AJOY KUMAR BASU Vs. UNION OF INDIA

JUDGEMENT

(1.) The present writ application is at the instance of a Medical Practitioner with prayers for issuance of a writ of Mandamus directing the Central Bureau of Investigation to take up the charge of investigation into the death of the petitioner's son Dr. Amitava Basu. It appears that the substance of the prayer made on behalf of the petitioner is for reopening cases wherein final reports have been substituted upon finding that the death of the petitioner's son was due to accidents drowning From the materials on record it appears that the applications for reopening of the cases are pending before the Magistracies of West Bengal as also, of Orissa (Annexures 'A' and 'B' to A/O. of K. Kanjilal dated 28.11.88). Mr. A. P. Chatterjee, appearing in support of the writ application, has strongly banked upon the provisions of section 173 of the Code of Criminal Procedure and has also draw the attention of this Court to various types of factual inconsistencies and anomalies which, 'according to him, establish unequivocally the perfunctory manner in which the investigations, ending with the final reports referred to above, conducted by the police authorities of the States of West Bengal and Orissa, have been carried out and these according to Mr. Chatterjee, justify the existence of the need of investigation by an independent agency like the Central Bureau of Investigation. Mr. Chatterjee has also, in this connection relied upon the reports submitted on behalf of the West Bengal Police to the effect that the investigation might be done by the Orissa police or any other agency. The writ petitioner appears to have obtained assistance of a private detective agency in arriving at his conclusion that the investigation is needed to be reopened. On behalf of the Union of India, it has been stated before this Court that in the event the Court feels to so direct, the Central Bureau of Investigation will take up the investigation of the matter. On behalf of the state respondents a technical point has been urged, namely, that the allegations at best, constituted offences of abduction, conspiracy and murder. As far as the State of West Bengal is concerned, the police report (Annexure 'B' to the Affidavit-in-Opposition of Respondents 3 to 8) indicates that the offence of abduction, which is alleged to have been committed within the State of West Bengal, has not been proved and as such the writ jurisdiction of the Calcutta High Court cannot be available to the writ petitioner even for the reliefs which have been prayed for, but if so advised, he should move the Orissa High Court for such reliefs. On behalf of the private respondents, who are alleged to be involved in the murder of the petitioner's son, the results of the police investigations in the States of West Bengal and Orissa have been relied upon to suggest that this is not a fit case where reopening of the investigation can be or should be directed. Defective verification of the writ application has been emphasised to justify dismissal of the petition in limine. Lastly, it has been submitted that since without consent of the State Government, the C.B.I. cannot take up investigation and since there is no material to show that the State Government inspite of being approached has unreasonably and mala fide refused and/or withheld consent the present writ application is liable to be dismissed as premature.

(2.) Mr. Chatterjee in support of this argument has referred to a number of decisions both of the Supreme Court and of this Court, namely, AIR 1985 SC 195 (State of West Bengal and Others vs. Sampat Lal and Others) ; 1962 (II) SCR 195 (226) (Major E. G. Barsay vs. The State of Bombay) ; 1979 (II) CLJ 150 (A. K. Sirkar vs. State of West Bengal and Anr.) ; and 74 CalWN 416 (Mukundalal Agarwalla and Others vs. C.C.S. and Others). A careful analysis of such decisions unequivocally establishes that on fulfilment of the statutory conditions as required under sections 3, 5 & 6 of the Delhi Special Police Establishment Act, investigation into commission of an offence may be entrusted to the Central Bureau of Investigation if the Court feels that investigation by the local police may not be effective or in case such investigation has already been made, the same has been perfunctory. The Supreme Court has gone so far as to lay down that statutory consent would not operate as a bar when the court directs such investigation to be made by the Central Bureau of Investigation. In the facts of the present case, the aforesaid principles have some bearing but to find out the entitlement of the petitioner to the reliefs claimed, some provisions of the Code of Criminal Procedure require to be considered in addition to the aforesaid legal position. Admittedly, in the present case, as noted earlier, applications under section 156(3) and 173(8) of the Code of Criminal Procedure are pending before the Magistracies of this State and the State of Orissa. No doubt, in the proceeding pending before the Chief Metropolitan Magistrate, Calcutta, a Report has been submitted by the Investigating Officer to the effect that since the offence appears to have been committed within the State of Orissa, the investigation might be entrusted to Orissa Police or to any other agency but such report has not yet been accepted by the court concerned nor is it obligatory for a court to accept such report as will be clear from what follows hereinafter. Upon a careful reading of section 173 sub-section (8) of the Code of Criminal Procedure it appears, that on submission of a report after investigation by the police four courses remain open to the court concerned to be followed :

(3.) Courses under (ii), (iii) and (iv) are to followed when the Court is of the view that investigation is not full and complete, unsatisfactory or there is scope for further investigation.