DISTRICT: NORTH 24 PARGANAS
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No: (W) of 2014
-And-
In the matter of:
An application under Article 226 of the Constitution of India
-And-
In the matter of:
Subject matter relating to
Under Group IX; Head of
the Classification List;
Cause Title
-And-
In the matter of:
Smt. Jayashree Saha Banik
…………… Petitioner
-Versus-
The State of West Bengal & others
………….. Respondents
DISTRICT: NORTH 24 PARGANAS
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No: (W) of 2014
-And-
In the matter of:
An application under Article 226 of the Constitution of India
-And-
In the matter of:
Smt. Jayashree Saha Banik
…………… Petitioner
-Versus-
The State of West Bengal & others
………….. Respondents
INDEX
Serial No Description Annexure Page No
1 Pass Book P-1
2 Locker Account P-2
3 Death Certificate P-3
4 Banker’s Cheque P-4
5 Letter dated 22.05.2007 P-5
6 Letter dated 06.09.2008 P-6
7 Letter dated 24.10.2008 P-7
8 Legal Notice dated 30.01.2009 P-8
9 Letter dated 20.02.2009 P-9
10 Letter dated 02.03.2009 P-10
11 Letter dated 04.03.2009 P-11
12 Letter dated 06.07.2009 P-12
13 Letter dated 14.07.2009 P-13
14 FIR dated 21.02.2013 P-14
15 Notice u/s 91 Cr.P.C. and Reply P-15
16 Letter dated 05.07.2013 P-16
17 Letter dated 05.08.2013 P-17
18 Letter dated 18.09.2013 P-18
List of Dates
1. 28.01.2004 Opening of account No. SB NRE 60301
2. 05.12.2005 Opening of locker account No. NRERDP 520500102
3. 23.10.2006 Death of Phani Bhusan Dutta
4. 27.03.2007 Issued Banker’s Cheque
5. 22.05.2007 Issued letter demanding Operation of locker No. 403
6. 06.09.2008 Senior Manager issued letter
7. 24.10.2008 Assistant General Manager issued letter
8. 30.01.2009 Lawyer issued letter
9. 20.02.2009 Senior Manager issued letter
10. 02.03.2009 Lawyer issued letter
11. 04.03.2009 Senior Manager issued letter
12. 06.07.2009 Lawyer issued letter
13. 14.07.2009 Bank replied through his Advocate
14. 20.08.2009 Locker operation
15. 20.08.2009 Written information to Bidhannagar North PS
16. 18.02.2013 Application before A.C.J.M. at Bidhannagar
17. 21.02.2013 FIR registered
18. 17.03.2013 Notice under section 91 Cr.P.C. issued
19. 22.03.2013 Reply
20. 17.04.2013 Notice under section 91 Cr.P.C. issued again
21. 24.04.2013 Reply
22. 05.07.2013 Letter to the Commissioner of Police
23. 05.08.2013 Letter to Director General of Police
24. 18.09.2013 West Bengal Police Directorate issued letter
Points of law
I. Whether the right to fair investigation one of the prominent facet of fundamental right of the Petitioner which is protected under Article 21 of the Constitution of India squarely jeopardize the right to fair investigation of the Petitioner due to the palpable laxity in purported investigation of the Respondent No. 6 and 5;
II. Whether the tainted investigation while obvious on the face of the record, the judicial intervention into the same is awfully warranted to render justice to the Petitioner or not;
III. Whether the lackadaisical conduct and attitude of the Respondent No.6 in regard to the purported investigation should be deprecated for the sake of interest of justice or not.
DISTRICT: NORTH 24 PARGANAS
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No: (W) of 2014
In the matter of:
An application under Article 226 of the Constitution of India;
-And-
In the matter of:
Gross violation of Right to life protected under Article 21 of the Constitution of India and Right to Equality and Equal Protection of Laws protected under Article 14 of the Constitution of India;
-And-
In the matter of:
Gross violation of the provision of Section 173(1) of the Code of Criminal Procedure, 1973;
-And-
In the Matter of :
Police Inaction and/or non action and/or failure and/or neglect on the part of the Officer- in- Charge, Bidhannagar North Police Station ;
And
In the matter of:
Smt. Jayashree Saha Banik, w/o Late Gourhari Saha Banik, resident of D/16/8, Purbasha Housing Estate, 160 Maniktala Main Road, Kolkata-700054.
………..…. Petitioner
Versus
1. The State of West Bengal, Service through the Secretary, Department of Home (Police), Government of West Bengal, having its office at ‘Nabanna’ 325 Sarat Chatterjee Road, Howrah -711102.
2. The Director General & Inspector General of Police, West Bengal Police Directorate, having its Office at ‘Nabanna’ 325 Sarat Chatterjee Road, Howrah-711102.
3. The Commissioner of Police, Bidhannagar Police Commissionerate, having its office at Salt Lake Stadium Complex, Gate No-III, Sector – III, Saltlake, Kolkata-700 098.
4. The Additional Deputy Commissioner of Police, Bidhannagr Division, having its office at DF-6, Sector-I, Salt Lake, Kolkata-700 064.
5. The Inspector-in-Charge, Bidhannagar North Police Station, DF-6, Sector-I, Saltlake, Kolkata-700064.
6. Shri Biswajit Ghosh, Investigating Officer, having its Office at Bidhannagar North Police Station, DF-6, Sector-I, Saltlake, Kolkata-700064.
… Respondents
To
The Hon’ble Mr. Arun Mishra, the Chief Justice of the Hon’ble High Court and the Companion Judges of the aforesaid Hon’ble Court
The humble petition on behalf of the Petitioner most respectfully
SHEWETH:
1. That the Petitioner is a peaceful citizen of India and is therefore entitled to the protection of fundamental rights granted under the constitution of India and other Statutory rights.
2. That Late Phani Bhusan Dutta who happened to be the citizen of the United States of America and who was Petitioner’s uncle by relation at the fag-end of his life came to India and used to reside at her residence at Prachin Mayapur (South) , Nabadwip, Nadia, West Bengal.
3. That while Petitioner’s uncle used to reside with her, he purchased a residential flat being No. D-16/8 at Purbasha Housing Estate, 160 Manicktala Main Road, Kolkata-700054 in the year of 2003. The Petitioner’s uncle had nominated the Petitioner as his only nominee in respect of the said flat.
4. That after purchasing the said flat the uncle of the Petitioner used to reside thereat and subsequently he opened a SB NRE account being No. 60301 with Indian Overseas Bank, Saltlake City Branch, Block-EA, Sector-I, Kolkata-700064 on 28.01.2004 wherein he also nominated the Petitioner as his only nominee in respect of the said account.
Photocopy of Pass Book of SB NRE account being No. 60301 is annexed herewith and marked as Annexure “ P-1” .
5. That thereafter said Petitioner’s uncle took a big locker being No. 403 with the said branch of said Bank and the Petitioner’s uncle also nominated the Petitioner as his only nominee in respect of the said locker under section 45 ZE of The banking Regulation Act, 1949.
Photocopy of locker account being No. NRERDP 520500102 and acknowledgement of nomination is annexed herewith and marked as Annexure “ P-2” .
6. That it is apposite to mention herein that said Petitioner’s uncle was an employee of The Washington Post, an esteemed daily in USA and he retired from his service and wanted to settle in India as such he purchased the said flat and started to reside with the Petitioner. That after retirement said Petitioner’s uncle wanted to bring his entire savings of money to India as such he transferred his entire savings of money from USA to India in reference to his said account being No. SB NRE 60301 of the said branch of the said bank and all the transactions of money were quite aware by the then branch manager of the said branch of the said Bank and it was well known to the then manager that entire money about 35 Lac US Dollar was kept inside the said locker and kept two wrist watch among them one made of gold inside the said locker.
7. That Petitioner’s uncle was a septuagenarian gentle man and at the fag-end of his life he became old as such he entirely depends upon the Petitioner as he had faith and trust upon the Petitioner. That it is most unfortunate that said Petitioner’s uncle become indisposed as such he was admitted to Peerless Hospital & B K Roy research Centre on 22.10.2006 and he breathed his last on 23.10.2006.
Photocopy of Death Certificate of Phani Bhusan Dutta is annexed herewith and marked as Annexure “ P-3” .
8. That after the sudden demise of the Petitioner’s uncle, Petitioner performed all the rites and ritual duties and thereafter Petitioner apprised the death information to the said Bank and demanded the money lying in the name of her said uncle as a nominee and also demanded for operating the said locker as a nominee. After a long harassment the said Bank on 27.03.2007 issued her a Banker’s cheque to the tune of Rs. 3,66,644/- in favour of her in respect of the said bank account being No. SB NRE 60301 as Petitioner was the nominee to that account.
Photocopy of Banker’s cheque is annexed herewith and marked as Annexure “ P-4” .
9. That thereafter Petitioner again demanded for operating the said locker by her letter dated 22.05.2007 and handed over all necessary documents to the said bank, but the then branch manager who was aware of the valuables of the said locker did not allow her to operate the same on different pretexts and on evasive grounds he tried not to get access of the said locker to the Petitioner at his best and passed time the then manager as well as other officer of the said bank by harassing her.
Photocopy of letter dated 22.05.2007 is annexed herewith and marked as Annexure “ P-5” .
10. That the Senior Manager of the said bank issued a letter dated 06.09.2008 to the Petitioner in which he instructed the Petitioner that there is a claim on the above locker from some other persons without disclosing their name and as such he has referred the matter to his Law Department.
Photocopy of letter dated 06.09.2008 is annexed herewith and marked as Annexure “ P-6” .
11. That by another letter dated 24.10.2008 Assistant General Manager of the said branch of the said bank had written to the Petitioner regarding locker No. 403 in the name of Phani Bhusan Dutta and asked the Petitioner to submit legal representation by way of “Letter of administration” in support of her claim.
Photocopy of letter dated 24.10.2008 is annexed herewith and marked as Annexure “ P-7” .
11. That the Petitioner ultimately compelled to serve a legal notice on 30.01.2009 to the manager of the said bank to that effect through her Advocate Mr. Supriya Ranjan Saha.
Photocopy of legal notice dated 30.01.2009 is annexed herewith and marked as Annexure “ P-8” .
12. That the Senior Manager replied the said representation by a letter dated 20.02.2009 to the Petitioner instead of her Advocate which he had instructed the Petitioner to submit proof of nomination of the said locker.
Photocopy of letter dated 20.02.2009 is annexed herewith and marked as Annexure “ P-9” .
13. That thereafter the Petitioner’s Lawyer apprised the Senior Manager of the said bank by his letter dated 02.03.2009 that it is matter of record that Petitioner is the nominee of the said locker and the proof of nomination of the said locker has already been submitted and bank cannot asked to submit proof of locker nomination again.
Photocopy of letter dated 02.03.2009 is annexed herewith and marked as Annexure “ P-10” .
14. That thereafter Senior Manager of the said bank issued a letter dated 04.03.2009 to the Petitioner instead of her Lawyer in which the said Manager falsely represented that no nomination is registered in respect of locker no. 403 standing in the name of Phani Bhusan Dutta.
Photocopy of letter dated 04.03.2009 is annexed herewith and marked as Annexure “ P-11” .
15. That thereafter the Petitioner’s Advocate issued a letter dated 06.07.2009 to the Manager of said bank with enclosing a pay order amounting to Rs.2600/- for one year locker rent .
Photocopy of letter dated 06.07.2009 is annexed herewith and marked as Annexure “ P-12” .
16. That thereafter Advocate Mr. Ardhendu Shekhar Kayal issued a letter on 14.07.2009 on behalf of the said bank to the Petitioner’s Advocate in which he said that it is fact that Phani Bhusan Dutta, since deceased, maintained some accounts with her client and in those accounts petitioner was the nominee but he further stated that there was no nomination made by Phani Bhusan Dutta in respect of locker no. 403 and thereby he requested the Learned Advocate of the Petitioner to advice to the Petitioner to bring succession Certificate or Letter of Administration in respect of the said locker.
Photocopy of letter dated 14.07.2009 is annexed herewith and marked as Annexure “ P-13” .
17. That after so many correspondences from both ends, Petitioner went to the bank on 20.08.2009 with her elder son and the accused persons then and there to allow her to open the said locker and she asked the manager to accompany her while she open the said locker as some doubts arisen in her mind with abnormal behaviors of the bank official regarding the opening of the said locker and while she opened the locker in presence of the then bank manager she found that it seems her the key of the said locker has been tampered and after some efforts to open the same when she succeed to open the same, she found along with the Manager the locker was empty and not a single US Dollar thereat . Then she asked the Manager to look into the same but he went away without giving her any answer. Ultimately she has written a complaint stating the fact where the Manager to accept the same but he refused to receive her written complaint.
18. That having no other alternatives Petitioner then and there informed the matter to Bidhannagar North Police Station on 20.08.2009 in writing. Police told her that they started a case to give her justice but actually police neither started any case nor started any investigation.
19. That Petitioner is being a helpless lady knocked the door of different administrative authority to get justice but due to influence of some unknown powerful personality the bank get a chance to destroy evidence and try to save the accused persons. That by this time bank official prepared some false document and destroys some original documents to save them from alleged offence.
20. That Petitioner went to Bidhannagar North Police Station to enquire about the status of her case as she used to enquire but on 11.02.2013 Bidhannagar North Police Station clearly informed her that no such case actually been initiated by them . Knowing this fact again she wrote this matter to Bidhannagar Police Commissioner and asked his suggestion in this regard. After receiving her complaint he has suggested her to lodge a petition under section 156(3) Cr.P.C. and if the Learned Court ordered then he start the investigation.
21. That thereafter petitioner filed a petition under section 156(3) Cr.P.C before Ld. A.C.J.M at Bidahnnagar on 18.2.2013 and Ld. A.C.J.M at Bidahnnagar accordingly passed an order upon the Officer in Charge of Bidhannagar North Police Station to investigate her complaint and accordingly a case being No. 40 dated 21.02.2013, Bidhannagr North Police Station, has been registered.
Photocopy of Certified copy of FIR dated 21.02.2013 is annexed herewith and marked as Annexure “ P-14” .
22. That long time has already been efflux but Respondent No.6 neither arrested the FIR named or any other accused person. He not examined any probable witness also. It is a matter of great regret that the Respondent No.6 working lackadaisically and did nothing except to harass Petitioner on different pretexts and on evasive grounds and Petitioner is facing gross irreparable loss.
23. That Inspector in Charge of Bidhannagar North Police Station, Respondent No. 6, issued a notice under section 91 Cr.P.C. dated 17.03.2013 in reference to above case and Petitioner has sent her reply by her letter dated 22.03.2013. But the Respondent No. 5 again issued a notice under section 91 Cr.P.C. dated 17.04.2013 and Petitioner has sent her reply by her letter dated 24.04.2013.
Photocopy of the copy of notice dated 17.03.2013 and the reply dated 22.03.2013 and the further notice dated 17.04.2013 and the reply dated 24.04.2013 are annexed herewith and collectively marked as Annexure-“P-15”.
24. That thereafter long time back Investigating Officer did not take any steps and Police inaction going on in reference to the said case.
25. That thereafter Petitioner informed this Police inaction in reference to the above case to the Bidhannagar City Police Commissioner in writing on 05.07.2013 and requesting him to give a direction to Respondent No. 5, so that she will get justice under the Law of the Land. But in spite of that the Respondent No. 5 did not take any steps in this regard.
Photocopy of letter dated 05.07.2013 and Postal receipt are annexed herewith and marked as Annexure “ P-16” .
26. That thereafter Petitioner again informed Police inaction to the Director General of Police, West Bengal Police Directorate in writing on 05.08.2013 requesting him to give a direction to Respondent No.6, so that she will get justice in this regard. But in spite of that the Respondent No. 6 did not take any steps in this regard.
Photocopy of letter dated 05.08.2013 and Postal receipt are annexed herewith and collectively marked as Annexure “ P-17” .
27. That West Bengal Police Directorate by his letter dated 18.09.2013 informed the petitioner that her letter to DGP dated 05.08.2013 has been sent to Bidhannagar Police Commissioner Shri Rajiv Kumar for causing an enquiry and taking necessary action at his end and to send a repot on progress of investigation but eventually it appears that all such things have been found a mere claptraps.
Photocopy of letter dated 18.09.2013 is annexed herewith and marked as Annexure “ P-18” .
28. That the Petitioner has moved pillar to post to get her substantial justice in this matter but no authority has ever came forward to render justice to her. Finding no other alternatives, the Petitioner invoked the writ jurisdiction of this Hon’ble Court in this matter to get susbatntial justice.
29. Being aggrieved by and dissatisfied with the acts and deeds of the Respondents, the Petitioner intents to move the instant application before this Hon’ble Court invoking the writ jurisdiction amongst other
GROUNDS
I. FOR THAT the acts and deeds of the Respondent are absolutely illegal and ex facie bad in law.
II. FOR THAT the inaction on part of the Respondent No. 6 and 5 is obvious and same is not tenable on the anvil of law;
III. FOR THAT the right to fair investigation is a fundamental right of the Petitioner which is protected under Article 21 of the Constitution of Indian but the palpable laxity in purported investigation of the Respondent No. 6 and 5 squarely jeopardize the right to fair investigation of the Petitioner which essentially warrants to be cured;
IV. FOR THAT the purported investigation conducted by the Respondent No. 6 is going on, if at all proceed in reality, in a capricious manner and destitution of any logical mode and manner, therefore the same should be cured by judicial intervention;
V. FOR THAT the since the subject-matter of the investigation essentially entails some valuables things of the deceased relative of the Petitioner, the investigation of the same should be considered seriously and be made sincerely and diligently.
VI. FOR THAT the tainted investigation while obvious on the face of the record, the judicial intervention into the same is awfully warranted to render justice to the Petitioner;
VII. FOR THAT the lackadaisical conduct and attitude of the Respondent No.5 in regard to the purported investigation should be deprecated for the sake of interest of justice.
VIII. FOR THAT the wholesome of the investigation, so far, since found tainted and laxity is obvious, the judicial intervention is awfully required to render substantial justice to the Petitioner;
IX. FOR THAT the no any FIR named accused person arrested till date and Stolen property not recovered.
X. FOR THAT the prejudiced by the purported investigation;
XI. FOR THAT the huge quantum of money involved.
XII. FOR THAT the Central Bureau of Investigation is specialized to dealing with the economic offences;
30. That the Petitioner further submits that since the acts and deeds of the Respondent are violative of the law of the Constitution of India and detrimental to the interest of the Petitioner the intervention of this Hon’ble court to render substantial justice to the Petitioner is awfully warranted.
31. That the Petitioner humbly submits that unless the prayer the Petitioner is allowed, the Petitioner will suffer irreparable loss and injury causing injustice to her.
32. That there is no other alternative, legal, efficacious, speedy remedy but to move the instant application under Article 226 of the Constitution of India and seek appropriate relief. The relief sought for, if granted, would afford full, adequate and complete remedy.
33. That Petitioner has demanded justice to the Respondents but justice has been denied to her. Any further demand for justice shall, in the facts of the case, be an empty formality.
34. That the records of this case are lying in the Office of the Respondents within the Jurisdiction of this Hon'ble Court.
35. That the Petitioner has not made any other application to this Hon’ble Court in respect of the subject matter of this petition.
36. This application is made bona fide and for the ends of justice.
Under the facts and circumstances of this case Your Lordship would graciously be pleased to pass
a) A writ in the nature of Mandamus directing the Central Bureau of Investigation to take up the Case being No. 40 dated 21.02.2013 of Bidhannagar North Police Station to make fair investigation ;
b) Ad-interim order directing the Respondent No. 6 to appear before this Hob’ble Court with latest status report of the said investigation of the said case for fair adjudication of the instant application for the ends of justice;
c) Any other order or orders, direction or directions as Your Lordships may deem fit and proper.
And for this act of kindness Your Petitioners as in duty bounds shall ever pray.
AFFIDAVIT
I, Smt. Jayashree Saha Banik , wife of Late Gourhari Saha Banik aged about 53 years, by occupation housewife, residing at Flat- D16/8, 160 Maniktala Main Road, Post Office: Kankurgachi & Police Station: Manicktala , Kolkata- 700054 do hereby state and declare as follows:
1 I am the Petitioner of the foregoing Petition and as such I am fully conversant with the facts and circumstances of the case and competent to swear the affidavit.
2 That the statements made in paragraph no …………………………………………… are the matters of fact which I verily believe to be true to my knowledge and belief and the statements made in paragraph no ……………………………………………………….. are the matters of records which I verily believe to be true to my knowledge and believe and the statements made in paragraph no ……………………………………….. are my humble submission before this Hon’ble Court.
3 That the annexures to the writ petition are true and correct copies of their respective originals.
Prepared in my office The Deponent is known to me
Advocate Clerk to Mr.
Advocate
Solemnly affirmed before me
On May, 2014.
All annexure are legible
Advocate
COMMISSIONER
DISTRICT: NORTH 24 PARGANAS
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No: (W) of 2014
In the matter of:
An application under Article 226 of the Constitution of India;
-And-
In the matter of:
Jayashree Saha Banik
…………… Petitioner
-Versus-
The State of West Bengal & others
……….. Respondents
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