REPORTABLE                           

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     602     OF 2011 (Arising out of S.L.P. (Crl.) No. 5005 of 2010)

Ashok Kumar Todi                                      .... Appellant(s)

Versus

Kishwar Jahan & Ors.               .... Respondent(s)

WITH

CIVIL APPEAL NOS.  2204-2209      OF 2011   (Arising out of S.L.P. (C) Nos. 29951-29956 of 2010)

AND

CRIMINAL APPEAL NOS.   603-608       OF 2011 (Arising out of S.L.P. (Crl.) No. 7008-7013 of 2010)

J U D G M E N T 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  

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Bench of the High Court of Calcutta in M.A.T. Nos. 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.I.R. and to  

register a case of murder.

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 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 Commissioner, Deputy Commissioner of Police(South),  

the Superintendent of Police, 24 Parganas (S), the Officer-in-

charge,  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  

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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  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  officers went to the  residence of  the  deceased to  

create mental pressure on him.  On 01.09.2007, early in the  

morning, Ashok 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  taken  away  by  the  deceased  by  

deceitful means with intent to marry her.  On various dates,  

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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  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 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 Dum Dum and Bidhan  

Nagar Road Stations with injuries and the head smashed.  On  

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 mortem.  The post mortem report revealed that the  

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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  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.  

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  case  bearing  No.  RC.8(S)/2007-SIU-

I/CBI/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 committed suicide by laying before  

the train and sought permission to file charge sheet against  

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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)  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  “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 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 persons surrendered before the Court of Metropolitan  

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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  

passed by the learned single Judge, Ashok Kumar Todi and  

others filed their respective appeals before the Division Bench  

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  law  by  treating  the  complaint  dated  

21.09.2007 filed by the brother of the deceased as F.I.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 18.05.2010, Ashok Kumar Todi filed  

S.L.P.(Crl.) No. 5005 of 2010, the mother and brother of the  

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  2010  before  this  

Court.  Hence these appeals by special leave.

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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  

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  in  connection  with  the  unnatural  death  of  

Rizwanur Rahman 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  State  Police  Department.  

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Before considering the final order in 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  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 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  

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  

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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.  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.  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 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 is not a cognizable offence and there was no complaint  

before  the  police  except  the  letter  dated 18.09.2007 by one  

Sadiq Hussain which did not mature.  It was further argued  

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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 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  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 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  

accordance with the provisions of the Code, the learned single  

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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 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  

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  

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  

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  

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writ petition, after hearing the arguments of either side, the  

learned  single  Judge  framed  the  following  issues  for  

determination:

(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-à-vis the complaint  

lodged by the couple  and ‘Kolkata Police in action’  vis-à-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?

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(vi) Whether  the  facts  and circumstances  presented  before  

the Court called for entrusting the CBI with investigation of  

cause of death of Rizwanur Rahman?

(vii) Whether the CBI acted ultra vires in registering an FIR for  

alleged offence of murder and conducted 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  CBI  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:

(i) When an individual perceives a threat to his life and  

limb  and  seeks  enforcement  of  his  right  to  life,  

interference of the writ court may be more intrusive  

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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  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 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 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.   

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(iii) The  third  respondent  therein  –  Commissioner  of  

Police,  Kolkata,  acted irresponsibly and instead of  

diffusing tension, he added fuel to fire.   

(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  

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.

(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.

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(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  

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  

investigation.  

(viii) So long as the investigation is not closed by way 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 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  

recommendation  for  initiation  of  major  penalty  

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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.

(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  

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 others and State of West Bengal.  The Division  

Bench, after going through the order of the learned single  

Judge  as  well  as  the  rival  contentions  of  all  the  parties,  

determined the following questions namely, :

(a) Whether, the learned single Judge was justified in  

passing the order impugned?

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(b) Whether  in  addition  to  the  order  impugned,  the  

Court should have passed direction for indicting the  

two police  officers  in  the  criminal  proceedings  on  

the  basis  of  the  allegations  made  in  the  writ  

application?

11) The Division Bench, after finding that a direction for  

investigation  by  the  CBI  should  not  be  granted  on  mere  

asking for, in the absence of any prohibitory or injunction  

order, preventing the State CID from further investigation  

commented  on  the  conduct  of  the  State  police  in  not  

perusing the investigation, concluded that:

(i)) Interim  order  dated  16.10.2007  of  the  learned  

single  Judge  did  not  authorize  the  CBI  to  investigate  in  

terms of Chapter XII of the Code in place of the State CID.

(ii) The order  of  the learned single  Judge directing  

investigation  and,  consequently,  the  report  submitted  by  

the CBI and permitting the CBI to submit such report in the  

form of charge-sheet in the Court are quashed.

(iii) The  investigation  conducted  by  the  CBI  cannot  be  

treated to  be  an investigation  within  the  meaning  of  the  

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Code.   Recommendation  of  the  CBI  to  take  disciplinary  

measures against the Police Officers by virtue of the interim  

order of the learned single Judge are quashed.

(iv) For  violation  of  Article  21,  a  writ  Court  cannot  

conclusively  decide,  whether  violation  amounts  to  penal  

laws, ignoring the provisions of the Code for trial of such  

offences.   The  Court  can  give  special  protection  to  the  

accused in  such trial  and the  procedure  of  such trial  is  

different from the one provided for  the disposal  of  a writ  

application.  In view of the same, the aggrieved person is  

not entitled to file an application under Article 226 of the  

Constitution asking the High Court to decide the issue.   

12) After  observing  and  arriving  at  such  conclusion,  

ultimately, the Division Bench, by the impugned order, set  

aside the order of the learned single Judge and on the basis  

of  its  own  finding  recorded  that  it  is  a  fit  case  for  

investigation  by  the  CBI,  directed  the  CBI  to  start  

investigation  afresh  in  accordance  with  law  treating  the  

complaint dated 21.09.2007 filed by writ  petitioner No. 2  

20

(Rukbanur  Rahman)  as an FIR and to  register  a case  of  

murder.   

13) On analysis of the orders of the learned single Judge  

and the Division Bench as well  as the issues raised and  

various contentions by the counsel for either side, following  

points arose for determination in these appeals:   

i)  whether the order of the learned single Judge appointing  

CBI  to  enquire  into  the  unnatural  death  of  Rizwanur  

Rahman and further direction giving liberty to the CBI to  

proceed in accordance with law for filing charge sheet before  

the competent court under Section 173(2) of the Code and  

to  take  further  investigation  before  it  actually  files  the  

charge-sheet on any point it may consider necessary in the  

interest of justice is acceptable and sustainable? or;

ii)  whether the decision of the Division Bench, setting aside  

the order of the learned single Judge, directing the CBI to  

start investigation afresh by treating the complaint of the  

writ  petitioner  No.  2  therein-Rukbanur  Rahman  dated  

21.09.2007  as  FIR  and  to  register  a  case  of  murder  is  

sustainable?

21

14)  Since the mother and brother of the deceased-Rizwanur  

Rahman had a doubt about his unnatural death and they  

were not satisfied with the investigation by the State CID as  

well as due to mounting pressure by higher officials of the  

State  Police  Department,  they  prayed  for  an  appropriate  

direction at the hands of the High Court for investigation by  

the  CBI.   In  State  of  West  Bengal  and  Others vs.  

Committee  for  Protection  of  Democratic  Rights,  West  

Bengal and Others (2010) 3 SCC 571, the issue which was  

referred  for  the  opinion  of  the  Constitution  Bench  was  

whether the High Court, in exercise of its jurisdiction under  

Article 226 of the Constitution of India, can direct the CBI  

established  under  the  Delhi  Special  Police  Establishment  

Act, 1946 (for short “the Special Police Act”) to investigate a  

cognizable  offence,  which  is  alleged  to  have  taken  place  

within  the  territorial  jurisdiction  of  a  State,  without  the  

consent of the State Government.  The Constitution Bench,  

after  adverting  to  the  required  factual  details,  rival  

contentions and the relevant constitutional provisions has  

concluded:-

22

“69. In  the  final  analysis,  our  answer  to  the  question  referred is that a direction by the High Court, in exercise of  its jurisdiction under Article 226 of the Constitution, to CBI  to  investigate  a  cognizable  offence  alleged  to  have  been  committed within the territory of a State without the consent  of that State will neither impinge upon the federal structure  of the Constitution nor violate the doctrine of separation of  power and shall be valid in law. Being the protectors of civil  liberties of the citizens, this Court and the High Courts have  not only the power and jurisdiction but also an obligation to  protect  the  fundamental  rights,  guaranteed  by  Part  III  in  general  and  under  Article  21  of  the  Constitution  in  particular, zealously and vigilantly.”

After saying so, the Constitution Bench has clarified that this  

extraordinary power must be exercised sparingly,  cautiously  

and in exceptional situations where it becomes necessary to  

provide credibility  and instill  confidence in investigations or  

where  the  incident  may  have  national  and  international  

ramifications or where such an order may be necessary for  

doing complete justice and enforcing the fundamental rights.   

15)  In view of the above judgment, it is unnecessary to delve  

into the issue further about appointment of special agency like  

CBI for investigation under the orders of the High Court.  In  

fact,  in  view  of  the  above  decision,  almost  all  the  counsel  

appearing on either side have no quarrel about the issue and  

their  present  grievance  is  whether  the  order  of  the  learned  

single Judge is to be implemented or the impugned order of  

the Division Bench is to be applied?

23

16)  On the legality of the order of the learned single Judge in  

directing CBI to investigate and submit a report instead of the  

State CID, we are of the view that the learned single Judge  

assigned acceptable  reasons.  It  was highlighted by learned  

senior counsel for the mother and brother of the deceased that  

in  spite  of  Sections 154(3)  and 156(1)  of  the  Code and the  

Police  Regulations  of  Calcutta,  the  authorities,  particularly,  

the Deputy Commissioner of Police, Detective 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  Addl.  Dy.  Commissioner,  

Headquarters  had  unauthorisedly  intervened  in  the  matter.  

Since  there  was  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  Karaya  Police  

Station  had  visited  the  residence  of  the  deceased,  the  

intervention  by  Deputy  Commissioner  of  Police,  Detective  

Department, in the conjugal life of the deceased was uncalled  

for.  It was also highlighted that without taking into account  

24

the  earlier  decisions  of  this  Court  directing  the  

administration/authorities  to  see  that  spouses  of  inter-

religious marriages 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.   The learned senior  

counsel  has also highlighted unholy nexus between the top  

brass  of  the  Police  with  father-in-law of  the  deceased.   By  

placing  such  acceptable  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 mother  

and brother of the deceased are acceptable, the learned single  

Judge, by interim order dated 16.10.2007, directed the CBI to  

investigate  into  the  cause  of  unnatural  death  of  Rizwanur  

Rahman and file a report before it.

Interference by the police in conjugal life

17) In the earlier  paragraphs,  we have already adverted to  

certain  factual  details  about  the  marriage  of  Rizwanur  

25

Rahman with Priyanka Todi.  They themselves highlighted how  

they  married  and  informed  the  same  to  the  authorities  

concerned.  The materials placed show that Rizwanur Rahman  

fell in love with Priyanka Todi, the daughter of Ashok Kumar  

Todi,  and  married  her  on  18.08.2007  under  the  Special  

Marriage Act, 1954.  They also registered their marriage before  

the notified authority and obtained the certificate for the same.  

Pursuant to the same, Priyanka Todi left her father’s house on  

31.08.2007 and went to live in her husband’s house at Tijala  

Lane within the jurisdiction of Karaya Police Station, Kolkata.  

She  informed  her  father  about  their  marriage  and  also  

informed  the  Police  Commissioner  as  well  as  Dy.  

Commissioner of Police (South), Superintendent of Police, 24  

Parganas (S), the Officer–in-charge, Karaya Police Station and  

the  Officer-in-charge,  Bidhan  Nagar  Police  Station.   On  a  

complaint made by Pradip Todi, Priyanka Todi and Rizwanur  

Rahman were summoned to Police HQ., Lalbazar, Kolkata on  

08.09.2007 and the custody of Priyanka Todi was handed over  

to Anil Saraogi - her maternal uncle with condition that she  

will  return to her husband after  one week.  Thereafter,  the  

26

dead body of Rizwanur Rahman was found on 21.09.2007 on  

the railway tracks between Dum Dum and Bidhan Nagar Road  

Stations with injuries and his head smashed.   We have also  

noted the details furnished by the mother and brother of the  

deceased about the interference by the various police officers  

in their marital efforts.  In this regard, it is useful to refer to  

the law laid down by this Court in practice and procedure in a  

matter  involving  freedom  of  conscience  and  expression  in  

terms of right to marry person of one’s choice outside one’s  

caste.  The following observation and direction in Lata Singh  

vs. State of U.P. & Anr., (2006) 5 SCC 475  is relevant:

“17. The caste system is a curse on the nation and the  sooner it  is destroyed the better.  In fact, it  is dividing the  nation  at  a  time  when  we  have  to  be  united  to  face  the  challenges  before  the  nation  unitedly.  Hence,  inter-caste  marriages  are  in  fact  in  the  national  interest  as  they  will  result  in destroying the caste system. However,  disturbing  news  are  coming  from  several  parts  of  the  country  that  young men and women who undergo inter-caste marriage,  are  threatened  with  violence,  or  violence  is  actually  committed on them. In our opinion, such acts of violence or  threats  or  harassment  are  wholly  illegal  and  those  who  commit them must be severely punished. This is a free and  democratic country, and once a person becomes a major he  or she can marry whosoever he/she likes. If the parents of  the boy or girl do not approve of such inter-caste or inter- religious marriage the maximum they can do is that they can  cut-off social relations with the son or the daughter, but they  cannot give threats or commit or instigate acts of violence  and cannot harass  the person who undergoes such inter-

27

caste or inter-religious marriage.  We, therefore,  direct  that  the  administration/police  authorities  throughout  the  country will see to it that if any boy or girl who is a major  undergoes  inter-caste  or  inter-religious  marriage  with  a  woman or man who is a major, the couple is not harassed by  anyone  nor  subjected  to  threats  or  acts  of  violence,  and  anyone who gives such threats or harasses or commits acts  of  violence either himself  or at  his instigation,  is taken to  task by instituting criminal proceedings by the police against  such persons and further stern action is taken against such  persons as provided by law. “

Even as early as in 1990, this Court has held that everyone  

associated with enforcement of law is expected to follow the  

directions and failure shall be seriously viewed and drastically  

dealt with.  We also reiterate that 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 the direction in  Lata  

Singh’s  case  (supra),  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  instigates,  it  is  the  responsibility  of  the  officers  

concerned  to  take  stern  action  against  such  persons  as  

provided by law.   

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18) In  the  light  of  the  directions  of  this  Court,  it  is  

unfortunate and of the fact that both Rizwanur Rahman and  

Priyanka Todi married on their own will, who were majors, and  

the marriage was duly registered under the notified authority,  

the police officials have no role in their conjugal affairs and the  

law enforcing authorities have no right to interfere with their  

married life and, in fact, they are duty bound to prevent others  

who interfere in their married life.    

19) As  rightly  observed  by  the  learned  Single  Judge,  the  

officers  of  the  Police  Department  were  not  justified  in  

interfering  with  the  married  life  of  Rizwanur  Rahman  and  

Priyanka Todi.  The learned single Judge, by giving adequate  

reasons,  directed  the  investigation  by  the  CBI  which  we  

concur.

The reasonings of the Division Bench

20) The  Division  Bench,  after  analyzing  the  case  has  

correctly determined the following question for consideration:

The question involved in the writ application was whether  

it had been established from the materials on record that  

there was genuine apprehension in the mind of the writ  

29

petitioners that there might not be fair investigation at  

the instance of the CID in respect of the unnatural death  

of Rizwanur Rahman because of the alleged involvement  

of the high police officials of the Kolkata Police in the post  

marital dispute between Todis and the deceased on the  

one  hand  and  with  his  wife  on  the  other,  justifying  

investigation by the CBI.   

21) While answering those issues, the Division Bench of the  

High Court committed several infirmities which we point out  

hereunder.  With regard to the interim order dated 16.10.2007  

passed  by  the  learned  single  Judge  appointing  the  CBI  to  

investigate and report, the Division Bench has observed that  

the learned single Judge has not injuncted or restrained the  

State  CID  from  proceeding  with  the  investigation  in  

accordance  with  the  Code.   The  Division  Bench  has  also  

commented that in the absence of any direction by the learned  

single  Judge  for  handing  over  the  papers  relating  to  the  

investigation done so far by the CID to the CBI, the CID ought  

to have completed the investigation on its own.  We are unable  

to accept this conclusion.  When the learned single Judge on  

30

satisfying  himself  based  on  the  materials,  particularly,  the  

conduct  of  the  State  Police  and  the  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,  there cannot be any parallel  investigation by the State  

CID.  In the same way, we are unable to accept the conclusion  

of  the  Division Bench that  the  learned single  Judge  simply  

appointed  the  CBI  as  His  Lordships  “Special  Officer”  to  

investigate into the cause of unnatural death of the deceased  

and to submit a report in a sealed cover.  The said finding of  

the High Court  is  not borne out of  the  records of  the  case  

including the order dated 16.10.2007 passed by the learned  

single Judge.  Neither the Code authorizes the appointment of  

CBI officers as “Special Officer” nor the prayers made in the  

writ  petition  prayed  for  appointment  of  the  CBI  to  act  as  

“Special Officer” of the Court.  As a matter of fact, the order  

dated  16.10.2007  of  the  learned  single  Judge  does  not  

mention that the CBI was being appointed as “Special Officer”  

of the Court.  In the interim order, the learned single Judge  

decided  the  question  whether  investigation  by  the  CID was  

31

just, fair and proper or whether such investigation should be  

conducted  by  the  CBI.   Merely  because  no  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 investigation.  On the other hand, the order dated  

16.10.2007 makes it clear that the learned 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  learned  single  Judge  appointed  CBI  as  its  

“Special  Officer”  is  patently  against  all  canons  of  justice,  

equity and fair play in action.

22) The Division Bench of the High Court also committed an  

error in holding the order appointing CBI to investigate for the  

purpose of submitting report to the learned single Judge and  

not to investigate for the alleged offence in accordance with  

law  in  place  of  State  CID  and  hence  conclusion  of  such  

investigation by the CBI cannot form the basis of  charge-sheet  

in  the  criminal  trial.   The  Division  Bench  has  also  not  

32

considered  the  judgment  dated  14.08.2008  passed  by  the  

learned single Judge in 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  

consider  necessary  in  the  interest  of  justice.   Neither  the  

learned single Judge directed the CBI to submit the report as  

charge  sheet,  as  has  been held  erroneously  by  the  learned  

Division  Bench  nor  the  CBI  was  stopped  from  conducting  

further investigation in the matter before it actually filed the  

charge sheet at  any point it  may consider necessary in the  

interest of justice.  It is evident that 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.   

23) Section 2(h) of the Code defines investigation which reads  

as under:

“(h)  “investigation”  includes all  the proceedings under this  Code  for  the  collection  of  evidence  conducted  by  a  police  officer  or  by any person (other  than a Magistrate)  who is  authorized by a Magistrate in this behalf”

33

Under the scheme of the Code, investigation commences with  

lodgment  of  information  relating  to  the  commission  of  an  

offence. If it is a cognizable offence, the officer-in-charge of the  

police station, to whom the information is supplied orally has  

a statutory duty to reduce it to writing and get the signature of  

the informant. He shall enter the substance of the information,  

whether given in writing or reduced to writing as aforesaid, in  

a book prescribed by the State in that behalf. The officer-in-

charge has no escape from doing so if the offence mentioned  

therein is a cognizable offence and whether or not such offence  

was  committed  within  the  limits  of  that  police  station.  But  

when the offence is non-cognizable, the officer-in-charge of the  

police station has no obligation to record it if the offence was  

not  committed  within  the  limits  of  his  police  station.  

Investigation thereafter would commence and the investigating  

officer has to go step by step. The  Code  contemplates  the  

following steps to be carried out during such investigation:

(1) Proceeding to the spot; (2) ascertainment of the facts and  

circumstances  of  the  case;  (3)  discovery  and  arrest  of  the  

34

suspected  offender;  (4)  collection of  evidence relating to  the  

commission  of  the  offence  which  may  consist  of  — (a)  the  

examination of  various persons (including the  accused)  and  

the  reduction of  their  statements  into  writing,  if  the  officer  

thinks  fit,  (b)  the  search  of  places  or  seizure  of  things  

considered necessary for the investigation and to be produced  

at the trial; and (5) formation of the opinion as to whether on  

the  material  collected  there  is  a  case  to  place  the  accused  

before a Magistrate for trial and, if so, to take necessary steps  

for the same by the filing of a charge-sheet under Section 173.  

[Vide  H.N. Rishbud & Anr. v.  State of Delhi,  AIR 1955 SC  

196, State of M.P. v.  Mubarak Ali,  AIR  1959 SC 707 and  

Navinchandra  N.  Majithia vs.  State  of  Meghalaya  and  

Ors., (2000) 8 SCC 323)]

24) When  the  final  report  is  laid  after  conclusion  of  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  the  investigation  was  

conducted by the CBI, the provisions under Chapter XII of the  

35

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  

completion of the investigation, the report has to be filed by  

the CBI in the manner provided in Section 173(2) of the Code.  

[Vide  Hemant  Dhasmana vs.  Central  Bureau  of  

Investigation and Another, (2001) 7 SCC 536]  

25) In  view  of  the  same,  the  Division  Bench  failed  to  

appreciate the order dated 16.10.2007 passed by the learned  

single  Judge  directing  the  CBI  to  investigate  into  cause  of  

unnatural death of Rizwanur Rehman.  We have already noted  

that 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  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 whether the death of Rizwanur  

Rahman was suicidal or homicidal,  investigation could have  

36

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 passed by the learned Single Judge.  

26) 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 register an FIR.  In the case  

on hand, as per the post mortem report dated 22.09.2007, the  

cause of death of Rizwanur Rahman 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 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 contrary observations made about the orders of  

the learned single Judge cannot be sustained.  Inasmuch as  

the direction of the learned single Judge is in accordance with  

law and the  CBI  investigated the  case  in terms of  the  said  

37

order and submitted report based on which it was permitted to  

file  a  report  before  an appropriate  Court  and also  adduced  

liberty  to  reinvestigate  the  issue  if  not  arise,  the  Division  

Bench has  erred in  directing  the  CBI  to  start  investigation  

afresh  in  accordance  with  law by  treating  the  complaint  of  

Rukbanur Rahman-brother of the deceased dated 21.09.2007  

as FIR and to register a case of murder.  As rightly pointed out  

by  the  learned  Solicitor  General,  all  this  had  already  been  

done 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 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.  

27) The Division Bench of the High Court has failed to note  

that the fresh investigation into the same allegation would be a  

futile  exercise  and  no  purpose  would  be  served  by  

38

investigating the case afresh, more particularly, 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 back by the same agency, namely, the CBI.  

For all these reasons, we are unable to sustain the reasonings  

of the Division Bench for a fresh investigation by the CBI.

28) Coming to the directions passed by the High Court about  

the conduct of the officers and taking action against them on  

the  departmental  side,  we  clarify  that  the  concerned  

department is  free to take appropriate  action in accordance  

with the statute/rules/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, we  

agree  with  the  observation  of  the  learned  single  Judge  in  

respect of the conduct of the officers in interfering with the  

conjugal  affairs  of  the  couple  even  without  any  formal  

complaint against any one of them.  

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29) In the light of the above discussion, we conclude:

i) The  learned  single  Judge  of  the  High  Court  is  fully  

justified  in  passing  interim  order  on  16.10.2007  

appointing  the  CBI  to  investigate  into  the  unnatural  

death of Rizwanur Rahman and submit a report;

ii) The learned 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 Section 173(2) of the  

Code is accepted.

iii) All the reasonings recorded by the Division Bench of the  

High  Court  in  the  order  dated  18.05.2010  are  

unacceptable and hereby set aside;

iv) Pursuant to the orders of the learned single Judge, after  

investigation, CBI has filed charge sheet on 20.09.2008  

under  Section  120-B  read  with  Sections  306  and 506  

IPC.  In view of the same and as per the statement of Mr.  

Lalit, Ashok Kumar Todi 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,  

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no  further  custody  is  required.   However,  we  make  it  

clear that CBI is free to move an application before the  

court  concerned  for  appropriate  direction,  if  their  

presence is required;

v) Any  action  against  the  officers  of  the  State  Police  

Department, as suggested by the learned single Judge,  

shall  be in accordance with law and service conditions  

applicable  to  them  and  after  affording  opportunity  to  

them.

30) All the appeals are disposed of on the above terms.  

 ...…………….…………………………J.            (P. SATHASIVAM)                                   

 .…....…………………………………J.    (DR. B.S. CHAUHAN)  

NEW DELHI; MARCH 1, 2011.                    

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