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IN THE HIGH COURT AT CALCUTTA
JAY SENGUPTA, J.
Atanu Ghorai – Appellant
Versus
The State of West Bengal & Ors. – Respondents
WPA 11305 of 2024
Decided on : 24-06-2024
Transfer - Investigation - Article 226, IPC Sections 302, 120B, 34 - The court discussed the constitutional provision for transferring investigations and the relevant IPC sections, emphasizing the need for a fair investigation and the sufficiency of existing evidence to deny the transfer request.
Fact of the Case:
The petitioner sought transfer of investigation into the death of his brother, found under suspicious circumstances, alleging mishandling by local police and requesting a second post mortem.
Finding of the Court:
The court found no evidence of mishandling by the police, upheld the findings of the post mortem, and determined that the investigation was fair and thorough.
Issues: Whether the investigation should be transferred to the CBI and if a second post mortem is warranted.
Ratio Decidendi: The court held that transfer of investigation is only justified in exceptional circumstances, which were not present in this case.
Result: The writ petition is disposed of without any order as to costs.
JUDGMENT :
Jay Sengupta, J:
1. This is an application under Article 226 of the Constitution of India praying for transfer of investigation of Kharagpur Police Station Case No. 252 of 2024 dated 23.03.2024, under Sections 302, 120B and 34 of the Indian Penal Code and Kharagpur Police Station U.D. Case No. 23 of 2024 dated 23.03.2024 to the CBI, handing over the post mortem report conducted on 24.03.2024 and for preservation of the dead body for further post mortem by a Central Agency.
2. Learned counsel appearing on behalf of the petitioner submitted as follows. The petitioner’s brother was a post holder of the Bharatiya Janata Party. On 22.03.2024 he left his house and became missing. On 22.03.2024 his dead body was found on a field and an FIR was lodged on the same date. A post mortem examination was done on the next date. There were photographs and videos of the dead body which showed that there were injuries inflicted, possibly by electric shock and cigarette stubs. The hands of the victim were found tied. Although the cause of death was shown as drowning, the nearby water body was about 400 meters away from the field. The death could not have been caused there. A second post mortem report was required to be done. The second opinion given by the medical expert is a mere replica of the post mortem report. It did not deal with relevant issues. All of the attending conditions for a death by drowning, as per Modi’s Treatise on Medical Jurisprudence, are not made out in the instant case.
3. Learned counsel appearing on behalf of the State denied the allegations made in the writ petition and submitted as follows. The deceased (petitioner’s brother) was not to be found since 22.03.2024. The dead body was noticed on 23.03.2024 morning at around 9.30 am by the local people lying in a prone position on the agricultural land of one Harendra Nath Ghorai. On receipt of this information, the Officer-in-Charge, Kharagpur Local PS alongwith the CI, Khargapur Circle and SDPO, Kharagpur and other officers and force of Kharagpur (Local) PS reached the spot. On receipt of the written information from one Barun Manna, Kharagpur (Local) PS U/D Case No. 23 of 2024 dated 23.03.2024 was started. SI Manas Kumar Hait conducted inquest over the body of the deceased in the presence of local witnesses and family members of the deceased. Photography and videography of the same were done accordingly. Videography had been provided to the writ petitioner. Hands of deceased Santanu Ghoroi were not tied with towel. Rather, he was wearing a bermuda pant/half pant and a towel (Gamcha) was hanging around his neck. The two ends of his towel came close to the hands. Over the written complaint of one Atanu Ghoroi, Kharagpur Local PS Case No. 252 of 2024 dated 23.03.2024 under Sections 302, 120B and 34 of the Indian Penal Code was started against 5 accused. The post mortem examination over the body of the deceased was held on 24.03.2024 under proper videography (video handed over to petitioner). Neither the petitioner nor any of his family members or any other person known to the deceased made any oral or written request to the police station for obtaining the post mortem report. Autopsy surgeons Dr. Sundarlal Hembram, Demonstrator and Dr. Priyaman Basu, Junior Resident both of Deptt. F.S.M., Midnapore Medical College and Hospital opined that “Death was due to the effects of drowning as noted above, ante mortem in nature. Further opinion, if any, can given after receipt of FSL report.” Further Viscera and blood samples of the deceased had been collected from the Midnapore Medical College and Hospital and deposited at the FSL, Kolkata on 01.04.2024 for examination. Statements under Section 161 Cr.P.C. were recorded. In course of investigation, several local witnesses, neighbours, relatives, friends, wife of the deceased, etc. were examined and it came to light that the deceased used to consume alcohol on regular basis. As per statements of witnesses, Santanu Ghoroi’s dea
AI
The court affirmed that a transfer of investigation is not warranted unless there are compelling reasons, which were absent in this case.
The court may decline requests for CBI investigation where circumstances do not warrant transferring an investigation from local police.
Point of Law : Suicide or murder - Medical evidence may help the police in coming to a firm conclusion.
Suspicion alone cannot justify taking cognizance of murder; solid evidence is required to establish a prima facie case under criminal law.
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