# 3 S.C.R. 597 ASHOK KUMAR TOOi v. KISHWAR JAHAN & ORS

- **Citation:** [2011] 3 S.C.R. 597
- **Court:** Supreme Court of India
- **Decided:** 2011-03-01
- **Case number:** Criminal Appeal No. 602 of 2011
- **Bench:** P. Sathasivam, Dr. B. S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/3-s-c-r-597-ashok-kumar-tooi-v-kishwar-jahan-ors-27472
- **Pages:** 35

## Headnote

Penal Code, 1860 - ss. 120-B read with ss. 306 and 506
A
B
- Inter-religious marriage - Unnatural death of husband -
Investigation by the State Criminal Investigation Department C
(CID) - Writ petition by the mother and the brother of the
deceased seeking transfer of investigation from CID to CBI
on ground of alleged nexus between the police and father-in-
/aw of deceased- Single Judge of the High Court appointing
CBI to enquire into the unnatural death of the husband and o
giving liberty to the CBI to proceed in accordance with/aw for_
filing charge-sheet before the competent court u/s. 173(2)
Cr.P.C. and to make further investigation if necessary before
it actually files the charge-sheet - Division Bench setting
aside the order of the Single Judge, directing the CBI to start E
investigation afresh by treating the complaint of the
deceased's brother as FIR and register a case of murder -
Held: Order passed by the Division Bench not sustainable -
When the Single Judge on satisfying himself based on the
materials, particularly, the conduct of the State Police and the
F
apprehension of the mother and brother of the deceased
about getting fair justice at the hands of the State CID directed
investigation by the CBI, t.here cannot be any parallel
investigation by the State CID - Also merely because no
injunction was passed against the CID from continuing with G
the investigation in the matter or no order was passed
directing the CID to handover all the papers relating to
investigation conducted by them to the CBI, does not mean
that CID was free to continue with their investigation - It cannot
597
H
598
SUPREME COURT REPORTS
(2011] 3 S.C.R.
A be said that CBI was appointed as 'Special Officer' to
investigate - CBI was justified in recording FIR in terms of the
order passed by the Single Judge - Once an FIR had been
registered lawfully and investigation had been conducted
leading to filing of charge sheet before the competent court
B of law for the trial of accused persons, absolutely, there was
no justifiable reason for the Division Bench to direct reregistration of the same by lodging another FIR after three
years - Fresh investigation into the same a/legation would be
a futile exercise and would serve no purpose, more
C particularly, when there is no adverse comment on the
investigation carried out by the CBI - Thus, order passed by
the Single Judge of the High Court is sustainable and that of
the Division Bench is set aside - Code of Criminal Procedure,
1973 - s. 173(2).
D
Social justice: Inter-caste or inter-religious marriage -
Duty of the administration/police authorities - Held: Is to see
that if any boy or girl who is major undergoes inter-caste or
inter-religious marriage, their marital life should not be
disturbed or harassed - If anyone gives such threat or
E commits acts of violence or instigates, it is the responsibility
of the officers concerned to take stern action against such
persons as provided by law - On facts, the Single Judge of
the High Court rightly held that the police officials were not .
justified in inte,1ering with the married life of the parties.
F
According to the prosecution, 'RZ' fell in love with
'P', the daughter of the appellant. The parties were major
and they got married under the Special Marriage Act, 1954
on their own will. The marriage was duly registered
G before the notified authority. Thereafter, 'P' left her
father's house and started living in her husband's house
within the jurisdiction of Police Station at place 'K'. She
informed her father about their marriage and also
informed the police officials of the Police Station at place
H
ASHOK KUMAR TODI v. KISHWAR JAHAN & ORS. 599
'K' and the Police Station at place 'B'. The brother of the
A
appellant filed a complaint in police station at place 'K'
alleging that 'P' was taken away by the deceased by
deceitful means with intent to marry her. 'P' and 'RZ' were
summoned. The custody of 'P' was handed over to her
maternal uncle with condition

## Text

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[2011) 3 S.C.R. 597
ASHOK KUMAR TOOi
V.
KISHWAR JAHAN & ORS.
(Criminal Appeal No. 602 of 2011)
MARCH 01, 2011
[P. SATHASIVAM AND DR. B. S. CHAUHAN, JJ.]
Penal Code, 1860 - ss. 120-B read with ss. 306 and 506
A
B
- Inter-religious marriage - Unnatural death of husband -
Investigation by the State Criminal Investigation Department C
(CID) - Writ petition by the mother and the brother of the
deceased seeking transfer of investigation from CID to CBI
on ground of alleged nexus between the police and father-in-
/aw of deceased- Single Judge of the High Court appointing
CBI to enquire into the unnatural death of the husband and o
giving liberty to the CBI to proceed in accordance with/aw for_
filing charge-sheet before the competent court u/s. 173(2)
Cr.P.C. and to make further investigation if necessary before
it actually files the charge-sheet - Division Bench setting
aside the order of the Single Judge, directing the CBI to start E
investigation afresh by treating the complaint of the
deceased's brother as FIR and register a case of murder -
Held: Order passed by the Division Bench not sustainable -
When the Single Judge on satisfying himself based on the
materials, particularly, the conduct of the State Police and the
F
apprehension of the mother and brother of the deceased
about getting fair justice at the hands of the State CID directed
investigation by the CBI, t.here cannot be any parallel
investigation by the State CID - Also merely because no
injunction was passed against the CID from continuing with G
the investigation in the matter or no order was passed
directing the CID to handover all the papers relating to
investigation conducted by them to the CBI, does not mean
that CID was free to continue with their investigation - It cannot
597
H
598
SUPREME COURT REPORTS
(2011] 3 S.C.R.
A be said that CBI was appointed as 'Special Officer' to
investigate - CBI was justified in recording FIR in terms of the
order passed by the Single Judge - Once an FIR had been
registered lawfully and investigation had been conducted
leading to filing of charge sheet before the competent court
B of law for the trial of accused persons, absolutely, there was
no justifiable reason for the Division Bench to direct reregistration of the same by lodging another FIR after three
years - Fresh investigation into the same a/legation would be
a futile exercise and would serve no purpose, more
C particularly, when there is no adverse comment on the
investigation carried out by the CBI - Thus, order passed by
the Single Judge of the High Court is sustainable and that of
the Division Bench is set aside - Code of Criminal Procedure,
1973 - s. 173(2).
D
Social justice: Inter-caste or inter-religious marriage -
Duty of the administration/police authorities - Held: Is to see
that if any boy or girl who is major undergoes inter-caste or
inter-religious marriage, their marital life should not be
disturbed or harassed - If anyone gives such threat or
E commits acts of violence or instigates, it is the responsibility
of the officers concerned to take stern action against such
persons as provided by law - On facts, the Single Judge of
the High Court rightly held that the police officials were not .
justified in inte,1ering with the married life of the parties.
F
According to the prosecution, 'RZ' fell in love with
'P', the daughter of the appellant. The parties were major
and they got married under the Special Marriage Act, 1954
on their own will. The marriage was duly registered
G before the notified authority. Thereafter, 'P' left her
father's house and started living in her husband's house
within the jurisdiction of Police Station at place 'K'. She
informed her father about their marriage and also
informed the police officials of the Police Station at place
H
ASHOK KUMAR TODI v. KISHWAR JAHAN & ORS. 599
'K' and the Police Station at place 'B'. The brother of the
A
appellant filed a complaint in police station at place 'K'
alleging that 'P' was taken away by the deceased by
deceitful means with intent to marry her. 'P' and 'RZ' were
summoned. The custody of 'P' was handed over to her
maternal uncle with condition that she would return to her
8
husband after one week. Thereafter, the dead body of
'RZ' was found on the railway tracks between 'D' and 'B'
Road Stations with injuries and his head smashed. 'RK'·
brother of the deceased filed a complaint with the police
station at place 'K' against the appellant. The case was C
taken over by the State Criminal Investigation
Department. The CID carried out the investigation. The
mother and the brother of the deceased filed a writ
petition seeking transfer of the case from CID to CBI since
they were doubtful about fair investigation under CID. The
0
Single Judge of the High Court passed an interim order
dated 16.10.2007 directing the CBI to investigate into the
cause of the death of the deceased and to file a report in
a sealed cover before the Court within two months. In
terms thereof, CBI registered an FIR on 19.10.2007 u/s.
120-B read with ss. 306 and 506 IPC. Thereafter, CBI filed
E
a report and sought permission to file charge sheet
against the appellant, his brother and other relatives u/s.
120-B read with ss. 306 and 506 IPC. The Single Judge
passed a final order granting liberty to proceed in
accordance with law for filing charge sheet before a
F
competent court u/s. 173(2) Cr.P.C. and also granted
liberty to conduct further investigation if necessary,
before it actually files the charge sheet. Pursuant thereto,
CBI continued with the investigation and filed a charge
sheet u/s. 120-B read with ss. 306 and 506 IPC against G .
the appellant and others. The appellant and others filed
appeals. The Division Bench of the High Court directed
the CBI to start investigation in accordance with law
treating the complaint dated 21.09.2007 filed by 'RK', the
. brother of 'RZ'-deceased as FIR and to register a case of H
600
SUPREME COURT REPORTS
[2011) 3 S.C.R.
A murder. Therefore, the cross appeals were filed.
Disposing of the appeals, the Court
HELD: 1.1. On the legality of the order of the Single
Judge of the High Court in directing CBI to investigate
B and submit a report instead of the State CID, the Single
Judge assigned acceptable reasons. In spite of Sections
154(3) and 156(1) of the Code of Criminal Procedure and
the Police Regulations of Calcutta, the authorities,
particularly, the Deputy Commissioner of Police, Detective
C Department was interested in protraction of the case and
was not taking any interest in its investigation. The
Deputy Commissioner of Police, Detective Department,
and Addi. Dy. Commissioner, Headquarters had
unauthorisedly intervened in the matter. Since there was
o no allegation of abduction against the deceased, the said
officers made several attempts to mediate between the
deceased and his in-laws. Relevant materials were shown
that the officer-in-charge of the Police Station at place 'K'
had visited the residence of the deceased, the
E intervention by Deputy Commissioner of Police, Detective
Department, in the conjugal life of the deceased was
uncalled for. Without taking into account the earlier
decisions of this Court directing the administration/
authorities to see that spouses of inter-religious marriages
F are not harassed or subjected to threats, the
Commissioner of Police had made comments, widely
reported, that the reaction of the parents to the marriage
was natural and death was due to suicide. There was an
unholy nexus between the top brass of the Police with
father-in-law of the deceased. By placing such acceptable
G materials, the writ petitioners expressed doubt about fair
investigation under the CID and demonstrated that
investigation by the CBI under the orders of the court is
necessary, since justice should not only be done but
seen to be done. Inasmuch as the grievance of the
H
ASHOK KUMAR TOOi v. KISHWAR JAHAN & ORS. 601
mother and brother of the deceased are acceptable, the
A
Single Judge, by interim order directed the CBI to
investigate into the cause of unnatural death of 'RZ' and
file a report before it. [Para 16] [621-B-H; 622-A]
1.2. Everyone associated with enforcement of law is
8
expected to follow the directions and failure should be
seriously viewed and drastically dealt with. The directions
of this Court are not intended to be brushed aside and
overlooked or ignored. Meticulous compliance is the only
way to respond to directions of this Court. In the light of C
the direction in Lata Singh's case, it is the duty of all
persons in the administration/police authorities
throughout the country that if any boy or girl who is major
undergoes inter-caste or inter-religious marriage, their
marital life should not be disturbed or harassed and if
anyone gives such threat or commits acts of violence or D
instigates, it is the responsibility of the officers concerned
to take stern action against such persons as provided by
law. [Para 17] [623-G-H; 624-A-B]
Lata Singh vs. State of U.P. and Anr. (2006) 5 SCC 475
E
- Relied on.
1.3. In the instant case, the police officials have no
role in the conjugal affairs of 'RZ' and 'P' and the law
enforcing authorities have no right to interfere with their
F
married life and, in fact, they are duty bound to prevent
others who interfere in their married life. The Single Judge
rightly held that the officers of the Police Department
were not justified in interfering with the married life of 'RZ'
and 'P'. [Paras 18 and 19] [624-C-E]
1.4. While answering the issues whether it had been
established from the materials on record that there was
genuine apprehension in the mind of the writ petitioners
that there might not be fair investigation at the instance
G
of the CID in respect of the unnatural death of 'RZ'
H
602
SUPREME COURT REPORTS
[2011] 3 S.C.R.
A because of the alleged involvement of the high police
officials of the Police at place 'C' in the post marital
dispute between the appellant and the deceased on the
one hand and with his wife on the other, justifying
investigation by the CBI, thP. Division Bench of the High
B Court committed several infirmities. When the Single
,fudge on satisfying himself based on the materials,
p:. ticularly, the conduct of the State Police and the
apprehe~sion of the mother and brother of the deceased
about getting fair justice at the hands of the State CID
c directed investigation by the CBI, there cannot be any
parallel investigation by the State CID. The conclusion of
the Division Bench that the Single Judge simply
appointed the CBI as His Lordships "Special Officer" to
investigate into the cause of unnatural death of the
0 deceased and to submit a report in a sealed cover,
cannot be accepted. The order dated 16.10.2007 of the
Single Judge does not mention that the CBI was being
appointed as "Special Officer" of the Court. Neither the
Code authorizes the appointment of CBI officers as
E 'Special Officer' nor the prayers made in the writ petition
prayed for appointment of the CBI to act as 'Special
Officer' of the Court. In the interim order, the Single Judge
decided the question whether investigation by the CID
was just, fair and proper or whether such investigation
should be conducted by the CBI. Merely because no
F injunction was passed against the CID from continuing
with the investigation in the matter or no order was
passed directing the CID to handover all the papers
relating to investigation conducted by them to the CBI,
does not mean that CID was free to continue with their
G investigation. On the other hand, the order dated
16.10.2007 passed by the Single Judge makes it clear
that the Single Judge was prima facie satisfied that the
case in question necessitated investigation by the CBI.
Thus, the finding of the Division Bench that the Single
H
ASHOK KUMAR TODI v. KISHWAR JAHAN & ORS.
603
Judge appointed CBI as its "Special Officer" is patently
A
against all canons of justice, equity and fair play in action.
[Paras 20 and 21] [624-F-H; 625-B-D-H; 626-A-C]
1.5. The Division Bench of the High Court also erred
in holding the order appointing CBI to investigate for the
8
purpose of submitting report to the Single Judge and not
to investigate for the alleged offence in accordance with
law in place of State CID and thus, conclusion of such
investigation by the CBI cannot form the basis of chargesheet in the criminal trial. The Division Bench did not
consider the judgment passed by the Single Judge in C
terms whereof, the Court permitted the CBI to proceed in
accordance with law for filing charge sheet before the
competent Court under Section 173(2) of the Code and
was also granted liberty to conduct further investigation
before it actually files the charge sheet at any point it may
D
consider necessary in the interest of justice. CBI at interim
order stage was directed to investigate the case and at
the final order stage was directed to submit charge sheet
after making further investigation. [Para 22] [626-D-F-G]
1.6. When the final report is laid after conclusion of
E
the investigation, the court has the power to consider the
same and issue notice to the complainant to be heard in
case the conclusions in the final report are not in
concurrence with the allegations made by them. Though
F
the investigation was conducted by the CBI, the
provisions under Chapter XII of the Code would apply to
such investigation. The police referred to in the Chapter,
for the purpose of investigation, would apply to the
officer/officers of the Delhi Police Establishment Act. On
G
completion of the investigation, the report has to be filed
by the CBI in the manner provided in Section 173(2)
Cr.P.C. [Para 24] [628-B-D]
H.N. Rishbud and Anr. v. State of Delhi AIR 1955 SC
H
604
SUPREME COURT REPORTS
. [2011) 3 S.C.R.
A 196; State of M. P. v. Mubarak Ali AIR 1959 SC 707;
Navinchandra N. Majithia vs. State of Meghalaya and Ors.
(2000) 8 SCC 323; Hemant Dhasmana vs. Central Bureau
of Investigation and Another, (2001) 7 sec 536 - relied on
8
1.7. The Division Bench failed to appreciate the order
dated 16.10.2007 passed by the Single Judge directing
the CBI to investigate into cause of unnatural death of
'RZ'. As per Section 2(h) of the Code investigation
includes all the proceedings under this Code for
collection of evidence conducted by a police officer. The
C direction to conduct investigation requires registration of
an FIR preceding investigation and, therefore, had to be
treated as casting an obligation on the CBI to first register
an FIR and thereafter, proceed to find out the cause of
death, whether suicidal or homicidal. In order to find out
D whether the death of 'RZ' was suicidal or homicidal,
investigation could have been done only after registration
of an FIR. Therefore, CBI was justified in recording FIR
on 19.10.2007 in terms of the order dated 16.10.2007
E
passed by the Single Judge. [Para 25] [628-E-G]
1.8. The inquiry/investigation under Section 174 read
with Section 175 of the Code may continue till the
outcome of the cause of the death. Depending upon the
cause of death, police has to either close the matter or
F register an FIR. In the case on hand, as per the post
mortem report, the cause of death of 'RZ' was due to the
effect of ten injuries on the body and which were anti
mortem in nature. In such circumstances, the
proceedings under Section 174 of the Code were not
G permissible beyond 22.09.2007 and registration of an FIR
was natural outcome to ascertain whether the death was
homicidal or suicidal. Accordingly, in terms of order dated
16.10.2007, CBI registered an FIR on 19.10.2007 under
Section 120-B read with Sections 302 and 506 IPC. The
H
ASHOK KUMAR TOOi v. KISHWAR JAHAN & ORS. 605
contrary observations made about the orders of the
A
Single Judge cannot be sustained. The Division Bench
erred in directing the CBI to start investigation afresh in
accordance with law by treating the complaint of 'RK'
brother of the deceased dated 21.09.2007 as FIR and to
register a case of murder. All this had already been done
B
by CBI three years back. There is no need to register
another FIR when in respect of the same offence an FIR
had already been registered. Once an FIR had been
registered lawfully and investigation had been conducted
leading to filing of charge sheet before the competent C
court of law for the trial of accused persons, absolutely,
there was no justifiable reason for the Division Bench to
direct re-registration of the same by lodging another FIR
after three years and proceed with the investigation
which had already been concluded by the CBI. [Para 26)
0
[628-H; 629-A-C-D-G]
1.9. The Division Bench of the High Court failed to
note that the fresh investigation into the same allegation
would be a futile exercise and no purpose would be
served by investigating the case afresh, more particularly,
E
when there is no adverse comment on the investigation ·
carried out by the CBI. The de novo investigation by
lodging another FIR would result in delay of justice since
the Division Bench has ordered to conduct the same
investigation under the same sections started three years
F
back by the same agency, namely, the CBI. The
reasonings of the Division Bench for a fresh investigation
by the CBI cannot be sustained. [Para 27] [629-H; 630-A·
BJ
1.10. With regard to the directions passed by the G
High Court about the conduct of the officers and taking
action against them on the departmental side, it is
clarified that the concerned department is free to take
appropriate action in accordance with the statute/rules/
H
606
SUPREME COURT REPORTS
[2011) 3 S.C.R.
A various orders applicable to them, after affording
reasonable opportunity of hearing. It should not be taken
as neither the High Court nor this Court concluded the
issue about the allegations made against them. However,
the observation of the Single Judge in respect of the
B conduct of the officers in interfering with the conjugal
affairs of the couple even without any formal complaint
against any one of them is accepted. [Para 28) [630-C-D]
1.11. The Single Judge of the High Court is fully
C justified in passing interim order on 16.10.2007 appointing
the CBI to investigate into the unnatμral death of 'RZ' and
submit a report; and that the Single Judge's final order
dated 14.08.2008 accepting the report and granting
opportunity to the CBI to proceed in accordance with law
for filing charge sheet before the Competent Court under
D Section 173(2) of the Code is accepted. All the reasonings
recorded by the Division Bench of the High Court in the
order dated 18.05.2010 are unacceptable and are set
aside. Pursuant to the orders of the Single Judge, after
investigation, CBI has filed charge sheet on 20.09.2008
E under Section 120-B read with Sections 306 and 506 IPC.
In view of the same, the appellant was in custody for 45
days and on the orders of this Court, he was ordered to
be released and also of the fact that all other accused
were enlarged, no further custody is required. However,
F it is made clear that CBI is free to move an application
before the court concerned for appropriate direction, if
their presence is required. Any action against the officers
of the State Police Department, as suggested by the
Single Judge, shall be in accordance with law and service
G conditions applicable to them and after affording
opportunity to them. [Para 29) [630-E-H; 631-A-D]
State of West Bengal and Others vs. Committee for
Protection of Democratic Rights, West Bengal and Others
H (2010) 3 SCC 571 - Referred to.
ASHOK KUMAR TOOi v. KISHWAR JAHAN & ORS.
607
Case Law Reference:
A
(201 O) 3 sec 571
Referred to.
Para 14
(2006) 5 sec 475
Relied on.
Para 17
AIR 1955 SC 196
Relied on.
Para 23
B
AIR 1959 SC 707
Relied on.
Para 23
(2000) a sec 323
Relied on.
Para 23
(2001) 1 sec 536
Relied on
Para 24
c
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 602 of 2011 etc.
From the Judgment & Order dated 18.5.2010 of the High
Court at Calcutta in MAT No. 703 of 2008.
·o
WITH
C.A. No. 2204-2209 of 2011 & Crl. A. No. 603-608 of 2011.
Gopal Subramanium, SG, H.P. Raval, ASG, U.U. Lalit,
Kalyan Bandopadhyay, P.P. Rao, D. Roy Choudhary, V.A.
E
Mohta, Sudhir Nandrajaog, P.K. Dey, RajeP.v Nanda, Shweta
Verma, Harsh, A.K. Sharma, Amit Basu, Rana Mukherjee, D.N.
Mitra, Ayen Chakrabotry (for M/s. Victor Moses & Associates),
· · Abhijit Sengupta, M. lndrani, B.P. Yadav, K. Datta, Atul Singh,
Abhay Kumar, Kishore Dutta, Suchit Mohanty, Mangaljit
F
Mukherjee, Anupam Lal Das, P. Roy Choudhary, Anjan
Chakraborty, A. Chakraborty, lndranil Ghosh, Goodwill lndeevar,
Deepak Bhatcharya, S.J. Amith, Kiran Suri, Ashok Kr.
Mukherjee, Soumya Chakraborty, Krishnendu Bhattacharya,
Dharma Raj Vohra, Atul, Abhay Kumar, Tenzing Tsering, Taran
G
Chandra Sharma, Neelam, Sharma, Manish Srivastava,
Praveen Agarwal for the appearing parties.
The Judgment of the Court was delivered by
H
608
SUPREME COURT REPORTS
[2011] 3 S.C.R.
A
P.SATHASIVAM, J. 1. Leave granted.
2. These appeals are directed against the common
judgment and final order dated 18.05.2010 passed by the
Division Bench of the High Court of Calcutta in M.A.T. Nos.
B 703, 895, 704, 713, 714 and 744 of 2008 whereby the CBI was
directed to start investigation afresh in accordance with law
treating the complaint dated 21.09.2007 filed by Rukbanur
Rahman, brother of Rizwanur Rahman - the deceased, as F.l.R.
and to register a case of murder.
C 3. Brief facts:
(a) One Rizwanur Rahman-the deceased, a Computer
Graphics Engineer fell in love with a girl, namely, Priyanka Todi,
daughter of Ashok Kumar Todi. On 18.08.2007, Rizwanur
D Rahman married Priyanka Todi under the Special Marriage Act,
1954 in the marriage registration office. On 31.08.2007,
Priyanka Todi left her father's house and started living in her
husband's home at Tiljala within the jurisdiction of Karaya
Police Station, Kolkata. The couple informed the Police
E Commissioner, Deputy Commissioner of Police(South), the
Superintendent of Police, 24 Parganas (S), the Officer-incharge, Karaya Police Station and the Officer-in-charge,
Bidhan Nagar Police Station about their marriage by a letter
dated 31.08.2007 along with a copy of the Marriage
F Registration Certificate. On the same day, Priyanka Todi
informed her father about her marriage with the deceased and
also of the fact of her residing with her husband in her in-law's
house. On the very same day, in the evening, around 6.30 p.m., ·
Ashok Kumar Todi-Priyanka Todi's father, Anil Saraogi -
maternal uncle of Priyanka Todi and Pradip Todi - brother of
G Ashok Kumar Todi went to the house of the deceased and
persuaded him and his family members to send Priyanka Todi
back to their house but Priyanka Todi did not agree to their
request. On the same night, Ashok Kumar Todi lodged a
complaint at Karaya Police Station and consequently two police
H officers went to the residence of the deceased to create mental
ASHOK KUMAR TOOi v. KISHWAR JAHAN & ORS. 609
[P. SATHASIVAM, J.]
pressure on him. On 01.09.2007, early in the morning, Ashok A
Kumar Todi and Anil Saraogi threatened the deceased that if
Priyanka Todi did not return back to her parents' house, they
would face the dire consequences. On the same day, Pradip
Todi lodged a complaint with Deputy Commissioner of Police
(Detective Department) alleging that Priyanka Todi has been
B
taken away by the deceased by deceitful means with intent to
marry her. On various dates, the Deputy Commissioner of
Police (DD) called Priyanka Todi and her husband at his office
and asked Priyanka Todi to go back to her parents' house, but
she refused to accept the proposal. On 08.09.2007, Pradip Todi c
made another application to police that Priyanka Todi has been
detained forcibly by the deceased. On the action of the
complaint, the sub-Inspector went to the residence of the
deceased and summoned the couple to Police Headquarter,
Lal Bazar, Kolkata and the custody of Priyanka Todi was 0
handed over to her uncle Anil Saraogi with condition that she
will return to her husband's house after one week.
(b) On 21.09.2007, the dead body of Rizwanur Rahman
was found on the railway tracks between Oum Oum and Bidhan
Nagar Road Stations with injuries and the head smashed. On
E
the same day, Rukbanur Rahman-the brother of the deceased,
lodged a written complaint with Karaya Police Station
suspecting the hands of Ashok Kumar Todi behind the unnatural
death of his brother and the same was registered as UD Case
No. 183 of 2007. The body of the deceased was sent for post F ..
mortem. The post mortem report revealed that the death was
due to 10 injuries on the body and consistent with the injuries
caused by train running at moderate speed. On 24.09.2007,
the case was taken over by the Criminal Investigation
Department (in short "the CID"). The CID carried out G
investigation and examined various witnesses including Ashok
Kumar Todi and his family members.
(c) The mother and brother of the deceased filed Writ
Petition No. 21563(W) of 2007 before the Calcutta High Court.
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610
SUPREME COURT REPORTS
[2011) 3 S.C.R.
A
The learned single Judge of the High Court, after hearing the
parties, by an interim order dated 16.10.2007 directed the CBI
to investigate into the cause of death of the deceased and to
file a report in a sealed cover before the Court within two
months. Pursuant to the abovesaid direction, the CBI registered
B
case bearing No. RC.8(S)/2007-SIU~llCBl/SCR.1/New Delhi
under Section 120-B read with Sections 302 and 506 of the
Indian Penal Code (in short "the IPC") against Ashok Kumar
Todi and others. On 08.01.2008, the CBI filed report before the
learned single Judge which indicates that the deceased
c committed suicide by laying before the train and sought
permission to file charge sheet against Ashok Kumar Todi, his
brother Pradeep Todi, Anil Sarogi, S.M. Mohiuddin @ Pappu,
Ajoy Kumar, Sukanti Chakraborty and Krishnendu Das under
Section 120-B read with Sections 306 and 506 IPC.
D
(d) After considering the case, the learned single Judge
of the High Court, by final order dated 14.08.2008, granted
liberty to the CBI to proceed in accordance with law for filing
charge sheet before a competent court under Section 173(2)
of the Code of Criminal Procedure (hereinafter referred to as
E
"the Code"). Liberty was also reserved to the CBI to conduct
further investigation before it actually files the charge sheet.
Pursuant to that order, CBI continued with the investigation and
filed a charge sheet being No. 07/08 dated 20.09.2008 under
Section 120-B read with Sections 306 and 506 IPC in the court
- F
of Chief Metropolitan Magistrate, Bank Shell Court, Kolkata. In -
the said charge sheet, Ashok Kumar Todi, Pradeep Todi, Anil
Saraogi, Sukanti Chakraborti and Krishnendu Das, S.M.
Mohiuddin @ Pappu, Ajoy Kumar were arrayed as accused.
Subsequent to the filing of the charge sheet, all the accused
G persons surrendered before the Court of Metropolitan
Magistrate and were taken into custody, and subsequently, all
the accused persons were released on bail on different dates.
(e) Aggrieved by the judgment and order dated 14.08.2008
H
passed by the learned single Judge, Ashok Kumar Todi and
ASHOK KUMAR TOOi v. KISHWAR JAHAN & ORS.
611
[P. SATHASIVAM, J.]
others filed their respective appeals before the Division Bench
A
of the High Court of Calcutta. The Division Bench of the High
Court heard all the appeals together and by impugned judgment
and order dated 18.05.2010 set aside the judgment and order
dated 14.08.2008 passed by the learned single Judge and
directed the CBI to start investigation afresh in accordance with
B
law by treating the complaint dated 21.09.2007 filed by the
brother of the deceased as F.l.R. and to register a case of
murder and further directed to complete the investigation
preferably within a period of four months from the date of the
order. Aggrieved by the impugned judgment and order dated c
18.05.2010, Ashok Kumar Todi filed S.L.P.(Crl.) No. 5005 of
2010, the mother and brother of th~ deceased filed S.L.P.(C)
Nos. 29951-29956 of 2010 and the C.B.I. filed S.L.P.(Crl.) Nos.
7008-7013 of 201 O before this Court. Hence these appeals by
special leave.
D
3. Heard Mr. Gopal Subramanium, learned Solicitor
General for the CBI, Mr. U.U. Lalit, learned senior counsel for
Ashok Kumar Todi, Mr. Kalyan Bandopadhyay, learned senior
counsel for mother and brother of Rizwanur Rahman - the
deceased and Mr. Tara Chand Sharma, learned counsel for the
E
State of West Bengal. In addition, we also heard other counsel
in respect of certain directions/observations about the
departmental action to be initiated against the State Police
Officers by the State Government.
4. Mrs. Kiswar Jahan and Rukbanur Rahman-mother and
borther of the deceased filed Writ Petition No. 21563 of 2007
before the High Court at Calcutta praying for directions against
the State of West Bengal and their officers that the investigation
F
in connection with the unnatura! death of Rizwanur Rahman
G
being UD Case No. 183 of 2007 be handed over to CBI and
that the CBI should submit a report on such investigation before
the High Court and upon such investigation appropriate orders
be passed. Apart from the above relief, they also prayed for
certain directions for taking action against the officers of the
~tate Police Department. Before considering the final order in
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SUPREME COURT REPORTS
[2011) 3 S.C.R.
A the said writ petition, it is useful to refer to the interim direction
of the learned single Judge dated 16.10.2007. By pointing out
mandates of Sections 154(3) and 156(1) of the Code and the
Police Regulations of Calcutta, it was submitted before the
learned single Judge that the authorities, particularly, the
B Deputy Commissioner of Police, Detective Department was
interested in protraction of the case and not in its investigation.
It was also highlighted that several other officers had
unauthorisedly intervened in the matter. It was the grievance of
the writ petitioners that in spite of the fact that Rizwanur Rahman
c and Priyanka Todi married voluntarily and by their free will on
18.08.2007, under the Special Marriage Act, 1954, in the
Marriage Registration Office, because of the influence of Ashok
Kumar Todi-father of Priyanka Todi, higher authorities in the
police department without following the judgment of this Court
D which directs the administration/authorities to see that spouses
of inter-religious marriages are not harassed or subjected to
threats, instead of allowing investigation to take its course in
accordance with the provisions of law, the Commissioner of
Police had made comments, widely reported, that the reaction
of the parents to the marriage was natural and death was due
E to suicide. It was also projected before the learned single Judge
that the police authorities were beneficiaries of undue favours
at the instance of Ashok Kumar Todi. It was asserted that no
fair investigation by the CID is possible in a manner where the
allegation is against the highest brass of the Calcutta Police.
F
In those circumstances and by placing reliance on various
materials/instances about the interference by the police
authorities on various occasions in the marital life of Rizwanur
Rahman and Priyanka Todi, the writ petitioners prayed for a fair
G
investigation by the CBI under the directions of the High Court.
5. Learned Advocate General who appeared for the State
of West Bengal before the High Court resisted the prayer in
the writ petition and contended that the writ petition is not
maintainable and further argued that mere allegations of threat
H is not a cognizable offence and there was no complaint before
ASHOK KUMAR TOOi v. KISHWAR JAHAN & ORS. 613
[P. SATHASIVAM, J.]
the police except the letter dated 18.09.2007 by one Sadiq A
Hussain which did not mature. It was further argued that the
provisions of Section 154(1) of the Code are not attracted. It
was pointed out by learned Advocate General that the
appropriate remedy under the statute would have been a
complaint before the Magistrate and not a petition under Article B
226 of the Constitution before the High Court since the
petitioners must demonstrate that they have legal and personal
right which has been violated. Moreover, it was pointed out that
the CID is carrying on an enquiry though not an investigation
into the cause of unnatural death. Further, there is no violation c
of fundamental rights of the writ petitioners under Articles 19
and 21 of the Constitution.
6. After recording the finding that the deceased can no
longer seek redressal for any injury caused to him and it is only
his near relatives, who are mother and brother, can make a D
prayer by filing the petition under Article 226 of the Constitution,
after adverting to the marriage on 18.08.2007 and various
instances on which the police officers intervened in their
. personal life, threatened them and after satisfying that prima
facie the investigation carried out by the State CID is not in
E
, accordance with the provisions of the Code, the learned single
Judge of the High Court passed an interim order directing the
CBI to investigate into the cause of unnatural death of Rizwanur
Rahman and to file a report in a sealed cover within a period
of two months from the date of service of the copy of the said
F
order.
7. Pursuant to the interim direction dated 16.10.2007, an
FIR was registered on 19.10.2007. In the said FIR, apart from ·
the required details, various directions given in the order of the G
High Court dated 16.10.2007 were incorporated. The
Superintendent of Police, CBI after finding that the facts stated
in the complaint coupled with the directions of the High Court
vide its order dated 16.10.2007, prima facie disclosed
commission of offence punishable under Section 120-B IPC H
614
SUPREME COURT REPORTS
[2011] 3 S.C.R.
A
read with Sections 302 and 506 IPC and substantive offences
thereof against Ashok Kumar Todi and others, registered a
regular case and started investigation.
8. Pursuant to the interim direction of the High Court, the
B
CBI filed its report and prayed for leave of the Court to file
charge-sheet before the competent Court having jurisdiction.
Based on the said report as well as the leave sought for in the
writ petition, after hearing the arguments of either side, the
learned single Judge framed the following issues for
determination:
c
D
E
F
G
(i) Should the writ petition fail owing to the petitioners not
taking recourse to efficacious alternative remedy provided
by the Code?
(ii) Should the writ petition fail because it does not disclose
any cause of action, because adjudication of the issues
would involve resolving hotly disputed facts and because
of defective verification of pleadings, as contended by Mr.
Pal?
(iii) Whether 'Kolkata Police's inaction' vis-a-vis the
complaint lodged by the couple and 'Kolkata Police in
action' vis-a-vis complaints of Pradeep Todi impugned
herein justified? Is respondent no. 3 responsible in any
manner?
(iv) Did any of the city "police officers (respondent Nos.
5,7,8 & 9) act ultra vires in discharge of official duties?
(v) Whether investigation conducted by the State Police
agencies was in accordance with law?
(vi) Whether the facts and circumstances presented before
the Court called for entrusting the CBI with investigation of
cause of death of Rizwanur Rahman?
H
(vii) Whether the CBI acted ultra vires in registering an
ASHOK KUMAR TODI v. KISHWAR JAHAN & ORS. 615
[P. SATHASIVAM, J.]
FIR for alleged offence of murder and conducted A
investigation on the basis thereof in a manner not
authorized by law?
(viii) Are the parties entitled to have a copy of the report
of the CBI filed in Court?
(ix) Is the CB.I justified in expressing views in relation to
recommending to the State initiation of disciplinary
proceedings for major penalty against some of the
respondents.
(x) Whether the CBI should be allowed to proceed further
on the basis of materials collected by it in course of
investigation?
(xi) To what relief, if any, are the petitioners entitled?
9. After analysis and having full-fledged hearing, the
learned single Judge arrived at the following conclusion:
B
c
D
(i)
When an individual perceives a threat to his life and
limb and seeks enforcement of his right to life,
E
interference of the writ court may be more intrusive
but to lay down as a matter of rule that a writ petition
must be entertained whenever right guaranteed by
Article 21 is sought to be enforced despite
availability of an alternative remedy would itself F
result in impinging on exercise of judicial
description by the writ court.
(ii)
A man is born free and has the right to stay free
unless he indulges in unlawful activities which, if
proved, may result in' penal consequences G
depriving him of such right. The Constitution
guaranteed this right to Rizwanur Rahman. By
marrying Priyanka Todi, he did not commit any
crime. Evidence on record is considered sufficient
to demolish the allegation leveled against him by
H
616
A
B
SUPREME COURT REPORTS .
[2011] 3 S.C.R.
Pradeep Todi. He had, therefore, the absolute right
to live a life which is decent, complete, fulfilling and
worth living. The objection that hotly disputed facts
are involved which necessarily cannot be
adjudicated by the Writ Court is equally
unmeritorious.
(iii)
The third respondent therein - Commissioner of
Police, Kolkata, acted irresponsibly and instead of
diffusing tension, he added fuel to fire.
C
(iv)
By summoning Rizwanur Rahman without
registering any cognizable case against him on the
basis of the complaints of Pradeep Todi and/or by
invading Rizwanur's previous right to life despite
being well and truly aware that Priyanka Todi had
D
married him on her own without pressure exerted
from any quarter, respondents 5, 7, 8 and 9 therein
jointly and severally are guilty of exceeding police
powers conferred on them and thereby have acted
ultra vires the Constitution.
E
F
(v) (vi) While passing the interim order on 16.10.2007, the
learned single Judge duly considered the materials
presented and on finding that the investigation by
the State CID was not proper, therefore, the CBI
was directed to investigate the cause of death of
Rizwanur Rahman.
(vii) In the facts and circumstances which fall for
consideration on 16.10.2007, the Court is of the
considered view that entrusting the CBI with
G
investigation of cause of unnatural death of
Rizwanur Rahman cannot be said to be improper
or unwarranted and the Court was justified in
directing CBI investigation. The CBI was justified in
recording an FIR before it proceeded to conduct
H
investigation.
ASHOK KUMAR TOOi v. KISHWAR JAHAN & ORS. 617
[P. SATHASIVAM, J.]
(viii) So long as the investigation is not closed by way
A
.of filing of a Final report under Section 173(2) of
the Code, persons who might be shown as
accused in the FIR have no right to claim copy of
the report containing materials which have been
collected against them and, particularly, in view of
B
the fact that report filed before the High Court is not
a final report but is one in aid of the final report.
(ix)
On the basis of the materials collected, it was
beyond the jurisdiction of the CBI to make a
C
recommendation for initiation of major penalty
proceedings against some of the police officers
without obtaining leave from the Court.
(x)
There is no reason as to why CBI should not be
allowed to proceed further.
D
(xi)
Interest of justice would be best served if liberty is
reserved unto the State to proceed in accordance
with law. Accordingly, it is observed that the State
may initiate such action as it deems fit and proper
E
against any of or all the respondents in accordance
with law.
10. The abovesaid order of the learned single Judge was
taken up by way of appeal before the Division Bench by Ashok
Kumar Todi, Pradip Todi, Anil Saraogi, Kishwar Jahan and
F
others and State of West Bengal.