Section 173(8) CrPC No Bar For Writ Courts To Transfer Investigation To CBI : Calcutta High Court

"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 Single bench of Justice Moushumi Bhattacharya said while handing over the case to CBI.

The Bench also made it clear that Section 173(8) of CrPC pertaining to powers of the Police to carry on 'further investigation' does not preclude the Courts from passing further directions, if it deems it appropriate to do so in fit circumstances.

It held,

"Section 173 of the Cr.P.C. deals with Report of police officer on completion of investigation and sub-section 8 provides that nothing in the section shall preclude further investigation in respect of an offence after a report has been forwarded to the Magistrate. This court is of the view that Section 173(8) cannot prevent a Writ Court from passing further directions if the court deems it appropriate to do so in fit circumstances."

The Court observed that Section 173(8) is premised on the action of the Officer-in-Charge of the concerned police station on obtaining further evidence after a final report of the investigation has been made.

"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," it remarked while pointing towards several loopholes in the investigation in this case.

Background

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

Roy was primarily entrusted with the job of collecting intelligence reports relating to cross border trafficking, smuggling of narcotics etc. and his family alleged that Roy was eliminated as he was in possession of sensitive information.

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

The Petitioners (deceased's family) alleged that the Police never entertained their grievances and was hell bent from the beginning to show the death as accidental and not homicidal.

They alleged that the Post mortem report clearly stated that the death was due to sudden hit with sharp weapons and the same was certainly not accidental. Further the injuries were ante-mortem in nature. Nevertheless, they said, a final report has been submitted.

Later, the charge of Murder under Section 302 of IPC was added as per the order of the Magistrate Court but no progress has been made in the investigation since then.

The Petitioners thus urged the Court to order reinvestigation or a fresh investigation in the matter.

Findings

The Court noted that there are several loopholes in the manner of collecting vital evidence in the case. It observed,

"For dislodging the presumption of homicidal death, it was imperative that evidence is collected for establishing that death occurred as a result of an accident. Since the body of Rabindra Nath Roy was found near a railway track on 17th April, 2018, the second presumption is that death was caused as a result of an accident/collision with a train. None of these presumptions have reached a conclusion either in support of an unnatural death or death by accident."

Other gaps in the investigation were enlisted as follows:

• No collection of evidence from the spot where the body of the deceased was found;
• No effort to ascertain the timings of the passenger trains on 17th April, 2018 for determining whether any accident could have taken place on that date;
• Lack of specific eye witness accounts/statements of witnesses from the locality to establish whether the death was a result of a train accident;
• No forensic or medical evidence was taken for ascertaining the cause of death.

In this backdrop, the Bench observed that Fair trial is a sine qua non for instilling faith in the public that the truth behind a crime will be revealed through an impartial investigation.

"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."

In the facts and circumstances of the case, the Bench opined that an undeniable case is made out for appointing an independent agency for carrying out a fresh investigation.

"The nature of the duties of Rabindranath Roy at the time of his death as well as his posting near the Nepal border may point to something more than meets the eye, namely, an ordinary accidental death. Since the document produced by the petitioner points to an "intelligence" angle in connection with the Narcotics trade, this court is of the view that the investigation should be transferred to the Central Bureau of Investigation to be conducted afresh. The Central Bureau of Investigation is directed to start the investigation not later than four weeks from communication of this order and complete the investigation within a reasonable period of time but preferably within ten weeks from the date on which the investigation is started," the order stated.

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

The Court had explained that "fresh", "de novo" and "re-investigation" are synonymous expressions and the superior courts are also vested with the power of transferring investigation from one agency to another provided the ends of justice demand such an action.

Advocate Arjun Chowdhury appeared for the petitioner.

Case Title: Jyotsna Roy v. State of West Bengal & Ors.

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