[Bengal Post Poll Violence] Cal HC | CBI probe ordered in the investigation after NHRC report; Court also constitutes SIT of all IPS officers to install faith of the people in rule of law [Detailed Report]

Calcutta High Court: The Full Bench of Rajesh Bindal, ACJ and I.P. Mukerji, Harish Tandon, Soumen Sen and Subrata Talukdar, JJ., continued hearing the matter of infamous series of petitions filed with the allegation that the people who supported the political parties other than the ruling party in the recently concluded Assembly Elections in the State (year 2021), had been made to suffer at the hands of the supporters/workers of the party, which came in power.

Let’s have a look at the petitions in brief. WPA (P) 142 of 2021 filed on 04-05-2021 dealt with the prayer to combat the post-poll violence and take corrective as well preventive action and sought to open Control Room so as to enable the victims to lodge their complaints online or over telephone. WPA (P) 143 of 2021 filed on 06-05-2021 dealt with issuance of direction to the respondents to take immediate steps to stop ongoing post-poll violence and to call for an independent and impartial investigation of the offences by constitution of a special investigation team. WPA (P) 144 of 2021 filed on 07-05-2021 was filed by an advocate practicing in this Court in public interest raising the issue of post-poll violence. The prayer was made for a direction to the police to immediately take action and stop the atrocities. WPA (P) 145 of 2021 filed on 10-05-2021 raised the issues regarding violence in which number of workers of the opposition parties including the main opposition party suffered physically as well as damage to their properties. WPA (P) 146 of 2021 filed on 10-05-2021 prayed to the Central as well as the State government to deploy more forces to maintain law and order, appoint an independent committee to conduct free and fair investigation, to provide protection to the petitioner from retributive action of rioting mob, direction to the police to register FIRs in all cases. WPA (P) 147 of 2021 filed on 10-05-2021 prayer was made to secure life and property of the affected persons, proper judicial investigation of the incidents of political violence. WPA (P) 148 of 2021 filed on 12-05-2021 the prayer was for calling upon the official respondents to show cause as to why they failed to register the complaints. WPA(P) 149 of 2021 filed on 12-05-2021 was being filed by the widow of a person, who was murdered on May 03, 2021 in post-poll violence. The prayer was made for independent investigation of the crime after registration of the FIRs. WPA (P) 167 of 2021 filed on 03-06-2021 prayer was made for appropriate protection and deployment of security forces in the area and constitution of a special investigation team for independent investigation of crime.

Arguments of the petitioners:

1. The residents in this State were being punished for exercising their right of vote in free and fair manner and material which had come on record clearly suggested that there was post-poll violence, which was well planned.
2. The police had failed to record complaints and wherever these were recorded, after intervention of this Court, the complainants were threatened to withdraw the same.
3. It is established from the NHRC report that there was complicity of the police and the persons in power, in the violence which erupted after polling and also declaration of the result in the recently concluded Assembly Elections.
4. Mahesh Jethmalani, learned Senior Counsel, submitted that there were 60% gap between the number of death as reported by the Committee and as submitted by the State. The Committee reported 52 murders even though it had not visited the entire State whereas the Director General of Police reported only 29. As per the State, there was no rape incident, whereas the Committee reported that there were 11 rape cases. In fact, two of the gang rape victims had moved Hon’ble the Supreme Court.
5. Further pointing out the facts from the report of the Committee and the response of the State, it was submitted that out of 3,384 complaints forwarded by the Committee to the State, there was no response in about 1,000 such complaints. In 135 cases, the State claimed that the cases were found to be not true. However, the same was done without registration of any FIR though cognizable offences were reported.
6. A long list of crime against women had been furnished by the committee, which was directed to be kept in a sealed cover, otherwise the identity of the victims would have been disclosed. The cases of manipulating the Post-Mortem Reports or Medico Legal Reports by the State machinery also came up.
7. J. Sai Deepak, Counsel for petitioners submitted that the main issue involved in the bunch of petitions was as to whether an independent probe was required in the cases involving post poll violence in the state. He argued that from the report of the committee, which was supported by documents, it was established that the state had failed to discharge its constitutional obligation in maintaining law and order in the State.

Arguments of the respondents:

1. Kapil Sibal, Senior Counsel appearing for different Superintendents of Police submitted that this Court had set up the Committee, there was no direction for any interim report to be filed but still it was filed and the petitioners in their arguments have referred to the report as given by the NHRC and this case provisions of the Protection of Human Rights Act, 1993 would be applicable. The 1993 Act provides for complete procedure for enquiry and investigation that was required to be followed. In the absence thereof, the report cannot be accepted as such.
2. Referring to the biasness of the members of the Committee, he submitted that three of the members thereof including the Chairperson of the Committee have close links with BJP. Hence, report falls on that ground as well, as bias is writ large on the fact of it.
3. S.N. Mukherjee, Senior Counsel appearing for the Director General of Police submitted that data given in the report was self-contradictory. Date of incident was not mentioned in about 43% of the cases. 892 cases pertained to the period from May 02-05, 2021. 35 cases were prior to May 02, 2021.
4. A.M. Singhvi, Senior Counsel also appearing for Director General of Police, submitted that the report cannot be treated as conclusive and on that basis, no action can be taken. He further referred to the discrepancies in the report to show that the translation made by the Committee of various complaints was wrong.
5. Kishore Dutta, Advocate General appearing for the State, submitted that even the State was quite serious about the incidents which had taken place after polling in the State. He referred to the details of 268 FIRs registered by the State suo-moto.
6. Dastoor, Additional Solicitor General submitted that there was post-poll violence is a fact not denied by the State. Response of the police even after the cases were filed was not adequate and timely. Some action was taken when the Court intervened. In fact drastic steps are required to be taken to establish rule of law and save democracy. He further submitted that in case assistance of any of the independent agency for investigation or any para-military force is required to maintain law and order in the State, the Government will abide by the order of the Court.

The Court heard the parties, perused all the relevant documents presented. During the discussion of the matter the Court clarified major issues in the arguments the first being the, “duration of the post poll violence”, “election commission’s duty on law and order” and the “bias” of the three-member committee as pointed out by the counsel for the respondents.

The Court further relied on several Supreme Court judgments which they believed guided them in the present factual matrix of the case. Some of which are National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742, Rubabbuddin Sheikh v. State of Gujarat, (2010) 2 SCC 200 and  State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal, (2010) 3 SCC 571. The major development in this case came as the Director General of Police had directed the CID to take over the investigation. A writ petition was filed in this Court alleging therein that police administration was under the influence of the ruling party, which was trying to hide the incident. It was prayed that he investigation of the case be handed over to CBI and the Court had directed the same to be transferred to CBI.

The Court finally opined that the heinous crime such as murder and rape deserve to be investigated by an independent agency which in circumstances can only be Central Bureau of Investigation. It is for the reason that in number of cases, the State had failed to register the FIRs and opined the same to be not the cases of murder. In some cases, even after registration of FIR, the observation by the State is that these may result in ‘no case’. This shows pre-determined mind to take investigation into a particular direction. Under such circumstances investigation by independent agency will inspire confidence to all concerned.

To install faith of the people in rule of law and considering the extraordinary circumstances with which the State and the Court proposed to constitute a Special Investigation Team headed by Suman Bala Sahoo and Soumen Mitra and Ranveer Kumar, all IPS officers of West Bengal cadre, as the members and the their working shall be overviewed by a retired Hon’ble Judge of Hon’ble the Supreme Court, who shall be requested to take up the assignment after taking his/her consent.

The Court finally issued a set of directions:

• All the cases where, as per the report of the Committee, the allegations are about murder of a person and crime against women regarding rape/attempt to rape, shall be referred to CBI for investigation.
• As the core issue regarding the post-poll violence and the action required to be taken thereon has been resolved with the directions for proper investigation of cases by the CBI and the SIT as referred to above, the matters now shall be placed before the Division Bench for dealing with other issues in the report and further proceedings.
• The sealed cover (Annexure – I) submitted by the Committee along with its report, second autopsy report of Abhijit Sarkar, DNA analysis report as submitted by the Director Command Hospital, Kolkata and any other sealed cover pertaining to the case, lying with the Registrar General of this Court shall be handed over to the authorised officer of the CBI against proper receipt.
• Immediate action shall be taken by the State to pay compensation to the victims of crime as per the policy of the State, after due verification. It shall be direct bank transfer in their accounts
• CBI and the SIT to submit its status report in Court within six weeks.

The other judges of the Bench while concurring with the judgment penned by the Acting CJ. penned their separate briefings and observations in favour of the conclusions.[Anindya Sundar Das v. Union of India, WPA(P) 143 of 2021, pronounced on 19-08-2021]

Suchita Shukla, Editorial Assistant has reported this brief.