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1990 Supreme(Cal) 38
High Court Of Calcutta
S. K. MUKHERJEE
AJOY KUMAR BASU - Appellant
Versus
UNION OF INDIA - Respondent
C. O. 10528 Of 1988
Decided On : 01/25/1990
A.P.CHATTERJEE, ABDULLA RAHAMANI, P.R.MONDAL, RITA MUKHERJEE, SAMAPTI CHATTERJI, TANUSHREE CHANDA
A writ of mandamus can only be issued if the petitioner has exhausted all other alternative remedies and if the writ court is in a position to form the needed view, without embarking upon a detailed factual investigation.
Headnote:
CRIMINAL PROCEDURE CODE - SECTIONS 156(3), 173(8) - CENTRAL BUREAU OF INVESTIGATION (CBI) INVESTIGATION - JURISDICTION OF HIGH COURT - WRIT OF MANDAMUS - MANDATORY - WHEN CAN BE ISSUED - CONDITIONS PRECEDENT.
Fact of the Case:
The petitioner, a medical practitioner, filed a writ petition seeking a writ of mandamus directing the Central Bureau of Investigation (CBI) to take up the investigation into the death of his son. The petitioner alleged that the police investigation was perfunctory and that there were factual inconsistencies and anomalies in the investigation. The State respondents contended that the writ jurisdiction of the Calcutta High Court was not available to the petitioner since the alleged offence of abduction took place in the State of Orissa. The private respondents relied on the results of the police investigations in the States of West Bengal and Orissa to suggest that this was not a fit case for reopening the investigation.
Finding of the Court:
The court held that the writ petition was premature as the petitioner had not exhausted his alternative remedies before the criminal courts. The court observed that the criminal courts were equally efficacious alternative forums for the petitioner to pursue his remedies and that the writ court should not intervene unless it was in a position to form the needed view, without embarking upon a detailed factual investigation. The court also held that the writ jurisdiction of the Calcutta High Court was not barred even though the alleged offence of abduction took place in the State of Orissa.
Issues: 1. Whether the writ petition was premature as the petitioner had not exhausted his alternative remedies before the criminal courts? 2. Whether the writ jurisdiction of the Calcutta High Court was barred even though the alleged offence of abduction took place in the State of Orissa?
Ratio Decidendi: 1. The court held that the writ petition was premature as the petitioner had not exhausted his alternative remedies before the criminal courts. The court observed that the criminal courts were equally efficacious alternative forums for the petitioner to pursue his remedies and that the writ court should not intervene unless it was in a position to form the needed view, without embarking upon a detailed factual investigation. 2. The court held that the writ jurisdiction of the Calcutta High Court was not barred even though the alleged offence of abduction took place in the State of Orissa.
Final Decision: The writ petition was disposed of with the expectation that the magistracies would endeavour to dispose of the pending applications according to law and on merit as expeditiously as possible.
( 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,
