CASE BRIEF: PROTIMA DUTTA V. STATE OF WEST BENGAL, 2022 SCC OnLine Cal 1459

CASE NAME	Protima Dutta v. State of W.B., 2022 SCC OnLine Cal 1459
CITATION	W.P.A. No. 12526 of 2012 With CAN 9 of 2021 With CAN 10 of 2022
COURT	Calcutta High Court
BENCH	Hon’ble Justice Rajasekhar Mantha
PETITIONER	Protima Dutta
RESPONDENTS	State of West Bengal
DECIDED ON	Decided on 9th June 2022

INTRODUCTION

Numerous crimes committed by one or more people are covered by the Indian Penal Code; some people may be the offenders, while others may only be providing assistance. Under the Indian Penal Code (IPC), provocation, encouragement, or assistance to another person is considered abetment and is punishable by law. The Indian Penal Code, 1860’s Chapter V discusses abetment, and the legislation is rather explicit in this respect. The defence of absence of actus reus cannot be used by an accomplice or leader of the crime to avoid punishment. When delving into the topic of abetment, it is imperative to grasp the significant ramifications and legal repercussions connected to this offense. In Protima Dutta v. State of West Bengal (2015), the petitioner committed suicide as a result of her mother-in-law’s and husband’s heartless treatment of her. Even though there was no clear incitement to commit suicide as a result of her family’s improper treatment, the Supreme Court ruled in favor of the petitioner.

FACTS OF THE CASE

The petitioner’s husband, Tapan Dutta, a well-known member of the ruling “Trinamool Congress,” began protesting the unlawful filling of water bodies in the Bally-Jagacha area of the Howrah district. In an effort to mobilize others, he also established the “Bally Jagacha Jalabhumi Bachao Committee.” Anmol South City Ltd., a joint venture between the State Government and a number of private individuals, including the Anmol Group of Companies and one Maa Tara Developers, was filling up the aforementioned water bodies. The landfill was being constructed as part of the Howrah district’s intended industrial park development at Mouja Jagadishpur and Joypur. The petitioner was a local panchayat member and an advocate of the aforementioned ruling party. On May 6, 2011, around 9:45 p.m., the aforementioned Tapan Dutta was shot and killed as he rode a motorcycle back to his residence. That same day, the Bally Police Station in Howrah filed FIR No. 205 of 2011 in accordance with Sections 302/34/120B of the IPC and Sections 27 and 35 of the Arms Act. A written complaint was also filed by one Bablu Prasad, the pillion rider on the motorcycle that the deceased was shot and killed, on that same day, May 6, 2011, at approximately 23:25.

ISSUES RAISED

Whether a Division Bench of the High Court, while considering an appeal from an order of acquittal, orders a retrial after applying Section 311 of the Cr.PC?
Whether the High Court, under Article 226, can transfer the investigation from the State Police to the Central Bureau of Investigation (CBI) and also order a change of prosecutor?

ARGUMENTS FROM BOTH SIDES

Arguments on the behalf of petitioner

Equal rights to a fair trial are granted to the accused as well as the victim. Without such a fair trial, even a victim’s fundamental rights would be violated. A fair trial’s foundation and prerequisite is a fair inquiry. A crucial requirement is the victim’s satisfaction and confidence, as well as the public’s confidence in the investigation and prosecution.
Additionally, it is asserted that the petitioner did not file a protest motion under Section 156(3) against the charge sheet, as mandated by the ruling in Sakiri Vasu v. State of UP. Nonetheless, the aforementioned rulings would not be applicable because the writ petition’s prayer is for a transfer to the CBI and a change in the investigating agency—neither of which are under the magistrate’s jurisdiction.
Since this writ petition’s hearing has been postponed, the Division Bench has not addressed the question of changing the investigative agency. Before the “State” accused Sasti Gayen intervened, the Division Bench took up and considered this writ petition on a few occasions. Furthermore, it is argued that the petitioner was not deprive of her right to make such a plea because she submitted the request for a change of investigative agency well in advance of the trial’s start and the court did not have enough time to consider it. The petitioner’s concerns about the investigation and the Division Bench’s rulings support their assertion.
Mr. Bhattacharya further argues that the accused and the State cannot contest the maintainability of the WP by using the Division Bench’s decision against this Court, given that they requested that the Writ be decided by a single judge.

Arguments on the behalf of respondent

Mr. Debashis Rai, a senior attorney for the accused parties, would contend that the petitioner for the writ did not file a formal complaint even after learning of her husband’s murder. She was also barred from requesting a change in the investigation agency at this time since she had not objected to the Charge Sheet or the Supplementary Charge Sheets that the investigating agency had submitted to the magistrate in accordance with Section 173(8) of the Cr.PC.
Additionally, it is stated that even in the event that a new trial is mandated, the Investigation cannot be moved to any other body once the trial is over. It is argued that even in the absence of a change in investigation agency, the trial has already started after the accusations were filed.
Additionally, it is contended that the Sessions Court has the authority under Sections 311 and 319 of the Cr.PC to require the production of any evidence, to convict any individual, and to order a retrial in part with a directive to invoke Section 311 of the Cr.PC. Therefore, additional inquiry is not even necessary in the absence of this, much less a change in the investigating and/or prosecuting agency.
There is also the argument that the Supreme Court issued a stay in the Pooja Pal case while deliberating on a request to transfer the investigating agency. In the current case, the petitioner has not been granted any such stay. The petitioner filed and then withdrew an interim stay application.
Next, it is contended that just because the Supreme Court has done so does not give the High Courts the authority to alter investigating agencies.
It is contended that the petitioner was given the chance to apply under Section 200 of the Cr.PC. against the Charge sheet and two supplementary charge sheets filed, among other ways, in order to utilize the powers of the Magistrate under 156(3) and 173(8) of the Cr.PC., but the petitioner declined to do so. She is not allowed to look into this anymore, especially after the trial is over.

JUDGMENT

The Court noted that there is still a possibility in this Court’s mind that the murder in question was the product of rivalry and conspiracy. It’s possible that the victim was impeding someone else’s attempts to obtain significant financial and/or political advantage. These people have connections and are powerful in politics. It’s possible that a thorough and impartial inquiry will reveal hidden motives or reveal the possible involvement of powerful individuals. Therefore, it is impossible to completely rule out the pressure on the State police and the investigative agencies to protect particular individuals and their malicious activities. The Central Bureau of Investigation will take over the investigation and prosecution of the case as authorized by the court.

CONCLUSION

Since the constitutional courts have the authority to order new, de novo, or reinvestigations, the start of a trial and the questioning of some witnesses cannot completely prevent the exercise of this power, which is intended to guarantee a just and fair investigation. It is impossible to forget that justice has a single flavor—that of providing impartial answers to people in need—just as the vast ocean has only one test, the test of salt. We should not wait to add that the democratic system could be destroyed if a citizen believes that a poor man’s words of truth are rarely taken seriously. It’s not for nothing that the sun rises and sets, the light and dark, the winter and spring arrive and pass, and even time itself is fickle; truth, on the other hand, endures and shines when justice is served. A court of law has a duty to protect the truth, which in this case includes no deception, no fraud, and, in the case of a criminal inquiry, a real, impartial probe rather than one that turns out to be a farce. That isn’t appropriate. The need of conducting an unbiased and truthful investigation must never be forgotten.

A court of law cannot be expected to do more than preside over a formal ceremony that foreshadows an unavoidable conclusion and signals a mockery of justice. Rather, it must actively participate in the search for justice and the truth. Then, mission justice, which the public has so hopefully and respectfully given to the judiciary, would be reduced to a playful illusion, and the public would begin to question the very existence of a sovereign and prime constitutional institution. This would undoubtedly be a cost the judiciary cannot, under any circumstances, afford to pay given its primary role.