Full Judgment Text
NON-REPORTABLE
2024 INSC 930
IN THE SUPREME COURT OF INDIA
EXTRA-ORDINARY ORIGINAL JURISDICTION
WRIT PETITION (Crl.) No. 416 OF 2020
KABIR SHANKAR BOSE …PETITIONER (S)
VERSUS
STATE OF WEST BENGAL & ORS. …RESPONDENT (S)
J U D G M E N T
PANKAJ MITHAL, J.
1. We have heard Shri Mahesh Jethmalani, learned Senior
Counsel for the petitioner, Shri Tushar Mehta, learned
Solicitor General of India for the CBI, Shri Vikramjeet
Banerjee, learned Additional Solicitor General of India, for
the CISF, Ms. Astha Sharma, learned Standing Counsel
for the State of West Bengal and Shri Zoheb Hossain,
learned counsel for respondent No. 7.
2. The petitioner who is an advocate by profession as also
being in politics contends that he has a fundamental
right to have a fair investigation in connection with FIR
Signature Not Verified
No.400 of 2020 dated 07.12.2020 lodged against him
Digitally signed by
geeta ahuja
Date: 2024.12.04
16:54:21 IST
Reason:
with Police Station Serampore, West Bengal under
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Sections 341, 323, 325, 326, 307, 354, 504, 506, 34 of
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Indian Penal Code and FIR No. 401 of 2020 dated
07.12.2020 again with Police Station Serampore, West
Bengal under Section 341, 325, 354A, 34 IPC. He
therefore, has invoked the jurisdiction of this Court
under Article 32 of the Constitution of India seeking a
writ in the nature of mandamus commanding the
respondent authorities to transfer the investigation in
pursuance of the above FIRs to any independent agency
other than the local police, namely, the Central Bureau of
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Investigation or Special Investigation Team .
3. The Writ Petition was entertained by the three Judge
Bench of this Court. On 13.01.2021 while issuing notice
to the State-respondents, proceedings in pursuance to
the aforesaid FIRs were stayed. Thereafter, the
respondents i.e. State of West Bengal, Central Industrial
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Security Force and the CBI have filed separate replies to
the writ petition. Another counter-affidavit has been filed
by the private respondent No.7 opposing the writ petition.
1
In short ‘IPC’
2
In short ‘CBI’
3
In short ‘SIT’
4
In short ‘CISF’
2
4. Ordinarily we would have relegated the petitioner to the
High Court to seek appropriate remedy in connection
with the reliefs claimed here in this petition but we
refrain from doing so after the petition had been
entertained and the parties have exchanged the
necessary pleadings which are sufficient to adjudicate the
matter on merits.
5. It may be pertinent to mention here that on account of
the interim order passed in this petition on 13.01.2021,
the local police had not proceeded in this matter and as
such no investigation has been done pursuant to the
above FIRs.
6. The petitioner alleges that he was married on 18.11.2010
to the daughter of Mr. Kalyan Banerjee, respondent No.7,
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a sitting Member of Parliament from Serampore Lok
Sabha constituency but the said marriage could not last
long and was dissolved in terms of the settlement
between the parties vide order dated 06.03.2018 passed
by this Court in Transfer Petition (C) No. 1988 of 2015
wherein apart from dissolving the marriage, it was
5
In short ‘MP’
3
ordered that all pending litigations between the parties
would stand quashed. However, the father of the
petitioner’s ex-wife continued to harass the petitioner and
pressurized the state administration to victimise and
torture him.
7. Accordingly, on the request of the petitioner on
11.01.2019, he was granted CISF security owing to
political vendetta and threats extended to him allegedly
by the State Government and his ex-father-in-law.
8. The petitioner alleges that on 06.12.2020 his house and
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car were surrounded by 200 Trinamool Congress goons
when he was about to leave his house at Serampore
along with CISF security guards. His life was saved by his
guards who also suffered injuries in the melee to protect
him. The local police failed to take any action, rather,
under political pressure, FIR No.400 of 2020 was
registered against the petitioner at the behest of one
Santosh Kumar Singh @ Pappu Singh on 07.12.2020
with Police Station Serampore, West Bengal under
Sections 341, 323, 325, 326, 307, 354, 504, 506, 34 IPC.
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In short ‘TMC’
4
9. It was followed by another FIR No.401 of 2020 on
07.12.2020 with Police Station Serampore, West Bengal
under Sections 341, 325, 354A, 34 IPC which was lodged
by one Tanushree Singh.
10. In connection with aforesaid FIRs, at around 1 O’clock in
the afternoon of 07.12.2020, the petitioner was arrested
by the local police but was ordered to be released on bail
by the Court of Additional Chief Judicial Magistrate,
Serampore vide order dated 07.12.2020 in case No. 400
of 2020.
11. The petitioner contends that on account of the fact that
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the petitioner is actively involved in politics as a BJP
worker/spokesperson; that respondent No.7, sitting MP
wants to settle scores with him; and as the atmosphere in
the State is politically charged, the petitioner apprehends
that the local police would not carry out a fair
investigation in the matter, thus, infringing upon his
fundamental right to have a fair investigation and trial.
12. The petitioner, at the very outset, has detailed as to how
he had been victimized and subjected to extreme torture
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Bharatiya Janta Party
5
by the administrative authorities of the State of West
Bengal. He has tried to emphasize the complete misuse of
power and use of the State machinery as a “private army”
against him. He has further asserted that the State
machinery is acting at the behest of the political masters
as he happened to be the prominent spokesperson of a
party in opposition in the State of West Bengal.
13. The petitioner also alleges that he has actively worked
and canvassed on behalf of the BJP in Serampore, West
Bengal, during the Lok Sabha election from where
respondent No.7 was the TMC candidate. He has also
highlighted that the member of Ramesh Mahato gang had
threatened him with dire consequences.
14. He has been continuously receiving threats from the
family members of respondent No.7, the sitting MP of
TMC party.
15. It is the result of the above oppressive acts of the State
and respondent No.7 that the aforesaid FIRs have been
mala fidely lodged and registered against the petitioner
and even the security personnel belonging to CISF.
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16. The respondent No.8-CISF has filed a counter affidavit of
its Deputy Inspector General, Greater Noida, Uttar
Pradesh. The said affidavit states that the court vide
order dated 18.12.2020 had required the CISF to file
Special Incident Report as the petitioner was under its
protection. Accordingly, a report was filed on 06.01.2021.
The report submitted pursuant to the order of the court
reveals that the vehicle of the petitioner (Mahindra
Scorpio bearing Registration No.WB 74 AD 9822) was
severely damaged in the alleged incident. Thereafter,
notice was issued to the CISF to file counter affidavit.
17. The CISF in the counter affidavit accepts that the
petitioner is a practicing advocate and is on the panel of
the Central Government. He is an active spokesperson for
BJP whereas respondent No.7 is a sitting MP of the TMC
party from Serampore, West Bengal.
18. Petitioner’s marriage was solemnized with the daughter of
respondent No.7 in the year 2010 but eventually on a
divorce petition, the marriage was dissolved in the year
2018. The petitioner is being provided with ‘X’ category
security since 10.04.2019 because of the perception of
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threat, both on account of his enmity with the sitting MP
due to matrimonial feud as well as his alliance with the
party at the Centre.
19.
The counter affidavit of the CISF further states that on
the date of incident i.e. 06.12.2020 at about 08:15 pm,
an unruly crowd led by respondent No.7 gathered in front
of the house of the petitioner and tried to manhandle him
and the accompanying CISF personnel. The crowd
resorted to use of blunt objects in which one of the CISF
personnel Mahesh Singh sustained minor injuries. The
CISF personnel took the petitioner to a shelter of the
premises on the second floor. The petitioner was kept in a
separate flat above his own flat under CISF security. The
local police, present at the scene, did not permit the CISF
reinforcement team which had arrived from Kolkata led
by two officers namely Vikas Chaudhary and Yadram
Yadav to enter the premises. The next day, two FIRs came
to be lodged. The local police insisted on the arrest of the
petitioner. The CISF personnel deployed with the
petitioner were substantially withdrawn and sent to the
CISF headquarters at Greater Noida.
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20. On behalf of the State administration-respondent Nos.1,
3, 4 and 5, a separate counter affidavit has been filed by
the Inspector of Police, Government of West Bengal
denying all the allegations made by the petitioner in the
writ petition. In the preliminary submissions, it has been
stated that the FIRs against the petitioner are in relation
to cognizable offences which involve the CISF officials as
well. The allegations against the petitioner are serious,
inter alia , causing grievous hurt to the complainants and
others and relating to outraging the modesty of a woman.
The petitioner is refusing to co-operate with the
investigation and is an absconder. The petitioner in the
writ petition has narrated a fabricated version to give a
political colour to the said incident.
21. The State administration further submitted that since the
FIRs disclosed the commission of cognizable offences, the
police was bound to register the FIRs. It has enclosed the
injury reports of some persons who were grievously hurt
in relation to the above incident and submits that due to
the stay order dated 13.01.2021, no further investigation
could be conducted in pursuance of the aforesaid FIRs
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and that the investigation is still at a nascent stage.
Therefore, under the facts and circumstances and in view
of the law laid down by the Apex Court, there is no
necessity for transferring the investigation from the local
police to any independent agency.
22. Respondent No. 7 has filed his independent counter
affidavit denying the averments made in the writ petition
and has submitted that the petition is liable to be
dismissed on the ground of non-joinder of necessary
parties as the complainants of the FIRs have not been
arrayed as the respondents and that the petitioner has no
right to intervene in the matter of investigation and the
mode of prosecution. The investigations are not supposed
to be transferred to CBI in a routine manner. The
petitioner cannot bypass the alternative remedies
available to him and cannot directly invoke the writ
jurisdiction of this Court under Article 32 of the
Constitution.
23. Respondent No.7 further submits that he is also a
practicing lawyer of the Calcutta High Court who has
been designated as a senior counsel. He was elected as
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an MLA in 2001 and then as an MP. He was also member
of various committees of the Parliament.
24. It is further averred that on account of the marital
discord and as the answering respondent stood by his
daughter, the petitioner is having a strong grudge against
him and is unnecessarily trying to malign the answering
respondent No.7. The respondent No.7 came to know that
in the said incident, five CISF personnel entered into an
argument with the complainants and later took out rods
and sticks and assaulted them. He was also informed
that the lady worker of the party was also molested. The
entire story, as narrated by the petitioner in the writ
petition, is all concocted and fabricated. The petition is
misconceived and is liable to be dismissed.
25. The undisputed facts as revealed from the pleadings of
the parties are as under: -
(i) The petitioner and respondent No. 7 are both
practicing advocates as well as politicians of some
repute belonging to the State of West Bengal;
(ii) The petitioner was married to the daughter of
respondent No. 7 but the said marriage ended in a
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decree of divorce, as such, there is bitter enmity
between the two;
(iii) To add fuel to the fire, the petitioner belongs to BJP
party whereas respondent No. 7 belongs to the
ruling party in the State of West Bengal. The
petitioner has canvassed against respondent No. 7
during the election campaign when he was
contesting as an MP from Serampore constituency;
(iv) The political scenario in the State of West Bengal is
apparently opposed to the party in power at the
Centre; and
(v) There is no denial to the alleged incident involving
CISF officials attached to the petitioner.
26. In the above admitted position, the possibility that the
petitioner may not get a fair investigation at the hands of
the local police or that the local police may not behave
cordially with him in the course of investigation may not
be baseless and cannot be brushed aside outrightly or
lightly.
27. Now, the sole question which falls for our consideration,
in the aforesaid admitted facts and circumstances, is
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whether the investigation pursuant to the two FIRs
against the petitioner are necessary to be transferred to
some independent agency like CBI or Special
Investigation Team.
28. We are conscious of the legal position that no party,
either the accused or the complainant/informant, is
entitled to choose the investigating agency or to insist for
investigation of a crime by a particular agency.
29. The power to transfer an inquiry or a trial is exercised
through the intervention of the constitutional courts in
exceptional circumstances and the constitutional courts
are expected to use the said extraordinary power
sparingly, cautiously and in exceptional situation where
it becomes necessary to provide credibility and instil
confidence in the investigation or where the incident may
have national or international ramifications or where it is
necessary for doing complete justice and enforcing
fundamental rights as is explained in State of West
Bengal vs. Committee for Protection of Democratic
8
Rights . In other words, transfer of any investigation may
8
(2010) 3 SCC 571
13
not be ordered by the court in a routine/perfunctory
manner or merely for the reason that one party makes
allegations against the other.
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30. Rubabbuddin Sheikh vs. State of Gujarat
In , it has
been concluded that in an appropriate case when the
court feels that the investigation by the police authorities
is not in the proper direction, and in order to do complete
justice in the case when the high profile officials are
involved in the crime, it is always open to the court to
handover the investigation to an independent agency like
CBI. It may be noted that constitutional courts can even
direct for further investigation by some other
investigating agency to ensure completion of fair
investigation and fair trial.
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31. In K.V. Rajendran vs. CBCID , it has been observed
that where high officials of the State authorities are
involved or the accusation itself is against the top officials
of the investigating agency who may probably influence
the investigation, and where the investigation is bound to
be tainted, to instil confidence in the investigation, the
9
(2010) 2 SCC 200
10
(2013) 12 SCC 480
14
constitutional courts ought not to be shy in exercising
power of transferring an investigation from the State
agency to any other independent agency like CBI.
32.
It is well recognised that investigation should not only be
credible but also appear to be credible vide R.S. Sodhi
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vs. State of U.P. . Even otherwise, the law requires that
justice may not only be done but it must appear to have
been done. Thus, following the above dictum, to ensure a
fair investigation in the matter, there appears to be
weight in the argument of the learned counsel for the
petitioner to transfer the investigation in relation to the
two FIRs to an independent agency, more particularly
keeping in mind the factual background and
circumstances of the case.
33. It is admitted on record that the investigation in
pursuance of the two FIRs is at a nascent stage and that
it had not proceeded any further, due to the interim order
dated 13.01.2021, till date. Therefore, it is but natural to
get the investigation completed at the earliest. The
11
1994 Supp (1) SCC 143
15
primary object is to ensure fair completion of the
investigation so that, if necessary, the trial may proceed.
34. The matter of entrusting investigation to a particular
agency is basically at the discretion of the court which
has to be exercised on sound legal principles. Therefore,
the presence of complainant/informants are not very
necessary before the Court. We do not feel that any
prejudice would be caused to either of the parties if the
investigation is conducted by an independent agency
other than the State police. Thus, looking to the facts of
this case particularly, that respondent No. 7 is a
parliamentarian from the ruling party in the State of West
Bengal and that the petitioner belongs to the ruling party
at the Centre, the politically charged atmosphere in the
State of West Bengal may not be very conducive to a fair
investigation being conducted in the instant case. It is,
hence, considered appropriate that instead of keeping the
investigation pending for an indefinite period, the
investigation be transferred to the CBI.
35. The case involves the investigation of the role of CISF or
its personnel which cannot be left in the hands of the
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local police also for reasons of conflicting interests. Thus,
in our view, it is not appropriate to permit the local police
to examine the conduct of CISF personnel in the instant
case.
36. Accordingly, for all the above reasons and in the peculiar
facts of this case, a writ of mandamus is issued to the
State-respondents to handover the investigation
pursuant to the two FIRs aforesaid to the CBI along with
all records, for its completion so that, if necessary, the
trial may commence and justice is done to the parties.
37. The writ petition is allowed accordingly.
...................………………………….. J.
(B. V. NAGARATHNA)
.............……………………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
DECEMBER 04, 2024.
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