The main legal point established in the judgment is that in cases of custodial death and police atrocities, the nature of charges should reflect the aggravated culpability indicated by the evidence, warranting charges under Section 304 part II of the Indian Penal Code.

JUDGMENT

Tirthankar Ghosh, J. - The present revisional application has been preferred challenging the order dated 02.08.2017 passed by the learned Chief Judicial Magistrate, Hooghly, in connection with G.R. Case no. 101/2013 corresponding to FIR No.2(S)82013-SUC. V/SC-II/CBI/New Delhi arising out of the Dhaniakhali police station case no. 08/2013 dated 19.01.2013 under Sections 304(A)/324/342/218/34 of the Indian Penal Code against 6 of the accused persons and Section 218 of Indian Penal Code against another accused i.e. Sub-inspector Ashim Mondal.

2. The background of the case narrated in the revisional application is that the present petitioner lodged a complaint with Dhaniakhali police station in respect of custodial death of her husband namely, Kazi Nasiruddin of village - Joyrambati, Police Station- Dhaniakhali, District- Hooghly on 18.01.2013 which was registered as Dhaniakhali Police station case no. 8/2013 dated 19.01.2013. The said case was transferred to Central Bureau of Investigation (hereinafter referred to as 'CBI') pursuant to an order of the Hon'ble High Court, Calcutta in W.P. No. 3800(W) of 2013 (Pratim Kumar Singha Roy -Vs. - Union of India and others). The relevant part of the order is set out as follows:

'The State investigating agency has failed to conduct the investigation in a fair and impartial manner and has abrogated and derelicted its basic sovereign duty to investigate the crime in the following respects:-

(a) The real justification and necessity of arrest of the victim on 18.01.2013 by the police personnel of Dhanikhali police station from Madanmohan Tala has not been investigated at all. The facile and apparently absurd explanation that the arrest was effected as the victim did not disclose his identity has been accepted by the CID as gospel truth. No investigation has been made as to the breach of duty of the police personnel attached to Dhaniakhali P.S. in complying with the mandatory directives laid down in D.K. Basu (Supra) in the matter of informing the relations of the arrestee as to the facture of his arrest and keeping the same under wraps till his custodial death.

(b) First information report with regard to the death of the victim was registered under Section 304 of the Penal Code, 1860 (culpable homicide not amounting to murder) (i.e. murder) instead of Section 302 of the Penal Code, 1860 clearly betraying a compassionate approach of the investigating agency towards the accused persons who are brothers in uniform. CID has also not made any effort to implicate the accused persons by adding the aforesaid graver offence in the cause of its investigation of the crime.

(c) The explanation of Officer-in-Charge of Dhaniakhali police station with regard to manner of treatment of the victim in police custody is wholly contradicted by the post mortem report and the final opinion as to the cause of death. Post mortem report reveals marks of injury on the body of the deceased whereas arrest memo states that he had no visible marks of injury on his person at the time of his arrest. Final opinion as to the cause of death is due to 'head injury and ante mortem in nature'. The explanation of the Officer-in-Charge that the victim was only slapped. Such explanation is therefore wholly unbelievable in the face of such medical opinion. This give rise to a strong suspicion as to his role in the alleged crime. In spite of that, no investigation by way of further interrogation of the Officer-in-Charge or otherwise was undertaken by the CID in this regard. The effort of the Officer-in-Charge is to obfuscate the actual incident and to mislead the investigating agency was tamely accepted by the latter and no steps have been taken by the investigating agency to thwart the same.

(d) No investigation relating to the previous animosity between the local MLA Smt. Ashima Patra and the victim has been made by CID.

At the time of the apparently frivolous arrest of the victim, Smt. Patra had telephoned the Officer-in-Charge of D