SUSHIL CHANDRA CHOWDHURY Vs. CHAKRABORTY COMMISSION OF INQUIRY

JUDGEMENT

(1.) THE petitioners challenge in this application under Article 226 of the Constitution the notification dated 12th August, 1977 being the notification No. 10117-J whereby the Chakrabarty Commission of Inquiry had been appointed. The petitioners also challenge notices issued under Section 8b of the Commissions of Inquiry Act, 1952 all dated 25th February, 11980 and the summons requiring the attendance of the petitioners pursuant to the summons. The petitioners are six in number. They are police officers employed in the Calcutta Police. They were at the relevant time posted at Shyampukur Police Station where the alleged incident, about which I shall refer presently, took place. the petitioner no. 1 is now the inspector of Police, Amherst Street Police Station. The petitioner no. 2 is the Sub-Inspector, Fraud Section of the Detective Department. The petitioner no. 3 is the Reserve Officer Brigade Ancillary, Calcutta. The petitioner No. 4 is the Sergeant of the Calcutta Police Traffic Department. The petitioner no. 5 is (the Reserve Officer, Hackney Carriage department of the Calcutta Police Headquarters, lal Bazar and the petitioner no. 6i is a Constable. The respondents to this application are (1) The Secretary, Chakraborty commission of Inquiry, (2) Sri Haratosh Chakraborty, Chairman of the Chakrabarty Commission of Inquiry and (3) The State of West Bengal. As I have mentioned before, the petitioners challenge the notification dated 12th August, 1977 constituting the Commission of Inquiry. As most of the arguments refer to the constitution of the said Commission and the powers of the said Commission, it would be appropriate to refer to the relevant portions of the said notification. The said notification reads as follows : "no. 10117-J.-12th August, 1977 Whereas there is a widespread demand from different sections of public for an inquiry into allegations of killings of numerous persons in this State for political motives during the period from the 20th March, 1970 to the 31st May, 1975 and killings of, and physical tortures and atrocities committed on, numerous persons in this State during the aforesaid period by public servants and/or persons belonging to or enjoying patronage of the Ruling Party in power in the State and or Centre or the Government in power state and or Central and whereas the Governor is of opinion that it is necessary to appoint a Commission of Inquiry for the purpose of making inquiry into definite matters of public importance, that is killings of numerous persons in this State for political motives during the period from the 20th March, 1970 to the 31st May, 1975 and killings of, and physical tortures and atrocities committed on numerous persons in this State during the aforesaid period by public servants and or persons belonging, to or enjoying patronage of the Ruling Party in power in the State and or Centre or the Government in power State and/or Central and whereas no Commission of Inquiry has been appointed by the Central Government to inquire into the said matters now, therefore, in exercise of the power conferred by section 3 of the Commissions of Inquiry Act, 1952 (60 of 1952), the Governor is pleased hereby to appoints Commission of Inquiry consisting of Shri Haratosh Chakraborty, WBHJS.

(2.) THE terms of reference of the Commission of Inquiry shall be as follows : (a) to enquire into the facts and circumstances relating to specific instances (i) of killings of persons in this State for political motives during the period from the 20th March, 1970 to the rest May, 1975 and killings of, and physical tortures and atrocities committed on, persons in this State during the aforesaid period by public Servants and/or persons belonging to or enjoying patronage of the Ruling Party in power in the State and/or Centre or the Government in power, State and or Central (ii) Whether such killings, other atrocities and physical tortures had been committed with the encouragement of or had been aided or abetted by public servants ; (iii) of killings in particular, of public servants during the aforesaid period to ascertain as to whether such killings were perpetrated at the instigation of the then Government, state and or Central : provided that the enquiry shall also cover the conduct of other individuals, who may have directed, instigated or aided or abetted or otherwise associated themselves with the commission of such acts and (b) to consider such other matter which in the opinion of the Commission of Inquiry have any relevance to the aforesaid allegations.

(3.) THE inquiry by the Commission of Inquiry shall be in regard to (i) complaints or allegations aforesaid that may be made before the Commission of Inquiry by any individual or association in such form and accompanied by such affidavits as may be prescribed by the Commission of Inquiry, and (ii) such instances relatable to item (i) to (ii) of sub-paragraph (a) of paragraph 2 as may be brought to its notice by the State Government for inquiry. " clause 4 of the said notification states that the Commission shall make interim reports to the State Government on the conclusion of inquiry into any particular allegation or series of allegations and shall complete its inquiry and submit its final report to the State Government within a period of six months from the date of the notification. Clause 5 of the said notification states that the Commission shall have certain ancillary power under the Commission of Inquiry Act, 1952. 2, It is also necessary in this connection to refer to the relevant provisions of the Commissions of Inquiry Act; 1952. Section 2 of the said Act defines the appropriate government which, for our present purpose is relevant and. provides as follows : 2. In this Act, unless the context otherwise requires, (a) appropriate Government means (i) the Central Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List I or II or List III in the Seventh Schedule to the constitution and. (ii) the State Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List II or List III in the Seventh Schedule to the Constitution. Section 3 (1) of the said Act is in the following terms : 3 (T) The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the House of the People or, as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as. may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly. " the other provisions of the Act are not material for the present purpose. The petitioners received the summons and notices under Sec. 8b of the said Act. Section 8b of the said Act provides as follows : 8b. If, at any stage of the inquiry, the Commission, (a) considers it necessary to inquire into the conduct of any parson ; or (b) is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, the commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence : provided that nothing in this section shall apply where the credit of a witness is being impeached. 3. As I mentioned before, the petitioner's in this case, received notices under Section 8b. The said notice, which are in identical terms, inter alia, stated to the petitioners : Whereas the Commission is of the opinion that your reputation is likely to be prejudicially affected by the inquiry, the commission called upon the petitioners within a particular date to file a reply in the form of an affidavit along with the relevant documents on which the petitioners wish to , rely and gave other consequential directions. The Commission also supplied the particulars of the complaint on the basis of which the said notices had been issued to the petitioners. Identical notices were issued to all the petitioners and the complaints were based on identical document viz. affidavit date 26th June, 1978 of Sm. Sunity Bhattacharjee. In the said affidavit, Sm. Sunity Bhattacharjee who is wife of Sri Sudhangsu Bhattacharjee, stated that her son, Samir Bhattacharjee, who was, at the relevant time, aged about 15 years of age was a brilliant student and a reputed sportsman used to support the family by the earnings of his good sportsmanship and. remarkable football tournaments. She further stated that her son was never interested or engaged in any political activity of any kind and, according to her, her son had confined himself to his studies and sports only. Sometime in August, 1970, according to the deponent of the said affidavit, owing to the shortage of accommodation in her narrow living space at 21a Mahendra Bose Lane. Calcutta, he used to sleep at a house at 5, Mahendra Bose Lane, Calcutta-3 generously arranged by one of the neighbors who was very fond of Samir's popularity in. that area. On the night of 17th August, 1970, according to the complainant, police from Shyampukur P. S. came and enquired about her son and she led the police party to 5, Mohendra Bose Lane, Calcutta-3 where her son, Samir was sleeping. Samir was called out and he came down. The police pounced upon him and dragged him, in spite of protests, by the police party. He was arrested and taken inside the waiting police van. According to the complainant, Samir was kicked down like a ball at Thana and beaten without sparing a single inch of his body and that scene attracted the people in the vicinity of Thana and members of the public pleaded with police to spare Samir from further inhuman torture. But this infuriated the police, according to the complainant, and they continued brutalassaults on Samir. Samir was bleeding all over. The constables also joined and Jamadar Lalan Singh and Mistry continued the torture and even Samir's cry for were went unheeded. Thereafter, the police called a doctor to attend Samir, who declared him to be dead. His dead body was removed to Alipore Police Hospital and then to Kidder pore Morgue. Two days later Samir was cremated at Kazi Mitra Burning under police supervision. The complainant has also further stated that the complainant had some trouble with her landlord, who unsuccessfully tried to eject her but lost his suits in trial and Appellate Courts. According to the deponent, her apprehension was that the landlord was instrumental in manipulating the local police to take Samir into custody. The complainant has, further stated that her son's liver, kidney and lungs had been pulverized by the beating and torture and according to the post mortem report, the complainant asserts, it was clear that her son, Samir, had been tortured to death. As there was massive public resentment displayed by the mammoth procession of mourners that followed Samir's dead body to the cremation ground as also there was intense agitation following the death of Samir, the then Commissioner of Police, Sri R. Gupta himself declared that the would personally enquire into the atrocities and bring the offender to 76 book. But nothing happened. In these circumstances, the mother prayed for an investigation by the Commission as to the death of her son, Samir at the police lock up on the 17th August, 1970 at Shyampukur police Station.