By: Gaurav Kumar
The case comment below discuss the case Promita Dutta V. State of West Bengal & Others (2015) 2 CAL LT 363 (HC). In the case, a writ petition was filed by Promita Dutta in the High Court of Judicature at Calcutta in relation to the investigation of her husband’s death. In the petition, the petitioner showed her dissatisfaction over the investigation by the Criminal Investigation Department. A prayer was made before the writ court to transfer the investigation to the Central Bureau of Investigation. The case commentary examines the legal history of the case, legal issues before the court and the judgment of the court in brief.
On May 6, 2011, at around 9:45 pm, Tapan Dutta (petitioner’s Husband) was brutally murdered while riding a motorcycle. At the time of the fatal incident, one Bablu Prasad was riding pillion on the motorcycle of the deceased. On the same day, based on a written complaint of Bablu Prasad, an FIR no. 205 was registered in Bally Police station under sec. 302/307/120B of the Indian Penal Code and sec. 25/27 of the Arms Act. As per the postmortem report of the victim, he suffered 2 lacerated injuries and 6 gunshot wounds before succumbing to death.
According to Promita Dutta (petitioner), the victim was an environmentalist and was leading a movement to save water bodies in Howrah district from becoming extinct due to the greed of land sharks. This resulted in his premature death. In the past, the victim had written letters to senior police officials expressing that he perceived threat to his life for opposing land sharks and he must be provided police protection.
On May 12, 2011, the Criminal Investigation Department took over the investigation of the FIR. A charge-sheet was filed by the Investigating Officer on August 30, 2011, vide Bally C.S. No. 406/11 dated August 30, 2011, under sec. 302/120B, IPC read with sec. 27/25 of the Arms Act against 5 (five) persons. As per the charge-sheet, there was a long-standing enmity among the deceased and some of the TMC leaders over the issue of Ash filling of Suti Cannel, Haral Cannel and other two Cannel for Anmol South City Project. The deceased was opposing the filling. The TMC leaders namely Govinda Hajra, Kalyan Ghosh (Dist. Conveyner), Sasti Gayen, Arup Roy, Arnit Pal Chowdhury, Babu Mondal and others become exasperated upon the deceased over the issue. Paritosh Bar a supplier on behalf of the Anmol Company also tried to influence the deceased but failed. The deceased brought the matter before the higher authority of his party and also took shelter before the law for the entrenched situation.
Although in the supplementary charge-sheet filed before the session court on September 16, 2011, it was reported that there is no evidence against the persons whose name was mentioned in the previous charge-sheet.
The petitioner expressing apprehension that investigation would not proceed in the right direction because of involvement of influential persons and on other grounds filed a writ petition approached the High Court on June 19, 2012. However regular hearing could only commence from December 12, 2014, on the writ petition. In the meantime, the session Judge concluded the hearing in case of death of Tapan Dutta. In order dating December 6, 2014, while recording his dissatisfaction with respect to the investigation process, the Sessions Judge returned a finding that the five persons accused of murdering the victim were not guilty and, accordingly, acquitted.
- Whether the writ court acting under Article 226 of the constitution can look into the judgment of the session’s Judge.
- Whether the writ petition is dismissed on the ground of the same having become infructuous by reason of delay in disposal of the writ petition.
The Single Judge Bench of the high court of Calcutta referred the writ petition to the Division Bench of the high court, to be heard along with the appeal filed by the State Government against the judgment of the Session Judge. The writ was placed before Hon’ble Chief Justice for appropriate order.
During the proceeds, the court heard both the petitioner and the respondent to greater length. Court recorded that Mr Roy (who initially presented the respondent) if Mr Roy was arguing the case of the minister and not the State. The court had to decide whether the writ petition by efflux of time and supervening circumstances has been rendered infructuous and nothing survives for the decision as argued by the respondent.
It was argued by Mr Gupta (presenting respondent) that the judgment of the learned Sessions Judge should not be looked into by the Writ Court at all since the propriety and/or correctness of such decision is open to be examined by a Division Bench of this Court in appeal. A serious objection by the state was that since the remedy is available to the petitioner in a different jurisdiction of the same High Court, this writ petition merits no order.
Respondents counsel argued that free and fair investigation had to be ensured, which was patently lacking and the acquittal is based on a tainted investigation, and that fair investigation is a fundamental right available to a victim and his family members and it is the duty of the State to protect the fundamental rights. It was contended that the real culprits who were not arraigned cannot claim any protection for further investigation since the persons accused of committing the murder of the victim have not been punished. Finally while replying to the query as to why a Taraji petition under section 173(8) Cr.PC was not filed, the counsel relied upon (2009)9 SCC 129 (Rita Nag v. State of West Bengal & Ors.), where Supreme Court had held the order of the Magistrate to reinvestigate on a protest petition filed by the de facto complainant as beyond the jurisdiction and competence of the Magistrate, thus leaving no option but to approach the high court.
The court agreed that the petitioner was right in apprehending that the investigation would be flawed with a view to cover up misdeeds of some persons whom she perceived to be influential has turned into reality with the acquittal of the accused persons. The court while referring to the submission made by respondent based on Zahira Habibulla H. Sheikh (supra), opined that what may be permissible for the Supreme Court in a case of exceptional nature for doing complete justice between the parties under Article 142 of the Constitution may not be permissible for a Judge exercising Article 226 powers.
On the argument that the judgment and order of the learned Sessions Judge being the subject matter of the appeal ought not to be looked into at all by the respondent, the court disagreed and said that definitely the Writ Court cannot examine the judgment of the learned Sessions Judge to find holes in it as if it were exercising appellate powers but such judgment can most certainly be looked into for the limited purpose of ascertaining whether laxity in the process of investigation led to the formation of an opinion that investigation was defective, resulting in the accused obtaining the benefit of the doubt.
The court accepted that it is a failure on the part the system that the writ petition could not be decided before the trial culminated in the acquittal of the accused. Thus it referred the writ petition to the Division Bench for further relied upon the petitioner.