Full Judgment Text
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PETITIONER:
STATE OF WEST BENGAL & ORS. ETC.
Vs.
RESPONDENT:
SAMPAT LAL & ORS. ETC.
DATE OF JUDGMENT04/12/1984
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
BHAGWATI, P.N.
SEN, AMARENDRA NATH (J)
CITATION:
1985 AIR 195 1985 SCR (2) 256
1985 SCC (1) 317 1984 SCALE (2)942
CITATOR INFO :
RF 1985 SC 735 (4)
RF 1991 SC1260 (42)
ACT:
Code of Criminal Procedure 1973-Death under suspicious
circumstances-Allegation of murder-lnvestigation still in
the hands of police-High Court appointing a Special officer
to inquire into the offence-Judicial interference in
investigation When arises.
"inquiry" and "investigation"-Difference between.
Natural Justice-Letter to the Chief Justice of High
Court. treated as writ petition-Death under suspicious
circumstances-Allegation of murder-High Court issuing
direction lo enquire into causes of death-No opportunity
given to the State Police officers-Whether violative of
principles of Natural justice.
Delhi Special Police Establishment Act 1946-ss. 5 and
6-Whether s.6 applicable when Court gives direction to C.B.I
to conduct an investigation.
HEADNOTE:
The respondents addressed two letters to the Chief
Justice of the Calcutta High Court regarding mysterious
death of two young boys living in Barrackpore area near
Calcutta alleging, inter alia, that the local police was not
conducting the investigation into the unnatural death of the
two boys fairly and properly and was trying to make it a
case of suicide and requested the High Court to order a
thorough investigation into the incident by an independent
machinery which would command confidence and be acceptable
to the local police. A single Judge of the High Court,
before whom the letters were placed, treated the two letters
as a formal petition and, without giving notice directed
issue of a rule to the State of West Bengal and other
authorities to show cause why a writ in the nature of
mandamus may not be issued directing investigation in
accordance with law to be conducted over the unnatural death
of the two boys. In the meanwhile the Judge also appointed
Deputy Inspector General, Central Bureau of Investigation to
make as inquiry and report to the High Court as to how
257
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the two boys met their death. The appellants preferred an
appeal against the said order before the Division Bench
which also confirmed the order of the Single Judge with the
modification that the DIG, CBI will act as a special
officer. Hence this appeal.
The appellants contended (i) that the order of the
Single Judge was vitiated having been made in violation of
rules of natural justice; (ii) that the order was also bad
as the learned Single Judge had not cared to inform himself
as to the stage of investigation and if there was any lacuna
therein and he proceeded to act on certain assumptions for
which there was no basis or foundation, (iii) that since
there had been no breach of duty, the court had no
jurisdiction to interfere with the investigation which,
under the law, was vested in the police authorities and
therefore the directions given by the Single Judge and
upheld with certain modifications by the Division Bench were
not proper.
Allowing the appeal,
^
HELD: 1. It is clear from the order passed by the
Learned Single Judge that no bearing was afforded to the
State Government or its officers when direction to appoint
the special officer in whom power of inquiry was to be
vested was made. There was no basis at that stage to assume
that the contents of the letters as also the facts stated in
the columns of the newspaper had not been contradicted. It
was the State Government or its officers who alone could
have authoritatively indicated the facts showing whether the
allegations contained in the letters or the newspaper report
were true and if so to what extent or how the investigation
was being carried on and what stage it had reached so as to
enable the court to come to a prima facie authorities were
not discharging properly their statutory obligation to carry
out an investigation But when no notice was given to the
State Government and no opportunity was offered to them, it
is difficult to see how an ex parte order could be made on
such an assumption. If the facts stated in the letter or the
writ petition are credible and there is such urgency that
the ends of justice might be defeated by not making an ex
parte order or giving of notice without ex parte order might
lead to aggrevation of oppression or exploitation or removal
or elimination of evidence, the court would certainly be
justified in making an ex parte order. But in the instant
case, there were no such circumstances at all and the court
could have very well issued notice to the respondents and
tried to find out whether there wag any necessity directing
the appointment of DIG, CBI to act as a Special officer and
requiring the police authorities of the State to extend all
possible help as may be required by him. [270C-H: 271A]
(2) The appointment of a Special officer with a
direction to enquire into the commission of an offence can
only be on the basis that there has not been a proper
investigation. There is a well defined hierarchical
administrative set up of the police in the State of West
Benga1 as in all other States and lo have created 3 new
channel of inquiry or investigation is likely to create an
impression that everything is not well with the statutory
agency
258
and it is likely to cast a stigma on the regular police
hierarchy. In the facts and circumstances of the instant
case and the nature of the order made in view, the direction
to appoint a Special officer with powers to inquire should
not have been made until the appellants has been given a
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hearing and the court had the papers of investigation laid
before it for being prima facie satisfied that the
investigation had either not been proper or adequate. [271C-
E]
(3) Under the Code of Criminal Procedure which lays
down the procedure to be followed when report of an offence
is lodged with the police, the power to investigate is
vested in the police. The procedure laid down in the Code is
clear and definite. Investigation is a matter for the police
under the scheme of the Code. Judicial opinion seems to be
settled and there are several authorities of the Supreme
Court where interference by the Court into police
investigation has not been approved. There is however.
residuary jurisdiction left in the court to give directions
to the investigating agency when it is satisfied that the
requirements of the law are not being complied with and
investigation is not being conducted properly or with due
haste and promptitude. The court has to be alive to the fact
that the scheme of the law is that the investigation has
been entrusted to the police and it is ordinarily not
subject to the normal supervisory power of the court. But in
the instant case, the material placed before the court did
not justify an exception to be made to the rule indicated by
the Supreme Court and the appointment of a Special officer
was not called for at this state. [262D; 270B; 278H; 279A-C]
State of West Bengal v. S.N. Basak [1983] 2 S C.R. 52
S.N. Sharma v. Bipin Kumar Tiwari & Ors.[1970] 3 S.C.R 946.
State of Bihar v J. A. C. Saldanha & Ors. [1980] 2 S.C-R. 16
followed.
kings Emperor v. Khwaja Nazir Ahmed [1944] L.R. 71
referred to.
Bhagwant Singh v. Commissioner of Police, Delhi [1983]
3 S C.C. 344 held not applicable.
(4) ’Inquiry’ and ’investigation’ are statutory terms
defined in the Code. In the instant case whatever name the
work entrusted to the Special officer be called, there can
be no dispute that he was required to ascertain facts from
the witnesses and documents, if any, in regard to the death
of the two boys. This process necessarily involved a fact
finding inquiry by ordinarily tapping the same sources as
the investigating agency was expected to contact. This,
therefore, necessarily involved a duplicate investigation.
In view of the fact that there were two separate channels
Placed in active charge of investigation to be conducted
contemporaneously, confusion was bound to occur and working
of the two channels at a time was likely to prejudice the
proper investigation making the exposing of the truth buried
under mystery more difficult. Carrying this duplicate
process was not likely to serve the cause of justice nor
help in achieving the object for which it had been set up.
The Special officer was not to exercise the power under s.5
of the Delhi Special Police Establishment Act 1946, and if
be wanted any real
259
assistance in the matter of investigation, it had to be
carried through the police officers of the State
Administration. This was likely to bring in futher confusion
in as much as the witnesses were likely to be contacted by
the same police office on more than one occasion-once in the
course of investigation conducted by the police and again to
meet the requirements of the Special officer. We are sure
that the High Court never intended the cause of justice to
be prejudiced and the serious attempt to find out the truth
to be aborted. [273D-F; H; 274A-C]
(5) While section 6 of the Delhi Special Police
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Establishment Act 1946 would require the consent of the
Slate Government before jurisdiction under s.5 of that Act
is exercised by officer of that establishment, when a
direction is given by the court in an appropriate case,
consent envisaged under s.6 of the Act would not be a
condition precedent to compliance with the court’s direction
Section 6 of the Act does not apply when the court C gives a
direction to the C.B.I. to conduct an investigation. In this
view, the impugned order of the learned single judge and the
appellate decision of the Division Bench appointing DIG, CBI
to inquire into the matter would not be open to attack for
want of sanction under s.6 of the Act. [269B-D]
(6) ln the instant case, the Court allowed the appeal
and set aside the order of appointment of the Special
officer and observed that the investigation carried out has
not been quite satisfactory. However, in the facts and
circumstances of the case, there is no necessity to take
away the investigation from the hands of the State Police
machinery which is the statutory agency. The court pointed
out that though there are occasions when death remains a
mystery in spite of the best of efforts, it hopes that with
an honest attempt and since efforts made, the truth would be
found out and the police authorities of the State would be
in a position to give a creditable account of themselves.
The court also suggested that the Director General of
Police, West Bengal, will appoint a competent supervisory
officer from the higher ranks of the State police with
expertise in investigation to supervise the investigation in
the present case. [279D; 282E-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
570 of 1983.
From the Judgment and order dated 27the September, 1983
of the Calcutta High Court in C.R. No. (W) of 1983 arising
out of original order Tender No. 1583 of 1983.
WITH
Petition for Special Leave to Appeal (Crl.) No. 2671 of
1983. From the Judgment and order dated 27th September, 1983
of the Calcutta High Court in C.R. No. (W) of 1983 arising
out of original order Tender No. 1 583 of 1983.
260
Somnath Chatterjee, HK Puri, S. Ghosh and VK Behl for
the petitioners.
Ashok Sen, Shankar Das Banerjee, DN Das and Shri
Narain, for the respondents.
KG Bhagat, Additional Solicitor General. RN Poddar Miss
Halida Khatoon for the Union of India.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. The appeal is under Article 134 (a)
with leave from the Calcutta High Court and is directed
against the judgment of a Division Bench of that Court dated
September 27, 1983. The Special Leave Petition is under
Article 136 of the Constitution and is also directed against
the same decision. Both these matters are thus connected and
arise out of the incident relating to the death of two young
boys of Barrackpore area near Calcutta. This judgment of
ours will dispose of both the matters.
Two letters, one by one Sampat Lal, respondent I in the
criminal appeal and another by respondents l (a) to I (n),
both dated June 1, 1983, were received by the learned Acting
Chief Justice of the Calcutta High Court. The letter sent by
Sampat Lal alleged that two young boys by names Tirthankar
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Das Sharma and Sanjib Chatterjee, living in Barrackpore
area, were missing since the afternoon of March 2, 1983.
Information was given at the local police station late at
night on the same day and wide publicity that the two boys
were missing but no information about their whereabouts was
received till April 5, 1983. On that day it transpired that
dead bodies of two boys had been found from the railway
track near Pandua railway station and they had been disposed
of by the local police without taking any steps for their
identification. Verification of the photographs maintained
by the Railway Police at Bandel and the wearing apparel of
the two boys kept at the police station clearly indicated
that the dead bodies were of the two missing boys. The
letter alleged that the parents of the two boys had
approached several authorities including the Chief Minister
of the State. Without taking any serious notice of the
matter, the Chief Minister was alleged to have made a
statement to the effect even before com-
261
petion of the investigation that it was a case of suicide.
From the A reports published in a Bengali newspaper it
appeared that the two boys had been murdered. The letter
further alleged that the local police had been threatening
the parents of the deceased and other people living in the
locality. The local people were, therefore, feeling insecure
and had lost confidence in the administration. They wanted
that investigation should be conducted by an independent
machinery which would command confidence and be acceptable
to the local people. They also asked for adequate protection
to be given to the residents of the area.
In the second letter similar allegations were made but
certain details not given in the first letter were given
regarding the incident C and the following relief was
claimed:
"Hence on behalf of residents of Barrackpore our humble
prayer to the Honourable Chief Justice is that the
Government should instruct some neutral organisation
like C.B.I., to investigate in search of unnatural
death and solve the mystery to satisfy the people of
this area and the soul of State. This is apparent from
delay in investigation, its incidents and in flow of
publicity that when some neutral active investigation
the reason of such death or who is the murderer or what
is the real mystery cannot be known definitely. After
C.B.I. Or some such organisation con ducts the
investigation, we the residents of Barrackpore promise
to help them with heart and soul. Our humble submission
is that you may kindly accept our requests and try to
stop the police from this negligence in investigation
and also stop them from submitting motivated false
informations and also we submit that through neutral
investigation the real mystery should be exposed to our
contention. In case the police or some persons have
some kind of motivation behind this the Honourable
Court may take a role to set a precedence by ordering
investigation into that."
(Translated from the original letter in Bengali).
On June 6, 1983, the learned Acting Chief Justice
directed the letters to be treated as a writ petition and
asked the same to be placed before Borooah, J. On June 7,
1983, the matter appeared
262
before the learned judge. Mr. Ghosh appeared on behalf of
the persons who had written the letters. Mr. Shankar Das
Banerjee appeared on behalf of Ananda Bazar Patrika, a
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widely circulated Bengali daily from Calcutta, in two issues
of which dated May 12 and May 18, 1983 detailed reports
about the incident on the basis of investigation said to
have been carried by a private detective agency known as
’The Secret Eye’. Borooah, J. read the letters and the
reports in the two issues of the newspaper, heard Mr. Ghosh
as also Mr. Shankar Das Banerjee and observed, inter alia:
"When an unnatural death occurs or a prima facie case
of the commission of a cognizable offence is brought to
the notice of the police authorities, it is their duty
under the Code of Criminal Procedure to conduct an
investigation and ascertain the cause of the death.
Reading the letters and the newspaper reports which do
not appear to have been contradicted by any
authoritative statement from the police authorities, I,
in the interest of justice, treat the two letters as
formal petition under Article 226 of the Constitution
after dispensing with the necessary formalities .. "
He ordered that a rule should issue to the State of
West Bengal and other State authorities to, show cause why a
writ in the nature of mandamus may not be issued directing
investigation in accordance with law to be conducted over
the unnatural deaths of Tirthankar Das Sharma and Sanjib
Chatterjee. He also directed cause to be shown as to why a
direction may not be given for production of all the records
relating to investigation conducted till then. He further
directed:
"Pending disposal of this rule, I direct the Deputy
Inspector General Bureau of Investigation, 13 Lindsay
Street, Calcutta-16 to cause an enquiry to be made and
report to this Court by the 23rd of June 1983 as to how
the two boys met their death. The police authorities of
the State will extend all possible help as required by
the Central Bureau of Investigation, and the Ananda
Bazar Patrika will also make available to the Central
Bureau the reports submitted to the newspaper by the
Detective Agency."
Borooah, J. further directed the Superintendent of
Police, 24
263
Pargans, to issue necessary instructions so that the proper
protection A may be given to the people of the locality of
Barrackpore and threats would not be meted out to them. He
prohibited publications relating to the death of the two
boys in any newspaper within the State of West Bengal.
On June 9, 1983, an oral prayer was made on behalf of
the State of West Bengal for staying operation of the orders
and on the following day an appeal was preferred against the
order of Borooah J. and the appeal was placed before a
Division Bench consisting of Mr. Justice Pyne and Mr.
Justice S. C. Sen. Grievance was made on behalf of the State
of West Bengal that Borooah, J. had made his order without
giving any notice to it and without finding out if the
investigation conducted by the police authorities under the
law was not adequate, and as to whether the manner of
investigation was such that it required the Deputy Inspector
General of the Central Bureau of Investigation at Calcutta
to be appointed to enquire into the incident. At the
appellate stage on behalf of the State Government materials
were placed before the Court in support of its contention
that adequate investigation had been undertaken as would be
expected in the ordinary course over an incident of the type
under consideration. Long arguments were advanced before the
Division Bench and the two learned judges devoted
considerable attention to the matter and wrote out two
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separate and lengthy E judgments-Pyne, J. held that:
"I respectfully agree with the observations made by the
Supreme Court in the facts and circumstances of the
above case (Bhagwant Singh v. Commissioner of Police,
Delhi, [1983] 3 S.C.C. 344). I am also of the view that
in the facts and circumstances of the instant case it
would not be proper for me to speculate as to whether
the unnatural death of the two boys was caused by
suicide or murder. I am, however, very much concerned
with the question whether the investigation into the
cause of the unnatural death of the two boys by the
appellants is being conducted fairly and properly and
after taking all materials, evidence and circumstances
into consideration in accordance with law.. In the
instant case the Deputy Inspector General, Central
Bureau of Investigation is not called upon to exercise
any power or to investigate into any
264
matter under Delhi Special Police Establishment Act or
any other statuts. In view of what has been stated
herein before and in the fact and circumstances of the
case, I appoint Deputy Inspector General, Central
Bureau of Investigation as the Special officer in this
case. The Special officer will make the enquiry about
the correctness of the facts, allegations and
inferences contained in the reports of ’Secret Eye’
dated 8th and 14th May, 1983, as well as those in the
two letters of the respondents both dated 1st June,
1983, copies whereof are Annexures ’A’ and ’B’
respectively to the affidavit of Bappaditya Roy
affirmed on 20th June, 1983 and in the reports
published in the two issues of Ananda Bazar Patrika
dated May 12 and 18, 1983. I, therefore, direct Deputy
Inspector General, Central Bureau of Investigation to
make necessary enquiry along the line aforesaid. For
the purpose of making such enquiry and report Deputy
Inspector General, Central Bureau of investigation will
be entitled to take into consideration fresh evidence,
oral or documentary, materials and statements, if any,
offered to him. The report of the Deputy Inspector
General, Central Bureau of Investigation will be
submitted to the trial court within three weeks from
date. The police authorities of the State and the
respondents will extend all possible help as required
by. the Deputy Inspector General, Central Bureau of
Investigation in the matter of enquiry.. "
Sen, J. took note of the fact that no opportunity
had been given to the State and its officers by Borooah, J.
before he made the order dated June 7, 1983. He also came to
hold:
"In my opinion, in a case like this, an interim order
directing the CBI to make a report should not have been
passed without giving a hearing to the State
Government. No case of urgency was made out at any
stage. In my opinion, an order of the magnitude of a
CBI enquiry should not have been passed without giving
a hearing to the State Government."
Sen, J. took notice of the fact that allegations
contained in the
265
letters had not been supported by affidavit before the
learned A single judge. He also took notice of the fact that
the materials said to have been obtained on investigation by
the detective agency had not been produced before the
Division Bench and no affidavit of any competent person had
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been filed. Only two affidavits which came before the
Division Bench were one by Sampat Lal and the other from the
law officer of the newspaper. He, therefore. concluded:
"Mr. Chatterjee is right in his contention that not an
iota of evidence has been brought out in the two
affidavits that have been filed and also the two
newspaper reports on the basis of which the interim
.order was passed. CBI enquiry into a matter which is
already under investigation of the State police is a
very serious step. There must be very strong legal
grounds for ordering such an enquiry."
According to Sen, J. the writ petition was not
maintainable on the strength of the two letters and the two
newspaper reports. Though conclusions of Sen, J. were very
different from those of Pyne, J., yet he concluded by
saying:
"Under the order proposed to be passed, the CBI or any
other agency of the Central Government has not been
entrusted with the job of investigation. It has been
made clear that the DIG, CBI is being appointed the
Special officer and not the CBI. The Special officer
will be at liberty to appoint his own staff for the
purpose of investigation. The costs, charges and
expenses will be borne by the respondents. There is no
question of employing the men and resources of the CBI
for the purpose of carrying out the investigation. The
officers of the CBI are not being entrusted with the
police power or the police function in the State of
West Bengal in any manner whatever." G
"The DIG, CBI has already indicated his unwillingness
to carry out the investigation as directed by the
learned trial judge. Nobody can be compelled to be a
Special officer or a Receiver against his free will and
volition. The DIG, CBI is not obliged to act as a
Special officer of the Court
266
and if he is still unwilling to carry out the duties of
a Special officer. he is free to decline it. Specific
provisions have been made in the order proposed. The
parties have been directed to mention the matter to the
Court if the DIG, CBI declines to work as Special
officer. In that event, some other Special officer will
have to be appointed. I agree to the order that is now
sought to be passed by my learned brother."
The Division Bench consisting of Pyne and Sen, JJ.
granted leave to appeal to this Court and the criminal
appeal has in due course been filed by the State of West
Bengal.
As already pointed out, the special leave petition
under Article l 36 of the Constitution at the instance of
the State covers almost the same field as the criminal
appeal and, therefore, it had been tagged to be heard
alongwith the appeal. It is not necessary to refer to any
particular facts in regard to that special leave petition.
Though Sen, J. had indicated doubts about the
maintainability of the writ petition on the basis of letters
sent to the Court, Mr. Chatterjee fairly conceded before us
that he would not dispute the position that it is open to a
High Court to entertain grievances received through postal
communication and register the same as a writ petition. Mr.
Chatterjee, however, suggested and we think that there is
great force in, the submission, that when such information
is laid before the Court, care and caution should be adopted
to ensure that the process of the Court is not abused or
misused. The Court should be prima facie satisfied that the
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information laid before the Court is of such a nature that
it calls for examination and this prima facie satisfaction
may be derived from the credentials of the informant,
namely, what is the character or standing of the informant
or from the nature of the information given by him namely,
whether it is vague and indefinite or contains specific
allegations as a result of survey or investigation or from
the gravity or seriousness of the complaint set out in the
information or from any other circumstance or circumstances
appearing from the communication addressed to the Court or
to a judge of the Court on behalf of the Court. Where the
Court is so satisfied prima facie, the Court may not insist
on the filing of an affidavit and may proceed to investigate
into the allegations with a view to meting out justice to
the persons on whose behalf the communication is
267
addressed. This would be so particularly where to insist
upon an A affidavit at the initial stage may lead to
perpetration of injustice or may give rise to a situation
where from a practical point of view the doors of justice
would be closed to the poor and the disadvantaged. We may,
however, point out that where the Court is not so prima
facie satisfied,the Court may before issuing notice to the
opposite party, ask the lawyer appointed amicus curiae to
contact the informant and file an affidavit or a regular
writ petition. These are the different procedures which have
been adopted by this Court while dealing with communications
complaining of violation of the rights of the deprived and
vulnerable sections of the community. Since Mr. Chatterjee,
has not disputed the validity of the practice of registering
of writ petitions on the basis of letters and/or information
received by the Court, we arc not called upon to examine
this aspect of the matter any longer.
Mr. Chatterjee appearing in support of the appeal
maintained that under the Code of Criminal Procedure which
lays down the statutory procedure to be followed when report
of an offence is lodged with the police, the power to
investigate is vested in the police. Chapter XII of the Code
of Criminal Procedure (’Code’ for short) contains provisions
regarding the lodging of information with the police as also
their power to investigate. It is maintained that as soon as
such information was lodged with the police, action as would
be proper in the facts of the case, was taken. According to
Mr. Chatterjee, all possible steps that could be taken were
taken without lapse of any time, Borooah, J. did not call
upon the State to produce the papers relating to
investigation and without informing himself as to what
action had been taken on the report lodged with the police,
proceeded to make an interim order which had far reaching
effect. According to learned counsel, the Court had no
jurisdiction to interfere with the investigation which under
the law was vested in the police authorities had so long as
there had been no breach of duty, the Court had no power to
intervene particularly when the matter was still in the
hands of the investigating agency. No opportunity was given
to the local police, or for the matter of that, to the State
Government, to produce the records of investigation. Thus,
without informing himself of the actual stage and position
of the investigation already undertaken by the local police,
the learned single judge proceeded to act on certain
assumption for which there was no basis or foundation. It
has been the submission of H
268
Mr. Chatterjee before us that the State Government was
entitled to notice before the impugned direction on June 7,
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1983, was made and the real effect of the direction being to
disturb the investigation by introducing a new channel of
inquiry, the rules of natural justice required that the
State and the police authorities in whom vested the
statutory jurisdiction to investigate should have been
provided a hearing. Mr. Chatterjee also canvassed that
between ’inquiry’ and ’investigation’ there was a clear
distinction under the Code and while investigation referred
to the procedure of collection of evidence conducted by a
police officer or by any other person authorised by a
Magistrate in that behalf, ’inquiry’ referred to inquiry
other than a trial conducted by a Magistrate or a Court. The
main distinction, therefore, was that inquiry was a
magisterial process while investigation was the process of
collection of evidence through the police machinery and the
net effect of the impugned order of the learned single judge
was actually the setting up of an investigating agency.
Though in the order there was reference to appointment of
the DIG, CBI as a Special officer, what he was to carry out
was referred to as an inquiry. Continuance of investigation
through two separate machineries-one by the agency of the
CBI and the other by the normal investigating agency of the
police was bound to create confusion and prejudice the
investigation into the truth of the allegations.
Mr. Ashoke Sen appeared for the respondents who had
written the letters to the High Court while Mr. Shankar Das
Banerjee represented the Ananda Bazar Patrika. Learned
Additional Solicitor General appeared before us on behalf of
the Union Government. Mr. Sen and Mr. Banerjee refuted the
contentions advanced on behalf of the appellants by Mr.
Chatterjee.
Before we proceed to closely examine the
submissions advanced by counsel for the parties, it is
proper to clear the ground and formulate the exact points
which require examination. It is certainly not for this
Court at the present stage to examine and come to a
conclusion as to whether this was a case of suicide or
murder. If as a result of investigation, evidence is
gathered and a trial takes place the Sessions Judge will
decide that controversy and it may be that in due course
such controversy may be canvassed before this Court in some
form or the other. It would, therefore, be wholly
inappropriate at this stage to enter such a question. One of
the controversies which loomed large before the Division
Bench
269
Of the Calcutta High Court was as to the appointment of the
DIG, CBI to inquire into the matter in the absence of proper
consent of the State Government. That question has not been
recanvassed before us and it has been accepted by counsel
for all the parties including the Additional Solicitor
General that while section 6 of the Delhi Special Police
Establishment Act, 1916 (’Act’ for short) would require the
consent of the State Government before jurisdiction under s.
5 of that Act is exercised by officers of that
establishment, when a direction is given by the Court in an
appropriate case, consent envisaged under s. 6 of the Act
would not be a condition precedent to compliance with the
Court’s direction. In our considered opinion, s. 6 of the
Act does not apply when the Court gives a direction to the
CBI to conduct an investigation and counsel for the parties
rightly did not dispute this position. In this view, the
impugned order of the learned single judge and the appellate
decision of the Division Bench appointing DIG, CBI to
inquire into the matter would not be open to attack for want
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of sanction under s. 6 of the Act.
Four questions appear to survive for examination:
(1) Effect of violation of the Rules of Natural
Justice on the order:-
This can be sub-divided into two aspects:
(i) Whether the order of the single judge is
vitiated having been made in violation of
rules of natural justice ?
(ii) Whether that order is also bad as the learned
single judge had not cared to inform himself
as to the stage of investigation and if there
was any lacuna therein ?
(2) What exactly is the role meant to be played by the
Special officer and whether the inquiry
contemplated to be carried on by him would affect
the investigation which was being conducted by the
local police authorities?
(3) Is it open to the Court to interfere with the
investigation which is still proceeding and what
are the circumstances in which such interference,
if any, is possible, and the guidelines to be
followed in such matter?
270
(4) Whether in the facts and circumstances of this
case the direction given by the single judge and
upheld with certain modifications by the Division
Bench was proper?
As already point out, power vests in the police
authorities of the State Government for conducting
investigation into allegations relating to an offence.
However, the stand taken by the respondents was that the
State Government and the police authorities had not acted
properly and the investigation was not being conducted as
required by law. As appears from the order of June 7, 1983,
Borooah, J. directed notice to issue to the State of West
Bengal as also to the other authorities concerned to show
cause against the issue of a writ. No hearing was, however,
afforded to the State Government or its officers when
direction to appoint the Special officer in whom power of
inquiry was to be vested, was made. There could be no scope
for appointing a special officer unless the statutory
channel of investigation was found not to have functioned
properly. There was no basis at that stage to assume that
the contents of the letters as also the facts stated in the
columns of the newspaper had not been contradicted It was
the State Government or its officers who alone could have
authoritatively indicated the facts showing whether the
allegations contained in the letters or the newspaper
reports were true and if so, to what extent, or how the
investigation was being carried on and what stage it had
reached so as to enable the Court to come to a prima facie
conclusion that the State Government and the police
authorities were not discharging properly their statutory
obligation to carry out an investigation. But when no notice
was given to the State Government and no opportunity was
offered to them, it is difficult to see how an ex-parte
order could be made on such an assumption When we say this,
we do not wish to be understood to say that in no case an
ex-parte order can be made by the Court If the faces stated
in the letter or the writ petition are credible and there is
such urgency that the ends of justice might be defeated by
not making an ex - parte order or giving of notice without
ex-parte order might lead to aggravation of oppression or
exploitation or removal or elimination of evidence, the
Court would certainly be justified in making an ex-parte
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order. But here there were no such circumstances at all and
the Court could have very well issued notice to the
Respondents and tried to find out whether there was
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any necessity for directing the appointment of DIG, CBI to
act as A a Special officer and requiring the police
authorities of the State to extend all possible help as may
be required by him. We are of the view that Borooah, J.
should have issued notice to the State Government, afforded
a reasonable opportunity to it and its officers who were
already in session of the investigation to make a report in
regard to the action taken by them and after making an
overall judicial assessment of the situation, the need for
appointing a Special officer should have been considered.
The appointment of a Special officer with a direction
to inquire into the commission of an offence can only be on
the basis that there has not been a proper investigation.
There is a well defined hierarchical administrative set up
of the police in the State of West Bengal as in all other
States and to have created a new channel of inquiry or
investigation is likely to create an impression that
everything is not well with the statutory agency and it is
likely to cast a stigma on the regular policy hierarchy. We
are inclined . to agree with Mr. Chatterjee for the
appellant that in the facts and circumstances of the case
and keeping the nature of the order made in view, the
direction to appoint a Special officer with powers to
inquire should not have been made until the appellants had
been given a hearing and the Court had the papers of
investigation laid before it for being prima facie satisfied
that the investigation had either not been proper or
adequate.
The procedure laid down in the Code is clear and
definite. It may be that in a given case the Court on being
prima facie satisfied from circumstances appearing from the
record that the statutory agency has not worked in an
effective way or the circumstances are such that it may
reasonably be presumed or inferred that the statutory agency
may not be able to discharge its function of investigation
fairly and impartially might reasonably consider
supplementing the procedure, but as we have already
indicated, there was no adequate material on the record for
the learned single G judge to be satisfied that the facts
warranted appointment of a Special officer.
Borooah, J. did not describe the DIG, CBI as a Special
officer. It is in the judgment of Pyne, J. that we find
reference to this term. In his judgment Pyne, J. noted;
272
"In view of what has been stated here in before and in
the facts and circumstances of the case, I appoint
Deputy Inspector General, Central Bureau of
Investigation as the Special officer in this case."
(underlining is by us)
Having thus appointed him as a Special officer, he proceeded
to indicate that the Special officer will make an enquiry
about the correctness of the facts, allegations and
inferences contained in the reports of ’Secret Eye’ dated
the 8th and the 14th May 1983 as well as those in the two
letters of the respondents both dated 1 June, 1983, copies
whereof are Annexures A’ and ’B’ respectively to the
affidavit of Bappaditya Roy affirmed on 20th June, 1983, and
in the reports published in the two issues of Ananda Bazar
Patrika dated May 12 and 18, 1983. Sen, J. in his separate
judgment made it clear that under the order proposed to be
passed, the CBI or other agency of the Central Government
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was not being entrusted with the job of investigation.
Investigation into the allegations had already been
undertaken and the papers which have been produced before us
indicate that the first information lodged with the police
was a missing report dated March 21, 1983. Even when such a
report had been given contemporaneous steps were taken to
trace the two missing boys. the dead bodies were recovered
from the railway track on the following day and were
independently dealt with as the link between the information
about missing of the two boys and the two dead bodies had
not been established at that point of time. Autopsy was
conducted in due course and as the dead bodies had not been
claimed by any relation, the same had been duly disposed of
through the contractor for unclaimed bodies. For the first
time, on 5th and 6th April, 1983 the link was established
when the relatives of the two deceased boys went two Bandel
GRPS and identified the clothes kept at the police station
to be those that had been worn by the missing boys, and the
photographs of the dead boys placed the matter beyond
dispute that the two young boys whose dead bodies had been
recovered from the railway track and which had been cremated
were the missing boys. The parents of the boys met the Chief
Minister on April 8, 1983. The Chief Minister issued
directions to the police for proper investigation.
273
It is stated that on April 14, 1983, the Chief Minister made
a statement on the floor of the Assembly wherein he had
Indicated that the incident appeared to be a case of suicide
and not murder. This statement of the Chief Minister was
subjected to a lot of criticism in the columns of the
newspapers as also in the body of the letters under
reference. In course of hearing Mr. Chatterjee produced
before us the official text of the Chief Minister’s
statement. It appears that he had only said that the
Investigation carried on up to that stage appeared to
indicate that it was a case of a suicide. It may not be out
of place to point out that the Doctor conducting post-mortem
examination had opined that it could be a case of suicide.
Obviously the statement on the floor of the Legislative
Assembly was on the basis of that medical report which was
apparently available to the Chief Minister.
’Inquiry’ and ’investigation’ are statutory terms
defined in the Code. We were told in the course of hearing
by counsel for the parties that under the West Bengal Police
Manual the terms have different meanings given to them. It
is not necessary for our purpose to go into the question any
further. By whatever name the work entrusted to the Special
officer be called, there can be no dispute that he was
required to ascertain facts from the witnesses and
documents, if any, in regard to the death of the two boys.
This process necessarily involved a fact finding inquiry by
ordinarily tapping the same sources as the investigating
agency was expected to contract. This, therefore,
necessarily involved a duplicate investigation.
The police had already commenced investigation into the
allegations. Under the patronage of the Ananda Bazar Patrika
the private defective agency had also started investigating
into the matter and as would appear from the two reports in
the Ananda Bazar Patrika and the materials now placed on the
records of the High Court and this Court, some investigation
had definitely been carried out by the State agency. This
meant that three separate channels were put into operation
almost contemporaneously. Over the activity of the private
detective agency the Court would ordinarily have no
jurisdiction to exercise but in view of the fact that there
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were two separate channels placed in active charge of
investigation to be conducted contemporaneously, confusion
was bound to occur and working of the two channels at a time
was
274
likely to prejudice the proper investigation making the
exposing of the truth buried under mystery more difficult.
Carrying this duplicate process, in our opinion, was not
likely to serve the cause of justice nor help in achieving
the object for which it had been set up. The Special officer
was not to exercise the powers under s. 5 of the Act and if
he wanted any real assistance in the matter of
investigation, it had to be carried through the police
officers of the State administration. This was likely to
bring in further confusion inasmuch as the witnesses were
likely to be contacted by the same police officer on more
than one occasion-once in the course of investigation
conducted by the police and again to meet the requirements
of the Special officer. We are sure that the High Court
never intended the cause of justice to be prejudiced and the
serious attempt to find out the truth to be aborted.
The next aspect to be considered is whether it is open
to the Court to interfere with the investigation which is
still proceeding. It has been conceded before us and rightly
in our view, that investigation is a matter for the police
under the scheme of the Code. Judicial opinion seems to be
settled and we have several authorities of this Court where
interference by the Court into police investigation has not
been approved. This question arose before a Division Bench
of three judges in an appeal carried by the same State of
West Bengal in the case of State of West Bengal v. S. N.
Basak,(1) Kapoor, J. quoted with approval the observations
of the Judicial Committee in the case of king Emperor v.
Khwaja Nazir Ahmad,(2) where the Privy Council observed:
"The functions of the judiciary and the police are
complementary, not overlapping, and the combination of
individual liberty with a due observance of law and
order is only to be obtained by leaving each to
exercise its own function, always, of course, subject
to the right of the Court to intervene in an
appropriate case when moved under s. 491 of the
Criminal Procedure Code to give directions in the
nature of habeas corpus. In such a case as the present,
however, the Court’s functions being when
(1) [1963] 2 S.C.R. 52.
(2) [1944] L.R. 71.
275
a charge is preferred before it, and not until
then. It has A sometimes been thought that s. 561A (now
s. 482) has given increased powers to the Court which
it did not possess before that section was enacted. But
this is not so, the section gives no new powers, it
only provides that those which the court already
inherently possesses shall be preserved and is inserted
as their Lordships think, lest it , should be
considered that the only powers possessed by the Court
are those expressly conferred by the Criminal Procedure
Code and that no inherent powers had survived the
passing of that Act."
The Court added: "With this interpretation, which
has been put on the statutory duties and powers of the
police and of the powers of the Court, we are in accord." on
a finding that the High Court had exceeded jurisdiction in
interfering with the investigation, the appeal of the State
of West Bengal was allowed.
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The question again arose in the case of S. N. Sharma v.
Bipin Kumar Tiwari & Ors.(8) on this occasion the Court was
called upon to examine the scope of magisterial power. After
referring to the relevant sections, the Court concluded
that:
"The scheme of these sections, thus, clearly is that
the power of the police to investigate any cognizable
offence is uncontrolled by the Magistrate, and it is
only in cases where the police decide not to
investigate the case that the Magistrate can intervene
and either direct an investigation or, in the
alternative, himself proceed or depute a Magistrate
subordinate to him to proceed to enquire into the case
The power of the police to investigate has been made
independent of any control by the Magistrate."
Then came the case of State of Bihar v. J.A.C. Saldanha
& ors.(2) In a peculiar set of fact this Court was again
called upon to adjudacte upon the scope of judicial
interference over investigation. Speaking on this aspect of
the matter, Desai,J. spoke for the Division Bench thus:
(1) [1970] 3 S.C.R. 946.
(2) [1980] 2 S.C.R. 1 6.
276
"There is a clear cut and well demarcated sphere of
activity in the field of crime detection and crime
punishment. Investigation of an offence is the field
exclusively reserved for the executive through the
police department, the superintendence over which vests
in the State Government. The executive which is charged
with a duty to keep vigilance over law and order
situation is obliged to prevent crime and if an offence
is alleged to have been committed it is its bounden
duty to investigate into the l offence and bring the
offender to book. Once it investigates and finds an
offence having been committed it is its duty to collect
evidence for the purpose of proving the offence for the
purpose of proving the offence. Once that is completed
and the investigating officer submits report to the
Court requesting the Court to take cognizance of the
offence under s. 190 of the Code its duty comes to an
end. On a cognizance of the offence being taken by the
Court the police function of investigation comes to an
end subject to the provision contained in s. 173(8),
there commences the adjudicatory function of the
judiciary to determine whether an offence has been
committed and if so, whether by the person or persons
charged with the crime by the police in its report to
the Court, and to award adequate punishment according
to. law for the offence proved to the satisfaction of
the Court. There is thus a well defined and well
demarcated function in field or crime detection and its
subsequent adjucation between the police and the
Magistrate."
The observation of the Privy Council which we have already
extracted were again quoted with approval, Desai, J. adding:
"This view of the Judicial Committee clearly demarcates
the functions of the executive and the judiciary in the
field of detection of crime and its subsequent trial
and it would appear that the power of the police to
investigate into a cognizable offence is ordinarily not
be interfered with by the judiciary."
(underlining ours)
This seems to have been the well accepted judicial
opinion on
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the subject. It is appropriate at this stage to refer to a
later decision of this Court which has been relied upon by
the Division Bench of the High Court, being the case of
Bhagwat Singh v. Commissioner of Police, Delhi.(l) That case
arose out of what is now being described as the notorious
bride burning incidents. Investigation had come to an end
and a conclusion of the case being one of suicide had been
reached. At this stage the Minister of State of Home Affairs
in the Government of India (the case related to the Union
Territory of Delhi) had taken a decision to entrust the
investigation again to the C.B.I. A writ petition was filed
before this Court making allegations against the police
authorities with reference to the investigation. The
conclusion of the investigating agency that it was a case of
suicide was challenged. This Court clearly indicated:
"It is not possible in this case, nor indeed would it
be right for us to do so, to enter into the question
whether Gurinder Kaur committed suicide or was
murdered. That is a matter which is properly involved
in the trial of a criminal charge by a court possessing
jurisdiction. We are concerned here only with an
examination of the question whether, after being
informed of Gurinder Kaur’s death, the police
authorities conducted themselves as law and justice
required of them."
The Court after dealing with the material placed before
it, came to the conclusion:
"Two inferences follow irresistibly from the material
before us. One is that the investigation by the police
following the occurrence was desultory and
lackadaisical, and showed want of appreciation of the
emergent need to get at the truth of the case.. The
other inference which disturbs us is that the entries
in the police case diary (set forth in the annexure to
the counter-affidavit on the record) do not a appear to
have been entered with the scrupulous completeness and
efficiency which the law requires of such a document.
The haphazard maintenance of a document of that
(1) [1983] 3 S.C.C. 344.
278
status not only does no credit to those responsible for
maintaining it but defeats the very purpose for which
it is required to be maintained. We think it to be of
the utmost importance that the entries in a police case
diary should be made with promptness, in sufficient
detail, mentioning all significant facts, in careful
chronological order and with complete objectivity..’
The Court concluded by observing:
"We have referred to some of the important features of
the case. We have done so not for the purpose of
determining whether the girl was murdered or had
committed suicide, but solely with the object of
drawing attention to the manner in which the
investigation of the case was conducted. Disappointing
as it may seem to those who have desired the
institution of criminal action on the basis that a
crime has been committed, we do not think that on the
material before us we can go that far. The
investigation of the case was transferred from the
police administration of Delhi to the Central Bureau of
Investigation at the instance, we understand, of the
petitioner. We hope and trust that this investigation
has been completed. If not we would request the Central
Bureau of Investigation to complete the investigation
within three months from today and take such action as
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may be warranted by the result of the investigation. "
Nothing has been said in this decision which runs
counter to the well settled proposition laid down by the
Judicial Committee of the Privy Council and approved on
three occasions by this Court.
The investigation in the present case is still pending
as we were told at the Bar. It is quite likely that some
day, and we hope and trust that there would we no further
delay, the Court of competent jurisdiction would be in
seisin of the matter and would be called upon to decide
whether it was a case of murder or suicide. We have,
therefore, thought it proper exercise of discretion not to
enter into the facts and express any opinion one way or the
other so as to prejudice the trial that might take place. It
is sufficient to indicate that there is residuary
jurisdiction left in the Court to give directions
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to the investigating agency when it is satisfied that the
requirements A of the law are not being complied with and
investigation is not being conducted properly or with due
haste and promptitude. The Court has to be alive to the fact
that the scheme of the law is that the investigation has
been entrusted to the police and it is ordinarily not
subjeci to the normal supervisory power of the Court. We are
inclined, on the facts of the case as placed before us, to
take the view that the materials placed before the Court did
not justify an exception to be made to the rule indicated by
this Court and the appointment of a Special officer was not
called for at this stage.
What then should be the nature of the order to be made
in the case, is the next aspect for consideration. On the
conclusion which we have indicated above, the appeal has to
be allowed and the order of appointment of the Special
officer has to be set aside.
Certain observations to our mind are appropriate and
called for regarding further conduct of the investigation by
the police authorities. We must indicate also that the
investigation carried out has not been quite satisfactory.
As already pointed out, the Chief Minister had very
appropriately ordered that a thorough and careful
investigation should be made into the unfortunate death of
Tirthankar and Sanjeeb. Papers were produced before us at
time of hearing which indicated. that pursuant to the orders
of the Chief Minister, the Home Secretary had addressed
letters to the top police officers conveying the serious
concern of the Chief Minister as also his direction that a
thorough and proper investigation should be taken up. From
the materials placed before us, we have a feeling that in
the conduct of investigation the police authorities have
been more concerned with trying to establish that the
reports furnished by Secret Eye as appearing in the issues
of the Ananda Bazar Patrika were not based on correct
materials and that proper conclusions had not been drawn
rather than into carrying on an intensive investigation in
an objective manner. It further appears that as the police
authorities during their investigation could not find any
clue to establish the kidnapping of the two boys, they
formed a tentative opinion that the two boys had committed
suicide. This was based mere upon suspicion than upon any
clue obtained during investigation. Once having formed that
opinion, it appears
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from the materials produced before us that they laboured to
justify the same. The facts and circumstances leave an
impression in our mind that the investigation was
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channelised for collecting materials to support that view
only.
It is indeed unfortunate that in spite of the missing
report of the two boys having been properly lodged with the
appropriate police authorities and the fact that the two
boys were missing have been sufficiently publicised as
ordinarily done, the bodies of the two boys were allowed to
be cremated even before an attempt for identification had
been made. There is some material in the records of
investigation indicating that two railway tickets from
Barrackpore to Pandua had been found in possession of the
two dead boys and for non-seizure of those two tickets the
Assistant Sub-Inspector incharge had actually been
suspended. It is indeed difficult to understand why the
Assistant Sub-Inspector should not have seized the two
tickets if they were found on the dead bodies of the two
boys, even if he felt it was a case of suicide. Assuming
that this fact of recovery of two tickets from the dead
bodies of the two young boys was true, a clue was available
than that two boys had travelled from Barrackpore and when
this link through the railway tickets was available, it is
incomprehensive why the police officers failed to contact
the police authorities at Barrack pore. If that had been
done, there would have been a possibility of the link being
established. particularly when the missing report was
available and the investigation of the case could have taken
a different turn.
It is necessary that the investigating agency must
disabuse its mind of the tentative conclusion that death was
suicide. Our saying so does not mean that after a proper
investigation they may not reach the same conclusion. All
that we intend to point out is that conclusion should not
have been the basis upon which the a investigation should
have proceeded. Nor had the stage come to draw that
conclusion without further investigation. There are aspects
which militate against the theory of suicide. Normally one
would not commit suide unless there are strong and
compelling reasons for it. Thus, ordinarily there has to be
a very pressing motive behind every case of suicide.
Sufficient material to prima facie establish the existence
of such a motive has not yet been
281
brought on the record of investigation. Both the deceased
boys were teenagers. Tirthankar has been pictured as a
bright boy good at his studies and appeared to be responsive
in nature-took active interest in various fields of life
appropriate for his age. The picture of Tirthankar as a
disappointed and frustrated lover is again not supported by
much evidence. The reactions of human mind have no set. form
and it may be that Tirthankar was an unusual boy full of
sentiments and could have acted in an unusual manner. But
that cannot be a conclusion drawn either on suspicion or on
materials which do not readily fit into that theory. Even if
the view of the investigating agency in regard to
Tirthankar’s motive is accepted, there does not appear to be
any motive at all so far as his associate is concerned,
except that as a loyal friend he was prepared to act the way
Tirthankar went. For Sanjeeb to have chosen to commit
suicide the material collected till now seems to be very
weak. There have been rare instances where loyalty has known
no limitations but there is no justify material to credit
Sanjeeb as possessing such a rare quality.
If suicide had to be committed it did not require the
two boys to travel to such a distance and die at an unknown
place on the railway track. The place where the dead bodies
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were found was not indeed very lonely and the apprehension
of being detected before the attempt to commit suicide would
be successful could not be eliminated. The two boys were
sufficiently grown up to be credited with logical behaviour.
There has been a lot of criticism and explanation advanced
before us relating to the mode of travelling to reach
Pandua. Some railway tickets were sold for Pandua and there
is conclusion as to whether the sale related to two or 2
tickets. The material relating to the time of sale is also
not very clear. If proper investigation is made and further
attention is devoted, it is quite likely that more material
would come to light on the basis of which one or the other
of the competing explanations for the death can find
credibility and the investigation can then proceed in the
right direction.
There is another aspect to which we must immediately
turn. Affidavits and other materials were placed before us
regarding the investigation-both by the private agency,
namely, Secret Eye, and the statutory channel. The language
used by the top police offers
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in the official reports is indeed unfortunate. They have
expressed themselves not only in intemperate and improper
language but have even gone to the extent of being abusive
in their approach. The language used in the reply of Shri
Debabrat Dhar, Director of Secret Eye to the report is
equally bad. The investigation conducted by the private
agency as also official channel was intended to find out the
truth. While both these agencies were-or were required-to
devote their entire attention in unearthing the truth, they
should not have got themselves entangled in a battle of
words. We indicate our strong disapproval of the attitude
adopted by both.
Public mind appears to have been greatly shaken and
agitated on account of the mysterious death of the two boys.
This is an event over which the people of the State are
justifiably concerned. They do reasonably expect the police
authorities to concentrate their full attention and by using
the expertise at their command to unearth the mystery and
proceed on the basis of the truth discovered by them. It is,
therefore, necessary that greater candour should be
exhibited and the investigating agency should with an open
mind, collect all the material available and then only
eliminate that which has to be discarded and retain the rest
to be used for their 15 purpose. We are alive to the
position that there are occasions when death remains a
mystery in spite of the best of efforts. But we hope and
trust that with an honest attempt and sincere efforts made,
the truth would be found out and the police authorities of
the State would be in a position to give a creditable
account of themselves.
We do not think there is any necessity to take away the
investigation from the hands of the State police machinery
which is the statutory agency. . We would, however, suggest
that the Director General of Police, West Bengal, will
appoint a competent supervisory officer from the higher
ranks of the State police with expertise in investigation to
supervise the investigation in the present case. The police
authorities will, we hope, avail of any credible/material
collected by Secret Eye, if such material is made available
to the police authorities. We hope and trust that a
determined effort would be made by the State Government and
its Police authorities to get at the truth and in the event
of this case appearing
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to be a case of murder, the murderer would be proceeded
against the A dealt with according to law. We are sure that
the police authorities would take it as a matter of
challenge, rise to the occasion and by their performance,
justify their stand in these proceedings that they were
competent to investigate and there was no necessity of the
CBI being called in, as was done by the High Court.
In view of what we have decided, no orders are
necessary in the connected special leave petition.
M.L.A. Appeal allowed.
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