Supriya Mandal Gayen vs The State Of West Bengal & Others on 30 June, 2025

Calcutta High Court (Appellete Side)

Supriya Mandal Gayen 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 702 of 2024


SUPRIYA MANDAL GAYEN                               ...      PETITIONER

                                     VS.

THE STATE OF WEST BENGAL & OTHERS                  ...      RESPONDENTS



For the petitioner         : Mr. Moyukh Mukherjee
                             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. 142 dated 09.06.2019 under Sections

147,148,149,448,325 and 364 of the Indian Penal Code, Sections 25 and
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27 of the Arms Act and added Sections 3(1)(z) and 3(2)(v) of the Schedule

Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 and

added Sections 302 and 201 of the Indian Penal Code, by an independent

and specialized agency like the Central Bureau of Investigation.

2. Learned counsel appearing on behalf of the petitioner submitted as

follows. After the completion of the Lok Sabha Elections in 2019,

miscreants belonging from the ruling political party in the State of West

Bengal under the leadership of Sahajahan Sk. and Firoz Kamal Gazi were

threatening the petitioner that her husband namely, Debdas Mondal and

other members of the family that they would not be spared and would be

killed as they had supported Bharatiya Janata Party. On 08.06.2019 at

about 4.50 pm about 150 – 200 persons under the leadership of

Sahajahan Sk and Firoz Kamal Gazi being armed with deadly weapons

forcefully entered into the house of the petitioner and started searching

for Debdas Mondal. They also ransacked the furniture and other

household articles. The leaders of the group namely, Sahajahan Sk and

Firoz Kamal Gazi threatened the inmates of the house with dire

consequences for supporting the other Party and instructed his men to

set the house in fire and as such, fire was set in order to burn alive

Debdas Mondal. Seeing this, Debdas Mondal tried to flee away. But, the

other accused persons held him and started assaulting him and

forcefully took him away from the house. After that, the husband of the

petitioner could not be traced. Even after the occurrence of such serious

and tragic incidents of such a magnitude on 8.06.2019, the police
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authorities being hand in gloves with the ruling dispensation, solely with

the intention to shield the miscreants including the prime accused in the

case, being Sahajahan Sk, did not take any steps to register any FIR and

initiate proceedings. It was only upon the complaint lodged by the

brother-in-law of the petitioner that FIR was lodged on 9.06.2019.

Because of the inaction on the part of the State police authorities in

delaying in investigation and the fact that the body of the husband of the

petitioner could not be traced after being kidnapped, the father-in-law of

the petitioner was constrained to approach the Hon’ble High Court vide

WPA no. 20407 of 2019 under writ of Habeas Corpus. The matter was

heard. Meanwhile, the case was transferred to CID, West Bengal on

23.08.2019. Due to the delay in filing the charge sheet and the laches on

the part of the investigating officer, vide order dated 24.09.2019, the

Learned Court below granted bail to one of the charge sheeted accused

person, being Akher Ali Gayen, thereby observing that the statutory

period of filing charge sheet had lapsed and that the charge had not yet

been filed by the investigating authority. However, the other accused

persons as per the charge sheet were absconding and issuance of

warrant was pending before the Additional Sessions Judge, 1st Court at

Barasat. The investigation itself showed a lot of lacunae such as the

delay in filing the charge sheet for which one accused was enlarged on

default bail, other five charge sheeted accused persons were absconding,

the prime accused person even as per the written complaint, being

Sahajahan Sk was not charge sheeted inspite of being an FIR named
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accused. While hearing the matter being WPA 20407 of 2019, this Court

observed that investigating officer of the Criminal Investigation

Department had collected blood samples, photographs and the

disinterred body parts to the CFSL Hyderabad for DNA profiling to fix the

identity of the deceased, Debdas Mondal. It was only after the father-in-

law of the petitioner had approached this Court that the body of the

husband of the petitioner was found after matching the long bone and

skull recovered from the bank of Dansa river under Sandeshkhali Police

Station. The bones and skull of the husband of the petitioner were

matched with his parents and after obtaining a report from CFSL

Hyderabad, it was found that the DNA profiling of the deceased Debdas

Mondal matched with his father, being Basudev Mondal. The application

of writ being WPA 20407 of 2024 became infructuous after the

completion of investigation and filing of the charge sheet dated

13.07.2022 reflecting that the long bones and skull matched with the

deceased Debdas Mondal with Basudev Mondal, the father-in-law of the

petitioner. Almost after three years from the date of lodging FIR, the

investigating agency submitted a charge sheet, being charge sheet no.

166 of 2022 dated 13.07.2022 under section under Section

147/148/149/302/325/364/201 of Indian Penal Code, read with

Section 3 (1) (z) and (2) (v) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 against six accused persons out of

which none were named in the FIR and in the written complaint made by

the brother-in-law of the petitioner. The other twenty-three persons
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including Sahajahan Sk who was named in the FIR as well as in the

written complaint and statements under section 161 CrPC and Section

164 CrPC specifically, had not been charge sheeted, but only referred as

suspects when there were sufficient materials and incriminating

evidences against them to prosecute them. 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 department, 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. The

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 justice as the investigating agency would

continue to shield the accused persons as previously the FIR named
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accused person, being Sahajahan Sk and twenty three others 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 to 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 had 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,

was arbitrary and malicious in nature. The investigation agency had not

charge sheeted twenty-three persons even after being named in the FIR.

The written complaint lodged by the father-in-law of the petitioner clearly

made out the offence of kidnapping, thereby specifically naming the

accused persons. Subsequently, it came to light that the husband of the

petitioner was killed. 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 in a case bearing such importance, the

investigation was concluded and charge sheet was given nearly after

three years of the investigation. The investigation itself showed a lot of

lacunae. It was a settled proposition of law that the High Court could
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exercise its constitutional power to transfer investigation from to CBI

where the investigation prima facie was found to be tainted and biased.

Here, twenty-three FIR named accused persons were not charge sheeted

arbitrarily, thereby misleading the investigation and conducting an

arbitrary investigation, violating the principles of natural justice. Even, in

the FIR, Sections 25/27 of the Arms Act were present whereas while

filing the charge sheet. The investigating authority conveniently and

whimsically removed the provisions under Arms Act thereby guarding

and shielding the accused persons from justice. It was apposite to

mention herein that the Opposition filed on behalf of Respondent no.

1,2,3,4,6 and 7was 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-three FIR named

accused persons including the prime accused person being Sahajahan

Sk only because of the fact that he belonged from the ruling party in the

State of West Bengal. The submission made by the State that the

petitioner had filed the instant writ petition after 18 months from the

date of filing of the charge sheet for reinvestigation by the CBI or the 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
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for that the victim could 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

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 party in the State of

West Bengal. Moreover, the State respondent authorities had admitted in

their Affidavit in Opposition filed that they had omitted the names of the

persons who were named in the written complaint and FIR. Moreover, it

has 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 CBI only in rare and exceptional

circumstances such as where high officials of State authorities were

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
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State respondents with regard to transfer of Investigation. The present

case was one that shocked the conscience of the people and the

continuance of such barbarism was still prevalent. The petitioner had

time and again proved and submitted that the investigation agency only

intended to conduct biased investigation, investigation was tainted and

appears to be arbitrary and improper, it was the right of every victim to

get justice. The petitioner had time and again proved and submitted that

the investigation agency only intended to conduct biased investigation,

upon being influenced by the high and the mighty belonging to the ruling

dispensation. As such, in the interest of justice, the petitioner humbly

prayed to transfer the investigation to an independent agency such as the

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. The Single Bench

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, being
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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 observed that the case involved highly politically powerful

persons including Sahajahan Sk. For the same, fair, honest and complete

investigation was required which could alone retain public confidence in

the impartial working of the State Agencies. The 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 investigation and to proceed

further. An appeal in the form of Special Leave to Appeal was preferred

before the Hon’ble Supreme Court 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 High Court at Calcutta.

Meanwhile, Sahajahan was arrested by CID West Bengal on 28.02.2024.

It is also to mention that a criminal revision was also filed by the

Enforcement Directorate to quash the FIR no. being 7 of 2024 vide CRR

164 of 2024 started against their Officers 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 contradicting

that in 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
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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. Thus, such actions of the State Respondents were absolutely

contradictory to their Affidavit in Opposition submitted and was an

afterthought of the writ petition filed by the petitioner and subsequent

observations made by the Bench as it reflected that their intention

behind filing the supplementary charge sheet suddenly even when

investigation was stayed by the Bench was only to make the writ petition

infructuous. Under such circumstances and considering the precedents

and the series of criminal cases filed against 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

reflected the malafide intention of the investigation agencies. Reliance on

the point of transfer of investigation to the CBI was placed on 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
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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. To further clarify the facts, it was pertinent to state that the

occurrence of the incident was on 08.06.2019 at around 4.50 pm. at the

house of the petitioner. First Information Report was registered as Nazat

Police Station Case No. 142 of 2019 dated 09.06.2019 under Sections

147/148/149/448/325/364 of the Indian Penal Code read with Section

25/27 of the Arms Act and adding Section 3(1) (z) and Section 2 (v) of the

Schedule Castes and Schedule Tribes Prevention of Atrocities Act. Charge

Sheet no. 166 of 2022 dated 13.07.2022 was filed under Sections

147/148/149/302/325/364/201/302 of Indian Penal Code, read with

Section 3 (1) (z) and (2) (v) of the Schedule Castes and Schedule Tribes

(Prevention of Atrocities) Act, 1989. Charge sheet was not filed under

Sections 25/27 of Arms Act whereas the FIR contained the said

provisions and the same was clearly reflected from the written complaint.

Name of accused persons in the FIR were i) Sahajahan Sk, ii) Firoz Kamal

Gazi, iii) Siauddin Mollah, iv) Abdul Kader Mollah, v) Akher Gayen

(charge sheeted accused person), vi) Hasanujjaman Mollah (charge

sheeted accused person), vii) Motiur Rahman Mollah, viii) Raju Mollah,

ix) Alamgir Sk, x) Kutubuddin Sk, xi) Nur Islam Mollah, xii) Hasibur

Mollah, xiii) Siraj Sk, xiv) Gobinda Mondal, xv) Sapan Mridha, xvi)

Ajamuddin Mollah, xvii) Jafar Ali Mollah, xviii) Shaukar Mollah, xix)

Satyajoti Sanyal, xx) Raja Sanyal, xxi) Dhrubajoti Sanyal, xxii) Ranjit

Das, xxiii) Dilip Malik, xxiv), Gour Ray, xxv) Kedar Sardar. Names of the
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persons charge sheeted were i) Akher Gayen, ii) Hasanujjaman Mollah,

iii) Azad Sk, iv) Majed Sk, v) Habib Mistry, vi) Shantanu Mondal. Other

than Akher Gayen and Hasanujjaman Mollah, other four charge sheeted

persons were not named in the FIR. 23 accused persons as were named

in the FIR including the prime accused person, Sahajahan Sk were not

charge sheeted and only named as suspected. (Serial no. 1-4, 7-25 from

the list of names of accused persons mentioned in the FIR above-stated.)

An additional feature was that the accused persons kidnapped the

deceased victim and the long bone and skull of the deceased victim were

recovered from the banks of Dansa river under Sandeshkhali Police

Station which was matched with the father of the deceased victim. The

petitioner in writ petition being WPA no. 703 of 2024 and WPA 702 of

2024 approached this Hon’ble Bench 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 on behalf of 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 that 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

Debdas Mondal. They also entered into the rooms of the house and

ransacked the furniture and other household articles. The leader of the

group namely, Sahajahan Sk. and Firoz Kamal Gazi threatened the
14

inmates of the house of dire consequences for supporting Bharatiya

Janata Party and instructed his men to set fire in the house and as such,

fire was set in order to burn alive Debdas Mondal, but seeing this Debdas

Mondal tried to flee away. But, the other accused persons held him and

started assaulting him and forcefully took him away from the house and

after that, the husband of the petitioner could not be traced. That on the

basis of a written complaint lodged by the brother in law of the petitioner,

being Nemai Mondal with the Officer-In-Charge, Nazat Police Station, the

FIR named accused persons were arrayed as accused in connection with

Nazat Police Station Case No. 142 of 2019 dated 09.06.2019 under

Section 147/148/149/448/325/364 of the Indian Penal Code and

Section 25/27 of the Arms Act and adding Section 3(1)(z) and Section 2(v)

of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act.

The respondents stated that the petitioners approached the High Court

after 5 years from the date of the incident. Such delay was not 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. 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

is 09.06.2019 and the respondents stated that without proper

explanation as to why the petitioner approached the High Court so late,

the said writ petition should not be allowed. The petitioners had not
15

provided any reason for the inordinate delay. Till date petitioner had not

taken any steps before the learned Magistrate stating their grievance with

regard to investigation. 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 direct transfer of investigation, if required. 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 had not

made out any case whereby it was stated that conscionable justice would

not be rendered before the learned Magistrate and thus the writ

petitioner approached this Hon’ble Court. Transfer of investigation was

an exception, not a rule. Order to conduct investigation by CBI was not

to be passed as a matter of routine merely because the party 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 leveled no

allegation against the current Investigating Agency, being the CID, WB

and secondly, the petitioner failed to make a case where in the 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, in such a circumstance, the Writ Court should
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lay its hand off from interfering in the matter. 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 Magistrate subject to the leave

of this Court. On the basis of the chargesheet and the supplementary

chargesheet the 23 persons who were marked as ‘suspect’ were now

made accused on the basis of materials available. Furthermore, Sk.

Sahajahan had also been made an accused in the said case. The

grievance of the writ petitioner made in the writ petition could no longer

exist, as on today. All the issues had been taken care of. In such a

situation, it was humbly stated 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. By way of clarification, it was further stated that

Nazat Police Station Case No. 142/19 dated 09.06.2019 under Sections

147/148/149/448/325/364 Indian Penal Code and Sections 25/27

Arms Act adding Section 3(1)(z) and 3(2)(v) of Schedule Castes and

Schedule Tribes (Prevention of Atrocities) Act, 1989 and Sections

302/201 Indian Penal Code. Date and time of occurrence was

08.06.2019 was at about 16.50 hrs. Place of occurrence was at the house

of the complainant at Nolkora Bhangipara. The IO took all informative

steps to trace out of the abducted Debdas Mondal. During investigation,
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some parts of dead body of Dedbas Mondal were recovered on

16.02.2020. Finally the IO – Shri Sandip Kr. Sinha Roy (since retired on

31.12.2022) Dy. SP (North), CID, WB submitted charge sheet against 06

accused persons as a prima facie chare was established against them

vide Nazat Police Station Charge Sheet No. 166/22 dated 13.07.2022

under Section 147/148/149/448/325/364/201/302 Indian Penal Code

and adding Section 3(1)(z) and 3(2)(v) of Schedule Castes and Schedule

Tribes (Prevention of Atrocities) Act, 1989, and 23 persons had been

mentioned in FIR who were shown as suspects. The investigation was

kept open under the provision of 173(8) Cr.P.C. The investigation kept

open under Section 173(8) Cr.P.C was endorsed to Shri Sankar Prasad

Ghorai, Dy. SP (North), CID, WB who took up its investigation on

15.02.2024 vide Org. No. 136/CI dated 07.02.2024. During further

investigation on 24.03.2024, the present IO examined and recorded the

statement under Section 161 Cr.P.C. of following witnesses. i) Nemai

Mondal s/o Basudeb Mondal of Nolkora, Bhangipara Police Station –

Nazat, District-24 Parganas (North), ii) Naren Mondal s/o – Amulya

Mondal of Nolkora Bhangipara, PS – Nazat, iii) Rabin Das s/o – Parikshit

Das PS – Nazat, Dist – North 24 Pgs. As per order of superiors vide Memo

No. 1617/CS dated 31.03.2024, a supplementary charge-sheet was

prepared in this case vide Nazat PS CS No. 166A dated 31.03.2024 under

Section 147/148/149/448/325/364/201/302 Indian Penal Code and

adding Section 3(1)(z) and 3(2)(v) of Schedule Castes and Schedule Tribes

(Prevention of Atrocities) Act, 1989 against the following 25 accused
18

persons including 23 FIR named for submitting before Additional District

Session Judges 1st Court, Barasat (Special Court) to stand trial in the

open court of law. Serial No. 01 to 23 (in the proposed Supplementary

Charge Sheet) were named in FIR Serial No. 24 and 25 (in proposed

Supplementary Charge Sheet) were transpired from the statement of

witnesses recorded under Section 161 Cr.P.C. A prayer for issuing

production warrant against the above noted four accused persons

mentioned in Serial No. 1, 4, 8 and 23 (in the proposed Supplementary

Charge Sheet) would be submitted before the Court. Another prayer for

issuing WPA against the accused as mentioned in serial no. 2, 3, 5, 6, 7,

9 to 22, 24 and 25 (in proposed Supplementary Charge Sheet) would be

submitted before the learned Court.

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

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
19

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 murder. Here, this Court had to be approached earlier in 2019. 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.

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 the attack on the victims and abducted the prime

victim/deceased whose dead body was subsequently recovered, the

Investigating Agency chose to merely keep him as a suspect along with
20

some others 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

during the first investigation clearly show that a prima facie case is made

out against all the accused those who are now being attempted to be

arraigned in the case all together. 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. He was an alleged

eye-witness. This was sufficient per se to implicate the prime accused.

That apart, there were seizure lists for recoveries made and above all, the
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medical evidence including the postmortem report and the DNA matching

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 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 registered in time. In

fact, this Court had to be approached earlier to seek appropriate further

relief in this regard in 2019. Moreover, even the first charge sheet was

filed belatedly resulting in the arrested accused getting statutory bail.

15. Although the de-facto complainant’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. Further statements

were recorded on 23.08.2019 and 09.09.2019 excluding the above

names. There was no reason or logic for the informant to have actually
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made such further statements. Several similar other statements were

allegedly recorded of other purported witnesses under Section 161 of the

Code, which quite expectedly excluded the names of those accused.

However, on 24.03.2024, the CID decided to record statements of the

same de-facto complainant and two others namely, X (name withheld)

and Y (name withheld), which contained those names and then decided

to proceed towards filing the supplementary charge sheet.

16. The above facts show that the FIR and the statements including

that of the Informant recorded immediately before the police prepared the

Supplementary Charge Sheet implicated Sahajahan Sk and those others,

but the earlier Section 161 statements hardly did so.

17. First, these bring the earlier statements of witnesses recorded by

the police under Section 161 of the Code under a cloud of suspicion.

These raise a reasonable doubt about whether such statements of

witnesses were correctly recorded by the Investigating Officer.

18. Secondly, if the police wanted to correct the wrong filing charge

sheet against the left out accused, they had all the opportunity and time

to collect further evidence and to have statements of witnesses recorded

before a learned Magistrate.

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 this made by a witness during trial, which might actually
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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 Section 201 of the Indian Penal Code was

added as a charge, no effective investigation was done in this regard. 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 such act. 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 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 be found 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
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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

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 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 later and tried to show

that the injustice that was perpetrated was being remedied, although

without admitting such wrong. They ought to have done a more thorough
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investigation, asked the de-facto complainant to throw further light and

had further statements recorded before a Magistrate.

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

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.
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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

with utmost seriousness that it deserves. The CBI shall constitute a

Special Investigation Team in this regard at the earliest and the further

investigation shall be done under the supervision of a senior officer of the

rank 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.

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30. Urgent certified copy of this order be supplied to the learned

counsels for the parties upon compliance of usual formalities.

( JAY SENGUPTA, J.)