Custodial death of prime accused in Bagtui carnage: Calcutta High Court dismisses plea seeking appointment of sitting judge under Inquiry Act

The Calcutta High Court dismissed a Public Interest Litigation (PIL) filed with a prayer to appoint a sitting Judge of the High Court under the Commissions of Inquiry Act, 1952 to inquire into the incident of unnatural death of Bara Lalan Sk, prime accused in the March 22 Bogtui carnage.

The plea contended that on March 22 at village Bogtui on the outskirts of Rampurhat, Birbhum, an incident of arson and bomb blast had taken place. The High Court, in ‘The Court on its own Motion, In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum,’ had handed over the investigation to CBI by the order dated March 25, 2022.

Bara Lalan Sk, prime accused of the Bogtui incident, arrested by CBI, suffered unnatural death on the night of December 12, while he was in CBI custody. Hence, the PIL has been filed with several prayers.    

While considering the PIL , the Division Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj  observed that  the main thrust of argument of the  counsel for the petitioner is to appoint a sitting Judge of the High Court to inquire into the incident of unnatural death of Bara Lalan Sk. under the Commissions of Inquiry Act, 1952 . 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.

The 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 regular judicial work and that in view of the mounting arrear of cases in superior courts, it would be difficult to lend services of Judges for such Commission work. It is also observed that the report of Commission of Inquiry often has only recommendatory value which are often ignored and not followed. It has been clearly expressed in that judgment that appointment of a sitting Judge as a Commission of Inquiry has to be made only on rare occasions, if it becomes necessary for paramount national interest of the Country. Present is not such a case.   

So far as judgment in the case of State of Karnataka vs. Union of India and Another reported in (1977) 4 SCC 608 relied upon by Counsel for the petitioner is concerned, the High Court observed that  stands on a different footing because in that case, appointment of Commission of Inquiry by the Central Government against the Chief Minister of a State was subject matter of challenge in a suit questioning the power of the Central Government in this regard.

The Division Bench of the High Court in the matter of In re: The Court on its own Motion passed in WP 9313 (W) of 2019 relied upon by the counsel for the petitioner also stands on different footing as in that case, in suo motu exercise of power, the High Court had appointed a retired Judge as one member Judicial Inquiry Commission to ascertain the facts relating to untoward incident which occurred in the premises of Howrah District Sadar Complex on 24th of April, 2019.    

The High Court further noted that the CBI has filed a Petition  before the Single Judge with the prayer to transfer the investigation in FIR dated 13th of December, 2022 to any independent investigating agency or body over which the State of West Bengal exercises no control. The Single Judge in that petition has passed the order dated 14th of December, 2022 permitting the CID to continue with the investigation until further orders providing the safeguards in that order and further restraining the investigating agency from taking any coercive measure against the officers of the CBI including officers investigating the cattle smuggling case until further order. Learned Single Judge has also directed that no final report will be filed by the investigating agency without the leave of the Court.    

Hence, CBI has full opportunity to raise all the relevant issues before the  Single Judge in the pending petition wherein the issue relating to transfer of investigation to the independent agency will be gone into. In the present petition, there is no prayer to transfer the investigation to some other investigating agency.   

That apart, it has also been noted by the High Court that NHRC (National Human Rights Commission) has registered a case on the complaint regarding Lalan Sk. Incident. Under Sections 12 to 15 of the Protection of Human Rights Act, 1993, NHRC has adequate powers to make inquiry and investigation.   

In the aforesaid circumstances of the case, the Court  opined that no case is made out to allow the prayer to appoint a sitting Judge of the High Court as the Inquiry Commission under the Commissions of Inquiry Act, 1952. 

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