Big Setback To West Bengal State Government from Calcutta HC
In a major setback to the West Bengal State Government led by Chief Minister Mamata Banerjee, the Calcutta High Court in a learned, latest, laudable and landmark judgment titled Susmita Saha Dutta Vs The Union of India and Ors. and other connected matters in WPA(P) 142-149 and 167 of 2021 has outrightly rejected State Government’s argument that police can’t be held responsible for post-poll violence due to Election Commission of India’s (ECI’s) Model Code of Conduct. The Calcutta High Court made it clear that, “Constitutional obligations of the State do not get vested in the Election Commission during the process of elections.” It must be mentioned here that acting Chief Justice Rajesh Bindal delivered the lead judgment whereas Justice IP Mukerji, Justice Harish Tandon, Justice Soumen Sen and Justice Subrata Talukdar delivered separate but concurring judgments. Not a single Judge dissented which clearly implies that the State Government’s arguments failed to cut ice with any of the Judges who were hearing this case!
To start with, in the lead judgment authored by the Bench of Acting Chief Justice of Calcutta High Court – Rajesh Bindal first and foremost points out in para 1 that, “The extraordinary jurisdiction of this Court has been invoked by the residents of the State seeking to preserve the constitutional values and the democratic set up. Civil liberties and fundamental rights are sought to be protected. The preamble of our Constitution provides for India to be a sovereign, socialist, secular, democratic, republic securing to all its citizens’ liberty of thought, expression and political rights. The dignity of the individual, which is spoken of in the Preamble of the Constitution of India is a facet of Article 21, thereof (Ref. Joseph Shine Vs. Union of India, (2019) 3 SCC 39, Para 107).”
As we see, the Bench then puts forth in para 2 that, “The allegations in the petitions are that the people who supported the political parties other than the ruling party in the recently concluded Assembly Elections in the State (year 2021), have been made to suffer at the hands of the supporters/workers of the party, which came in power. The courts have a duty to adjudicate whenever violation of fundamental rights is alleged. The following discussions will make the position clear.”
SCHEDULE OF ELECTIONS
Needless to say, the Bench then states in para 3 that, “Elections to the State Assembly were conducted in eight phases, starting from March 27, 2021. Last date of polling was April 29, 2021. Result was declared on May 02, 2021.”
FACTS OF THE CASES:
WPA (P) 142 of 2021 filed on 04.05.2021
While elaborating on the facts of the case, it is then stated in para 4 that, “The present writ petition filed was first in the series, interalia, praying to combat the post-poll violence and take corrective as well preventive action. Direction was also sought to open Control Room so as to enable the victims to lodge their complaints online or over telephone. As an interim measure direction was sought to the respondents to help the post-poll violence victims. The result of the Assembly polls was declared on May 02, 2021. The present writ petition was filed immediately thereafter. It was mentioned in Court on May 04, 2021. It is alleged in the petition that till the date of filling of the petition there had been 14 victims of post poll violence. The victims were not even able to go to the police stations to lodge their complaints. Even though the incidents occurring across the State were well within the knowledge of the police but there had been no punitive or preventive action.
WPA (P) 143 of 2021 filed on 06.05.2021
The present petition was filed by different set of persons praying for a direction to the respondents to take immediate steps to stop ongoing post-poll violence. The prayer was also made for an independent and impartial investigation of the offences by constitution of a special investigation team. Direction was sought to the Union of India to deploy adequate central forces in the disturbed areas and to provide compensation to the families of the sufferers. The aforesaid petition was mentioned for immediate listing on May 06,2021to appear in the cause list on May 07, 2021. The petitioner in this petition claimed that he is a practising lawyer of this Court. It is alleged in the petition that the situation in the State post Assembly Elections is alarming. 11 persons have died in various incidents. Many had to leave their houses to save their lives. After the declaration of result, the activists of the ruling party ransacked and looted the houses of the supporters of the opposition parties and they were killed and assaulted. It is further pleaded that after the elections, same sort of violence always occurred in West Bengal. The State used to take steps to control the same but this time it was a mute spectator. Number of photographs as appeared in print media along with news of the victims have been annexed.
WPA (P) 144 of 2021 filed on 07.05.2021.
The present petition has been filed by an advocate practising in this Court in public interest raising the issue of post-poll violence. She had contested the election in the recently concluded State Assembly polls from Entally constituency. She also claimed herself to be a social-worker, who had been raising various social issues by filling public interest litigations. She sought to expose the cause of economically weaker sections, who were affected in the postpoll violence in her constituency. It is pleaded that at the instance of the goons belonging to the party in power, the houses of her supporters have been looted and vandalized. She had filed complaints to the police on May 03, 2021. However, no action was taken by the police. In fact, the complaints filed by her were sent by the police to the goons of the ruling party who in turn harassed the aggrieved persons. They were pressurised to withdraw the complaints. This establishes that the police is hand in glove with the ruling party goons. The prayer was made for a direction to the police to immediately take action and stop the atrocities. Time-bound investigation be made of the offences already committed. Number of photographs of the persons affected were also annexed.
WPA (P) 145 of 2021 filed on 10.05.2021
The present petition, again filed in public interest, raises 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. It is alleged that properties of number of them were even set on fire. The Office of the Akhil Bharatiya Vidya Parishad was set on fire on May 04, 2021 and the persons present there were assaulted. In the past few days, murder, assault, rape, ransack and vandalism of houses of the workers of the main opposition party had become common in the State. List of nine persons, who were murdered in different areas immediately after the elections, was given. Despite wide reporting of the post-poll violence the State agencies are collectively keeping silence, hence, failing to discharge their constitutional duty. The victims were not even allowed to lodge their complaints as they were threatened with implication in false cases in case they dare to lodge complaints. Even women and children were not spared. The prayer has been made that the respondents herein be directed to submit the details of the FIR registered, arrest made and the steps taken to control the violence. The prayer has also been made for independent and impartial investigation by constituting a Special Investigation Team. Direction was sought to the official respondents to deploy Central and State forces to enforce law and order. The petitioner also sought protection as he apprehended threat to his life having espoused the cause of the affected persons.
WPA (P) 146 of 2021 filed on 10.05.2021
In another petition filed in public interest raising similar issues, the facts narrated are that assembly polls were held in the State of West Bengal in eight phases starting from March 27, 2021 and the last date of poling being April 29, 2021. On May 02, 2021, the result was declared. The Trinamul Congress was the winning party. The main opposition party was Bharatiya Janata Party. Immediately thereafter, the violence broke. The houses and vehicles of the workers of the opposition parties were attacked and ransacked. Their party offices were set ablaze. Number of persons were killed, beaten up and even sexually assaulted. Number of photographs as appeared in the print media were annexed. Prayer was made 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. Number of photographs of the affected persons were annexed.
WPA (P) 147 of 2021 filed on 10.05.2021
Another petition was filed in the series of petitions raising hue and cry on behalf of the persons who are sufferers in the post poll violence. The petitioner claimed that there were number of murders and damage to the property of the workers of the losing political parties. Besides annexing photographs of the workers, whose house were damaged and who were caused grievous injuries including the weaker sex, the petitioner has also annexed a compact disk containing videos of such violence as collected from various social and digital media. No action was taken by the ruling party or its leaders either to condemn or take corrective steps. Prayer was made to secure life and property of the affected persons, proper judicial investigation of the incidents of political violence. The persons, who had been displaced on account of threat to their life and property, be restored to their own houses.
Resultantly, it is then envisaged in para 80 that, “In our opinion, 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. Only the cases which have been mentioned in the report of the Committee pertaining to murder and rape shall be referred to CBI. We have chosen this option because as the from the facts of the cases, which have been briefly discussed above, these fall in the category of rare cases and the reasons for which this large scale violence has occurred in State.”
WPA (P) 148 of 2021 filed on 12.05.2021
In yet another petition filed, similar issues were sought to be raised. In addition, it is pleaded that on account of post-poll violence, thousands of residents of the State living close to the neighbouring State of Assam had to migrate to that State. Their houses and business establishments were damaged. Some of them were raised to the ground. The news was termed to be fake by the party in power. National Commission for Women expressed shock over gang rapes at various places in the State. It was further pleaded that the intent to unleash the violence was to create a fear factor in the mind of the residents of the State, not to spare any other party except one in power. As a result the democratic setup in the state itself is in danger. The State authorities have failed to discharge their duty despite intimation. As the State machinery had kept its eyes closed to the large scale violence after the assembly polls, it cannot be trusted for carrying out investigation. The same need to be handed over to some independent agency. Further grievance raised was that the police is not registering the complaints. The prayer was for calling upon the official respondents to show cause as to why they failed to register the complaints. It is pleaded that about 80,000 persons had to migrate from the state to the neighbouring state of Assam because of post poll violence. Steps be taken to reinstate the victims to their native places. Prosecution of the persons involved in the offence, deployment of Central Forces for restoration of law and order in the State, payment of adequate compensation to the victims and the investigation by some independent central agency, are the other reliefs claimed.
WPA(P) 149 of 2021 filed on 12.05.2021
The present petition was being filed by the widow of a person, who was murdered on May 03, 2021 in post-poll violence. Though other petitioners have also joined along with her. The allegations are similar in nature. It states that about 20 persons have died in post-poll violence. Many of the victims are not even in a position to reach out to the Courts or lodge complaints with the police. On May 03, 2021, late husband of the petitioner No. 1 was working in field when some workers of the party in power threw bombs targeting her husband with a view to kill him as he was a worker of the Indian Secular Front. He died on way to hospital. Number of examples were given, where houses of the workers of different political parties than the party in power were attacked, ransacked, damaged and looted. The pleadings in the case do not pertain only to the main opposition party. Names of the persons who had attacked the victims or damaged their properties have specifically been mentioned in the petition. It further pleads that the Chief Minister had declared compensation for the victims of political violence. However, no such scheme had been published and nothing has been paid. Investigation be got conducted by constituting a Special Investigation Team. The victims should be compensated. The prayer was made for independent investigation of the crime after registration of the FIRs. Police reinforcement in the affected areas and rehabilitation of the affected victims were also prayed for.
WPA (P) 167 of 2021 filed on 03.06.2021
Yet another petition has been filed by none else than a candidate who contested the recently concluded State Assembly election from Beliaghata Constituency with Bharatiya Janata Party ticket and a practicing advocate in Alipore District Court. He also sought to espouse the cause of the persons who were made to suffer in post-poll violence. He pleaded that all his supporters who are mostly belonging to economically and socially weaker sections of the society were terrorised and traumatised. On the day the counting was taking place, he along with some of his supporters had gone to the Netaji Indore Stadium. 10 to 15 motorcycles of his supporters were parked in front of his house. Before he could return, after the result was declared, the goons of the party in power gathered in front of the house of the petitioner and started abusing. They were involved in stone pelting as well. Though the petitioner was not present, however, his family members were there. At around 03:00 P.M., they broke the CCTV camera, threw bombs in front of his house and started damaging the bikes of his supporters, which were parked outside his house. One of these was set ablaze. As a result, even the petitioner’s house also caught fire. Photographs have been annexed. The petitioner called the Beliaghata Police Station but with no response. The petitioner had to take shelter at some other place to save his life. Similarly in the same fashion, the houses and properties of his other supporters were also damaged and looted. The goons were carrying the banners and flags of the party in power. 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.”
Most damningly, the Bench after listening to all the sides minced just no words to state it quite upfront in para 79 that, “In the case in hand, the facts, as have been discussed in the preceding paragraphs are even more glaring as the incidents are not isolated to one place in the State. Rather the violence which erupted after polls and declaration of results was state-wide. Number of persons had died. The women were raped. The house of certain persons who had not supported the party in power were demolished. Their other properties were damaged. Their belongings were looted including the chattels. Allegations are also that the complainants are being threatened to withdraw their cases. Number of cases of murder are sought to be claimed as natural death without recording FIRs and the investigations of cases as per procedure established by law. Number of persons are alleging that they were forced to leave their houses and villages and had not been able to come back because of threat. Social boycott and closure of their business establishments are the other allegations. The matters are pending in this Court and are being taken up on regular basis but still in spite of the fact that three months have lapsed no concrete action has been taken by the State, which could inspire confidence except filing affidavits and placing on record thousands of papers. In number of cases pertaining to murder, rape and other crime against women, the cases are sought to be closed without registration of FIRs or no response given to the committee. Apparently to favour the accused, FIRs have not been registered under proper provisions of law. Accused in number of FIRs have been named as workers/supporters of ruling party in the State. The allegations of the petitioners are that in registration of cases and investigation thereof of the police is slow as main allegations are against the supporters and workers of the ruling party. In number of cases FIRs were registered only after the committee pointed out those. There are some FIRs registered against the supporters/workers of political parties not in power. These are claimed by them as false cross cases. Even they will not be able to allege bias against the State if investigation of their cases is also held by an independent agency or monitored by SIT. It should and will inspire confidence of the people in rule of law. The allegation is of police inaction. Report submitted by the Committee throws some light on this and the police having not properly responded to all the issues raised and trying to downplay the same, it certainly needs investigation by an independent agency. Even comparison of data pertaining to crime during previous corresponding period will also not come to the rescue of the State as the pattern of the crime can change and the period thereof. Further there are definite and proved allegations that complaints filed by the victims of post poll violence were not registered. Such types of incidents, even if isolated are not good for healthy democracy.”
Adding more to it, it is then stated in para 81 that, “As far as other cases are concerned, there are allegations that the police had not registered number of cases initially and some were registered only after the Court had intervened or the Committee was constituted. These allegations were found to be true on the basis of the material placed on record. A number of FIRs were registered by the State suo-moto after the Court had intervened. In some the allegations pertained to the incidents which had taken place immediately after the result of the State Assembly Elections was declared whereas, in some, FIRs were registered belatedly for the incidents which had taken place about a month ago. The petitioners apprehend that seeing the conduct of the police, there may not be fair investigation. To install faith of the people in rule of law and considering the extraordinary circumstances with which the State and the Court is faced with, we propose 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 thereof. The working of the SIT 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. He will be required to only review the working of the SIT and ensure that it is moving on a right track. Any report(s), pleadings or applications shall be filed in court only by and under the signatures of the Head of SIT. The idea being to inspire confidence regarding the independence of system being followed for investigation of cases.”
Finally and far most significantly, it is then held in para 82 that, “In view of our aforesaid discussions, we direct as follows:
(i) 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. The Committee, NHRC, any other Commission or Authority and the State shall immediately hand over entire record of the cases entrusted to the CBI for investigation. It is made clear that it shall be the Court monitored investigation. Any obstruction in the course of investigation by anyone shall be viewed seriously.
(ii) For other cases, as have been referred to in the report of the Committee, Special Investigation Team is constituted for monitoring the investigation. The team shall be headed by Suman Bala Sahoo, and Soumen Mitra and Ranveer Kumar, all IPS officers of the West Bengal cadre, shall be its members The SIT shall be entitled to take assistance of any other officer/police officer or any institution or agency for carrying out fair investigation of the cases. It is made clear that it shall be Court monitored investigation. The State shall spare their services for the purpose, as and when required and shall not take any adverse action against them without specific permission of the Court. The working of the SIT shall be overviewed by a retired Hon’ble Judge of Hon’ble the Supreme Court, for which separate order shall be passed after taking his/her consent. His/her terms of appointment shall be decided later on.
(iii) Notice issued to Rashid Munir Khan, Deputy Commissioner of Police, South Suburban Division, Kolkata vide order dated July 13, 2021, to show-cause as to why proceedings for contempt be not initiated against him, shall be dealt with later.
(iv) 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.
(v) The application bearing CAN No 4/2021 in WPA(P) 142 of 2021 filed by the Partha Bhowmick and Jyotipriya Mallick for impleading as parties to the proceedings, is rejected as they are neither necessary nor proper parties to the proceedings for the issues being dealt with by this Court.
(vi) 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. Any documents/material therein, which is not relevant to the cases to be investigated by the CBI shall be handed over by it to the head of the SIT.
(vii) 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. The same will not debar them to claim further compensation under any law or scheme of the Government, for which the victims shall be at liberty to avail of their appropriate remedies.
(viii) We direct the CBI and the SIT to submit its status report in Court within six weeks from today.
(ix) The CBI or the officer heading the SIT shall be entitled to file application for any further direction to enable them to carry out investigation expeditiously and in a fair manner. Such an application shall be listed before the Division Bench, as per roaster.
(x) All the authorities in the State or any other agency, if requested, are directed to cooperate with the CBI and the SIT in conducting fair investigation of cases.
(xi) It is further directed that in case CBI or SIT finds any case to be not related to post poll violence, the same shall be transferred to the officer incharge of the concerned police station for further proceedings. Entire record pertaining to the same shall be handed over to the concerned officer against proper receipt.
(xii) It is made clear that any observation made in this order is only for the limited purpose of deciding the issue whether investigation is to be handed over to CBI and Special Investigation Team. Nothing observed shall be construed as an expression of opinion on the merits of the cases.”
As an aside, it is then stated in para 83 that, “Adjourned to October 04, 2021. To be placed before the Division Bench, as per roster.”
It goes without saying that this leading judgment is a damning indictment of the callous manner in which the law and order situation is handled ineptly by the state police. All the five Judges of Calcutta High Court have expressed their fuming resentment over the manner in which post-poll violence broke out and the way in which it was handled by the state police. Justice IP Mukerji in his separate but concurring judgment too minces no words to state in para 97 that, “What is very serious is that the state has not responded to the alleged offences of murder and rape tabulated as referred to in the judgment of the Hon’ble the Chief Justice (Acting). The offences are grievous, serious and heinous. It may be as a result of post poll violence. It may well be in the usual course of affairs. The fact remains that each of these offences needs serious investigation. That is the expectation of the people of this state. If this expectation is fulfilled, their faith in the rule of law and in the justice delivery system will be maintained and enhanced. Allegations have been made against the state alleging apathy towards investigation of these crimes. To dispel any doubt in the mind of the general people regarding fairness of the state machinery, the CBI should be entrusted with investigation of those specified offences regarding murder and rape under the supervision of the court. In this type of cases, it does not matter, in my opinion, which agency makes the investigation, the state or the CBI. If the offence is established, the wrong doers have to be brought to justice. Only then will the entire system be seen as fair, just and transparent by the ordinary people.”
Not a single Judge out of the five Judges who delivered this leading judgment has dissented which clearly speaks for itself! It is high time and West Bengal State Government led by CM Mamata Banerjee must accept this historic verdict with humility and act accordingly as directed. Of course, CBI and SIT must also pull up their socks and act promptly so that the truth comes out!