KISHWAR JAHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner Nos. 1 and 2, Kishwar jahan and Rukbanur Rahman praying for a direction that the investigation in connection with the unnatural death of Rizwanur Rahaman, being case UD no. 183 of 2007, be handed over to the Central Bureau of Investigation and that it should submit a report on such investigation before this Court, and upon such investigation appropriate orders be passed.

(2.) LEARNED senior Counsel appearing on behalf of the petitioner reiterating the statements in the writ petition and referring to sections 154 (3) and 156 (1)of the Code of Criminal Procedure, 1973 and the Police Regulations of Calcutta, has submitted that law authorises the Deputy Commissioner of Police, Detective department, respondent No. 4, to take interest in the prosecution of the case and not in its investigation. The D. C. , D. D. and D. C. , Headquqarters had unauthorisedly intervened in the matter. Since there was no allegation of abduction against the deceased and although assuming the said D. C. , D. D. and D. C. , Headquarters were having jurisdiction, the authority of the said respondents to intervene and to mediate between the deceased and his in-laws was questioned. Since the Officer-in-Charge of the Karea Police Station had visited the residence of the deceased and the statute authorises the Officer-in-Charge to probe into the matter or to delegate another officer to investigate, the intervention by the D. C. , D. D. in the conjugal life of the deceased was uncalled for. Attention has been drawn to the judgement of the Supreme Court directing the administration/ police authorities to see to it that spouses of inter-religious marriages are not harassed or subjected to threats. Moreover, instead of allowing investigation to take its course in accordance with the provisions of law, the Commissioner of Police had made comments, widely reported, that the reaction of the parents to the marriage was natural and death was due to suicide. Such a comment by no less a person than a Commissioner of Police is bound to prejudice the process of investigation. Moreover, an unholy nexus between the top brass of the police with the respondent No. 12 is evident since a company owned by respondent No. 12 had sponsored a rally of the Detective department of Kolkata Police and the police authorities were beneficiaries of undue favours. Submission has also been made that no fair investigation under the CID is possible in a matter where the allegation is against the highest brass of the Kolkata Police and the Kolkata Police are limbs of the State. It has, therefore, been contended that for a fair investigation an investigation by cbi under the direction of the Court is necessary since justice should not only to be done but seen to be done. According to him, in such circumstances the mother and the brother, the petitioners, have the right to move the petition seeking a probe by the CBI under the orders of the Court. Learned Advocate had relied on the judgements of the Apex Court and High Courts in support of his case.

(3.) LEARNED Advocate General of the State of West Bengal has submitted that the writ petition is not maintainable. As such no order can be passed. Referring to the statements in the petition it has been submitted that to decide the issues affidavits are required to be exchanged. To invoke writ jurisdiction there must exist legal and personal injury. Personal injury suffered by the mother and the brother of the deceased, the petitioners, are different in nature from one that the deceased might be having before his death. It has also been argued that mere allegations of threat is not a cognizable offence. There was no complaint before the police except of the letter dated 18th September, 2007 by one Sadiq Hossain which did not mature. Therefore, the provisions of section 154 (1) of the Code are not attracted. Further, there is no material to the effect that death was due to violence and there was also no basis to suspect the same. Assuming there was threat and mental pressure on the deceased, the appropriate remedy under the statute would have been a complaint before the magistrate and not a petition under Article 226 of the Constitution before this court since the petitioners must demonstrate that they have a legal and personal right which has been violated. Powers exercised by the senior Police Officers, if at all, was in consonance with the provisions of section 36 of the Code. Moreover, steps have been taken. CID is carrying on an enquiry though not an investigation into the cause of unnatural death. Interrogations are being conducted and there is no reason for CBI to intervene. CID is an independent body and the Kolkata police has no hand in its administration and operation. Drawing attention to article 33 (b) of the Constitution and some of the provisions in the Code it was submitted that there is no violation of fundamental rights of the petitioners under Articles 19 and 21 of the Constitution, The learned Advocate General placed reliance on the judgements of the Supreme Court in support of his cotentions.