JUDGMENT :

(Prakash Shrivastava, J.) :

1. In this public interest petition, the main prayer of the petitioner is to appoint a sitting Judge of this Court under the Commissions of Inquiry Act, 1952 to inquire into the incident of unnatural death of Bara Lalan Sk.

2. The plea raised by the petitioner is that on 22nd of March, 2022 at village Bogtui on the outskirt of Rampurhat, Birbhum, incident of arson and bomb blast had taken place, therefore, this Court in WPA (P) 130 of 2022 in “The Court on its own Motion, In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum” had handed over the investigation to the CBI by order dated 25th of March, 2022. Bara Lalan Sk., prime accused of the Bogtui incident, arrested by the CBI has suffered unnatural death on 12th of December, 2022 at night while he was in CBI custody. Hence, the present PIL has been filed with several prayers.

3. Submission of learned counsel for the petitioner is that the main incident of Bogtui is being investigated by CBI and there is a conflict between the CID and the CBI, therefore, independent inquiry by a sitting Judge of this Court under the Commission of Inquiry Act, 1952 is necessary. He submits that the State investigating agency is attempting to destroy the evidence and it has implicated even the CBI officers investigating the cattle scam. Alternatively, he has submitted that the investigation should be done by the CBI officers not involved in the incident.

4. Learned Advocate General has submitted that there is no prayer in the petition for transfer of investigation and that the Court should not order inquiry by the Commission and that Judges have a different duty to perform in the Court. He has further submitted that a writ petition filed by the CBI is already pending before the learned Single Judge wherein the order dated 14th of December, 2022 has been passed.

5. Learned DSGI appearing for the CBI has submitted that a complaint has already been registered by the NHRC which is inquiring in the matter and the officers of the CBI are being unnecessarily harassed, therefore, the investigation should not be permitted by the CID or police investigating agency. He has also submitted that it is a case of suicide in custody and FIR has been lodged maliciously in order to hamper the Bogtui massacre investigation as well as the cattle smuggling investigation. He has also submitted that the case of suicidal death is subject matter of judicial inquiry under Sections 174 and 176 of the Cr.P.C. Learned counsel for the CBI has referred to FIR No. 612 of 2022 dated 13th of December, 2022 and has pointed out that in order to harass the CBI officers, offence has been registered even against SP, CBI and DIG, CBI by designation without mentioning the name of the officer and now on that pretext, 20 SPs and 10 DIGs of the CBI in West Bengal are exposed to harassment.

6. We have heard the learned counsel for the parties and have perused the record. The main thrust of argument of the learned counsel for the petitioner is to appoint a sitting Judge of this Court to inquire into the incident of unnatural death of Bara Lalan Sk. under the Commissions of Inquiry Act, 1952 (for short, ‘the Act’). Section 3 of the Act empowers the appropriate Government to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification appointing the Commission. Appropriate Government has been defined under Section 2(a) of the Act in relation to Central and State Government.

7. Hon’ble Supreme Court in the matter of T. Fenn Walter and Others vs. Union of India and Others reported in (2002) 6 SCC 184 has opined against the appointment of sitting Judges as President, Chairman, Vice-Chairman, member, etc. of the Commission by observing that if a sitting Judge is appointed, considerable time is lost and Judge would not be in a position to attend to his reg