TaxTMI 
TaxTMI 
2014 (9) TMI 1301
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....plab Kumar Chowdhury. By way of interim relief, the learned Single Judge has directed that an FIR be registered against Tapas Paul, a Member of Parliament, on the basis of the complaint dated 1st July, 2014 lodged by the petitioner with the Inspector-in-Charge, Nakashipara Police Station, District Nadia, for his utterances at a public meeting addressed by him, which was telecast by private television channels on 14th June, 2014. The learned Judge has further directed that in view of the sensitivity of the matter the investigation should be entrusted to the Criminal Investigation Department (hereinafter referred to as "CID"), and has directed the Director General of Police to issue instructions to the DIG, CID for a free, fair, proper and meaningful investigation of the FIR. The learned Single Judge has then ordered that the investigation would be monitored by this Court and that the Investigating Officer should not file the police report under Section 173(2) of the Cr. P.C. without obtaining leave of this Court. 2. Aggrieved by this decision of the learned Single Judge the State of West Bengal and Tapas Paul have filed two separate appeals. These appeals were heard by the Divisi....
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....urisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose, in pursuance of section one hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it." 7. It has been argued by Mr. Aniruddha Chatterjee, the learned Counsel appearing for the writ petitioner, that I must accept the view of one or the other learned Judge of the Division Bench in toto. He has relied on the judgment of the Division Bench of this Court in the case of Jyoti Prokash Mitter v. The Hon'ble Mr. Justice H. K. Bose, Chief Justice of High Court, Calcutta reported in AIR 1963 Cal....
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....herefore have to deal with all these points to decide whether the order of the learned Single Judge is sustainable in law. 8. The brief facts giving rise to the present impasse are as follows: Tapas Paul, Respondent No. 7 in the writ petition, is a Member of Parliament, who was elected in the last elections to the Lok Sabha held in May, 2014. A speech that he had purportedly delivered in the presence of his constituents was telecast on June 14, 2014 by private television channels. A complaint was lodged by the petitioner on 1st July, 2014 with the Nakashipara Police Station pointing out that the Member of Parliament had declared openly that he "carries a revolver" which he will use to "liquidate" activists of the CPI(M) party and that he had also claimed that he was a "top gangster". These startling and controversial remarks were made, according to the complainant, by Tapas Paul while addressing a gathering of people at a public meeting in Chowmatha, Tehatta in Nadia district, which falls within his Parliamentary constituency of Krishnagar. According to the petitioner, the television channels had telecast his remarks which were made in Bengali which when translated into Engli....
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....cussions the next day because some houses were burnt in Paul's constituency. The website of BBC News India published on 2nd July, 2014 that Paul had confessed that some of his remarks made in the heat and dust of the election campaign had caused dismay and consternation and that he apologised unreservedly for them. He has reportedly stated "I have no excuses to offer. It was a gross error of judgment and deeply insensitive ... It should not have happened. And I assure you it will not happen again." The video footage which was produced before the learned Single Judge has been described by the learned Judge in his order. 10. In the background of these facts, the learned Single Judge concluded that as regards the utterances a cognisable offence had been made out prima facie and therefore, directed the registration of the FIR. The learned Single Judge has also mentioned the provisions of law which were attracted, prima facie, for the purposes of registration of the FIR as the State was adamant that the complaint did not disclose that a cognisable offence had been committed. 11. Mr. Kalyan Kumar Bandopadhyay, the learned Counsel for the State, has taken exception to the order ....
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....utta has echoed this argument of Mr. Bandopadhyay that a writ petition is not the appropriate remedy available to the petitioner when an efficacious alternate remedy is prescribed in the Code itself. He has drawn my attention to Sections 154, 156, 157, 190, 200 and 202 of the Cr.P.C. to submit that if a complainant feels the police are deliberately not acting on his complaint, he has recourse to the aforesaid provisions of law and a writ petition ought not to have been entertained as it is not maintainable. He has placed reliance on the judgments of the Supreme Court in the case of Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors. reported in (1976) 3 SCC 252 and Smt. Mona Panwar v. The Hon'ble High Court of Judicature at Allahabad reported in (2011) 3 SCC 496, where two different Benches of the Supreme Court have observed that the provisions of the Code are sufficient to counter the inaction of the police in investigating a complaint. 13. Mr. Aniruddha Chatterjee, the learned Counsel appearing for the writ petitioner, on the other hand, has submitted that the High Court's jurisdiction under Article 226 of the Constitution of India is wide and it is on....
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....d Counsel submitted that the police would have to see in what context these remarks were made during the course of his speech or else the Constitutional rights of Paul would be adversely affected. He has relied on the judgment of the Bombay High Court in the case of Emperor v. Bal Gangadhar Tilak reported in (1917) 19 B.L.R. 211 and also the judgment of the Supreme Court in the case of Dr. Das Rao Deshmukh v. Kamal Kishore Nanasaheb Kadam & Ors. reported in (1995) 5 SCC 123 in support of his submission. These judgements do not in any way support the submission of the learned Counsel. The entire speech would be relevant during the trial to assist the Court in concluding whether the utterances of Paul do constitute a punishable offence. On reading the complaint if a cognisable offence is made out the police have no option but to register an FIR without anything more. 15. The lack of anxiety of the police and its inertia in acting on the complaint lodged by the petitioner and the other complaints received by them in respect of the statements of Paul is apparent. It was not the absence of the unedited version of the video clipping which prevented the police from acting. Had the poli....
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....ences have been committed be mentioned in the order. 17. It would be useful to refer at this juncture to the judgment of the Supreme Court in the case of Lalita Kumari v. Government of Uttar Pradesh & Ors. reported in (2014) 2 SCC 1. The Constitution Bench of the Supreme Court noted the provisions of Sections 154, 155, 156 and 157 of the Cr. P.C. and considered whether it is mandatory for a police official to register an FIR on receipt of information disclosing an offence. While deciding the issue, the Supreme Court has referred to its earlier pronouncements on this aspect, including the judgements cited by the learned Counsel before me. 18. Chief Justice P. Sathasivam while speaking for the Constitution Bench has observed thus: 52. It is relevant to mention that the object of using the word "shall" in the context of Section 154(1) of the Code is to ensure that all information relating to all cognizable offences is promptly registered by the police and investigated in accordance with the provisions of law. 53. Investigation of offences and prosecution of offenders are the duties of the State. For "cognizable offences", a duty has been cast upon the police....
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....iven, suspects the commission of a cognisable offence. He need not be convinced or satisfied that the cognisable offence has been committed. He is bound to record the information and conduct the investigation, if he suspects a cognisable offence may have been committed. He does not have to satisfy himself about the truthfulness of the information. The true test is whether the information furnished provides a reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or through any other competent officer. The Court has opined further in the case of Lalita Kumari (supra) that the burking of crime leads to a dilution of the rule of law in the short term and it has a negative impact on the rule of law in the long run. The non-registration of a large number of FIRs leads to a definite lawlessness in the society. The Supreme Court has also cautioned against the misuse of the provisions by observing that while the registration of the FIR was mandatory, the arrest of the accused immediately on the re....
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....inary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay i....
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....preceding its conclusion by the term prima facie. He has referred to several paragraphs of the impugned judgement and pointed out that the writ petition does not contain any pleadings in that regard. According to the learned Counsel the Learned Single Judge has imputed his personal knowledge to arrive at the conclusion that Paul had committed a cognisable offence and that therefore the FIR should be lodged by mentioning the sections which were attracted. He has fortified his submission by relying on the judgments in the case of Kanda & Ors. v. Waghu reported in AIR 1950 PC 68, Messrs. Trojan and Co. v. RM. N. N. Nagappa Chettiar reported in AIR 1953 SC 235, Jugal Kishore Kundu v. Narayan Chandra Kundu reported in AIR 1982 Cal 342. 24. Perhaps it would have been more appropriate if the learned Single Judge had not mentioned the sections and left it to the police to decide under which provisions of law Paul should be booked. It is evident from the impugned order that the learned Single Judge was compelled to give a prima facie view of the Sections which could be attracted as the State insisted that the complaint did not disclose any cognisable offence. If exhorting one's const....
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....dopadhyay, learned Counsel for the State, has submitted that this direction of the learned Single Judge was absolutely uncalled for as it pre-empts the State action. According to him, when there are no allegations of mala fides, there is no need to change the investigating agency. Mr. Kishore Dutta, learned Counsel for Paul, has urged that the seriousness of any allegation cannot deflect from the procedure which is required to be followed. According to him, therefore, there is no need to entrust the investigation to the CID. Mr. Chatterjee, on the other hand, has submitted that the very fact that the Nakashipara Police Station took no action in accordance with law for over 15 days demonstrates that they were either instructed by their political bosses or were overawed by the situation and therefore, took no action in the matter. 26. In State of Punjab v. Davinder Pal Singh Bhullar & Ors. reported in (2011) 14 SCC 770 the Court has observed that it was evident that a Constitution Court can direct CBI to investigate a case provided the Court after examining the allegations in the complaint reaches a conclusion that the complainant could make out a prima facie case against the accu....
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.... against the local police which would adversely affect the credibility of the investigation carried out by them, it is both advisable and desirable and in the interest of justice to entrust the investigation to an independent agency. This is because it is necessary to instil confidence in the complainant and the general public that the investigation would be carried out in an unbiased manner. In the case of State of West Bengal v. Committee for Protection of Democratic Rights reported in (2010) 2 SCC 571 the Supreme Court directed the transfer of the investigation to the CBI as it was of the opinion that the nature of the incident and the delay in setting up of the SIT was sufficient to warrant such a transfer. Mr. Bandopadhyay has also submitted that when there are no allegations of mala fides, there is no need to change the investigating agency. According to him, the learned Single Judge has overstepped his jurisdiction and has pre-empted the State action. He fortifies his submission by relying on the judgment in the case of Abhinandan Jha & Ors. v. Dinesh Mishra reported in AIR 1968 SC 117. 28. The DIG, CID must appoint a competent officer from the CID at the earliest and ens....
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....ial functioning. The learned Counsel has relied on the judgment in the case of State of U.P. & Anr. v. Johri Mal reported in (2004) 4 SCC 714 where the Court has observed that the Courts cannot be called upon to undertake the Government duties and functions. The Court shall not ordinarily interfere with policy decisions of the State. This judgement is not relevant in the facts of this case as there is no question of interference of with a policy decision of the State. Surely it cannot be argued that it is the policy decision of the State to protect Paul and to turn a Nelson's eye to the wrongs committed by him. 31. The learned Counsel further pointed out the judgements in V. C. Shukla v. State (Delhi Administration) reported in 1980 Supp. SCC 249 and Davinder Pal Singh Bhullar's case to submit that if mala fides have not been alleged against the police there is no need for monitoring of the investigation by the High Court. He has also relied on the judgement in Babubhai Jamnadas Patel v. State of Gujarat & Ors. (supra) where the Supreme Court observed that monitoring of investigation by Courts in respect of offences allegedly committed were usually not warranted as there....
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.... the investigation in a case can be handed over to a different agency only if there is a faulty investigation or to instil public confidence in the investigation. The learned Counsel urged that this stage has not been reached as yet in the present case and, therefore, the question of changing the investigating authority does not arise. According to him, the local police have not been given adequate opportunity to act on the complaint submitted. Reliance has also been placed on the judgment in the case of Sashikant v. Central Bureau of Investigation & Ors. reported in 2006 AIR SCW 6182 where it is held that a statutory duty is cast on the investigating authority to carry out an investigation in accordance with law. The Court has observed that it is not ordinarily within the province of the Court to direct an investigation in a particular manner. The Writ Court should not, therefore, ordinarily interfere with the functioning of the investigation agency unless it is an exceptional case. 34. In Manohar Lal Sharma v. Principal Secretary & Ors. Reported in (2014) 2 SCC 532 a bench of three learned judges of the Supreme Court has observed thus: 24. In the criminal justice syst....
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....ve of the position and status of the person. The Court went on to observe that the monitoring of an investigation by the Court aims to lend credence to the enquiry or investigation being conducted by a premier investigating agency and to eliminate any impression of bias, lack of fairness and objectivity. The Court has distinguished between the supervision of an investigation and monitoring of the investigation in the following terms: 39. However, the investigation/inquiry monitored by the court does not mean that the court supervises such investigation/inquiry. To supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. The concern and interest of the court in such "Court-directed" or "Court-monitored" cases is that there is no undue delay in the investigation, and the investigation is conducted in a free and fair manner with no external interference. In such a process, the people acquainted with facts and circumstances of the case would also have a sense of security and they would cooperate with the investigation given that the superior courts are seized of the matter. We find that in some cases, the e....
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....;s complaint to its logical end. I am afraid that the direction to submit the report under Section 173(2) only after obtaining the leave of this Court would amount to supervision of the investigation rather than mere surveillance. It is true that Paul being a Member of Parliament and owing allegiance to the ruling party in the State could overwhelm the investigating authorities. Therefore, this Court could, at best, ensure that there is a speedy investigation into the case. The High Court cannot supervise the investigation or formulate the opinion in the form of a report under Section 173(2) of the Code as that would impinge on the powers of the Magistrate. The Trial Court would be influenced or bound by such a finding. Moreover, once the investigation process is set in motion, the provisions of the Cr. P.C. are sufficient to take care of all exigencies. If the report submitted under Section 173(2) is found to be unacceptable by the Magistrate, he has the jurisdiction to direct further investigation in the matter. If it is found that the report is credible, the Magistrate can close the matter and bring a quietus to the controversy. In the event the complainant is aggrieved by the o....