SUNIL KUMAR PAL Vs. PHOTA SHEIKH

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of a Division Bench of the Calcutta High Court rejecting an application made by the appellant under Section 401 of the Criminal P. C., 1973 for leave to appeal against an order of acquittal passed by the Additional Sessions Judge, Nadia in sessions case No. 20 of 1977 filed against respondents Nos. 1 to 9. The facts giving rise to this appeal are few and may be briefly stated as follows.

(2.) The appellant's younger brother, Nishith Pal (hereinafter referred to as the deceased) was murdered in the evening of 29th August 1975 near the entrance of his village Sondanga situate in district Nadia. First Information Report in regard to the murder of the deceased was lodged with the Kotwali Police Station, Krishna Nagar at 8.05 A.M. on 30th Aug. 1975 by Topan Kumar Pal, a distant nephew of the deceased. 'The allegation of the appellant is that the investigation into the murder of the deceased was carried on by the Police in a perfunctory and unfair manner despite repeated representations to various authorities made by the appellant as well as the witnesses to the murder. The reason for which, according to the appellant, no proper investigation was carried on by the Police was. that the persons accused of the commission of the murder were persons belonging to or at any rate supported by the Communist Party of India (Marxist) which was at the material time the ruling party in the State of West Bengal. Though representations were made to the higher authorities for according protection to the witnesses who were apprehending danger at the hands of the accused and their supporters, nothing substantial was done by way of according such protection to them. The witnesses also pointed out to the appropriate authorities that the accused had threatened them with dire consequences if any of them helped in the prosecution of the accused and they also alleged that the local Police was friendly with the accused and it was impossible for them to depose truly and fearlessly in open court in regard to the murder of the deceased. These representations, according to the appellant fell on deaf ears and no protection whatsoever was given to the witnesses. It appears that on 4th Nov. 1976, fourteen months after the murder, the Police submitted charge-sheet against respondents Nos. 1 to 9 for offences under Sections 302, 364 and 120B of the Penal Code.

(3.) The appellant was living in the United Kingdom, but whenever he came down to India, he repeatedly requested the Government of West Bengal and the appropriate officers' of the Government to appoint a special public prosecutor to conduct the prosecution against respondents Nos. 1 to 9. but there wag no immediate response from the Government or any of these officers. On or about 15th May, 1978 the appellant once again came down to Krishna Nagar from the United Kingdom in connection with the trial for the murder of the deceased. It seems that before coming to Krishna Nagar, the appellant had addressed a registered letter to Shri Umapada Bhattacharya, Public Prosecutor, Nadia from London enquiring about the trial and after coming to Krishna Nagar he, also made enquiries from Shri Umapada Bhattacharya but no reply was received by him though the trial was to commence from 19th May 1978. The appellant thereupon tried to meet, the District Magistrate, Nadia to find out who was going to conduct the case on behalf of the prosecution but the District Magistrate refused to meet the appellant and referred him to the Superintendent of Police, Nadia. The Superintendent of Police advised the appellant to meet him on 23rd May 1978 though he knew fully well that the trial had been adjourned only up to 22nd May, 1978 and was to commence on that date. Meanwhile, however, the District Magistrate issued an order dated 20th May 1978 appointing Shri S. N. Ganguly, advocate, Krishna Nagar as Special Public Prosecutor and advised the Public Prosecutor, Nadia to direct Shri Nil Kamal Sarkar, Additional Public Prosecutor to assist Shri S. N. Ganguly.