607 : Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust vs. V.

R. Rudani were relied on for emphasizing the High Courts power to issue

Mandamus under Article 226 and based thereon it was submitted that since no

investigation was conducted by the State police and no FIR was lodged on the

complaint of the petitioner no.2, this Court rightly directed the CBI to investigate

and this was all the more necessary since highly ranked police officers of the State had been accused of indulging in illegal activities and also to instill

confidence in the mind of the public.

He then contended that the State did not place complete facts before the

Court and in fact has tried to hide and/or suppress facts. Decisions reported in

AIR 1973 SC 207 : Mohd. Subrati alias Mohd. Karim vs. State of West Bengal

and (2008) 2 SCC 479 : Nehru Yuba Kendra Sangathan vs. Mehbub Alam Laskar

were relied on in support of the contention that it is obligatory on the part of the

State to place before the Court all the relevant facts relating to the impugned

action truly, clearly and with utmost fairness.

Regarding the interim order passed on 16.10.07 it was contended that the

cause of death of Riz was directed to be investigated and that there was no

ambiguity in the order. Relying on the decision reported in (2004) 7 SCC 219 :

BPL Limited vs. R. Sudhakar it was contended that to understand an interim

order one has to look to the prayer made to the interim relief, facts of a given

case and the terms of such order.

It was next contended that although the Manual makes a provision for

preliminary enquiry but it is not obligatory on the part of the CBI to initiate

preliminary enquiry in each and every case inasmuch as the Manual cannot

override the provisions of the Code. The decision reported in AIR 2008 SC 441 :

Paramjit Singh @ Mithu Singh vs. State of Punjab was relied on wherein it has

been held that investigation procedure prescribed in the Code is required to be

scrupulously followed by the concerned Officer-in-Charge of a Police Station and

that the local Police rules do not in any manner override the provision of the Code. The selfsame decision was also relied on for the proposition that a defect of

procedural irregularity in investigation, if any, cannot vitiate and nullify the trial

based on such defective investigation.

Countering arguments of learned Senior Counsel in relation to enjoyment

of immunity under Article 20(3) of the Constitution, it was contended that the

said provision has no application in the present case at all. According to him,

Article 20(3) is available to an accused person either before the police officer or

before the Criminal Court where the trial is conducted. Decisions in Nandini

Satpathy (supra) and Tukaram G. Gowkar vs. R.N. Shukla reported in AIR 1968

SC 1050 were referred to for the category of cases where protection of Article

20(3) would be available. It was also contended that if the respondents had made

statements in an affidavit countering allegations contained in the writ petition,

the same cannot be treated as evidence in a criminal case having regard to the

decision reported in AIR 1977 Del 73 : Parkash Rai vs. J.N. Dhar.

Based on the aforesaid submissions it was ultimately contended that the

Court may be pleased to declare the acts of all the police officers involved

including respondent no.3 unconstitutional.

Referring to the document being Annexure R-2 of the counter affidavit of

the State, he contended that the incident was first reported by the guard of a

local train that one male trespasser had been knocked down and killed (aged

about 55 years). The case proceeded on the basis on recording of such age. Later

on, in another affidavit affirmed on behalf of the State on 31.3.08, the age of the

deceased was recorded as 40. Since the petitioners had not been furnished copy of the CBI's report it is uncertain as to whether the CBI took note of such

difference of age and whether the dead body of Riz which was handed over to the

family of the petitioners was the body which was found on the Railway tracks or

not. Accordingly, it was urged that the CBI ought to be directed to make further

investigation on the point.

In view thereof, he prayed that the CBI ought to be directed to proceed

further in accordance with law including making a further investigation regarding

the discrepancy in recording of age of Riz which has surfaced from the various

documents on record.

It was also claimed that a direction be issued for institution of criminal

case against all the erring police officers and Ashok Todi and his relatives for

acting in a heinous manner to break the marital tie of Riz and Priyanka, in terms

of the decision in Lata Singh (supra).

Mr. Ranjan Roy, learned Counsel representing the CBI sought to justify its

actions by drawing reference to the order passed by this Court on 16.10.07.

According to him, the Court by the said order having recorded a prima facie

conclusion that the investigation being carried on by the CID under Sections

174/175 of the Code was not in accordance with law and having directed the CBI

to investigate the cause of death of Riz, investigation was taken up by it after

registering an FIR on the basis of the contents of the writ petition wherein the

petitioners had alleged that Riz had been killed by respondent no.12 with the aid

and assistance of the other respondents. In paragraph 2 of the petition the

petitioners had alleged that Riz had been killed and this constituted prima facie material for the CBI to suspect murder. Since investigation under Section 174 of

the Code was declared not to be in accordance with law and if provision of

Section 174 is taken away, the only course open to the CBI was to record FIR

under Section 154 and to proceed with the investigation. According to him,

having regard to the totality of the circumstances including the series of

incidents which were taken into account, it cannot reasonably be contended that

there were no ingredients of the offence of murder. It is not the law that

information full and complete must be laid for registering an FIR since it need not

be encyclopaedic. On the basis of the gist of the facts stated in the petition the

FIR was drawn up and registered and immediately thereafter it was transmitted

to the Metropolitan Magistrate's Court at Calcutta. The ultimate object of

investigation being to link the offence with the offender, the investigation does

not stand vitiated by any procedural irregularity not having the effect of causing

miscarriage of justice. He continued by submitting that the Court's intention

could not have been to entrust the CBI with a fact finding enquiry but the spirit

of the order was to empower the CBI to register an FIR and conduct investigation

on the basis thereof.

He further contended that the direction to investigate included a direction

to register an FIR and in this connection attention of the Court was invited to the

decisions reported in AIR 1997 SC 3104 : Madhu Bala vs Suresh Kumar, AIR

2001 SC 571: Suresh Chand Jain vs State of M.P. and AIR 2006 705 : Mohd.

Yousuf vs Smt. Afaq Jahan. By relying on the said decisions, he contended that

when a Magistrate is approached under Section 156(3) of the Code and the Magistrate directs the Police to conduct investigation without a formal direction

for registering an FIR, the provisions of Section 156(1) of the Code empowering

the police to investigate a cognizable case is to be invoked and, therefore, the

police is duty bound to formally register a case and then conduct investigation

thereof. According to him, the ratio of the aforesaid decisions is that even if a

Magistrate does not say in so many words while directing investigation under

Section 156(3) of the Code that an FIR should be registered, it is the duty of the

Officer-in-Charge of the Police Station to register FIR regarding cognizable offence

disclosed by the complaint because the police officer could take further steps

contemplated in Chapter XII of the Code only thereafter.

He next advanced arguments on the effect of the investigation carried out

by the CBI. For the proposition that any manner of illegality or irregularity in

investigation does not vitiate either the enquiry or the trial following it unless it

can be established that it has resulted in flagrant miscarriage of justice, he

placed reliance on the decisions in Rishbud (supra), A.C. Sharma vs. Delhi

Admn. reported in AIR 1973 SC 913, Leela Ram vs. State of Haryana reported in

AIR 1999 SC 3717, State of U.P. vs. Hari Mohan reported in AIR 2001 SC 142

and Union of India vs. Prakash P. Hinduja reported in AIR 2003 SC 2612.

By relying on the decision in Bhagwant Kishore Joshi (supra), he

contended that since receipt of information of the police is not a condition

precedent for embarking on an investigation in terms of Section 157 of the Code

and the police can investigate on the orders of the Court having regard to the word "otherwise" occurring in Section 157, the investigation by the CBI cannot be

urged to be defective or to have the effect of vitiating the investigation.

He contended that no rights are decided on the basis of an FIR for it only

sets the investigation into motion. Having regard to the allegation in the petition

that the respondent no.12 was responsible for the death of Riz there were

ingredients constituting an offence and, therefore, the CBI could not have started

investigation on the premise that Riz had died a suicidal death.

He vehemently objected to the prayer of the parties to have a copy of the

report of the CBI. By referring to the decision reported in 2005 SCC Cri 415 :

State of Orissa vs. Debendra Nath Padhi, he contended that the right of the

accused to have document(s) for defence is only at the stage of the trial and not

prior thereto. That the accused are only entitled to copy of the report under

Section 173 of the Code after the same is submitted before the appropriate

Criminal Court was sought to be contended by placing reliance on the decision in

Anukul Chandra Pradhan vs Union of India reported in 1996 SCC (Cri) 1338.

He concluded by submitting that the report which has been filed by the CBI

before this Court is not to be construed as one under Section 173(2) of the Code

but to assist the Court and to satisfy its conscience that a proper investigation

has been conducted on the basis of the materials collected and that if the Court

directs the CBI to conduct further investigation on any particular point, the CBI

would be duty bound to give effect to such order. He accordingly prayed for

liberty to the CBI to proceed further according to law. Parties were granted liberty to file written notes on arguments which have

since been filed and considered.

Having heard arguments advanced on behalf of the respective parties and

on scrutiny of the facts and circumstances of the case, the following issues arise

for determination by this Court:

(i) Should the writ petition fail owing to the petitioners not taking

recourse to efficacious alternative remedy provided by the Code?

(ii) Should the writ petition fail because it does not disclose any cause

of action, because adjudication of the issues would involve

resolving hotly disputed facts and because of defective verification

of pleadings, as contended by Mr. Pal?

(iii) Whether 'Kolkata Police's inaction' vis-a-vis the complaint lodged

by the couple and 'Kolkata Police in action' vis-a-vis complaints of

Pradeep Todi impugned herein justified? Is respondent no.3

responsible in any manner?

(iv) Did any of the city police officers (respondents 5, 7, 8 and 9) act

ultra vires in discharge of official duties?

(v) Whether investigation conducted by the State police agencies was

in accordance with law?

(vi) Whether the facts and circumstances presented before the Court

called for entrusting the CBI with investigation of cause of death

of Riz? (vii) Whether the CBI acted ultra vires in registering an FIR for alleged

offence of murder and conducted investigation on the basis

thereof in a manner not authorised by law?

(viii) Are the parties entitled to have a copy of the report of the CBI filed

in Court?

(ix) Is the CBI justified in expressing views in relation to

recommending to the State initiation of disciplinary proceedings

for major penalty against some of the respondents?

(x) Whether the CBI should be allowed to proceed further on the

basis of materials collected by it in course of investigation?

(xi) To what relief, if any, are the petitioners entitled?

Issue No.1

Whether a writ petition shall be entertained or not having regard to

existence of an efficacious alternative remedy is entirely the discretion of the

Court of Writ. Article 226 of the Constitution does not impose any such limitation

or restraint. It is one imposed by the Court of Writ in its own wisdom and is part

of its various 'self-imposed restrictions'. Requiring a party to exhaust the

alternative remedy prior to approaching the Court of Writ is not a rule of law but

a rule of convenience which does not and cannot oust the jurisdiction of the

Court. On a given set of facts a Court of Writ may refuse to entertain a writ

petition in view of availability of an efficacious alternative remedy while exercising

discretion judiciously but to hold that a writ petition owing to such fact is not maintainable in law, to the mind of this Court, is not the correct exposition of

law.

The law relating to exercise of Writ powers by High Courts under Article

226 has been authoritatively expounded by the Apex Court in L. Chandra Kumar

(supra).

It is also significant to note that the Apex Court in its decision in Surya

Dev Rai vs. Ram Chander Rai reported in AIR 2003 SC 3044 has approved the

principle of law laid down by the Delhi High Court in Govind vs State (Govt. of

NCT of Delhi) reported in (2003) 6 ILD 468 wherein the High Court ruled as

follows:

"The power of the High Court under Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or even taken away by judicial pronouncement or by legislative enactment or even by amendment of the Constitution. The power of judicial review is an inherent part of the basic structure and it cannot be abrogated without affecting the basic structure of the Constitution."

(emphasis supplied)

In the decisions of the Apex Court relied on by the learned Advocate

General starting from All India Institute (supra) to Sakiri Vasu (supra), no law

could be or has been laid down that a writ petition would not be maintainable in

law if an alternative remedy provided by law, which is efficacious, is not pursued;

what has been laid down is that in view of the remedy available to a person

aggrieved (by non-registration of a complaint disclosing commission of cognizable

offence by the police and conducting investigation in pursuance thereof) under Sections 154(3), or under 156(3) or under 200 read with 190 of the Code, a writ

petition ought not to be entertained.

In the present case the petitioners have claimed that investigation of cause

of unnatural death of Riz be entrusted with the CBI and that actions of the

respondents 4 to 9 be declared as unconstitutional.

No Magistrate discharging duties under the Code has the power to direct

investigation of any particular offence by the CBI. It is only the Court of Writ

exercising powers under Article 32 and 226 of the Constitution or the Apex Court

under Article 142 thereof that can direct investigation by the CBI if the

circumstances of the case so warrant. In view thereof, the contention that the

petitioners have an efficacious alternative remedy under the Code is untenable.

Also, the issue as to whether respondents 5, 7, 8 and 9 acted ultra vires

or not by invading Riz's precious right to life is one which can only be determined

by the Court of Writ, and not by any magisterial adjudication.

It is true, one of the reasons for which the petitioners felt aggrieved was

that the Karaya Police Station had not registered an FIR on receipt of the

complaint of the petitioner no.2 dated 21.9.07. However, fragmentation of causes

of action for moving different Courts would have only given rise to multiplicity of

proceedings. The frame of the petition is in conformity with Order II, Civil

Procedure Code principles and all the issues raised therein can be dealt with by

the Writ Court.

The contention of the learned Senior Counsel for the respondents that the

writ petition is not maintainable, for, the petitioners have not approached the Magistrate thus cannot be accepted. Therefore, this Court finds no reason to

dismiss the writ petition on the ground of availability of alternative remedy.

There is another reason why this Court is disinclined to accept the

contention raised by the learned Advocate General. The plea of non-availing of

alternative remedy by the petitioners was raised by him at the time of admission

hearing of the writ petition. The learned Judge while admitting the writ petition,

although did not specifically deal with such objection did not also keep the point

of maintainability of the petition open. An objection having been raised but not

pronounced upon must be treated as overruled and this Court thus finds no

reason to dismiss the writ petition on the point of existence of efficacious

alternative remedy.

To lay down a proposition of law, as urged by Mr. Bandopadhyay, that

whenever a writ petition is filed praying for enforcement of right under Article 21

of the Constitution the same ought to be entertained without relegating the

applicant to an available alternative forum, for the same would hit the basic

structure of the Constitution, in the considered opinion of the Court would not be

prudent. By a number of outstanding decisions, the Supreme Court has infused

LIFE in the letters of Article 21. The various facets of right to life and personal

liberty have been noticed by the Apex Court in paragraph 57 of the decision in

Kapila Hingarani (supra). It is not possible for the Court to precisely demarcate

the nature of cases where the Writ Court would be justified in its interference

despite availability of alternative remedy and the cases where not to interfere.

Each case has to be decided on its merit. However, when an individual perceives a threat to his life and limb and seeks enforcement of his right to life, interference

of the Writ Court may be more intrusive but to lay down as a matter of rule that

a writ petition must be entertained whenever right guaranteed by Article 21 is

sought to be enforced despite availability of an alternative remedy would itself

result in impinging on exercise of judicial discretion by the Writ Court.

The issue is thus answered in favour of the petitioners.

Issue No.2

It has been submitted by Mr. Bandopadhyay that the writ petition having

been held to be maintainable by this Court by its order dated 16.10.07, the issue

cannot be reopened. On reading the said order, this Court is convinced that the

learned Judge held the writ petition to be maintainable in the context of locus

standi of the petitioners to present it. Unless a cause of action had been

disclosed in the writ petition, the Court could not have decided the issue of locus

standi in vacuum.

While being in complete agreement with the learned Judge, this Court

would venture to give certain additional reasons in support of recording its

satisfaction that the objection of Mr. Pal (that the writ petition does not disclose

any cause of action) has not impressed this Court. A man is born free and has

the right to stay free unless he indulges in unlawful activities which, if proved,

may result in penal consequences depriving him of such right. The Constitution

guaranteed this right to Riz. By marrying Priyanka, he did not commit any crime.

Evidence on record is considered sufficient to demolish the allegation leveled against him by Pradeep Todi. He had, therefore, the absolute right to live a life

which is decent, complete, fulfilling and worth living. According to the petition

case, Riz was done to death at the instance of respondent no.12 and that there

has been no free, fair and impartial investigation of the cause of his death in

accordance with law. The right of the petitioners to live in the company of the

newly married couple was thus rendered infructuous. The petitioners in law have

a right to claim that whoever the offender is, is brought to book. This is the right

which is sought to be enforced by presenting the writ petition. The objection

being thoroughly misconceived is overruled.

The objection that hotly disputed facts are involved which necessarily

cannot be adjudicated by the Writ Court is equally unmeritorious. Merely

because a question of fact is raised would not justify the Court not to entertain

the petition and to require the party approaching it to seek relief by taking

recourse to the ordinary remedies instead of the extra-ordinary remedy of Writs.

The Apex Court in ABL International (supra) after noticing several previous

decisions of the Apex Court held that in an appropriate case the Writ Court

would have the jurisdiction to entertain a writ petition involving disputed

question of fact since there is no absolute bar to entertain a writ petition in this

behalf and that such a ground cannot be called in aid to refuse its entertainment

in all cases as a matter of rule. On the authority of the said decision, the Court

would not be justified in dismissing the writ petition without looking into its

merits and ascertaining which of the facts are disputed that cannot be resolved

by writ remedy. The objection, accordingly, fails. Exception has been taken by Mr. Pal in relation to verification of pleadings

as contained in paragraphs 2 and 23 of the petition and those contained in

paragraphs 4, 6 and 15 of the supplementary affidavit. In paragraphs 2 and 23 of

the petition the petitioners have pleaded that Riz was killed by hired killers

engaged by the city police officers named therein at the instance of the

respondent no.12. The only defect appears to be that contents of paragraphs 2

and 23 of the petition, with like substance, have been differently verified. While

paragraph 2 has been verified as true to the knowledge of the deponent,

paragraph 23 has been verified as his submission. The petitioners while

disclosing cause of action had pleaded that Riz had been killed. Whether or not

Riz had been killed is an issue which may fall for a decision before the competent

Court according to law. However, defect in verification of the pleadings contained

in the petition, in the considered view of the Court, is not so fatal that it would

warrant dismissal of the writ petition on this ground. Contents of paragraphs 4,

6 and 15 of the supplementary affidavit relate to allegations of fact which have

been verified as true to knowledge of the deponent. No defect is found in

verification of pleadings of the supplementary affidavit. The contention, therefore,

stands overruled.

This issue is also answered in favour of the petitioners.

Issue No.3

Mr. Bandopadhyay has contended with sufficient force that despite seeking

protection from high ranking police officers, Riz was not given any protection at all; on the contrary, he was treated in such a manner by the Kolkata Police as if

he had committed an offence punishable under law.

Mr. Pal sought to counter the submission by inviting the Court's attention

to the fact that the complaint of Riz and Priyanka dated 30.8.07 addressed to the

Commissioner of Kolkata Police never reached the table of the respondent no.3

since it was routed out of Lalbazar on the ground of jurisdiction and by the time

it reached Lalbazar again, Riz had unfortunately breathed his last.

The situation tells a very sorry tale indeed. The cry of Riz was not heard by

the Kolkata Police. Instead, its officers were busy elsewhere. A young married

couple had sought for police protection apprehending interference in their marital

life by the father of the bride. Letters were served not only on the Commissioner

of Police but to other responsible police officers. Apart from the Officer-in-Charge,

Karaya Police Station who deputed Jayanta Dutta, S.I. to conduct an enquiry,

others chose to look the other way. Although a report was filed by him

acknowledging the fact of a valid marriage between Riz and Priyanka, respondent

no.12 was not summoned by any of the police officers to elicit information

regarding the apprehension expressed by them. On the contrary, despite

respondent no.12 being aware that his daughter had voluntarily started living

with Riz in his residence, false and frivolous complaints were lodged by Pradeep

Todi one after the other. The alacrity and speed with which these false

complaints were attended to raises eye-brows when juxtaposed with the

complaint filed by the couple. Repeatedly, Riz and Priyanka were summoned to

Lalbazar as and when the Todis wished that they be summoned. One wonders whether the city police officers would be so agile and on their toes if a complaint

is sought to be lodged before them by a common man without having the

necessary contacts. That the officers of Kolkata Police care little about such

complaints is amply proved when one looks to the complaint of the couple. As is

evident from Mr. Pal's submission, the complaint was never placed before the

respondent no.3 since it was addressed to the Commissioner of Police whereas

complaints of Pradeep Todi, addressed not to an officer in his personal name but

to the Deputy Commissioner, Detective Department were attended to within a

very short time of their receipt. The system is such that one cannot but look at

the entire facts with despair. The respondent no.3 was not allowed to look into

complaints of citizens. His subordinates took their own sweet time to enquire into

the complaint, the result of which did not see the light of the day. No one was

taken to task. The entire incidents which occurred between 31.8.07 and 8.9.07

are suggestive of the inescapable conclusion that there exist two police stations,

Lalbazar for the influential who have easy access to its corridors, and the local

one supposedly for the aam aadmi. It is also not an uncommon sight nowadays

that a common man has to even knock the doors of the Writ Court with a writ

petition for a direction on the police to register an FIR which the High Court, in

view of the decision in Aleque Padamsee (supra) and other decisions referred to

therein, would not be justified in entertaining having regard to the alternative

remedies available under the Code.

Be that as it may, Kolkata Police unnecessarily involved itself in the

incident and continued such involvement for oblique reasons instead of distancing it once it was ascertained on enquiry that the marriage between Riz

and Priyanka was legal and valid and Priyanka had expressed her desire, in no

uncertain terms, to live with her husband in his house. No matter how agonised

the Todis were and apparently seeming to be justified in their reaction in asking

the police to resolve the issue, once the police officers found that Priyanka was

not missing, that she had not been detained against her wish and that she had

married Riz legally, they had no business to interfere in the personal lives of the

couple and summon Riz repeatedly to Lalbazar. Statute does not permit them to

act in such manner. The writing placed by Mr. Pal delineating duties and

functions of the police cannot come to the rescue of the officers since apart from

lacking in statutory force, the dialogue that the officers of Kolkata Police initiated

to solve the issue was not bonafide. They were aware of the falsified claim of

Pradeep Todi, yet they ventured into unchartered territory. None of the

respondents have really been able to justify as to why Riz and Priyanka were

called to Lalbazar. From the version of the respondent no.3 in the press

conference it is clear that Riz was summoned to Lalbazar not because the police

was convinced that his presence is required but because of the Todis insistence.

Riz had been hounded by the police in clear breach of his right to life under

Article 21 of the Constitution, significantly though he had not committed any

offence and was living as a law abiding citizen. This Court records its utter

displeasure in relation to functioning of the Kolkata Police force in this regard.

At this stage, one cannot but deprecate the stand of the State Government.

It failed to file counter affidavit to the writ petition within the time fixed by the order dated 16.10.07. It then applied for extension of time. The ground for

extension of time was that incumbents in the posts of Commissioner of Police

(Prasun Mukherjee), Deputy Commissioner of Police, Headquarters (Gyanwant

Singh) and Deputy Commissioner of Police, Detective Department (Ajoy Kumar)

had been transferred and, therefore, no proper counter could be offered. At the

same time, prayer was made for supply of copy of the report of the CBI to enable

it to file its counter. Why would the State require the report of the CBI to file a

counter to the writ petition had not been spelt out. Time to file counter affidavit

was extended without directing copy of the report of CBI to be furnished. Then

came a cryptic counter affidavit containing particulars of little use. The order of

the Court dated 28.2.08 had been misconstrued was the excuse put forward

therefor. That order did not restrict filing of counter affidavit on the point

mentioned therein and the expression 'inter alia' appears not to have been taken

note of by the State. This Court is unable to accept the explanation, for the

affidavit proceeds to question the CBI's actions taken in purported compliance

with the order dated 16.10.07 which the Court by its order dated 28.2.08 did not

ask the State to deal with. There was no dearth of wise counsel. Since the learned

Advocate General was representing the State, his advice could have been

obtained for understanding the said order. However, it was not obtained. Even

thereafter, two separate affidavits were filed by the State on 31.3.08 (in terms of

order dated 26.3.08) and on 2.4.08. The opportunity was not availed of by the

State to deal with the contents of the entire writ petition by seeking further leave

of Court. Based on records, it should have laid bare the entire facts before the Court. The conduct of the State in not disclosing facts, clear and complete, when

life of one of its subjects had been taken away in suspicious circumstances which

have since surfaced is appalling.

Now the case made out against the respondent no.3 in the petition, his

response and statements made by him in course of the press conference seeking

to justify the police action may be noticed.

Though it has been alleged in paragraph 2 of the petition that hired men

of respondent no.3 along with others at the instance of respondent no.12 had

been instrumental in killing Riz, this Court has noted that absolutely no relief

has been claimed against respondent no.3. However, whether any relief can

legally be or should at all be granted in view of the prayer clauses of the petition

would come up for discussion while a decision is given on the last issue, provided

the Court is satisfied on the basis of the materials on record that there is

something against respondent no.3.

The purported negative role of the respondent no.3 is sought to be

amplified by the petitioners by referring to a newspaper report annexed to the

petition reporting the press conference convened by him as also with reference to

his introduction to respondent no.12 by Snehasish Ganguly, the added

respondent, for solving the problem of respondent no.12 which resulted in

pressure and influence being created on Riz by the city police officers.

Thrust of the allegations of the petitioners against respondent no.3 is that

in the press conference he had stated that Riz had committed suicide and it is

very transparent. It had also been alleged that respondent no.3 in no uncertain terms called the reaction of the Todi family (on finding that their daughter

Priyanka who has been brought up with care for 23 years would leave them one

fine morning and start a new life with an unknown youth) natural. It is the

further allegation that when asked by a reporter as to why the Kolkata Police

intervened in a case between two adults, he replied "Who would intervene, the

P.W.D.?"

By filing an affidavit, respondent no.3 made his version available. It

appears therefrom that the press interview was given by him to diffuse the

tension that had built up in the area where Riz resided and that the actions

taken by Kolkata Police needed clarification, to avoid confusion and

misconception in public mind. While he was emphatic in his statement that no

conclusive opinion was given by him as to cause of death of Riz at the press

conference, he asserted in paragraph 6 that his statements have been distorted

and quoted out of context by the print media. He used the word 'apparent' while

conveying that Riz had committed suicide because he thought it could be a

possibility. The veracity and correctness of the newspaper report annexed to the

petition was denied. In course of submission, Mr. Pal contended that the word

'transparent' had been used by him in a different context and he had been

misunderstood.

He also denied that he was introduced to respondent no.12 by the added

respondent or that he had instructed respondent no.12 to meet the respondent

no.5. However, it was admitted by him that the added respondent had introduced

Pradeep Todi to him as a family friend in course of a brief meeting on 7.9.07 and he had been told about a complaint which Pradeep Todi had lodged with the

Detective Department regarding Riz and Priyanka. But, he had neither instructed

Pradeep Todi to meet the respondent no.5 nor did he give any indication that he

would use his personal influence for the benefit of Pradeep Todi.

This Court had called for the unedited video recordings of the press

conference convened by respondent no.3 together with transcripts from various

TV channels including Doordarshan. While a number of channels responded with

edited recordings, only Kolkata T.V. could produce a compact disc containing

video recording of the press conference in its entirety. The compact disc together

with transcript was filed in Court alongwith an affidavit. The Court records its

appreciation for the assistance rendered by Kolkata T.V.

Reliance was placed on portions of this transcript by Mr. Pal to

demonstrate that the allegations made against the respondent no.3 are

absolutely baseless.

The transcript annexed to the affidavit of Kolkata T.V. is only of the

statements made by the respondent no.3 on his own immediately on taking his

seat. Transcript of the answers given by the respondent no.3 to the questions of

the reporters present thereat, however, has not been provided.

The video recording of the press conference has assisted the Court to a

great extent to assess the role of the Kolkata Police in relation to the incidents

right from 31.8.07 and to arrive at its findings.

It would, therefore, be necessary to reproduce from the transcript

statements made by the respondent no.3 in course of the press conference to ascertain whether the Kolkata Police was unbiased in its approach, whether the

respondent no.3 was at all posted with all relevant information or whether

despite being aware of all relevant facts he feigned ignorance, and whether there

was any attempt on his part to twist facts to suit the convenience of the force to

which he belongs, especially because diffusing of tension was the reason for

convening the press conference. Relevant extracts read thus:

" ******

In this case it has been learnt that on 18 August these people had gone and registered their marriage. Which happens in several cases. On 31 August they left their home. And the girl left her home. However, the members of the Girls family didn't find any clue about the girl and thought that the girl went missing. In the night the girl wrang (sic rang) up at her home and said that she has come to such and such place, I won't come back home. From now she will stay with Rizwanur Rahman whom she had married. After hearing the tale from their daughter the family members couldn't believe her. Later on they contacted with the boy and rushed to their home at Tiljala.

*******

In the next morning the girls relative came to Lalbazaar and lodged a complaint of missing. But verbally they requested police not to make the matter public as it will hamper the reputation of the family and the girl. For that the police did not do anything formally. But both of them were called to Lalbazaar and were asked that is the girl a major. In such cases the majority of the girl is seen. Once a girl is a major, it is totally upto her choice what she will do. It is very clear. Usually what we do is when a girl is called missing by her relatives usually they think the girl has been abducted against her will, being influenced it seems to be true. Because the family which has nurtured the girl for 18 or 25 to 26 years fails to think that in a night time the girl would become a member of another family. So they wanted to make us convinced. In this case our duty is to find out the whereabouts of the persons linked. Though in this case the boy and the girl were located as they had an address in Kolkata. And we always try to do this, once we trace the girl or the boy particularly if a girl is missing our responsibility is found (sic to find) them out. Even a major girl can be abducted, against her will, or blackmailing, every thing can happen variedly. In that case we call both the parties and try to understand in what background she had left. Once it is understood then it is made clear to the family that your girl has not been harmed. Your girl is safe. She has not been taken against her will or anything and if she is a major then it is upto her what she would do. We cannot interfere in the matter. That is what happened in this case.

*******

Number one is in the first day the boy and the girl had same point of view. So they were released according to their will. According to us as she was a major her choice was respected. She was allowed to go back. She went back.

*******

On 4th September, the family members of the girl asked us to give them a scope to talk to the girl and the boy. Accordingly we called both of them and they came to us voluntarily.

*******

However, on 8th the girl's family members said that they want to lodge a formal complaint of abduction. They said that the girl can't stay like this. She has been influenced. And they lodged a complaint that that their daughter had been kept forcefully without her intention. In this background of which they were again called.

*******

It is very unfortunate that he had decided to commit suicide. Suicide in the sense that he had sent SMS to his friends which we come to know through several newspapers.

*******

However, in the morning at around 10.30 am it is impossible that one person is being killed and put to the tracks.

*******".

Having perused the records produced in Court, particularly the complaints

lodged by Pradeep Todi, this Court cannot but observe that the respondent no.3

did not address the press with correct and complete facts. He seemed to be

totally oblivious of the facts that Riz and Priyanka had addressed a

representation to him seeking protection; that respondent no.12 had been to the

residence of Riz on 31.8.07 and had persuaded Priyanka to return; that on a

written complaint lodged by Pradeep Todi on 1.9.07, an enquiry was conducted

on the order of the Deputy Commissioner, Detective Department by the

respondent no.9 who found the couple eligible to marry and the marriage

certificate was found to be genuine; and that on false and frivoulous complaints

and without registering an FIR, Riz was being summoned to Lal Bazar. His

version of the Todis' reaction and the repeated sermons sent to Riz to be present

at Lalbazar at their beck and call are clearly suggestive of a partisan attitude

taken by the Kolkata Police without even realizing that by marrying Priyanka, Riz

had neither committed any offence nor was Priyanka missing, as alleged by

Pradeep Todi, which was the real cause for the police being pro-active.

It is naïve to assume that Riz had been to Lalbazar voluntarily as suggested

by the respondent no.3. Immediately after his marriage, Riz found himself in

troubled waters. As and when the Deputy Commissioners (respondents 5 and 7)

required his presence, respondent no.9 was deputed to bring him to Lalbazar. In

such circumstances, there is good reason to believe, as pleaded, that he wilted

under pressure and succumbed to the directives given to him by the police. To suggest that Riz attended at Lalbazar voluntarily was clearly aimed at shifting the

focus.

The respondent no.3, being the Commissioner of Police at the relevant

time, also ought not to have defended the reaction of the Todis in public as well

as his subordinates particularly when the police machinery was activated not on

the basis of what is true but absolutely on reckless allegations. Also, the

respondent no.3 being the police supremo having years of experience behind his

back should have refrained from making any observation of the nature that at

10.30 A.M. it is impossible that a person is killed and put on the tracks. It was

too early in the day to come to any conclusion and such observations coming

from no other than the Police Commissioner was bound to have an effect on the

investigation.

This Court is of the further view that the answer reportedly given by the

respondent no.3 to the question as to why the police intervened in a marital

dispute (who would intervene, the P.W.D.?) has not been countered specifically

by asserting that no such answer was given. It probably could not have been

disputed by the respondent no.3 for, it appears from the video recording, that he

did answer the question in the manner reflected in paragraph 25 of the petition

and the newspaper report annexed thereto.

Now, the question arises as to whether the respondent no.3, in any

manner, is responsible or not?

The press conference of respondent no.3 brings to the fore a veiled attempt

on his part to shield his force and subordinates. On the facts the respondent no.3 knew or ought to have known, he failed to take into account all the relevant

factors, took into account irrelevant factors and reached a conclusion which no

Commissioner of Police, properly directing himself as to his duties, could have

reached. Respondent no.3's perception of police powers is also undoubtedly

flawed which is amply reflected from the materials on record. Justification of the

actions/inaction of Kolkata Police furnished by him has to be rejected as not

valid.

It also appears that the respondent no.3 withheld facts. In his affidavit,

what advice he had given to Pradeep Todi when he met him on 7.9.07 is

conspicuous by its absence. The fact that Pradeep Todi had met him was not

disclosed in course of the press conference. Probably there could hardly be any

justification for keeping these incidents in wraps and as such was not sought to

be justified.

The respondent no.3 in the press conference betrayed his serious concern

for the family of the Todis without even permitting a peep in his mind that after

all the petitioner no.1 had lost her grown up son who had been brought up with

care by her for 30 years. There were no signs of sympathy and no words of

condolence for her. It is, however, a question of moral values and this Court

would not find fault if a public servant lacks it.

Whether or not there was any personal involvement of the respondent no.3

in the incidents of 1.9.07, 4.9.07 and 8.9.07 has got to be established in duly

constituted proceedings and this Court would be loath to return any finding on

this aspect.

For reasons discussed above, this Court is constrained to hold that the

respondent no.3 acted irresponsibly and instead of diffusing tension, he added

fuel to fire.

The issue is answered accordingly.

Issue No.4

Allegation against respondent no.7 is primarily contained in paragraph 10

of the petition. According to the petitioners, he had summoned Riz and Priyanka

at Lal Bazar on 4.9.07 and created mental pressure on both. He has generally

denied the allegations made against him in the writ petition while expressing his

inability to specifically deny the same in the absence of copy of the report of the

CBI wherein recommendation for initiation of disciplinary proceeding for major

penalty against him has been made.

Prayer for supply of copy of the CBI's report made by respondent no.7 to

enable him file his counter affidavit was rejected by the order dated 28.2.08 and

he was given liberty to file it by 6.3.08. By refraining to deal with the allegations

specifically for want of report of the CBI, a ground not tenable in law after the

order dated 28.2.08 was passed, respondent no.7 has himself to blame for failing

to traverse the allegations of summoning Riz at Lalbazar without a cognizable

case registered against him and torturing him, and the Court has no other option

but to treat the allegations as uncontroverted. That Riz was indeed called upon to

attend at Lalbazar on three occasions including 4.9.07 has been admitted by the respondent no.3 in the press conference. Presence of Riz and Priyanka at Lal

Bazar on 4.9.07 is also proved from the contents of the complaint lodged by

Pradeep Todi, which has been extracted above.

Having regard to the turn of events, this Court has no hesitation to record

that respondent no.7 in the absence of a cognizable case registered against Riz,

having summoned him and created pressure on him invaded his right to privacy

and thereby acted ultra vires.

Allegations against respondents 5, 8 and 9 are traceable in various

portions of the petition.

Mr. Pal, learned Counsel for the respondents 5, 8 and 9 contended that

these respondents remained silent, in exercise of the right guaranteed by Article

20(3), with regard to the purported events of 1.9.07, 4.9.07 and 8.9.07 and their

silence cannot be treated as admissions on the authority of the decision of the

Apex Court in Naseem Bano (supra).

Per contra, it is contended that Article 20(3) has no manner of application

in the present case for it is not available to one who seeks opportunity to counter

allegations in the writ petition and thereafter chooses not to counter it. Whatever

the respondents would disclose in the affidavit cannot be treated as evidence in a

criminal case and hence Article 20(3) cannot be invoked.

The decisions cited by learned Senior Counsel for the petitioners and the

concerned respondents on the point have been looked into. In the considered

opinion of this Court, ratio of those decisions are useful for understanding the

intendment of Article 20(3) and the Court would be guided in returning a finding one way or the other on the basis of the principles of law laid down therein.

However, this Court may note that the preamble of the Evidence Act, 1872 has

since been amended together with the definition of 'evidence' and hence the

decision in Parkash Rai (supra) would have no application.

Article 20 of the Constitution provides for protection in respect of

conviction of offences. Clause (3) thereof embodies the doctrine against self-

incrimination. It guarantees the right to a person not to be forced to incriminate

himself. It is intended to give protection to a person accused of offence in

criminal proceedings. In other words, it secures the freedom of a person not to be

compelled to give evidence that might amount to an admission or confession of a

crime, wherefor his person may be put under restraint by being imprisoned.

Though the word freedom is not mentioned in any of the clauses of Article 20, by

providing that certain things shall not be done to a person his freedom is

secured.

For invoking Article 20(3) and to have protection guaranteed thereby, three

pre-conditions must exist, viz. (i) a person must be accused of any offence; (ii)

there must be a compulsion on him 'to be a witness'; and (iii) it must be 'against

himself'. If any of these is non-existent, Article 20(3) cannot be invoked.

Court's calling upon a party to counter allegations contained in a petition

by filing an affidavit, in the considered view of this Court, cannot amount to a

compulsion aimed at procurement of self-incriminatory statements by pressure

or force. If a party accused of an offence chooses to make any statement, he is

welcome to do so. But by remaining silent, he cannot legitimately expect the Court to remain silent. The Court would be justified, in such event, to proceed on

the basis of the available materials and to return such finding on appreciation

thereof as is warranted in the facts and circumstances.

In this connection one may take note of the decision of the Apex Court in

Capt. Dushyant Somal vs. Smt. Sushma Somal & ors., reported in AIR 1981 SC

1026. The facts therein were that the appellant and the respondent were parents

of two minor children, one a daughter and the other a son; they started living

separately as a result of estrangement between them; while the son was in the

custody of the respondent pursuant to an order passed under the Guardians and

Wards Act, the son escorted by his grandmother was waiting at a bus stop when

the appellant accompanied by three or four persons forcibly took him away; on

the respondent's complaint police registered a case under Section 363 of the IPC

but the search for tracing the son proved abortive; this led the respondent to

apply before the High Court under Article 226 for a writ of habeas corpus

directing the appellant to produce her son; the appellant in answer to the rule

denied having kidnapped his son whereupon the High Court then decided to

examine witnesses; pursuant thereto the respondent and her mother deposed in

Court but the appellant chose not to cross-examine the witnesses produced by

the respondent or to examine himself or anyone else as a witness; the Court

having been satisfied that the son had been unauthorisedly taken away by the

appellant from the lawful custody of the respondent and was being illegally

detained by him, a writ of habeas corpus was issued directing the appellant to

produce his son before the Court so that custody of the child could be given to the respondent; the appellant having failed to do so, he was found guilty of

contempt and was directed to be detained in civil prison.

The Apex Court had the occasion to hear the appeal against the order

committing the appellant to prison for contempt and the petition for special leave

to appeal which was directed against the order of the High Court on the Article

226 petition. The order of the High Court issuing the writ was upheld. While

dealing with the submission of the appellant that he did not give evidence or

examine any witnesses on his behalf nor did he cross-examine the respondent or

his mother because in such case he would be disclosing his defence in the

criminal case registered under Section 363, IPC and that compulsion to disclose

his defence would be contrary to Article 20(3) of the Constitution, the Apex Court

rejected his contention as misconceived and observed as follows:

"Protection against testimonial compulsion did not convert the position of a person accused of an offence into a position of privilege, with immunity from any other action contemplated by law. A criminal prosecution was not a fortress against all other actions in law. To accept the position that the pendency of a prosecution was a valid answer to a rule for Habeas Corpus would be to subvert the judicial process and to mock at the Criminal Justice system. All that Art.20(3) guaranteed was that a person accused of an offence shall not be compelled to be a witness against himself, nothing less and, certainly, nothing more. Immunity against testimonial compulsion did not extend to refusal to examine and cross-examine witnesses and it was not open to a party proceeding (sic) (proceeded against) to refuse to examine himself or anyone else as a witness on his side and to cross-examine the witnesses for the opposite party on the ground of testimonial compulsion and then to contend that no relief should be given to the opposite party on the basis of the evidence adduced by the other party. We are unable to see how Art. 20 (3) comes into the picture at all.

(emphasis supplied) This ruling gives a clear answer to the issue. The respondents 5, 8 and 9

were given liberty to file their counter affidavits by the order dated 28.2.08

instead of any direction being passed (read: any compulsion) in this regard. There

was no question at all of compelling them to be witnesses against themselves.

While choosing to remain silent, they could have either denied having summoned

Riz to Lalbazar or even if had called him to Lalbazar, they could have justified

their action. Silence of these respondents cannot debar the Court from

pronouncing its decision on the basis of the available evidence. On the authority

of the aforesaid ruling this Court is constrained to hold that by not choosing to

counter the allegations contained in the writ petition to the extent that Riz had

been summoned without the authority of law, the concerned respondents

remained silent at their own risk and peril for Article 20(3) could not have been

invoked in the present case and in view of the uncontroverted allegations, this

Court would proceed treating the allegations made in the petition against these

respondents as correct.

On the basis of the materials on record this Court holds that by

summoning Riz without registering any cognizable case against him on the basis

of the complaints of Pradeep Todi and/or by invading Riz's precious right to life

despite being well and truly aware that Priyanka had married him on her own

without pressure exerted from any quarter, respondents 5, 7, 8 and 9 jointly and

severally are guilty of exceeding police powers conferred on them and thereby

have acted ultra vires the Constitution.

This issue is answered in favour of the petitioners.

Issue No.s 5 and 6 These issues being related are examined together.

Arguments in detail were advanced by the learned Advocate General, Mr.

Pal and Mr. Bandopadhyay on the scope and ambit of Sections 174 and 175 of

the Code.

While the learned Advocate General contended, by placing reliance on

Sections 174 and 175 read with Reg. 299 of the said Regulations, that

investigation into cause of unnatural death may continue even after inquest and

till such time report of chemical examination is received, Mr. Bandopadhyay

opposed such contention by submitting that summoning of witnesses for

examination under Section 175 of the Code is permissible till inquest report is

prepared by the Magistrate concerned under Section 174 thereof.

It appears from the order dated 16.10.07 that the contention of Mr.

Bandopadhyay was upheld by the learned Judge. Observations of His Lordship

have been noted supra but are extracted below for proper appreciation:

"Section 175 should be read in conjunction with section 174. Enquiry under section 174 is permissible till inquest. Therefore, in my prima facie view, the investigation carried out by the CID is not in accordance with the provisions of the Code."

Learned Advocate General urged before this Court that the conclusion

reached by the learned Judge is erroneous and that this Court, on proper

appreciation of the statutory provisions, ought to hold that the CID did not

commit any illegality in continuing with investigation even after inquest.

To appreciate the rival contentions on the point, Section 174(1) of the Code

to the extent relevant for the present purpose, if para-phrased, would read:

"when the officer-in-charge of a police station receives information that a person has committed suicide, or has been killed by another or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests and, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death describing such wounds, fractures, bruises, marks of injury as may be found on the body."

Section 174 (2) of the Code ordains that the inquest report shall be signed

by such police officer and other persons who concur therein and shall be

forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.

If the police officer conducting inquest entertains any doubt regarding the

cause of death, he is obliged in terms of Section 174(3) to forward the body for

medical examination by qualified medical personnel appointed by the State

Government and subject to conditions mentioned therein.

Section 175 (1) of the Code empowers a police officer proceeding under

Section 174 thereof to summon, in writing, two or more persons as aforesaid for

the purpose of the said investigation, and any other person who appears to be

acquainted with the facts of the case and every person so summoned shall be

bound to attend and to answer truly all questions except those which would

adversely affect him in the manner mentioned therein.

Reg. 299 finds place in Part IV of Chapter 6 of the said Regulations titled

"Unnatural Death and Injuries". Clause (a) of Reg.299 provides for submission of a First Information Form in B.P. Form No.48 in case of receipt of information of a

death occurring in any of the circumstances mentioned in Section 174 of the

Code. According to clause (b) thereof, the police officer concerned shall proceed to

the place where the body of the deceased person is and after making

investigation prescribed in Section 174 of the Code and making such further

enquiry as may be necessary, shall submit his final report to the nearest

Magistrate empowered to hold inquests. The investigation report signed by the

police officer and two or more respectable persons, as required by Section 174

shall be attached to the final report. Clause (c) prescribes submission of case

diaries in respect of enquiries into unnatural or suspicious deaths if the enquiry

lasts more than one day.

Investigation report under Section 174 of the Code in B.P. Form No.48

must contain particulars regarding the District, the Police Station, the U.D. Case

number with date, dates of commencement and closure of investigation together

with information in respect of the following -

1) Name, parent age, residence, age of deceased:

2) Place where body was found:

3) Description of the corpse and position in which found;

4) Apparent injuries or mark on the body:

5) Manner in which and weapon (if any) by which injuries

appear to have been inflicted:

6) Circumstances, if any which give rise to suspicion of foul

Play: 7) Actual list and description of clothes etc.:

8) Opinion of the witnesses as to cause of death:

9) Opinion of police officer as to cause of death:

10) Name and address of witnesses:

11) Signature of witnesses:

The Court would proceed in the light of the above statutory provisions,

which are considered relevant, to decide the contentious issue.

Regarding the scope and ambit of Section 174 of the Code, Mr.

Bandopadhyay has relied on the decisions of the Apex Court in Pedda Narayana

(supra) and Kodali Purnachandra Rao (supra).

In paragraph 11 of the decision in Pedda Narayana (supra), it has been

held as follows :

"A perusal of this provision would clearly show that the object of the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report."

In Kodala Purnachandra Rao (supra), the Court ruled as follows:

"Section 174, Cr.P.C. peremptorily requires that the officer holding an inquest on a deadbody should do so at the spot. This mandate is conveyed by the word 'there' occurring in Section 174(1). Sub-section (3) of the section further requires the officer holding the inquest to forward the body with a view to its being examined, by the medical man appointed by the State Government in this behalf, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would renders such examination useless. The sub-section give a discretion to the police officer not to send the body for post-mortem examination by the medical officer only in one case, namely, where there can be no doubt as to the cause of the death. This discretion however is to be exercised prudently and honestly."

The view in Pedda Narayana (supra) has been approved by a larger bench

of the Apex Court in Khujji alias Surendra Tiwari vs. State of Madhya Pradesh

reported in AIR 1991 SC 1853.

A couple of months prior to the decision in Khujji (supra), a quorum of the

Apex Court consisting of the selfsame learned Judges had the occasion to deal

with Section 174 of the Code in Malkiat Singh vs. State of Punjab reported in

(1991) 4 SCC 341. In paragraph 12 of the said decision, the Court observed as

follows :

"12. ****** Section 174 of the Code empowers the police officer to investigate in the presence of two or more respectable witnesses and report only the cause of death and the person, if known, that has committed the offence. Section 175 empowers him to summon any person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend the inquest and answer truly all the questions other than............... The investigating officer is enjoined to forward the inquest report to the Magistrate along with the statement recorded at the inquest, so that the court would see the record, at the earliest of the circumstances leading to the cause of the death of the deceased and the witnesses examined during the inquest.........."

(emphasis supplied)

The word 'there' in Section 174 is most important. An inquest is therefore

to be conducted at the citus where a dead body is found (the death having

occurred in unnatural circumstances) for ascertaining the apparent cause of

death. Cause of death has to be ascertained on the basis of ocular impression of the officer conducting inquest and from information collected from persons (at

least two) present at the spot.

However, in terms of Reg. 299 of the said Regulations, a report has to be

forwarded to the nearest Magistrate prior to the police officer proceeds for inquest

and the final report has to be forwarded after the inquest is complete. Although

Reg. 299 enables further enquiry, this Court has been unable to find any

statutory provision which entitles the police officer to keep in abeyance

submission of final report to the Magistrate awaiting report of post-mortem or

chemical examination. Those reports might suggest the exact cause of death. But

in terms of Section 174 of the Code the first impression of the police officer

conducting the inquest with regard to the apparent cause of death is important,

which has to be reproduced in the form of a report containing information in

respect of matters mentioned in B.P. Form No.48 referred to above. If such report

is to be delayed pending receipt of post-mortem or chemical examination report,

the object of the statutory provision to bring to the notice of the Magistrate at the

earliest the circumstances leading to the death would be frustrated. Merely

because a dead body is required to be sent for post mortem when the officer

conducting inquest entertains any doubt regarding the cause of death, there can

be no warrant for the proposition that the final report in terms of Reg. 299 must

await the expert's report. Reading the provisions of Section 174 as it is one after

the other and in between lines, this Court is inclined to hold that the final report

must be filed at the earliest possible opportunity and without any delay and must

not be held up for want of report throwing light on the exact cause of death or else the very purpose of Section 174 would be defeated. Reg. 299 cannot

supplant Section 174 of the Code or override it and on the authority of the

decision in Paramjit Singh (supra), it is held that Reg. 299 cannot be read or

construed in a manner to mean that it enables a police officer to file his final

report after obtaining expert opinion.

For reasons aforesaid, the contention raised on behalf of the State and the

police officer respondents that a final report under Section 174 must await expert

opinion on post mortem and other examinations which might be necessary has

again not impressed this Court.

This Court therefore shares the view expressed by the learned Judge that

after inquest, there is no scope for further enquiry/investigation under Section

174 of the Code and prima facie finding that investigation being carried on by the

CID is not in accordance with law is hereby confirmed.

Before proceeding further, this Court may notice that in Lata Singh vs.

State of Uttar Pradesh reported in AIR 2006 SC 2522, the Apex Court felt the

necessity of making comments touching a matter of grave public concern (inter-

caste and inter religious marriages between majors) and held as follows:

"17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenge before the nation unitedly. Hence, inter-caste marriage are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law".

(emphasis supplied)

Howsoever sincerely the judiciary at the highest level of the country may

think of bringing about union of people belonging to different communities and

religions through inter-caste and inter-religious marriages, in reality the situation

is a far cry. The case presented before this Court bears ample testimony thereof.

Facts and circumstances which have surfaced in course of hearing the

present writ petition depict exactly the undesirable, unwarranted and deplorable

situation which the learned Judges anticipated and endeavoured to abort while

passing directions (supra) for taking suitable actions against the perpetrators of

harassment, threats and violence who fail to take inter-caste and inter-religious

marriages by near relatives in their stride. Unfortunately, the directions remain

on black and white without being cared for.

The question that arises now is what was the nature of investigation that

was being conducted by the CID? Law is well settled that in terms of provisions

contained in the Code when a Magistrate makes an enquiry it is an enquiry,

otherwise it becomes an investigation. In the interim order dated 16.10.2007, the learned Judge considered a summons issued by the CID to a witness issued

under Section 175 of the Code dated 10.10.07. As noticed earlier, once the

inquest was complete further enquiry/investigation under Sections 174/175 of

the Code is not contemplated. The learned Judge thus observed that

investigation conducted by the CID was not in accordance with law.

Though learned Advocate General and Mr. Pal have been critical of the

observations made by the Court in its order dated 16.10.2007, stand of the State

Government in this respect is nebulous to say the least. Despite repeated

opportunities extended to the State to file counter affidavit to the petition as

noted above, affidavits which have been filed do not clear the position. According

to the learned Advocate General, the order dated 28.2.2008 passed by this Court

was misconstrued and as such an affidavit touching only the point on which

affidavit was invited thereby was filed. Be that as it may, he contended that the

CID was conducting a preliminary enquiry before launching into an investigation

and that such enquiry is permissible having regard to the decisions of the Apex

Court in Sirajuddin (supra), Bhagwant Kishore Joshi (supra), Bhajan Lal (supra)

and Rajinder Singh Katoch (supra).

True it is that the complaint lodged by the petitioner no.2 with the Karaya

Police Station on 22.9.2007 did not in so many words disclose the commission of

a cognizable offence resulting in the unnatural death of Riz. Viewed in isolation,

non-registration of a cognizable case on the basis thereof may not be faulted.

But, at the same time, there was clear indication therein of the suspicion that

respondent no.12 might have a hand in such unnatural death. What the petitioner no.2 intended to convey was that respondent no.12 had been

threatening Riz with dire consequences for having married his daughter and,

therefore, could be held responsible for his death. The chain of circumstances

preceding and following this complaint (some could very well have been

suspected) being of some significance deserves to be noted. The chain viz. (i) inter

religious marriage between Riz and Priyanka; (ii) Riz and Priyanka being aware

that such marriage would not be accepted by her family; (iii) letters to various

police officers, jointly written by Riz and Priyanka, in anticipation of unlawful

interference in their marital life by respondent no. 12; (iv) apathy of the Kolkata

Police to provide any protection to the married couple; (v) futile attempt of

respondent no.12 to persuade Priyanka to return home; (vi) complaints lodged by

Pradeep Todi alleging abduction of Priyanka by Riz; (vii) enquiries made by Pulak

Dutta, S.I. attached to Karaya Police Station reporting that the couple are majors

and the certificate of marriage is genuine; (viii) enquiry made by the respondent

no.9 on being directed by respondents 5 and 8 and reporting to the same effect;

(ix) summoning of Riz and Priyanka at Lal Bazar through the respondents 8 and

9 without a formal FIR and discussions in the chambers of respondents 5 and 7;

(x) agreement between the parties - Priyanka to return within 7 days; (xi) breach

of agreement - Priyanka fails to return; (xii) abortive requests of Riz to allow

Priyanka to return; (xiii) mysterious death of Riz; (xiv) the Police Commissioner

of Kolkata without being impartial, declaring in a press conference that Riz had

committed suicide; and (xv) the CID conducting preliminary enquiry for days

together without registering FIR, - did afford reasonable ground to suspect foul play behind the unnatural death of Riz. On the basis of the surrounding

circumstances one could reasonably reach either of two conclusions, i.e. that

death of Riz had occurred as a result of commission of crime or that suffocating

circumstances, brought about by the respondent no.12 with his aides and allies,

for Riz tying the nuptial knot with Priyanka had resulted in such mental torture

that he decided to give up his life. To embark on an investigation of a cognizable

case, a police officer must have 'reason to suspect'. In the considered view of this

Court, the investigative machinery of the State police agency ought to have

activated itself by recording an FIR, if not for an offence under Section

302/506/120B of the IPC, but certainly under Section 306/506/120B thereof,

the ingredients wherefor were available. Reasons for suspecting commission of a

crime ought to have been governed and dictated by the circumstances without

looking for adequate proof of facts at that stage. Even if the unnatural death of

Riz did not reveal any foul play or even if the chain of circumstances did not

warrant recording of FIR under Sections 306/506/120B of the IPC,

circumstances which surfaced did provide reasonable grounds for the CID to at

least initiate criminal proceedings in terms of the directions of the Apex Court in

Lata Singh (supra) against respondents 12 and 13, as well as Pradeep Todi, and

the city police officers who were instrumental in ensuring that the inter-religious

marriage between the two breaks up and Priyanka returns to her parental home.

Instead, the CID had been continuing investigation under Section 174 of the

Code more than 14 (fourteen) days after post mortem report was obtained.

The State in its counter affidavit, as noted earlier, has not disclosed the

nature of enquiry undertaken by the CID and as such the extent to which such

enquiry progressed also could not be ascertained.

In the present case, right from the press conference of the respondent no.3

an impression was sought to be given that Riz had committed suicide without

there being any provocation. The circumstances pointed out above were sufficient

to justify investigation into either the suspicion of murder or suspicion of

abetment of suicide. As has been held in Patel Lilabhai Ambalal (supra), it is

elementary for the police to suspect everything and everyone and thereafter by

process of elimination and inclusion come to the conclusion, - the conclusion

being the last thing on the completion of investigation and not the first thing at

the beginning of the investigation.

It was entirely for the CID to decide upon its next course of action, but to

contend that a preliminary enquiry was resorted to and result thereof was

awaited has failed to impress this Court.

While the need for preliminary enquiry in particular cases before

conducting an investigation of a cognizable offence cannot be obliterated, in the

guise of a preliminary enquiry and by unduly prolonging it a legitimate

investigation which may be had cannot be stifled. Conducting preliminary

enquiry before recording FIR is not mandatory in all cases. In some of the

decisions cited by Mr. Bandopadhyay, preliminary enquiry in respect of a

complaint disclosing commission of cognizable offence has been held to be

unknown in the scheme of the Code. However, on careful consideration of the decisions cited by learned Senior Counsel for the respondents on the point of

preliminary enquiry, this Court would hold preliminary enquiry of a limited

nature to be permissible even in respect of cognizable cases. Persons of 'high

profile', dignitaries, persons in authority, celebrities, etc. are sometimes at the

receiving end due to reckless allegations, mostly made anonymously, which

might mar their respective careers and to obliterate the possibility of their

unnecessary involvement in such cases that a preliminary enquiry may be had to

ascertain facts. Such enquiry would also be advisable if a pure civil dispute is

sought to be brought within the arena of criminal law by the complainant to

wreak vengeance against an adversary. There can, however, be no exhaustive

enumeration of cases warranting preliminary enquiry but each case has to be

considered on the basis of its own peculiar facts.

Considering the facts of the present case, this Court is unable to hold

that the prevailing circumstances did not warrant lodging of an FIR by the CID

for conducting a full-fledged investigation. The possibility of killing time in the

guise of ascertaining facts in course of preliminary enquiry to shield offenders

including high ranking police officers cannot be ruled out. To this extent, this

Court holds the CID to be grossly negligent. Borrowing the words of Hon'ble

Pathak, J. (as His Lordship then was) in Bhagwant Singh (supra), this Court

holds 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."

Submission of Mr. Pal that the decision in Sampat Lal (supra) does not lay

down a law having the force of a binding precedent and the conclusion reached

regarding power of the High Court to direct investigation by the CBI where the

State Government does not grant consent for such investigation, is misconceived.

In paragraph 13, the Apex Court held:

"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."

(emphasis supplied)

Reflection of the opinion of the Apex Court was based on its independent

consideration of the provisions of the DSPE Act, apart from the fact that counsel

appearing for the parties before it did not dispute the position that when a

direction is given by the Court in an appropriate case, consent envisaged under

Section 6 thereof would not be a condition precedent. The submission of Mr. Pal

is therefore unacceptable.

On very many occasions, Courts have ordered CBI investigation in the

interest of fair and impartial investigation as well as in the interest of the State

Police agencies, to avoid any doubt on credibility of the investigation. Reference

in this connection may be made to the decision in Md. Anis (supra).

In Central Bureau of Investigation vs. State of Gujarat (supra), it was held

that where the investigating agency is not doing proper investigation and/or

there is reason to believe that there is laxity in the investigation, a direction may

be given to the CBI to investigate the matter in appropriate cases.

In Gudalure M.J. Cherian (supra), it has been held that in a given

situation, to do justice between the parties and to instill confidence in the public

mind it may become necessary to ask the CBI to investigate a crime.

In R.S. Sodhi (supra), CBI was entrusted with investigation since

accusations were directed against the local police personnel to ensure that all

concerned including the relatives of the deceased may feel assured that an

independent agency is looking into the matter and that would lend the final

outcome of the investigation credibility.

In Central Bureau of Investigation vs. State of Rajasthan (supra), it was

held that powers of the High Court under Article 226 of the Constitution and of

the Supreme Court under Article 32 or Article 142(1) of the Constitution can be

invoked thought sparingly for giving such direction to CBI to investigate in

certain cases.

The question as to whether law laid down in Sampat Lal (supra) could be

considered to be a binding precedent on the face of reference of the issue to a

Constitution Bench was considered by the Division Bench of this Court in

Association for Protection of Democratic Rights (supra). It was held therein as

under:

"We are of the opinion that the pendency of the reference would not debar this Court from deciding the question as to whether this is a fit case and direct the CBI to continue with the investigation which was initially ordered on 15th March, 2007. Unless and until the question referred to a Larger Bench is considered and answered by the Supreme Court, the law as earlier laid down is binding on this Court. We find support for this view from a number of judgments of the different High Courts".

While noticing the decision in Shashikant (supra) wherein it was held that

when a reference of a vital question of law is made to a Larger Bench all other

proceedings pending in other Courts do not come to a grinding halt, the Division

Bench satisfied itself on facts and in the circumstances before it that it would be

necessary to have the entire fact situation investigated by the CBI and directed

accordingly.

In Sahngoo Ram Arya (supra) relied on by Mr. Ghosh the Apex Court has

reminded the High Courts not to direct CBI investigation as a matter of course

and that there is a need for the High Court on consideration of the pleadings with

reference to the reply filed to come to the conclusion and to record a prima facie

satisfaction that the material before it is sufficient to direct an enquiry by the

CBI.

What Section 6 ordains is that the Central Govt. may not direct

investigation by CBI without consent of that State in any area within the State

other than a Union Territory or a railway area but such fetter in Section 6 of the

DSPE Act does not in any manner affect or restrict the power, authority and

competence of the Court exercising jurisdiction under Article 226 to direct

investigation by the CBI.

It is too obvious that for directing investigation by CBI, the Court has to

satisfy itself that investigation by the State agency has faltered to such extent

that continuation thereof would be farcical and manifestly result in injustice. And

it is trite that Mandamus is issued wherever injustice is traced.

Though while passing the interim order dated 16.10.07 the Court did not

have the benefit of considering the version of the respondents on affidavits, the

materials presented were duly considered and on the basis of appreciation

thereof prima facie satisfaction was recorded by the Court that investigation was

not proper and therefore the CBI was directed to investigate the cause of death of

Riz.

Regard being had to the facts and circumstances which fell for

consideration on 16.10.07, this Court is of the considered view that entrusting

the CBI with investigation of cause of death of Riz cannot be said to be improper

or unwarranted. This Court therefore holds that the Court was perfectly justified

in directing CBI investigation.

These issues are answered accordingly.

Issue No.7

This has been a hotly debated issue at the Bar as would appear from the

submissions of learned Counsel for the parties recorded above.

Learned Counsel for the respondents except the CBI have contended that

the CBI acted ultra vires in registering an FIR for alleged offence of murder and,

therefore, all steps taken on the basis thereof are null and void and hence

inoperative.

To decide this issue it would be worthwhile to take a further look to the

direction of the Court dated 16.10.07 which reads a follows:

"Therefore, let there be an interim order directing the CBI to investigate into the cause of unnatural death of Rizwanur and the CBI shall a file a report in a sealed cover".

In this connection, this Court also considers it necessary to extract a

passage from the decision of the Apex Court in H.N. Rishbud (supra) dealing with

'investigation' under the Code. It reads thus:

"Investigation usually starts on information relating to the commission of an offence under Section 154 of the Code. If from information so received or otherwise, the officer in charge of a police station has reason to suspect the commission of an offence, he or some other officers deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offenders.

Thus, investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes 'all the proceedings under the Code for the collection of evidence conducted by a police officer'."

In Bhagwant Kishore Joshi (supra), the position emerging from Section 157

of the Code was reiterated that an officer in charge of a police station can start

investigation either on information or otherwise.

In the present case it is an admitted position on facts that when the order

dated 16.10.07 was passed by the Court, there was no FIR disclosing commission

of cognizable offence. On 22.9.07, the petitioner no.2 had by his complaint

informed Karaya Police Station about the unnatural death of Rizwanur and that

he suspected the hands of respondent no.12 behind his death. Immediately

thereafter, the CID had taken over investigation and had conducted investigation

which ultimately was declared to be 'not in accordance with law'. The Court

directed CBI to investigate the cause of unnatural death of Riz on 16.10.07 on

this petition in which the CBI was a respondent. In the petition it had been

alleged that Riz had been killed/murdered. As has been held in H.N. Rishbud (supra) and Bhagwant Kishore Joshi (supra), the CBI was empowered to conduct

investigation on the basis of information received otherwise than information

recorded under Section 154 of the Code.

It has been contended on behalf of the CBI that it had proceeded to

register an FIR taking into consideration the contents of the writ petition.

Learned Advocate General has contended that such a course of action was

impermissible without seizing copy of the writ petition. This Court is afraid, it

cannot agree with him. CBI being a respondent in the writ petition and having

been served with a copy thereof in accordance with the rules framed by this

Court which requires (subject to exceptions) service of copy of petition on the

respondents in each case where interim relief is prayed for which might affect

them, the CBI was well within its jurisdiction to note the contents of copy of the

writ petition supplied to it and to act on the basis thereof. It has not been shown

before this Court that contents of copy of the writ petition supplied to the CBI by

the petitioners was on any score different from the petition filed in Court or copy

of the same supplied to the State. The need to seize the original, therefore, would

not arise. Information disclosed to the CBI through the writ petition would

constitute information received from sources other than a complaint registered as

an FIR under Section 154 of the Code which the CBI was empowered to

investigate under section 157 thereof and thus this Court finds no illegality on

the part of the CBI in proceeding to register an FIR on the basis of the writ

petition.

There are two other reasons for which this Court is inclined to hold that

the CBI's action in registering an FIR is defensible.

The Court in its order dated 16.10.07 had ruled, albeit on prima facie

satisfaction, that investigation under Sections 174/175 of the Code after inquest

was complete could not be conducted in law. It has been correctly contended by

Mr. Roy that once the Court held that investigation under Sections 174/175

could not be conducted after inquest was complete, argument of the respondents

that investigation should have been confined only to unnatural death and to

ascertain its cause within the limits of Section 174, is fallacious. It is

preposterous to suggest, even on the face of recording of such a finding, that by

directing investigation to be made by the CBI to find the cause of 'unnatural

death' of Riz the Court intended to have an investigation conducted limited to the

nature permissible under Section 174 of the Code. The Court's order cannot be

read as a statute divorced from the facts of the case and terms of the order.

Understandably, the direction for conducting investigation implied registration of

an FIR preceding investigation and, therefore, had to be treated as one casting an

obligation on the CBI to first register a case and thereafter proceed to find out the

cause of death, whether suicidal or homicidal.

Having regard to the facts and circumstances which were on record,

accidental death of Riz was ruled out. Therefore, in order to find out whether the

death was suicidal or homicidal, the CBI being empowered to exercise powers

conferred on the police to investigate under Chapter XII of the Code could have

done so only on recording an FIR. Action taken by the CBI in this behalf does not appear to this Court to be offending either the power conferred on it by the Code

or the order dated 16.10.07. It has been contended on behalf of the respondents

that the CBI has interpreted the order dated 16.10.07 by reading words therein,

otherwise absent, without seeking any clarification. If the CBI had proceeded on

the basis of its own interpretation of the order which does not appear to be

absurd or unreasonable, the Court would not invalidate the impugned action on

the ground that the CBI ought to have approached the Court for further

clarification instead of taking recourse to a particular action. It would have been

a discreet action on the part of the CBI but mere indiscretion, without anything

more, cannot be equated with malafides.

That apart, in the decisions in Madhu Bala (supra), Suresh Chand Jain

(supra) and Md. Yusuf (supra), the Apex Court has held that when a Magistrate

orders the police to conduct investigation under Section 156(3) of the Code, that

would include a direction to the police to register an FIR in the absence of any

such direction given by such Magistrate and the police would have to take

further steps contemplated in Chapter XII of the Code only thereafter. Viewed in

this perspective and on the authority of what have been laid down therein, the

CBI was justified in recording an FIR before it proceeded to conduct investigation.

The numerous decisions cited by the learned Senior Counsel for the State,

the respondent police officers, the respondent no.12 and learned Counsel for the

respondent no.13 in support of their contention to the contrary have been

carefully looked into. The CBI exercised power for an authorised purpose and in

accordance with law. Having regard to the facts and circumstances of the present case, the cited decisions are not apposite since the situation for applying the

ratio thereof is non-existent.

This Court thus holds that in registering an FIR and in conducting

investigation on the basis thereof, the CBI did not act ultra vires.

This issue is answered in favour of the CBI.

Issue No.8

In its order dated 28.2.08, this Court for reasons recorded did not accede

to the request of the parties for supply of copy of the CBI's report but the issue

was left upon for being considered at the time of final hearing. Parties have again

addressed the Court on the point of supply of copy of the report. Several

decisions have been cited by Mr. Pal in support of his submission that looking

into the report by the Court without extending opportunity to the parties to look

into the same would be against judicial principles as well as natural justice. The

decisions cited by Mr. Pal mostly relate to disciplinary proceedings initiated

against delinquent employees. The rules regarding disciplinary proceedings are

not quite identical as rules that are required to be followed in conducting

investigation of a criminal case or in criminal proceedings. As part of compliance

with natural justice principles, a delinquent employee who has been proceeded

against by initiation of a disciplinary proceeding is entitled to have a copy or to

look into any document which the prosecution seeks to rely on against him in the

enquiry or which the Enquiry Officer may consider relevant for the purpose of

enquiry. Such an employee is also entitled to have copy of any document or to have inspection thereof which is in the custody of the employer and is considered

by him to be relevant for his defence, the question of relevancy being an issue

required to be decided by the Enquiry Officer. Depriving the delinquent employee

of such opportunity having regard to the fact situation of each case may result in

violation of principles of natural justice. So far as criminal proceedings are

concerned, the stages at which documents may be made available to parties

interested are laid down in the Code itself. It would thus be open to the parties to

apply for the same in accordance with provisions contained in the Code. Not a

single decision has been cited before this Court which lays down the law that

while a Court looks into information and/or documents collected in course of

criminal investigation at the pre-charge sheet stage, the Court is obliged to

supply such document to an aggrieved party who intends to look into the same

before the Court renders a decision in respect thereof. In the present case,

criminal proceedings against some of the respondents are in an embryonic stage.

Evidence has been collected and it has been reported to this Court by the CBI

that a prima facie case for proceeding further against them before the appropriate

Court for alleged involvement in commission of offences punishable under the

IPC exists and leave has been prayed for to enable it to file charge sheet before

the appropriate Court of law. Till such time the Magistrate takes cognizance of

the alleged offences committed by the accused, it cannot be said that criminal

proceedings are pending against anyone. There is no determination of guilt by

this Court on the basis of the report of the CBI. If a charge sheet is filed before

the competent Court and it takes cognizance and asks the charge-sheeted accused persons to stand trial, the accused persons would be within their right

to seek documents in accordance with the provisions of the Code as also in the

light of the decision in Debendra Nath Padhi (supra). In such circumstances, the

contention that since the report of the CBI has been placed before this Court and

the Court has looked into it, hence the parties are also entitled to look into the

same is obviously untenable.

Learned Advocate General very humbly has submitted that contents of the

report might unknowingly influence the mind of the Court. Also, Mr. Pal has

contended that non-supply of the report of the CBI would give rise to a lurking

suspicion in the minds of the police officers that the Court had formed a view

against them without disclosing its contents to them.

In the considered view of this Court, requirement to comply with natural

justice principles can be invoked where the Court or an adjudicator proceeds to

form an opinion against an individual on the basis of a document behind his

back. Whatever conclusion this Court has reached is based on its appreciation of

the pleadings of the parties and the records produced, which have been duly

inspected by the parties. The report of the CBI has been considered only for the

limited extent of ascertaining whether the CBI should be permitted to proceed

further in accordance with law. If the argument of Mr. Pal is to be accepted, then

in every case where a competent Court, empowered to deal with applications

under Sections 438 or 439 of the Code, looks into case diaries placed before it by

the Public Prosecutor, it would have to permit access to Advocates for the

accused to the case diaries. This would be a course of action dehors the Code and contrary to principles settled in Debendra Nath Padhi (supra). So long the

investigation is not closed by way of filing of a formal report under Section 173(2)

of the Code, persons who might be shown as accused in the FIR have no right to

claim copy of the report containing materials which have been collected against

them and particularly in view of the fact that report filed before this Court is not

a final report but is one in aid of the final report.

This Court therefore has no reason to take a view different from the one

taken on 28.2.08 when the prayer of the parties was rejected for the time being.

It is accordingly held that the respondents have no right to look into the report of

the CBI and to have copy thereof.

This issue is answered accordingly.

Issue No.9

Mr. Pal, as noted above, subjected the recommendations contained in the

report of the CBI for initiation of departmental proceedings (major penalty

proceedings) against the respondent nos. 5, 7, 8 and 9 to severe criticism.

According to him, the CBI had no business to make such recommendation. Mr.

Roy sought to counter the contention by referring to Chapter 20 of the Manual.

According to him provisions contained in Manual have statutory force and in

terms of provisions contained in the said chapter, recommendations made by the

CBI for initiation of departmental action cannot be faulted.

Clause 20.4 of Chapter 20 being relevant is set out hereunder:

" In the cases investigated by the CBI in which the same facts constitute the ground for both Departmental Action as well as Prosecution, the charge-sheet under Section 173 Cr. P.C. should be filed immediately on completion of investigation along with the original relied upon records, after obtaining sanction for prosecution wherever necessary. For Departmental Action, simultaneous request should be sent to the competent disciplinary authority. This request should be sent along with authenticated copies of the relevant documents immediately to the Competent Authority/Head of Department with copies to the C.V.C. and the CVO of the organization. In other cases involving less serious offences or involving malpractices of a Departmental nature, RDA only should be taken and the question of prosecution should generally not arise. Any difference of opinion regarding the question whether Departmental Action or Prosecution in a Court of Law should be initiated in the first instance, will be resolved on the basis of the advice of CVC."

It has been conceded by Mr. Roy that the report filed before this Court is

not under Section 173(2) of the Code but to enable the Court to satisfy itself that

an appropriate investigation has been conducted in terms of its order.

Having regard to the facts that the report was one to assist the Court to

record a satisfaction that the cause of death of Riz has been ascertained with

additional information relating to complicity of persons in connection therewith

and that chargesheet under Section 173 of the Code of Criminal Procedure has

not been filed, it was beyond the jurisdiction of the CBI to include in its report

filed before this Court the recommendation for initiation of major penalty

proceedings against some of the police officers. As clause 20.4 provides, request

for initiation of disciplinary proceeding should be sent to the competent

disciplinary authority simultaneously with filing of chargesheet under Section

173 of the Code. The stage therefore has not yet arrived and at this stage it was

inappropriate for the CBI to state in unequivocal terms that grounds for initiating departmental action against the erring police officers did exist and that action

should be taken in that direction.

Additionally, the CBI ought to have appreciate that the petitioners had

prayed for a declaration from this Court that the actions of the police officers

(respondents 5, 7, 8 and 9) are ultra vires. The issue being sub judice, it was

absolutely inappropriate for the CBI to make a recommendation in this direction

without obtaining leave from Court.

This issue is accordingly answered in favour of the respondents 5, 7, 8 and

9.

Issue No.10

Exercise of power of investigation by the CBI is governed by statutory

provisions under the general law applicable to such investigations. The dominant

purpose of registering a case is to ensure conducting of investigation in respect of

the allegations contained in the FIR and in the event sufficient materials exist in

support of the allegations, to present charge sheet before the Court for securing

the ultimate end of linking the offence with the offender.

It is on record that while issuing notice under Section 160 of the Code the

CBI had clearly indicated the case number which was under investigation. The

FIR was despatched to the Court of the Chief Metropolitan Magistrate, Calcutta

and to other Magistrates at Bankshall Court. Contention that the CBI faltered in

complying with Section 157 of the Code is without basis for the Court has ascertained in course of hearing that the Magistrates' Court referred to above

have duly received copy of the FIR.

Submission of Mr. Ghosh that in the absence of any knowledge of an FIR

having been registered respondent no.12 could not challenge it is unmeritorious.

There was no embargo on the respondent no.12 to apply for the certified copy of

the FIR for the purpose of challenging it. That a defect or irregularity in

conducting investigation cannot vitiate the trial unless of course gross

miscarriage of justice has occasioned is settled law. Even otherwise, if there be

any irregularity in conducting investigation the same cannot vitiate the trial

which might ensue for it has not been demonstrated before this Court that there

has been such gross miscarriage of justice which would require interdiction by

this Court. Even if there be any irregularity or defect in investigation, those

aggrieved thereby would not be without remedy.

It is settled law that decision to investigate or the decision on the agency

which would investigate does not attract principles of natural justice. The

accused cannot have a say in who should investigate the offences he is charged

with (see AIR 1997 SC 93 : Central Bureau of Investigation vs. Rajesh Gandhi).

This Court in the earlier part of this judgment has expressed its concurrence

with the order of the Court dated 16.10.07 that the case at hand called for

investigation by the CBI. For reasons discussed above, this Court is unable to

concur with the learned Counsel for the respondents barring the CBI that the actions of the CBI are tainted. On the basis of materials collected, a prima facie

case exists for proceeding against persons named in the concluding portion of the

report extracted above. There is no reason as to why course of law should be

obstructed merely because it might not be to the liking of some of the

respondents.

In view of the aforesaid discussion there appears to be no reason as to why

the CBI should not be allowed to proceed further.

The issue is answered accordingly.

Issue No.11

Having regard to the aforesaid discussion, this Court grants liberty to the

CBI to proceed in accordance with law for filing charge sheet before the

competent court under Section 173(2) of the Code. There shall, however, be no

direction for further investigation as prayed for by Mr. Bandopadhyay regarding

discrepancy in age of the deceased as recorded in the official records but absolute

liberty is reserved to the CBI to conduct further investigation before it actually

files the charge sheet on any point it may consider necessary in the interest of

justice. However, it shall not act upon the proposal to recommend to the State

initiation of disciplinary proceedings for major penalty against respondents 5, 7,

8 and 9 or any other police officer.

Since this Court has returned a finding that the city police officers

(respondents 5, 7, 8 and 9) invaded Riz's right to life without authority of law

while discharging duty as public servants, it is declared that they have acted

ultra vires and their acts impugned herein are unconstitutional.

However, on the question as to what is the effective relief that ought to be

granted on facts and in the circumstances of the case vis-à-vis the prayers made

has presented its own difficulties. In view of the law laid down in Rani Laxmibai

(supra), an allegation of fact has to be pleaded in the petition for enabling the

adversary to meet it based on the principle that a party should not be caught

unawares at the hearing. But, rules regarding pleadings at least in respect of writ

petitions have been diluted to good extent by subsequent decisions. One may

profitably refer to the decision in State Bank of India vs S.N. Goyal reported in

2008 AIR SCW 4355 wherein it has been held that in writ proceedings, the High

Court can call for the record of the case, examine the same and pass appropriate

orders after giving an opportunity to the State/the statutory authority to explain

any particular act or omission, and that it is quite different from a civil suit

where the parties are governed by rules of pleadings and there can be no

adjudication of an issue in the absence of necessary pleadings. The decision in

Ganapati Madhav Sawant (supra) cited by Mr. Pal is therefore clearly

distinguishable. In the present case, the factual foundation for seeking effective

relief has been laid though a prayer in that behalf is absent. Parties have been

heard at length on the claim of Mr. Bandopadhyay that the State should be directed to initiate disciplinary proceedings against the erring police officers. The

decision in Rani Laxmibai would, therefore, have no application on facts.

This Court at the same time is not oblivious of the observations of Hon'ble

Sethi, J. (as His Lordship then was) in Lily Thomas vs. Union of India reported in

(2000) 6 SCC 224 that "justice is a virtue which transcends all barriers and the

rules or procedures or technicalities of law cannot stand in the way of

administration of justice. Law has to bend before justice."

Though the petitioners have not claimed any relief against the respondent

no.3 as also against respondents 5, 7, 8 and 9 consequent to declaration that

was sought and has been granted, in the considered view of this Court interest of

justice would be best served if liberty is reserved unto the State to proceed in

accordance with law. Accordingly, it is observed that the State may initiate such

action as it deems fit and proper against any of or all the respondents 3, 5, 7, 8,

9, 12 and 13 in accordance with law.

Observations made and/or findings recorded in this order are wholly for

the purpose of a decision on this writ petition and the same shall not influence or

prejudice the adjudicator of future criminal proceedings, if initiated according to

law.

The writ petition stands allowed, while the applications stand dismissed.

However, parties shall bear their own costs.

Report of the CBI together with the compact disc placed on record by

Kolkata T.V. shall be re-sealed by the Assistant Court Officer and retained with

the records of the case.

Urgent photostat certified copy of this judgment, if applied for, be furnished

to the applicant within 4 days from date of putting in requisites therefor.

(DIPANKAR DATTA, J.) Later :

Learned Advocate General, Mr. Banerjee, learned Senior Counsel and Mr.

Basu, learned Counsel appearing for the State, the respondents 3,5,7,8, and 9,

and the respondents 12 and 13 respectively have prayed for stay of operation of

the judgment and order. Such prayer is opposed by Mr. Bandopadhyay, learned

Senior Counsel for the petitioners.

Since implementation of the order might have the effect of depriving some

of the respondents of their right to personal liberty, for the ends of justice this

Court considers it fit and proper and accordingly grants stay as prayed for. The

operation of the order shall remain stayed for three weeks from date.

(DIPANKAR DATTA, J.)