6 April 2023 5:46 AM GMT
While transferring probe in a corruption case against IPS Officer Somenath Bhattacharyya from Barrackpore Commissionerate to the CID, the Calcutta High Court has ordered action against two senior officers of the Detective department for alleged custodial torture of a co-accused. The court also granted bail to the co-accused Kaustav Das after the State admitted that he "may have been tortured...
While transferring probe in a corruption case against IPS Officer Somenath Bhattacharyya from Barrackpore Commissionerate to the CID, the Calcutta High Court has ordered action against two senior officers of the Detective department for alleged custodial torture of a co-accused. The court also granted bail to the co-accused Kaustav Das after the State admitted that he "may have been tortured in course of police custody."
"The CID, West Bengal shall consider registering FIR against the respondent nos. 4 and 5 and the Medical Officer of Jagadish Chandra Bose General Hospital who signed the fitness certificate of Kaustav Das on March 21, 2023," Justice Rajasekhar Mantha said
The court also said the criminal proceedings shall not in any way, prevent the Commissioner of Police, Barrackpore from initiating departmental proceedings against any of the erring officials.
In 2021, a case was registered against Bhattacharyya. The co-accused Kaustav was arrested last month by the officials of the detective department last month. Kaustav's wife Priyanka filed a petition in the court alleging that her husband has been tortured in custody. While the fitness certificate issued by the hospital said there were no external injuries on his body and he is clinically fit, the ACJM, however, noticed several bruise marks on his body. The magistrate therefore declined police custody and Kaustav was remanded to judicial custody.
Advocate Moyukh Mukherjee, representing the petitioner, argued before the high court that custodial violence against her husband was in violation of the guidelines in Shri Dilip K. Basu Vs. State of West Bengal and Ors. It was also argued that the investigation itself has been compromised and the petitioner’s husband is entitled to be enlarged on bail immediately.
In the petition, it was also alleged that the investigating officer chose not to arrest Bhattacharyya and taking advantage of the same, he surrendered before the jurisdictional magistrate in February and secured bail.
Main Accused Not Arrested
Justice Mantha said the court is surprised why the main accused Bhattacharyya has not been arrested despite seizure of incriminating material including a large number of documents relating to a promise of securing jobs at the Kolkata Municipal Corporation.
The State said the principal accused has wholly and completely co-operated with the investigation. "Additional sections of the IPC and the Prevention of Corruption Act have also been added and a fair investigation is being undertaken. The need for arrest and detention of the ACP in custody was not felt," the counsel representing the State said.
On the question of transfer of investigation from the police under the Barrackpore Commissionerate, the State counsel argued that "given the sincerity of the present Investigating Officer and the dispassionate investigation undertaken, the investigation need not be transferred."
Observing that it is conscious about the principle of law in vogue that transfer of investigation to another agency is not ordered in a proceeding by an accused person, the court said the principal accused an IPS Officer of the rank of an Assistant Commissioner of Police.
"The faith of the public at large and visible transparency of the investigation must be borne in mind. The investigation must not only be done fairly and comprehensively but must also be seen so done. The Barrackpore police should not be seen investigating into the impropriety of one of their own senior officers," said the court.
The court said in the light of the decisions of the Supreme Court on the issue of investigation into improprieties by police officers, it is of the view that the probe into the subject FIR must be transferred to the CID, West Bengal.
"The Barrackpore Police Commssionerate shall ensure that all case papers, evidence and the case diary is transferred to the CID, West Bengal immediately. The Commissioner shall extend full and complete cooperation to the CID," said the court.
Bail Granted To Co-Accused
While State counsel admitted that the petitioner’s husband may have been tortured in course of police custody, the court said the seizure list of articles from the petitioner’s husband indicate passbooks and documents of his identity.
"In writing samples of about 75 persons have also been collected. The same by itself, cannot at this stage justify the further detention of the petitioner’s husband Kaustav Das," it added.
While passing the order granting bail, the bench said:
"This Court’s mind is also not free from doubt that the evidence against Kaustav Das or any statements made by him would be questionable in the backdrop of the physical torture inflicted upon him in custody"
The court also said the CID, West Bengal shall consider and assess the threat perception to the petitioner as expressed by the counsel and take appropriate steps in this regard.
The court directed the CID, West Bengal to conclude the investigation as expeditiously as possible, preferably within a period of two months from the date of receipt of the case diary.
"It is expected that a sufficiently senior and experienced officer is nominated by the CID, West Bengal to conduct the investigation," said the court.
Case Title: Priyanka Das vs. State of West Bengal WPA 7796 of 2023
Citation: 2023 LiveLaw (Cal) 93
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