No Bar for writ under section 173(8) CrPC to transfer investigation to CBI: Calcutta HC

No Bar for writ under section 173(8) CrPC to transfer investigation to CBI: Calcutta High Court

Notice the large loopholes in a forensic investigation undertaken by the Siliguri Police in connection with the suspected murder of an IB officer. On Thursday, the Calcutta High Court transferred the sensitive details for investigation to the Central Investigation Bureau (CBI). 

The quality of the prosecution relies completely on a fair trial. If there are several gaps in the investigation or where vital evidence is not obtained or stored, the inquiry becomes superficial and perfunctory, “A fair trial wholly depends on the quality of investigation. If there are several loopholes in the investigation or an absence of collection or preservation of crucial evidence, the investigation becomes superficial and perfunctory,”

The Bench has made it clear that CrPC Section 173(8) relating to the powers of the police to conduct ‘further inquiry’, would not prohibit further investigation. If it considers it necessary to do so under appropriate cases, the courts will pass more instructions. 

Section 173 of the CrPC deals with the Investigating Officer’s report on the conclusion of the inquiry, and sub-section 8 states that after a report has been submitted to the Judge, nothing in the section shall prevent further investigation in respect of an offence. This court is of the opinion that, If the court finds it necessary to do so under appropriate cases, Section 173(8) cannot prohibit a Written Court from passing further instructions.

The Court noted that Section 173(8) is based on the proceedings brought by the officer-in-charge of the police station concerned to procure further information after the final report of the inquiry has been received. 

“The scope of the provision is limited in operation and is dependent on the Officer chancing upon a piece of evidence after completion of investigation,” he said, referring in this case to many loopholes in the investigation. 

Rabindra Nath Roy, part of the Sashatra Seema Bal Intelligence Unit (under the Ministry of Home Affairs), was found dead on 17 April 2018 next to a railway track between Naxalbari Station and Batasi Hault Station with many injury marks all over the body.

Roy was mainly tasked with gathering intelligence data on cross-border trafficking, drug smuggling, etc., and his family alleged that Roy was eliminated because he has sensitive information in his possession. 

Nevertheless, under Section 304 of the IPC, a FIR was registered within 30 days of the incident alleging that the death was due to a railway accident. 

The petitioners (the relatives of the deceased) alleged that their complaints were never entertained by the police and were hell bent from the outset to present the death as accidental and not homicidal.

They said that the Postmortem report specifically indicated that the death was due to a sudden sharp weapon strike and definitely not an accidental one. In comparison, the wounds were ante-mortem in nature. Nonetheless, a final draft has been submitted, they added. 

Later, in compliance with the order of the Magistrate Court, the charge of assassination under Section 302 of the IPC was applied, but no progress has been made in the investigation since then. 

Consequently, the petitioners asked the Court to order a re-investigation or a new investigation of the case. The Court observed that in the way of obtaining critical information in the case, there are some gray areas to be covered. 

It noted, it was imperative that facts be collected to determine that death happened as a result ofan accident in order to dislodge the hypothesis of homicidal death. After Rabindra Nath Roy’s body was found near a railway track on 17 April 2018, the second presumption is that death was triggered because of a train accident/collision. None of these presumptions have reached a conclusion.

Other issues enlisted in the investigation,1) No collection of evidence from the location where the deceased’s body was found.2) No attempt to assess the timing of commuter trains on 17 April 2018 to determine if an accident could have happened on that date.3) Lack of detailed eyewitness accounts/witness testimony from the locality to decide whether the death was due to a train accident.4) There was no forensic or surgical proof to determine the cause of death. 

The Bench noted in this way that a fair trial is a sine qua non for instilling confidence in the public that an unbiased prosecution would expose the facts behind a crime.

“An investigation has to be fair, untainted and independent. Any investigation which ex facie raises a suspicion of not having been conducted with due diligence or dedication, taking all relevant and crucial evidence into account, must be revisited.” 

The Bench found, under the facts and circumstances of the situation, that there was an undeniable case for the selection of an independent body to carry out the latest inquiry.

The nature of Rabindranath Roy’s duties at the time of his death as well as his posting near the border with Nepal may point to something more than meet the eye. Since the document produced by the petitioner points to an angle of “intelligence” in relation to the trade in narcotics, this court believes that the investigation should be transferred to the Central Investigation Bureau to be carried out again. The Central Investigation Bureau is directed to start the investigation no later than week of communication.

Reliance was placed on Vinay Tyagi v. Irshad Ali & Ors., (2013) 5 SCC 762, in which the Supreme Court iterated that, for the purposes of a fair trial, constitutional courts could direct further investigation by some other investigating agency. 

The Court explained that “fresh”, “de novo” and “re-investigation”, and the superior courts also have the power to transfer investigations from one agency to another, provided that such an action is demanded by the ends of justice.

Purnima Ojha
‘Law is not law if it violates the principles of eternal Justice’ very beautifully penned down by Lydia Maria Child and I strongly believe, if the law is not made for the goods of people then at least it should not violate the essence of the principle of law that is “JUSTICE”. Law is made to keep each section of society on an equal platform and being a member of the law fraternity, I will try to contribute to the welfare of society. I am Purnima and I graduated from zoology (Hons) and am currently pursuing a law degree from Lloyd law college, Greater Noida. My desire is to bring a fair and unjust environment to our society through my hard work and persistent efforts.