Calcutta High Court (Appellete Side)
Padma Mondal vs The State Of West Bengal & Others on 30 June, 2025
Author: Jay Sengupta
Bench: Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT: THE HON'BLE JUSTICE JAY SENGUPTA
WPA 703 of 2024
PADMA MONDAL ... PETITIONER
VS.
THE STATE OF WEST BENGAL & OTHERS ... RESPONDENTS
For the petitioner : Mr. Billwadal Bhattacharyya,Sr. Adv.
Ms. Sagnika Banerjee
For the CBI : Mr. Amajit De
Ms. Hasi Saha
For the State : Mr. Amitesh Banerjee, Sr. Standing Counsel
Ms. Ipsita Banerjee
Heard lastly on : 20.03.2025
Judgment on : 30.06.2025
JAY SENGUPTA, J.
1. This an application under Article 226 of the Constitution of India,
inter alia, praying for reinvestigation of the case in respect of Nazat Police
Station Case No. 141 dated 09.06.2019 under Sections under Sections
147,148,149, 325, 326, 302, 379, and 427 of the Indian Penal Code,
Sections 25 and 27 of the Arms Act and added Section 3(2)(v) of the
Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989,
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by an independent and specialized agency like the Central Bureau of
Investigation.
2. Learned senior counsel appearing on behalf of the petitioner
submitted as follows. After completion of the Lok Sabha Elections in
2019, miscreants belonging to the ruling party in the state of West
Bengal under the leadership of Sahajahan Sk. and Firoz Kamal Gazi were
threatening one Debdas Mondal and other members of the family that
they not be spared and would be killed since they have supported
Bharatiya Janata Party. On 08.06.2019 at about 4.30 pm, the accused
persons with the miscreants belonging from the ruling dispensation
entered into the village where the petitioner resided. They were carrying a
number of modern fire arms and various sharp weapons and attacked
the house of the deceased Pradip Mondal, the husband of the petitioner
along with some of the neighbouring houses of the petitioner. The
accused persons as mentioned in the FIR along with paid henchmen and
miscreants belonging from the ruling dispensation, started to search for
the petitioner’s husband, being Pradip Mondal and Debdas Mondal and
vandalized and looted the house of the petitioner along with some of the
neighbouring houses of the petitioner. At the time of the said incident,
the husband of the petitioner namely, Pradip Mondal and one Sukanta
Mondal were present in a garment shop which was situated just adjacent
to the house of the petitioner. The prime accused being Sahajahan Sk.
and Firoz Kamal Gazi @ Babu Mastar attacked the petitioner’s husband
with sharp edged weapon, and to save his life, the said Pradip Mondal
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tried to run away from the said shop and to take shelter in his house just
adjacent to such shop room. As soon as the husband of the petitioner
tried to run away toward his house, the prime accused being Sahajahan
Sk. shot a bullet from the back which hit the said Pradip Mondal on his
head and he fell down at the spot and his left eye came out of his face.
Sukanta Mondal who was also present in the said shop room at the time
of the incident tried to hide from the accused persons in the said shop
room. But on the direction of Sahajahan Sk. Firoz Kamal Gazi along with
their henchmen and miscreants of Trinamool Congress Party entered into
the shop room and forcefully pulled out the said Sukanta Mondal from
the said shop room. After taking the said Sukanta Mondal out of the said
shop, the accused person being Firoz Kamal Gazi shot the said victim
and because of that, Sukanta Mondal fell on the ground and died. The
petitioner along with some of the petitioner’s neighbour tried to prevent
the FIR named accused persons from carrying out such illegal activities,
but they opened fire on the petitioner and her neighbours. But, somehow
the petitioner and her neighbours ran away from the spot and left the
village in order to save their lives. When the accused persons opened fire
to the petitioner and other neighbours, one of the agents of the accused
persons namely, Kyum Molla suffered a fatal injury and some of the
agents of the accused persons suffered minor injuries. Thereafter the
police and some of the villagers took the petitioner’s husband, Sukanta
Mondal and Kyum Molla to Bashirhat Hospital where the doctors
declared them dead. The petitioner lost her consciousness due to such
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traumatic and tragic incident which happened in front of her. Inspite of
such tragic incident, the Police Station being Nazat Police Station did not
lodge any case suo moto. It was only when the petitioner, after regaining
her senses on the next day, made a representation before the Nazat
Police Station on June 9, 2019 stating the entire incident and requested
the police authorities to take appropriate steps against the perpetrators
that an FIR was lodged. On the basis of such complaint by the petitioner
dated June 9, 2019 before the Nazat Police Station, an FIR being No.
141/19 dated 9.06.2019 under Section
147/148/149/302/325/326/379/427 of Indian Penal Code read with
Section 25/27 of Arms Act and Section 3(2) (v) of the Scheduled Caste
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was registered.
Meanwhile, the case was transferred to CID west Bengal on 23.08.2019.
Even after the control of the investigation being given to CID, West
Bengal, it was apparent that the investigation was tainted and biased
and there was unnatural delay in concluding the investigation. Because
of the inaction on the part of the state police authorities in delaying in
filing charge sheet and conducting biased and partial investigation solely
with the intention to shield Sahajahan Sk. and other accused persons,
belonging from the ruling dispensation, the petitioner was constrained to
approach this Court vide WPA no. 16458 of 2019 before regarding the
partiality and arbitrary investigation before the filing of charge sheet in
the Learned Court below. The matter was heard by a Co-ordinate Bench,
but the mentioned application of writ became infructuous after the
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completion of investigation and filing of the charge sheet dated
11.09.2019. Investigating agency submitted a charge sheet, being charge
sheet no. 193 of 2019 dated 11.09.2019 under section under Section
147/148/149/302/325/326/379/427 of Indian Penal Code, Section
25/27 of Arms Act and Section 3(2) (v) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 against four accused
persons out of which none were named in the FIR and in the written
complaint made by the petitioner. The investigating agency with malafide
intention, did not charge sheet twenty-eight FIR accused persons out of
whom one, being Sahajahan Sk. was the prime accused person and only
referred them as suspected persons when there were sufficient materials
and incriminating evidence against them to prosecute them. Even after
being mentioned in the FIR and written complaint and specific
statements against Sahajahan Sk. and twenty-seven other accused
persons, none of them were charge sheeted and four persons who were
charge sheeted were not were named in the FIR or in the written
complaint. This showed the partial and tainted investigation being
conducted by the Investigation agency solely to guard and shield the
accused persons who were involved in such gruesome and barbaric
offences even after specific statements of eye witnesses. Vide order dated
12.08.2020, the Learned Court below granted bail to one of the charge
sheeted accused person, being Akher Ali Gayen, thereby observing the
pandemic Covid situation and that other three charge sheeted accused
person being Mainuddin Molla @ Majed, Maijuddin Molla and Javed Ali
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Molla were enlarged on bail by this Court. Being aggrieved by such
tainted and biased investigation, being conducted by CID, the petitioner,
being the wife of the deceased, was compelled to once again approach
this Court seeking relief to transfer the investigation to an independent
investigation agency, being CBI for conducting re investigation or fresh
investigation. The matter first came up for hearing on 17.01.2024 and
this Court was pleased to stay the proceedings before the learned trial
court. However, even after the stay granted by His Lordship, a
Supplementary charge sheet was filed on behalf of the investigating
agency on 31.03.2024, almost after more than two years of filing charge
sheet and four years of lodging FIR. The investigating agency had filed
the Supplementary charge sheet against Sahajahan Sk as well against
other accused persons, thereby violating the order of this Court. This
Court was pleased to direct the investigating agency not to place the
Supplementary Charge sheet before the Learned Trial Court. Thus, the
manner in which the investigation had been conducted reflected the
biased and malafide intention of the investigating agency in conducting
the investigation. If such investigation was allowed to be carried on, then
the victims would be deprived of the justice as the investigating agency
would continue to shield the accused persons as previously the FIR
named accused person, being Sahajahan Sk and twenty-seven others
who were exonerated even after having incriminating materials against
them. This was sheer violation of the provisions of impartial and
unbiased investigation which was the basis of any investigation and to
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render justice. In exercise of the jurisdiction under Article 226 of the
Constitution of India, the High Courts did not only have the power and
jurisdiction but also an obligation to protect the fundamental rights of
the victims as guaranteed by Part III in general and under Article 21 of
the Constitution of India. The mode and manner in which the
investigation with respect to the instant case had been carried only to
safeguard the prime accused Sahajahan Sk and the leader of ruling party
in the State of West Bengal, is arbitrary and malicious in nature. The
investigation agency had not charge sheeted twenty-seven persons even
after being named in the FIR. The written complaint lodged by the
petitioner clearly made out the offence of double murder specifically
naming the accused persons. Even after such findings, the investigating
agency did not charge sheet the prime accused person, being Sahajahan
Sk. knowing fully well about his involvement in the offence and having
statements against him by the witnesses and the petitioner. It was
extremely shocking as to how a case bearing such an importance, the
investigation was concluded only after the petitioner, being helpless,
approached the Hon’ble Court seeking justice against such gruesome act
committed by the accused persons. It is a settled proposition of law that
this Court could exercise its constitutional power to transfer investigation
from to CBI where the investigation prima facie is found to be tainted and
biased. It was essential to state herein that twenty-eight FIR named
accused persons were not charge sheeted arbitrarily, thereby misleading
the investigation and conducting an arbitrary investigation, violating the
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principles of natural justice. It was apposite to mention herein that in the
opposition filed on behalf of Respondent no. 1,2,3,4,6 and 7, on the bare
perusal of the said affidavit in opposition, it could be ascertained that it
was a bundle of lies only to shield the prime accused being Sahajahan
Sk. from being implicated in the instant case. This was reflected from the
mere fact that the police respondent authorities, out of their whims and
fancies, did not charge sheet twenty-seven FIR named accused persons
including the prime accused person being Sahajahan Sk. only because of
the fact that he belongs from the ruling party in the State of West Bengal.
The submissions made by the State that the petitioner has filed the
instant writ petition after 52 months from the date of filing of the charge
sheet for reinvestigation by CBI or NIA and was silent so long which
reflected that the petitioner was silent regarding the investigation was
absolutely false, fallacious and arbitrary in nature. There was not time
bar to approach the Court for transfer of investigation. If the investigation
was tainted and appeared to be arbitrary and improper, it was the right
of every victim to get justice and for that the victim can approach the
Court any time before trial commenced for re investigation or de novo
investigation by an independent agency. It seemed that even after
transfer of investigation to the CID, proper investigation was not
conducted because of which while filing charge sheet, the names of prime
accused persons were not included even after having strong corroborative
statements and eye witnesses against them. This was nothing but sheer
attempt to shield the accused purely of their allegiance with the ruling
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party in the state of West Bengal. Moreover, the State respondent
authorities have admitted in their affidavit in opposition filed that they
have omitted the names of the persons who were named in the written
complaint and FIR. Moreover, it had been stated in the affidavit of
opposition filed by the State Respondent that investigation could be
transferred if there was justified reason by the Court to believe that the
investigation had not been conducted properly. Moreover, it had been
admitted by the State respondent that the Court could exercise
constitutional powers for transferring an investigation from State
investigating agency to other independent investigating agency like the
CBI only in rare and exceptional circumstances such as where high
officials of State authorities are involved or the accusation itself was
against the top officials of the investigating agency thereby allowing them
to influence the investigation and further that it was so necessary to do
justice and to instil confidence on the investigation or where the
investigation was prima facie found to be tainted/biased. This clearly
reflected upon the admission made by the State respondents with regard
to transfer of Investigation. The present case was one which shocked the
conscience of the people and the continuance of the barbarises was still
prevalent. The petitioner had time and again proved and submitted that
the investigation agency only intended to conduct biased investigation,
thereby being influenced by the high and mighty belonging from the
ruling dispensation. As such, in the interest of justice, the petitioner
humbly prayed to transfer the investigation to an independent agency
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such as CBI so that fresh investigation could be conducted to unearth
the truth and punish the offenders of such heinous crimes. It was
apposite to state herein that a case was instituted at the behest of the
Enforcement Directorate upon the incident dated 5.01.2024 where the
officials of Enforcement Directorate were attacked by the men and agents
of the leader of the ruling party in the state of West Bengal; Sahajahan
Sk., being Nazat Police Station case no. 8 of 2024, Nazat Police Station
case no. 9 of 2024 thereby seeking for transfer of Investigation to CBI
vide WPA 802 of 2024. The matter was heard by this Court vide order
dated 17.01.2024, was pleased to disposed of the writ petitioner by
constituting a Special Investigating Team consisting of officers of CBI and
State Police. Being aggrieved by such order, the Enforcement Directorate
preferred an appeal against the order of the Hon’ble Single Bench, being
MAT 169 of 2024 and the State of West Bengal and State Police
Authorities also preferred an appeal against the same impugned order
vide MAT 191 of 2024. The Division Bench presided over by the Hon’ble
Chief Justice of India observed that the case involves highly politically
powerful persons including Sahajahan Sk. For the same, fair, honest and
complete investigation was required which can alone retain public
confidence in the impartial working of the State Agencies. The Hon’ble
Court while transferring the investigation to CBI further observed that it
had become imperative and absolutely necessary for doing complete
justice and enforcing the fundamental rights of the public in general and
public of the locality that the cases were transferred to the CBI for
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investigation and to proceed further. An appeal in the form of Special
Leave to Appeal was preferred before the Hon’ble Supreme Court of India
vide no. 5875-5876/2024 and Their Lordships, vide order dated
11.03.2024, dismissed the Writ petition and upheld the judgment passed
by the Hon’ble High Court at Calcutta. Meanwhile, Sahajahan was
arrested by CID West Bengal on 28.02.2024. A criminal revision was also
filed by the Enforcement Directorate to quash the FIR no. being 7 of 2024
vide CRR 164 of 2024 and the Single Bench had stayed the FIR no. 7 of
2024. Further, the stand taken by the state respondent authorities in
their affidavit of opposition was contradictory to that of the
supplementary affidavit filed by them. In the affidavit in opposition filed
by the state authorities, they had, on repeated occasions stated that the
investigation was proper and impartial and further that the petitioner
knew about the charge sheet much prior but had deliberately raised it at
present. However, if this be so that the investigation conducted by them
and charge sheet submitted as a result, was not biased and was
impartial, then the need for filing supplementary charge sheet
extinguished. It reflected that the filing of the supplementary charge
sheet was the result of the instant writ petition filed by the petitioner
seeking for proper, fair and impartial investigation as the prime accused
person, including Sahajahan Sk. and others, against whom specific
allegations were made out, were not charge sheeted. This was only to
make the writ petition infructuous. Under such circumstances and
considering the precedents and the series of criminal cases filed against
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Sahajahan Sk., it was imperative that for the ends of justice and fair
investigation, the case was transferred to CBI for re investigation as the
present investigation reflects the malafide intention of the investigation
agencies. Judgments relied on the point of transfer of Investigation to
CBI were i) Priyanka Tibrewal v. The State of West Bengal and Others,
WPA 4011 of 2024, WPA (P) 104 of 2024, WPA (P) 78 of 2024, WPA (P) 93
of 2024, ii) Vinay Tyagi v. Irshad Ali alias Deepak and Others reported in
(2013) 5 SCC 762, iii) Vinubhai Haribhai Malaviya v. State of Gujarat
reported in (2019) 17 SCC 1, iv) Babubhai v. State of Gujarat and Others,
(2010) 12 SCC 254.For further clarification, it was stated that the
ooccurrence of the incident was on 08.06.2019 at around 4.30 pm.
outside the house of the petitioner. First Information Report was
registered as Nazat Police Station Case No. 141 of 2019 dated 09.06.2019
under Sections 147/148/149/325/326/302/379/427 of the Indian
Penal Code read with Sections 25/27 of the Arms Act adding Section
3(2)(v) of the Schedule Castes and Schedule Tribes Prevention of
Atrocities Act. Charge Sheet no. 193 of 2019 dated 11.09.2019 under
Section 147/148/149/315/326/302/379/427 of the Indian Penal Code
read with Section 3(2)(v) of Schedule Castes and Schedule Tribes
Prevention of Atrocities Act read with Sections 25/27 of Arms Act. Name
of accused persons in the FIR were i) Sahajahan Shek, ii) Firoz Kamal
Gazi, iii) Jiauddin Mondal, iv) Abdul Kader Mollah, v) Akher Gayen
(charge sheeted accused person), vi) Motiur Rahman Mollah, vii) Raju
Mollah, viii) Alamgir Shek, ix) Kutubuddin Shek, x) Nur Islam Mollah, xi)
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Hasibur Mollah, xii) Siraj Shek, xiii) Gobinda Mondal, xiv) Sapan Mridha,
xv) Ajamuddin Mollah, xvi) Jafar Ali Mollah, xvii) Shaukat Mollah, xviii)
Satyajoti Sanyal, xix) Raja Sanyal, xx) Dhrubajoti Sanyal, xxi) Ranjit Das,
xxii) Dilip Malik, xxiii) Gour Ray, xxiv) Kedar Sardar, xxv) Hasanujjaman
Mollah. Name of the persons charge sheeted, i) Moinuddin Mollah, ii)
Akher Ali Gayen, iii) Javed Ali Mollah, iv) Moijuddin Mollah. Other than
Akher Ali Gayen, the other three charge sheeted persons were not named
in the FIR. Name of the persons were mentioned in the FIR but not
charge sheeted. Only suspected, 28 accused persons had been suspected
whereas only 25 persons were named in the FIR (serial no. 3-4, 6-24
from the list of names of accused persons mentioned in the FIR above-
stated). Only Akher Ali Gayen had been charge sheeted. Name of persons
who had neither been charge sheeted nor suspected, were i) Sahajahan
Sk, ii) Firoz Kamal Gazi, iii) Hasanujjaman Mollah. Name of witnesses as
mentioned in the FIR and charge sheeted, were i) Petitioner (Padma
Mondal), ii) Sukumar Mondal, iii) Narayan Mondal, iv) Pritam Mondal, v)
Sandya Mondal. As per charge sheet, total number of witnesses
mentioned in the charge sheet is 43 witnesses out of which only the
petitioner and Sandhya Mondal had been included in the particulars of
the witnesses to be examined and were the eye witnesses to the incident.
Additional feature was that the accused persons, under the leadership of
Sahajahan Sk and Firoz Kamal Gazi had shot a bullet from the back on
his head for which the deceased fell down at the spot and his left eye
came out of his face and he died. The accused persons opened fire on the
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petitioner but somehow the petitioner managed to save her life. The
petitioner in writ petition being WPA No. 703 of 2024 and WPA No. 702 of
2024 has approached this Court with a prayer for reinvestigation to be
conducted by a specialised agency, being Central Bureau of Investigation
on the aforesaid grounds.
3. Learned senior counsel appearing for the State submitted as
follows.The writ petitioner filed this writ petition after a delay of more
than 5 years with regard to an incident happened on 08.06.2019. The
writ petitioner alleged that on 08.06.2019, 150-200 persons under the
leadership of Sahajahan Sk. and Firoz Kamal Gazi being armed with
deadly weapons entered the house of the petitioner and started searching
Pradip Mondal, Sukanta Mondal and Debdas Mondal. They also entered
into the rooms of the house and ransacked the furniture and other
household articles. During such vandalism Pradip Mondal and Sukanta
Mondal was present in a garment shop which was situated just adjacent
to the house of the petitioner. The petitioner alleged that the Sahajahan
Sk. along with his allies attacked the husband of the petitioner namely,
Pradip Mondal. While the husband of the petitioner tried to run away
towards his house Sahajahan Sk shot a bullet from the back which hit
the said Pradip Mondal on his head and he fell down at the spot. On the
basis of a complaint made by the petitioner dated 09.06.2019 lodged
before the Nazat Police Station, an FIR being No. 141/19 dated
09.06.2019 under Section 147/148/149/302/325/326/379/427 of the
Indian Penal Code read with Section 25/27 of the Arms Act and Section
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3(2)(v) of the Schedule Castes and Schedule Tribes (Prevention of
Atrocities) Act, 1989 was registered. The petitioners had approached this
Court after 5 years from the date of the incident. Such delay had not
been explained in the pleadings of the writ petition. It was a well settled
principle that a litigant should approach the Court of law at the very first
instance. The writ petitioner had grievances with regard to investigation
which had commenced in June, 2019. The chargesheet was filed on
13.07.2022. However, the petitioner filed this instant writ petition as late
as 2024. It was an undisputed fact that the cause of action of the said
writ petition was 09.06.2019 and without proper explanation as to why
the petitioner approached the Hon’ble High Court so late, the said writ
petition should not be allowed. The petitioners had not provided any
reason for inordinate delay. Till date the petitioner had not taken any
steps before the learned Magistrate stating their grievances with regard to
investigation. In fact, the request for Section 164 statement under Code
of Criminal Procedure, 1908 was made on 09.09.2019. The recording
under Section 164 was done after filing of chargesheet. The chargesheet
was filed within the statutory period, to prevent the accused to get
enlarged on bail on such ground. So, it was not possible for the police
authorities to include the statements recorded under Section 164 of the
Code of Criminal Procedure, 1908 in the chargesheet dated 11.09.2019.
Once the investigation process was set in motion, the provisions of the
Code of Criminal Procedure were sufficient to take care of all exigencies.
Moreover, the learned Magistrate had ample power under such Code to
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direct transfer of investigation, if required or at the instance of the
petitioner. But, nothing of that sort was sought for by the petitioner.
Therefore, alternative remedy being available to the petitioner, no cause
had been shown as to invite the Writ Court to exercise its extraordinary
jurisdiction in granting relief to the petitioner. The petitioner has not
made out any case whereby it was stated that conscionable justice
should not be rendered before the learned Magistrate and thus the writ
petitioner approached this Court. Transfer of investigation was an
exception, not a rule. It is stated that order to conduct investigation by
CBI was not to be passed as a matter of routine merely because the party
has leveled allegations against local police. The extraordinary power in
handing over investigation by CBI must be exercised cautiously and in
exceptional circumstances. In the instant case, firstly, the petitioner has
leveled no allegation against the current Investigating Agency, being the
CID, WB and secondly, the petitioner failed to make a case where in the
Hon’ble Writ Court could be invited for an interference. In the instant
case, the chargesheet had already been filed on 13.07.2022 while keeping
provisions open for continuing investigation against the others who were
named in the FIR. Hence, such a circumstance, the Hon’ble Writ Court
should lay its hand off from interfering in the matter. The respondents
state, be that as it may the present investigation officer had continued
with the investigation and had made breakthrough development in the
instant case. In fact, the present investigation officer had prepared a
supplementary chargesheet which was ready to be filed before learned
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Magistrate subject to the leave of the Hon’ble Court. It was pertinent to
mention that on the basis of the chargesheet and the supplementary
chargesheet the 23 persons who were marked as ‘suspect’ had now been
made accused on the basis of materials available. Furthermore,
Sahajahan Sk had also been made an accused in the said case. A
mindful perusal of the memo of Evidence and the supplementary
chargesheet should shall make it palpably clear that the grievance of the
writ petitioner made in the writ petition can longer existed, since as on
today, all the issues had been taken care of. In such a situation, it was
humbly sated that leave be given to file the supplementary chargesheet
before the learned Magistrate and let the investigation take its own
course. Reliance was placed on Himanshu Kumar and Others vs. State of
Chhatisgarh and Other reported at 2022 SCC Online SC 884. To clarify
further, Nazat Police Station Case No. 141/19 dated 09.06.2019 was
registered under Sections 147/148/149/325/326/302/379/427 Indian
Penal Code and 25/27 Arms Act and adding Section 3(2)(v) of Schedule
Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. Date and
time of occurrence was on 08.06.2019 at about 16.40 hrs. Place of
occurrence was at the house of the complainant at Nolkota Bhangipara.
The previous IO Shri Sandip Kr. Sinha Roy (since retired on 31.12.2022),
the then Dy. SP North, CID, West Bengal, submitted Nazat Police Station
Charge Sheet No. 193/2019 dated 11.09.2019 under Section
147/148/149/325/326/302/379/427 Indian Penal Code and 25/27
Arms Act and adding Section 3(2)(v) of Schedule Castes and Schedule
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Tribes (Prevention of Atrocities) Act, 1989 against 32 accused persons in
which 04 arrested accused persons and 28 accused persons were shown
as suspects keeping the investigation open under the provision under
Section 173(8) Cr.P.C. Only 01 accused person named Akher Ali Gayen
(FIR serial No. 5) named in FIR. Other 03 accused persons Maijuddin
Mollah, Mainuddin Molla @ Majed, Jabed Ali Molla were not FIR named
in this case. Among 28 suspected accused persons, 20 accused persons
were named in FIR and 08 accused persons were not FIR named. 04 FIR
named accused persons namely (1) Sahajahan Sk (FIR serial No. 1) (2)
Firoz Kamal Gazi (FIR serial No. 2) (3) Hasanujjaman Mollah (FIR serial
No. 10) (4) Hasibur Mollah (FIR serial No. 12) were not mentioned in the
1st charge sheet. On 09.09.2019, IO submitted a prayer before ld.
Additional Session Judge, 1st Court, Barasat for recording the statements
of the following witnesses under Section 164 Cr.P.C. for the interest of
investigation. a) Smt. Padma Mondal, Complainant, b) Biva Mondal, D/o
– Palan Mondal of Nalkora Bhangipara, PS – Nazat, c) Nemai Mondal S/o
– Basudeb Mondal of Do. The date on 16.09.2019 was fixed for recording
their statement under Section 164 Cr.P.C. by ld. Judicial Magistrate. On
16.09.2019, the statements of witnesses namely Smt. Padma Mondal,
Smt. Biva Mondal and Shri Nemai Mondal were recorded under Section
164 Cr.P.C. by JM, 1st Class, 2nd Court Barasat. Then the name of more
21 accused persons who were not named in FIR, transpired in this case.
On 27.04.2021, the previous IO Shri Sandip Kr. Sinha Roy received the
FSL report through O/C, Nazat Police Station vide Memo No.
19
1864/FSL/Bls./Phys./Bio./4601/19 dated 26.03.2021 of FSL, Calcutta
in response to the Memo No.-Nil dated 11.09.2019 in c/w Nazat Police
Station Case No.-141/19 dated 09.06.2019 under Section
147/148/149/325/326/302/427 Indian Penal Code and 25/27 Arms
Act adding Section 3(2)(v) of Schedule Castes and Schedule Tribes
(Prevention of Atrocities) Act, 1989. On 14.10.2022, the previous IO Shri
Sandip Kr. Sinha Roy received the FSL report through O/C, Nazat Police
Station vide Memo. No. 5492/FSL dated 23.09.2022 in response to the
Memo No.-Nil (CMR No.-292/19 dated 19.10.2019) in c/w Nazat Police
Station Case No. 141/19 dated 09.06.2019 under Section
147/148/149/325/326/302/427 Indian Penal Code and 25/27 Arms
Act adding Section 3(2)(v) of Schedule Caste and Schedule Tribes
(Prevention of Atrocities) Act, 1989. The investigation kept open under
Section 173(8) Cr.P.C. was endorsed to Shri Sankar Prasad Ghorai, Dy.
SP (North), CID, West Bengal who took up its investigation on 15.02.2024
vide Org. No. 136/CI dated 07.02.2024. During further investigation of
this case it is revealed that prima facie charge have been well established
against FIR named accused persons as well as the accused persons
whose names transpired in the judicial statements recorded under
Section 164 Cr.P.C. of Smt. Padma Mondal, Complainant, Biva Mondal
sister of Sukanta Mondal @ Fakir (since deceased), and Nemai Mondal.
As per order of Superiors vide Memo No. 1616/CS dated 31.03.2024,
supplementary charge sheet had been prepared by Shri Sankar Prasad
Ghorai, Dy. SP (North), CID, West Bengal in this case vide Nazat Police
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Station CS No. 193A/19 dated 31.03.2024 under Section
147/148/149/325/326/302/ 379/427 Indian Penal Code, 27 Arms Act
and adding Section 3(2)(v) of Schedule Caste and Schedule Tribes
(Prevention of Atrocities) Act, 1989 against the following 42 accused
persons for submitting the same before ld. Additional Session Judge 1st
Court, Barasat, (Special Court) viz–Sahajahan Sk. In respect of 02
accused persons namely Illyas Molla and Khaleque Sk. full particulars
could not be found and accused Jiten Mahato was expired on
18.02.2023. Serial No. 1 to 24 are FIR named accused persons, the
names of rest 18 (25 to 42) accused persons had been transpired from
the statements of witnesses in proposed supplementary Charge Sheet. A
prayer for issuing production warrant against the above noted 4 accused
persons mentioned in serial No. 1, 5, 9 and 24 would be submitted before
the ld. Court in proposed supplementary Charge Sheet. Another prayer
for issuing WPA against the 38 accused persons as mentioned in serial
No. 2, 3, 4, 6, 7, 8, 10 to 23, 25 to 42 would be submitted before the ld.
Court in proposed supplementary Charge Sheet.
4. Learned counsel appearing on behalf of the CBI submitted that in
the event the Court directs further investigation or reinvestigation to be
conducted by them, they shall be able to do the same in accordance with
law.
5. I heard the learned counsels appearing for the respective parties
and perused the application, the affidavits, the written note of
submissions and the case diary including the chargesheet and the
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proposed chargesheet prepared for submission by the Investigating
Agency.
6. At the very outset, it is made abundantly clear that this Court has
all the power to direct further investigation into the alleged offences and
if necessary, engage an independent and specialized agency like the
Central Bureau of Investigation for such purpose. A constitutional Court
can also direct reinvestigation into alleged offences provided a case is
made out for the same. Such settled position of law has not been
disputed by the respondents whose counterpoint is that these powers
can be exercised only in exceptional cases.
7. So far as the question of delay is concerned, it is hardly an
absolute bar in seeking justice for a victim, that too in a gruesome case
of double murder. Here, this Court had to be approached earlier in 2019.
However, as a chargesheet had purportedly been submitted, the matter
was disposed of. Thus, it has been an ongoing process. The State cannot
expect that each and every time they commit an error or perpetrate
injustice in a case, a citizen would have to rush to the Court forthwith
every time, whatever comes. That apart, the ominous presence of the
prime accused Sahajahan Sk in the area before his arrest in 2024 could
not be overlooked. It was only after his arrest in the earlier case of mob
violence that complaints could be lodged against him about alleged land-
grabbing, sexual exploitation of women and other atrocities.
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8. This is a rarest of rare case where in spite of there being ample
evidence including the statement of eye witness that the prime accused
Sahajahan Sk, an infamous anti-social of the locality having tremendous
political influence and muscle power and ability to organize violent mobs,
had led an attack on the victims and shot one of the victims at the back
of his head as result of which his eyes popped out and he died and his
other co-accused associate shot another victim, the Investigating Agency
chose to exclude him even from this list of other suspects not charge-
sheeted and not to file a chargesheet against him in the first occasion
and for so long. It was only after such ludicrous outcome of investigation
had been pointed out before this Court at the behest of the petitioner
that the Investigation Agency, without taking leave of this Court, tried to
file a chargesheet against the said accused and similar others before the
Trial Court, but finally decided to keep the same only ready for filing.
9. It is needless to mention that the above act of non submission of
the chargesheet against the prime accused in the first place was a
complete travesty of justice.
10. It is elementary that if a person is caught in the act, the same
cannot be wished away if he thereafter shows an attempt, that too a
feeble one, to undo such wrong.
11. On merits, a careful perusal of the FIR and the materials collected
even during the first investigation clearly show that a prima facie case is
made out against all the accused, even those who are now being
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attempted to be arraigned in this case. In support of the prosecution
case, there are statements of witnesses including those of purported eye
and/or pre-occurrence witnesses. The most important was the detailed
account given by the de-facto complainant in the FIR. She was an alleged
eyewitness. This was sufficient per se to implicate the prime accused.
That apart, there were seizure lists for recoveries made and above all, the
medical evidence including the postmortem report.
12. This is despite the apprehension of the petitioner that the case
might not have been investigated properly or all the relevant witnesses
might not have been examined and the best evidence not collected.
However, a proper investigation would have yielded further corroborative
evidence and made the prosecution case foolproof.
13. When a brazenly faulty and biased conclusion can be arrived at
during the first investigation of leaving out the prime accused, then the
whole approach of the Investigating Agency in investigating the gruesome
case of double murder would become suspect and the
aggrieved/petitioner would be quite justified in seeking further
investigation by another investigating agency.
14. In this context, it is germane to refer to the initial allegations
leveled by the petitioner including that the FIR was not registered in time.
In fact, this Court had to be approached earlier to seek appropriate
further relief in 2019.
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15. Although the petitioner’s FIR dated 09.06.2019 specifically
contained the names of the prime accused Sahajahan Sk. and others,
they were left out from the first charge sheet. A further statement of her
was allegedly recorded on the same day made a material departure.
There was no reason or logic for the informant to have actually made
such further statement. Similar statement was recorded of another
witness X (name withheld) on 10.06.2019 excluding the above names.
Several other similar statements of witnesses were recorded by the police
under Section 161 of the Code. However, during further investigation the
petitioner, the said X (name withheld) and one Y (name withheld), whose
earlier statement of September, 2019 before police did contain reference
to those names, made statements under Section 164 of the Code making
direct allegations against Sahajahan Sk. and others.
16. The above facts show that the FIR and the statements made before
the Magistrate implicated Sahajahan Sk and those others, but the
Section 161 statements of same witnesses, especially the initial ones,
hardly did so.
17. First, these render the statements of witnesses recorded by the
police under Section 161 of the Code suspect. These raise a reasonable
doubt about whether statements of witnesses under Section 161 of the
Code were correctly recorded.
18. Secondly, one wonders why the CID chose to file a charge sheet
only in 2024 during pendency of the writ petition although the relevant
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evidence, especially the statements implicating all the accused as
recorded before the Magistrate were available earlier. If they wanted to
correct the wrong by filing charge against such left out accused, they had
all the opportunity and time to collect further evidence.
19. The existence of such suspicious exonerative statements allegedly
recorded under Section 161 of the Code could be detrimental to the
cause of justice as the Trial Court might decide to disbelieve any
improvement to these made by a witness during trial, which might
actually be the correct version. One way of solving the crisis is to have
reinvestigation done in order to allay all doubts. The other option is to
expect further statements of all such witnesses to be recorded before a
Magistrate. But, the present investigating agency did not do so.
20. That apart, although there was enough suspicion in the instant
case that the prime accused and similarly circumstanced others were
kept out of the chargesheet as accused in an effort to save them with an
obvious consequence of evidences getting destroyed in the process, no
charge was added under Section 201 of the Indian Penal Code. In such
peculiar circumstances as mentioned above where despite the presence
of evidence in abundance against the prime accused, he was not
proceeded against as an accused in the chargesheet, it would be an
absolute imperative to find out whether there was any concerted effort or
conspiracy behind this. Was anyone trying to destroy evidence to keep
the prime accused out of the fray? The process of investigation and its
outcome cannot be the handiwork of the concerned Investigating Officer
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alone, especially in such an important case, although he may be
primarily responsible for the same. This had to pass through the higher
authorities. Therefore, it is required to find out as to whether anyone was
purposely and deliberately trying to save the prime accused Sahajahan
Sk and other such accused from getting implicated in this case and going
out of the way to have an incomplete chargesheet filed towards achieving
such end. No further investigation whatsoever has been done in this
regard.
21. The case at hand involves extreme depredations and perpetration
of most brazen and brutal atrocities by the alleged miscreants. It
deserves much more than the ramshackle investigation done by the
police that arguably had a stench of taint. Therefore, further investigation
or re-investigation is an absolute imperative.
22. It is also germane to note that in respect of the earlier criminal
cases filed against the said accused Sahajahan Sk, the Courts finally
directed the central agencies to conduct such investigation after
expressing disapproval against the State agencies. Pertinently, this Court
had earlier constituted a Special Investigation Team consisting of officers
from the CBI and the State agency to investigate alleged offences
committed by the prime accused in respect of the mob violence that took
place when officials of the ED went to investigate the said accused, but
were attacked instead. The Division Bench of this Court finally directed
the CBI to conduct such investigation after making certain scathing
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observations against the State police. This order was affirmed by the
Hon’ble Supreme Court.
23. In fact, in this case too, first the local police and then the CID
failed in their duties that resulted in shielding of the influential accused.
Then, after filing of the instant writ petition, the CID failed to properly
account for the earlier faulty investigation and to look into the issue of
possible consequent destruction of evidence. Effectively, they included
the rest accused in the Supplementary Chargesheet on evidence collected
earlier along with some subsequent statements recorded during further
investigation in 2019. By this, they tried to show that the injustice that
was perpetrated was being remedied, although without even admitting
such wrong.
24. Equally disturbing was the attempt to file supplementary charge
sheet without taking the leave of this Court inspite of there being an
order of stay. It was only after this Court expressed surprise at such
information provided on behalf of the petitioner on 01.04.2024 that the
police desisted from proceeding further and only kept the proposed
supplementary charge sheet ready for filing. In fact, it was submitted on
behalf of the State that such attempt had been made due to some
misunderstanding.
25. It appears that whenever allegations are levelled against the said
accused Sahajahan Sk, the State police tend to falter, be it in the above
referred case of mob violence against the ED Officials or in the instant
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case. In this, no distinction can be made between the local police (as in
the said earlier case) or the CID (as in the present case).
26. In the present case too, which has even more serious charges, I
find that the police failed to take action against the prime accused at
different stages, leading to gross miscarriage of justice. It would, thus,
not be in the interest of justice to again give the reins of investigation to
them. Therefore, in order to instil confidence in the public and to ensure
that justice is meted out to all, it would be fit and proper to direct the
CBI to conduct the further investigation of the instant case.
27. This Court has taken note of the fact that some investigation was
done after the patently illegal act of deleting the prime accused from the
chargesheet was detected and canvassed before this Court. Some
evidence had also been collected during the first investigation. Therefore,
directing de novo investigation or reinvestigation may only complicate
things further by leading to omission of untainted relevant evidence. It
would, therefore, be in the interest of justice that the further
investigation is conducted by independent agency. It will be for them to
decide whether to have statements of all relevant witnesses including
those examined earlier recorded before a Magistrate. It shall also be open
to them to examine more witnesses or leave out unreliable ones in their
report/s.
28. In view of the above discussions, I direct the CBI to conduct further
investigation in this case with the hope that they would treat the case
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with utmost seriousness that it deserves. The CBI shall constitute a
Special Investigation Team in this regard at the earliest and further
investigation shall be done under the supervision of a senior officer of the
of Joint Director. The further investigation shall be monitored by the
jurisdictional Court. The CBI shall also be at liberty to take steps for
ensuring protection of witnesses. The State respondents are directed to
handover the case diary and all materials collected during investigation
to the CBI forthwith.
29. With these observations and directions, the writ petition is
disposed of.
30. Urgent certified copy of this order be supplied to the learned
counsels for the parties upon compliance of usual formalities.
( JAY SENGUPTA, J.)