Calcutta High Court: In a petition filed by a victim of sexual abuse to highlight the procedural lapses and tampering of evidence by the police in handling her case, a Single Judge Bench of Rajarshi Bharadwaj, J. found that the matter reflected severe lapses in the procedure adopted by the police to handle the matter and raised concerns about the integrity of the investigation and cancelled the bail as well as the anticipatory bail granted to the accused.
Background:
The petitioner (victim) in the present matter, was a lady at a managerial post in a private company and her husband was an IAS officer who was posted outside West Bengal. She claimed to have been sexually abused by respondent 9 (accused) on two separate occasions. The first incident occurred on 14-07-2024 at 11:30 PM and the second on 15-07-2024 at 6:30 AM at her residence.
When she went to the Lake Police Station to file a complaint, she had to sit for long hours and was pressurized to withdraw the case. Thereafter, the police registered a complaint under Sections 74/75/76/79/115/351 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’) even though the incidents were grave enough to warrant charges under Section 62/64 of BNS.
On 15-07-2024, a First Information Report (‘FIR’) was filed and on the same day, the victim was subjected to coercion and intimidation by the son and wife of the accused. Despite the seriousness of the accusations, the Police neither scrutinized nor investigated the CCTV footage of the police station despite explicit requests from the victim.
On 16-07-2024, the accused was granted bail by the Chief Judicial Magistrate, Alipore because the bail order was facilitated by a ‘nil’ checklist that had been submitted by the Investigating Officer (‘IO’) which lacked any substantial reasoning or supporting material for the arrest of the accused.
On 19-07-2024, the victim provided a detailed statement before the Magistrate under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) wherein she recounted the incidents of rape and also made serious accusations against Kalpana Roy, the female police officer of the Tijala Police Station and alleged blatant collusion with the respondents.
On 23-07-2024, the victim filed the present petition and highlighted procedural lapses as well as tampering of evidence by the police. Thereafter, on 09-08-2024, the victim was informed via e-mail that the case had been transferred to Karaya Women Police Station and that Sections 62/64 of BNS had been added to the case. She was also informed that L.S.I Arpita Bhattacharya was the IO and that she would need to undergo a medico-legal exam on 20-08-2024, which was 35 days after the incident had taken place.
The victim also submitted that the Officer-in-Charge of Lake Police Station (respondent 6) failed to assign a female officer and deputed a male IO (respondent 8) who then tampered with the original complaint.
By an order dated 10-09-2024, the Sessions Judge, Alipore, South 24 Parganas granted anticipatory bail to the accused person.
Analysis and Decision
The Court observed that despite the serious allegations of sexual assault made by the victim, the police officers involved in the case diluted the charges by registering less severe offences under BNS, 2023. It was said that this dilution of charges was a result of tampering with the victim’s written complaint by respondents 6, 7, 8, and lady A.S.I Sujata Barman.
The Court said that the failure to initially invoke the correct sections and subsequent tampering with the complaint reflected severe lapse in the working of the police and also raised concerns about the integrity of the investigation.
The Court noted that the victim was coerced and intimidated at the police station by the family members of the accused after the FIR had been registered.
The Court stated that the bail application of an accused for offences punishable under Section 64 of BNS, 2023 could not be heard without giving the victim an opportunity of being heard. The Court said that the court and the prosecution are required to consider the obligations on their part to keep the victim informed about the stages of criminal proceedings.
Further, the Court viewed that the matter was extraordinary in nature and called for extraordinary measures. It was said that the victim had suffered continuous torture and oppression, and the IO never bothered to inform the victim of application being moved by the accused, which further exacerbated her distress.
The Court stated that since the Sessions Judge failed to consider the charges under Section 62 and 64, the accused could not be allowed to enjoy any liberty as he continued to pose a threat to the victim. Thus, the Court cancelled the bail granted to the accused by the Additional Chief Judicial Magistrate on 16-07-2024 as well as the anticipatory bail granted by the Sessions Judge.
The Court referred to Dhirendra Kumar Banerjee v. State of Bihar 2005 SCC OnLine Jhar 142 wherein it was said that when the High Courts are satisfied that an order passed under the code would be rendered ineffective or, that the process of any Court would be abused, or that the ends of justice would not be secured, then the High Court can and must exercise its inherent powers.
The Court directed the case to be transferred to the Deputy Commissioner of Women Police, Lalbazar (respondent 4), who would act as the IO and the bail as well as the anticipatory bail granted to the accused to be cancelled. The Commissioner of Police, Kolkata (respondent 3), was directed to take a disciplinary action against respondent 6,7, and 8 along with certain other lady officers for their failure to follow procedural norms and for tampering with the complaint.
The Court, while disposing of the petition, directed the Registry to forward a copy of the judgment to the District Judge, South 24-Parganas, Alipore to take necessary steps.
[X v. State of West Bengal, 2024 SCC OnLine Cal 8849, Decided on 27-09-2024]
Advocates who appeared in this case :
For Petitioner — Advocate Antarikhya Basu, Advocate Moyukh Mukherjee, Advocate Sayan Mukherjee
For Respondent — SSC Amitesh Banerjee, Advocate Tarak Karan
