/ORDER

Md. Nizamuddin, J. - Heard Learned Advocates appearing for the parties.

2. The instant Writ Petition has been filed by the petitioner being widow of the deceased Rabin Ghosh alleged to have been killed in false encounter by one Tapasbrati Chakraborty, Office-in-charge of Jangiapara Police Station, seeking relief of direction upon the Central Bureau of Investigation (CBI) to investigate the alleged false police encounter alternatively appropriate and comprehensive investigation into the case in terms of the direction of the Additional Chief Judicial Magistrate (ACJM), Serampore in his order dated 28th September, 2011 passed in G.R. No. 131 of 2010.

3. Relevant facts involved in brief in the instant Writ Petition as appears on perusal of relevant records are hereunder.

4. First Information Report was filed by one Ashok Porel on 14th February, 2010 against Tapasbrati Chakraborty, Officer-in-charge of Jangiapara Police Station, District - Hooghly being Case No. 23/10 dt. 14.02.2010 U/S147/148/149/323/324/325/326/307/353/332/333 IPC and 25/27 Arms Act, 9(b)(ii) I.E Act and 9 M.P.O. Act. And Jangiapara PS Case No. 24/10 dt. 14.02.2010 U/S- 147/148/149/323/324/325/307 IPC and 25/27 Arms Act, 9(b)(ii) I.E Act.

5. On the basis of aforesaid First Information Report, investigation was taken up finally by one A.N. Ganguly, Circle Inspector (C.I), Uttarpara, District - Hooghly and after completion of investigation by the District Police (Hooghly) report in "Final Form as False" vide Jangiapara PS FR No. 193/10 dt. 12.12.2010 under Section 304 of the Indian Penal Code was filed.

6. The complainant Shri Ashok Porel filed a "Protest/Naraji Petition" before the ACJM, Serampore against the submission of the aforesaid final report when the Learned Magistrate accepted the said "Protest/Naraji Petition" and passed an order on 28th September, 2011 for further investigation by Criminal Investigation Department (CID), West Bengal.

7. The complainant Shri Ashok Porel filed a Writ Petition before this Court being W.P. No. 2029 of 2011 which was disposed of by giving liberty to him to file such an application before the Ld. ACJM, Serampore.

8. Inspector Shri Gobinda Biswas of Detective Department of Investigation (DDI) Hooghly submitted final report after further investigation. During pendency of the aforesaid investigation the Writ Petitioner Latika Ghosh, widow of Lt. Rabin Ghosh filed the instant Writ Petition making prayer for direction upon the Central Bureau of Investigation (CBI) alternatively any appropriate authority to investigate into the aforesaid case and to submit report to this Court and for compensation to the Writ Petitioner.

9. It appears from record that after submission of the final report on the investigation by the Inspector Shri Gobindo Biswash DDI Hooghly petitioner again made a "Protest/Naraji Petition" challenging the said final report and it also appears that on 29th November, 2018 Inspector Pallab Kumar Ganguli made a prayer before the Ld. ACJM, Srerampore for further investigation of the case under Section 173 (8) of Cr. P.C.

10. Main allegation of the petitioner in this Writ Petition is that there was a false encounter by Tapasbrati Chakbraborty, Officer-in-charge of Jangiapara Police Station and her husband was murdered by him and the investigation was carried by his just above superior officer inspector A.N. Ganguli, CI Uttarpara and there is likelihood of biased and to protect his colleague in the said case which is further strengthen by not transferring the accused Tapasbrati Chakraborty from the said police station and during investigation he remained posted in the same Police Station and further ground of challenge of the investigation by the petitioner is reliance of the investigation authority on a subsequent expert opinion contradictory to earlier expert opinion on the post mortem report etc according to which the husband of the petitioner was shot dead from a very close range by a revolver and this important factor was not considered by the investigating authority.

11. Further allegation of the petitioner is that the statement received by the Learned Judicial Magistrate from three witnesses as stated in paragraph 7 of the Affidavit-in-Opposition to the writ petition, recorded under Section 164 of the Cr.P.C who clearly stated before the Learned Judicial Magistrate in their statement that the accused Tapasbrati Chakraborty fired from his service revolver from close range at the victim and the report in final form submitted by the CID ignoring all the aforesaid factors, is illegal and unjustifiable and contends that in the instant case charge-sheet should have been filed and there is a glaring instance of the unfair investigation by the CID and the post mortem report along with expert opinion which tallies with the ocular evidence that the victim was fired from the close range should have been accepted.

12. Petitioner contends that the defence of the respondents police authorities that there was grievous situation warranting fire by the accused even accepted for the sake of argument then question arises as to why the higher officials were not apprised of such a situation with a request to rush the spot and there is no record after how many hours the entire incident was reported to the higher officer and by what mode and the investigating officer under CID has totally ignored these aspects which were requirement of the Police Regulation of Bengal (PRB), it clearly shows that the CID authorities are shielding the accused police officer.

13. Petitioner further contends that on earlier occasion the Learned Magistrate himself being not satisfied with such final investigation report accepted the "Protest/Naraji Petiton".

14. Learned Advocate for the petitioner in support of his contentions made above relied on the following decisions:

(a) (Debasish Bose and Anr. -vs- State of West Bengal and Anr., (2015) 2 CalCriLR 91 (Cal)).

(b) (Dharam Pal -vs- State of Haryana and Ors., (2016) 4 SCC 160 [LQ/SC/2016/163] ).

(c) (Vinay Tyagi -vs- Irshad Ali and Ors., (2013) 5 SCC 762 [LQ/SC/2012/1138] ).

(d) (Chandra Babu alias Moses -vs- State through Inspector of Police and Ors., (2015) 8 SCC 774 [LQ/SC/2015/849] ).

(e) (Ramesh Kumari -vs- State (NCT of Delhi) and Ors.,2006 2 SCC 667).

(f) (R.S. Sodhi -vs- State of U.P and Ors., (1994) Supp1 SCC 143)

(g) (State of West Bengal -vs- Committee for Protection of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571 [LQ/SC/2010/209] )

(h) (Prakash Kadam and Ors. -vs- Ramprasad Viswanath Gupta and Anr., (2011) 6 SCC 189 [LQ/SC/2011/734] )

(i) (Nandigram Case, (2007) 4 CalHN 842)

(j) (Manu Sharma -vs- State NCT of Delhi, (2010) 6 SCC 1 [LQ/SC/2010/412] )

(k) (Piara Singh and Ors -vs- State Of Punjab, (1977) AIR SC 2274)

(l) (Arkadeb Mukherjee -vs- State of West Bengal, (2017) 3 CalHN 43 (cal)).

15. Learned Advocate appearing for the respondents has opposed the Writ Petition by contending that the instant case is not one of those exceptional situations calling for exercise of extraordinary power of the High Court to direct investigation into the complaint by the Central Bureau of Investigation. He further contends that the High Court may direct either the Superintendent of Police to entrust the investigation to an Officer senior in rank to him and the Criminal Procedure Code provides for a check by the Magistrate on the Police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, the Magistrate can direct the Police to carry out the investigation properly and can monitor the same.

16. He further contends that "Protest/Naraji Petition" under Section 173 (8) of the Criminal Procedure Code filed by the Writ Petitioner in the instant case is pending for a decision before the Ld. ACJM, Serampore and the Court should consider this aspect in the matter.

17. He further contends that on the self same cause of action in earlier Writ Petition being W.P. No. 2029 (W) of 2011 prayer for transferring the investigation to the Central Bureau of Investigation (CBI) was not entertained by this Court.

18. Learned Advocate appearing for the respondents in support of his contention relies on the following decisions:

(a) (Sujatha Ravi Kiran -vs- State of Kerala and Ors., (2016) 7 SCC 597 [LQ/SC/2016/703] )

(b) (K.V. Rajendran -vs- Superintendent of Police, CBCID South Zone, Chennai and Ors., (2013) 12 SCC 480 [LQ/SC/2013/908] )

(c) (Bimal Gurung -vs- Union of India, (2018) 15 SCC 480 [LQ/SC/2018/344] )

(d) (State of West Bengal and Ors. -vsCommittee for Protection of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571 [LQ/SC/2010/209] )

(e) (Sakiri Vasu -vs- State of Uttar Pradesh and Ors., (2008) 2 SCC 409 [LQ/SC/2007/1498] )

(f) An unreported decision of this Court dated 7th February, 2011 in W.P. No. 2029 (W) of 2011 in the case of Sri Ashok Porel -vs- The State of West Bengal and Ors.)

19. Considering the submission of the parties and in view of the facts and circumstances emerge on perusal of relevant records available, according to me following three issues are required to be considered in this case:

(i) Whether this case is so exceptional or rare that it can be referred to Central Bureau of Investigation (CBI) or can be entrusted to any other higher investigating agency

(ii) Whether petitioner can be granted any relief of compensation in this Writ Petition

(iii) What other relief can be granted to the petitioner in this Writ Petition

20. Before my final conclusion in the aforesaid regard I would like to discuss the judgments relied upon by the petitioners hereunder.

21. The judgment of this Court in the case of Debasish Bose (supra) relied upon by the petitioner is on the scope of definition of victim which issue is settled now in view of the amendment under Section 2 (wa) newly inserted of the Criminal Procedure Code and the petitioner who is the wife of the deceased alleged to have been killed in false encounter certainly comes within the said definition and has locus standi to file the instant Writ Petition.

22. The judgment of the Apex Court in the case of Dharam Pal (supra) relied upon by the Learned Advocate for the petitioner in support of his contention of referring this case to the Central Bureau of Investigation (CBI) will not help the petitioner in view of the fact that in the said case the request was made by the Additional Chief Secretary himself for handing over the investigation to Central Bureau of Investigation (CBI) and that the departmental action was taken against the investigating authorities for negligent investigation and ASI concerned had been reverted to the post of Head Constable and these facts makes the case of the petitioner distinguishable from the said case. Apart from these facts in the said case the Honble Supreme Court after considering series of judgments has laid down the guidelines for the High Court in exercising its jurisdiction for referring the case to the Central Bureau of Investigation (CBI) as appear at Paragraphs 14, 19 and 20 of the said judgment which are hereunder:

" 14. After recording the conclusion, the Constitution Bench added a note of caution which we may profitably reproduce: (Committee for Protection of Democratic Rights case, SCC p. 602, para 70)

"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil 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. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.

19. The Court after referring to earlier decisions, has laid down as follows: (K.V. Rajendran case, SCC p. 487, para 17)

"17. In view of the above, the law can be summarised to the effect that the Court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased."

20. The factual scenario in the present case has to be appreciated on the touchstone of the aforesaid authorities. As the facts would reveal there was a request by the Additional Chief Secretary for hadnding over the investigation to CBI; that departmental action was taken against the investigating authorities for negligent investigation; that the ASI concerned has been reverted to the post of Head Constable; and that apart, certain material witnesses have not been examined by the investigating agency without any rhyme or reason. The reasoning of the High Court is that as the trial has commenced, there cannot be a transfer of the case to another investigating agency."

23. The judgment of the Apex Court in the case of Chandra Babu (supra) relied upon by the Learned Advocate for the petitioner the facts in that case was also different from the present case as would appear from paragraphs 20, 21, 22 and 23 of the said judgment as would appear hereunder:

" 20. We have reproduced the conclusion in extenso as we are disposed to think that the High Court has fallen into error in its appreciation of the order passed by the learned Chief Judicial Magistrate. It has to be construed in the light of the eventual direction. The order, in fact, as we perceive, presents that the learned Chief Judicial Magistrate was really inclined to direct further investigation but because he had chosen another agency, he has used the word "reinvestigation". Needless to say, the power of the Magistrate to direct for further investigation has to be cautiously used. In Vinay Tyagi (supra) it has been held: (SCC p. 791, para 41)

"41. ............The power of the Magistrate to direct "further investigation" is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code."

21. In the said case, the question arose, whether the Magistrate can direct for reinvestigation. The Court, while dealing with the said issue, has ruled that: (Vinay Tyagi case, SCC p. 791, para 43)

"43. At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct "further investigation", "fresh" or "de novo" and even "reinvestigation". "Fresh", "de novo" and "reinvestigation" are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection."

And again: (SCC p. 794, para 51)

"51. .............Whether the Magistrate should direct "further investigation" or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct "further investigation" or "reinvestigation" as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation."

22. We respectfully concur with the said view. As we have already indicated, the learned Chief Judicial Magistrate has basically directed for further investigation. The said part of the order cannot be found fault with, but an eloquent one, he could not have directed another investigating agency to investigate as that would not be within the sphere of further investigation and, in any case, he does not have the jurisdiction to direct reinvestigation by another agency. Therefore, that part of the order deserves to be lancinated and accordingly it is directed that the investigating agency that had investigated shall carry on the further investigation and such investigation shall be supervised by the concerned Superintendent of Police. After the further investigation, the report shall be submitted before the learned Chief Judicial Magistrate who shall deal with the same in accordance with law. We may hasten to add that we have not expressed any opinion relating to any of the factual aspects of the case.

23. In view of the aforesaid analysis and conclusion, the order passed by the High Court is set aside except where it has held that the learned Magistrate could not have allowed another agency to investigate. We have clarified the position in the preceding paragraph."

24. The judgment of the Apex Court in the case of Ramesh Kumari (supra) the facts of that case is different from the present case as would appear from Paragraph 2 of the said judgment as hereunder:

" 2. The grievance of the appellant is that an information of a cognizable offence has been filed by the appellant before the Station House Officer (SHO), Kapashera on 9.9.1997 and 13.9.1997. However, no case was registered by the concerned SHO. Thereafter, the matter was brought to the notice of the Police Commissioner, without any result. This has led the appellant to approach the High Court by filing Criminal Writ Petition No. 108 of 1998. By the impugned order the High Court was of the view that the appellant has filed a Contempt Petition CCP No. 307/1997 and that is pending before the High Court. The High Court found it difficult to direct to register a case on the basis of the information filed by the appellant. The High Court was also of the view that the appellant was alternative remedy available to her, albeit, without indication what is the alternative remedy available to the appellant. The High Court ultimately also observed that should respondent Nos. 1 and 2 be seized of petitioners complaint or representation, they shall also examine and pass appropriate orders within three months."

25. The judgment of the Apex Court in the case of R. S. Sodhi, Advocate (supra) relied upon by the petitioner, the facts of that case is also different from the present one as would appear from Paragraph 1 of the said judgment recorded hereunder:

" 1. This writ petition brought under Article 32 of the Constitution concerns the incident which had taken place at Pilibhit on September 12/13, 1991 in which 10 persons were reported to have been killed in what were described as ,encounters between the Punjab Militants and the local police. The news item in connection therewith appeared in The Times of India on the basis whereof this petition was filed. The issue was raised in the Parliament and teams of MPs belonging to the Congress(I) and BJP also visited the places of occurrence to make an on-the-spot inquiry. Their reports are on record. We have also perused the report of the ACJM, Pilibhit in which it is pointed out that the identity of the persons killed in the encounters was not correctly stated. The investigation in regard to the incident was handed over to an officer of the Inspector Generals level and we are told that the local police officers suspected to be concerned with the incidents were also transferred to enable the officer to carry on the inquiry unhindered. Subsequently, the State Government also appointed a one member commission headed by a sitting judge of the Allahabad High Court to inquire into the matter but it appears that in some writ petition filed in the High Court of Allahabad (Lucknow Bench) a stay has been granted restraining the commission from functioning. Be that as it may, the fact remains that three incidents in which as many as 10 lives (now stated to be eleven) were lost had admittedly taken place and the need for an independent investigation can hardly be disputed. Since the local police was involved in the said encounters, a request has been made that an independent agency may be asked to inquire/investigate into the matter in accordance with the Code of Criminal Procedure with a view to bringing the offenders, if any, to book. Mr Sodhi contends that the investigation may be directed to be carried out by the Central Bureau of Investigation having regard to the fact that the accusations are leveled against the local police. He points out that even the State Government has seen the need for inquiry by an independent commission. As against this the learned counsel for the respondent-State submits that the State Government has taken prompt action in the matter by appointing a high level officer to inquire into the incidents and by promptly transferring the concerned local police so that there may be no possibility of any tampering or interference by them. He further points out that the State Government has also taken the next step of appointing a commission headed by a sitting High Court Judge to probe the incidents and to arrive at the truth and hence there is no need for directing the Central Bureau of Investigation to investigate into the matter. In support of this contention he invited our attention to the observations made by this Court in Chaitanya Kalbagh v. State of U.P. In that case this Court observed that in the facts and circumstances presented before it there was an imperative need of ensuring that the guardians of law and order do in fact observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens. This Court refrained from saying anything further in the matter so that no prejudice is caused to anyone in the course of the inquiry/investigation that may be undertaken. Counsel emphasised that once the State Government has shown its bona fides by taking prompt action in the matter it must be left to the State Government to complete its function under the Code of Criminal Procedure without any interference from outside agency. Emphasis was laid on the observation that matters which properly fall within the domain of the State Government should be left to that Government and that Government should be petitioned first before any interference by the court is called for."

26. The judgment of the Apex Court in the case of Prakash Kadam and Ors. (supra) relied upon by the petitioner is on the issue which is outside the scope of the present case at this stage since there issue was what should be the punishment of the policeman if proved who have committed the fake encounter. Paragraphs 27 and 28 of the said judgment recorded hereunder would clarify the position.

" 27. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest cases. Fake "encounters" are nothing but cold-blooded, brutal murders by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.

28. We warn policemen that they will not be excused for committing murder in the name of "encounter" on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that "orders are orders", nevertheless they were hanged. If a policemen is given an illegal order by any superior to do a fake "encounter", it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The "encounter" philosophy is a criminal philosophy, and all policemen must know this. Trigger-happy policemen who think they can kill people in the name of "encounter" and get away with it should know that the gallows await them."

27. The judgment of this Court in the case of Arkadeb Mukherjee (supra) relied upon by the petitioner the facts and circumstances of that case was different from the present one as would appear from Paragraphs 5, 6 and 13 of the said judgment as would appear hereunder:

"5. Mr. Bhattacharya, learned senior counsel appearing for the petitioner submits that in spite of lapse of five years various investigating agency attached to the state administration have not been able to unravel the identity of the assailants who had gunned down the petitioner on a street of a busy town during his daily morning walk. It is also submitted that father of the victim was an active trade union leader and a former member of the Legislative Assembly of the State. The victim was a popular personality of the locality who was involved in various social activities in the area. He was a victim of a deep rooted political conspiracy as he belonged to a family actively involved in politics and, therefore, the State administration was unwilling to unravel the truth relating to his murder. In fact, being emboldened by the indifferent attitude of the investigating agency in the instant case, two other persons, namely, Nirgun Dubey and Dilip Sarkar belonging to the same trade union have also been gunned down on the streets of the said city and criminal cases registered in respect of such crimes have also yielded no result. He submitted that no serious effort was made on behalf of the investigating agency to interrogate the persons who were comorning walkers and were present at the place of occurrence when the offence was committed. Motive of the crime and other relevant issues have also not been explored.

6. On the other hand, the investigating agency has merely expressed its inability to solve the crime and filed closure reports stating that the identity of the offender could not be found out as witnesses were not co-operative. In this backdrop, it is the cry of justice of the bereaved family that the investigation be transferred to a more specialized, well-equipped and responsible agency, namely, Central Bureau of Investigation for effective investigation into the crime.

13. It is in this backdrop I have addressed the prayer for transfer of investigation to a specialized agency, namely, CBI to trace out the offender who had daringly murdered the victim on the streets of Burnpur. I have also taken note of the fact that soon after the murder of the victim in this case, two persons belonging to the same trade union as that of the father of the victim had been gunned down in a similar fashion by an unknown assailant. It is possible that failure of the law enforcement agency to bring to light the identity of the offender in this case has, in fact, emboldened the criminal to resort to similar modus operandi to do away with the lives of others as the inability and/or inefficiency of the law enforcement agency would give them a reprieve to such heinous and dastardly acts of homicide."

28. Now I shall deal with the judgments relied upon by the Learned Advocate for the respondents which are hereunder.

29. The judgment of the Apex Court in the case of Sujatha Ravi Kiran (supra) relied upon by the respondents in support of his contention, Paragraph 9 of the said judgment hereunder is relevant:

" 9. It is well settled that the extraordinary power of the constitutional courts in directing C.B.I. to conduct investigation in a case must be exercised rarely in exceptional circumstances, especially, when there is lack of confidence in the investigating agency or in the national interest and for doing complete justice in the matter. A Constitution Bench of this Court in State of West Bengal vs. Committee for Protection of Democratic Rights held as under: (SCC p. 602, paras 69-71)

"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.

70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts, must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has leveled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil 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. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.

71. In Minor Irrigation and Rural Engg. Services, v. Sahngoo Ram Arya this Court had said that an order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency. We respectfully concur with these observations.""

30. The judgment of the Apex Court in the case of K.V. Rajendran (supra) relied upon by the respondents facts of which would appear from Paragraphs 2, 3, 4, 13 and 22 of the said judgment which is recorded hereunder:

" 2. The case has a chequered history as the matter has moved from the court of the Magistrate to this Court time and again. Facts and circumstances necessary to adjudicate upon the controversy involved herein are that: The appellant, who is an Associate Professor in Physics in the Presidency College, Chennai, went to his village on 26.8.1998. At about 11.00 P.M., approximately ten people headed by the then Revenue Divisional Officer (hereinafter referred to as "the RDO"), forcibly took him in a government jeep and brought him to the Taluk office and enquired about why he had given a false complaint regarding the smuggling of teakwood in that area. The then RDO and other officials treated him with utmost cruelty and caused severe injuries all over his body and then obtained his signatures on blank papers which were filled up as directed by the then RDO. On the next day, he was handed over to the local Police Inspector along with the statement purported to have been written by the officials concerned.

3. The appellant was produced before the Magistrate on 27.8.1998 at 10.30 A.M. and he was remanded to judicial custody. His request to the Judicial Magistrate in regard to medical examination of the injuries which had been caused to him was rejected. The appellant was kept in Sub Jail, Poraiyar, wherein he was treated by the jail doctor on 28.8.1998. On being released on bail, the appellant got treatment of his injuries in a private hospital.

4. The appellant filed a complaint against the said RDO and other officials. The said complaint was also sent to the office of Honble Chief Minister of the State, the Director General of Police and other officials, alleging the brutal torture caused to him by the then RDO. The case was entrusted for investigation to Deputy Superintendent of Police, SBCID, Nagapattinam. A confidential report was forwarded to higher officials by the said DSP in this regard. However, no progress could be made in the investigation and no case was registered in respect of the complaint of the appellant.

13. The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law. Under no circumstances, should the court make any expression of its opinion on merit relating to any accusation against any individual. (Vide: Gudalure M.J. Cherian v. Union of India, R.S. Sodhi v. State of U.P., Punjab and Haryana Bar Assn. v. State of Punjab, Vineet Narain, v. Union of India, Union of India v. Sushil Kumar Modi, Disha v. State of Gujarat, Rajender Singh Pathania v. State (NCT of Delhi) and State of Punjab v. Davinder Pal Singh Bhullar.)

22. In sum and substance, firstly, the facts and circumstances of the instant case do not present special features warranting transfer of investigation to CBI, and that too, at such a belated stage where the final report under Section 173(2) Cr.P.C. has already been submitted before the competent criminal court. The allegations are only against the then RDO who might have been transferred to various districts during these past 15 years. Similarly various other police officials might have investigated the case and it is difficult to assume that every police official was under his influence and all of them acted with malafide intention. In view of the earlier order of this Court dated 2.9.2008, no subsequent development has been brought to the notice of the court which could warrant interference by superior courts and transfer the investigation to CBI."

31. The judgment of the Apex Court in the case of Bimal Gurung (supra) the issue before the Court and answer to it would appear from Paragraph 53 of the said judgment is hereunder:

" 53. Most of the cases which were cited before us by the parties are the cases where this Court exercised jurisdiction under Article 32 in transferring the investigation at the instance of the victims. For a victim, the investigation in a case is of much significance. In the event, a proper investigation is not carried out and relevant evidence which would have been collected by due care and caution, is not collected, the victim is sure not to get justice on such faulty investigation. In case of faulty investigation, where an accused has been wrongly roped in, he has the right to seek all remedies before Court of law for further investigation and a Court of law is able to marshal all evidence and capable of discerning truth from evidence on record. Although as a principle, there is no fetter on an accused to move a Court of law for transfer of investigation, but on the facts of this case as noted above, we do not thing it to be a fit case where this Court may exercise jurisdiction under Article 32 to transfer the cases on masse to an independent agency. The present case cannot be said to be a case of individuals persecution by the State authority."

32. Learned Advocate for the respondents has also relied upon the judgment in the case of Committee for Protection of Democratic Rights, West Bengal and Ors. (supra) which is on the proposition of scope of exercise of power by the High Court ordering transfer of the case to the Central Bureau of Investigation (CBI) and the said issue has already been considered in many decisions referred above which I have already discussed.

33. The judgments of the Apex Court in the case of Sakiri Vasu (supra) relied upon by the respondents in support of his contention that an aggrieved person cannot have a right to claim that a particular case must be investigated by a particular agency of his choice and the said judgment also elaborately discusses the power of the Magistrate if no proper investigation is made by the investigating authority and in this context Paragraphs 9-17 and 31 is recorded hereunder:

" 9.The petitioner (appellant herein) prayed in the writ petition that the matter be ordered to be investigated by the Central Bureau of Investigation (in short "CBI"). Since his prayer was rejected by the High Court, hence this appeal by way of special leave.

10. It has been held by this Court in CBI vs. Rajesh Gandhi (vide para 8) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.

11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

12. Thus in Mohd. Yousuf vs. Afaq Jahan this Court observed: (SCC p. 631, para 11)

"11. The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigating under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."

13. The same view was taken by this Court in Dilawar Singh vs. State of Delhi (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.

14. Section 156 (3) states:

"156.(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."

The words "as abovementioned" obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. J.A.C. Saldanna (SCC : AIR para 19).

17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

31. No doubt the Magistrate cannot order investigation by CBI vide CBI v. State of Rajasthan but this Court or the High Court has power under Article 136 or Article 226 to order investigation by CBI. That, however, should be done only in some rare and exceptional case, otherwise CBI would be flooded with large number of cases and would find it impossible to properly investigate all of them."

34. Learned Advocate for the respondents has also relied on an unreported decision of this Court dated 7th February, 2011 in W.P. No. 2029 (W) of 2011 (Shri Ashok Porel -vs- State of West Bengal) in support of his contention that another Writ Petition was filed earlier praying for enquiry by the Central Bureau of Investigation (CBI) against the very same incident which is the subject matter of the present Writ Petition and in support of his contention that this Court has already refused to refer the case to the Central Bureau of Investigation (CBI) as would appear from the said judgment which is recorded hereunder.

"Counsel submits that the petitioner is seeking a mandamus commanding the State Government to see that the further investigation into the case is made by the Criminal Investigation Department or by Central Bureau of Investigation. He says that after completing investigation the investigating officer has submitted a report that he did not find any reason to send anyone for trial, and that on receipt of notice from the Criminal Court the petitioner has already submitted a Naraji petition praying for an order directing further investigation by the Criminal Investigation Department of the State Government. He says that the application of the petitioner is pending before the Criminal Court.

In view of the above-noted situation, I am of the view that the petitioner should get his application filed before the Magistrate heard and disposed of. In my opinion, during pendency of the application it will not be appropriate for the Writ Court to interfere in the matter for examining whether an order directing further investigation by the Criminal Investigation Department or by the Central Bureau of Investigation should be made. Since the petitioner himself wanted a further investigation by the Criminal Investigation Department, and he has already filed an application for the purpose to the Magistrate, I do not find any reason to examine the question whether an order should be made directing further investigation by the Central Bureau of Investigation.

For these reasons, I dispose the petition saying that the petitioner is free to press his application before the Criminal Court, and that the Criminal Court is free to deal with the application seeking an order directing further investigation by the Criminal Investigation Department according to law. No Costs. Certified xerox."

35. Considering the submission of the parties, perusal of relevant records available and the decisions cited by the parties and after taking into account the following factual and legal position in the case I am of the considered view that the DIG should personally investigate this case:

(i) Petitioner who is the widow of the victim alleged to have been killed in false encounter has grievance against the impugned investigation report mainly on the ground of biasedness which has some substance for the reason that the accused who was the officer-in-charge was not transferred and allowed to remain in the same police station where FIR was lodged against him and initially investigation was made by his immediate superior officer and these allegations could not be denied and defended by the respondents with any material.

(ii) Post mortem report tallying with the ocular evidence and earlier expert opinion opining that the husband of the petitioner was shot dead from a very close range by a revolver while respondents intend to rely on a subsequent contradictory opinion suggesting cause of death from a long distance by a gun who was taken into account in course of investigation and final report in a proper and logical manner instead of taking into consideration earlier expert opinion. There is conflicting opinion on the nature of arms used, nature of shot and wound causing death as to the distance of firing and wound was of revolver or gun.

(iii) Investigation report has ignored to take into consideration some vital witnesses who were present at the place and time of incidents and whose statements were judicially rerecorded before the ACJM under Section 164 Cr.P.C and at one point of time the ACJM himself in his order dated 28.09.2011 has already expressed that this case should have been entrusted to higher agency like Central Bureau of Investigation (CBI) but he has no such power under the law. Learned Counsel for the state respondents in his written notes of arguments has also submitted that the investigation in this case may be entrusted to higher officers but not to Central Bureau of Investigation (CBI).

(iv) Allegation in this case is against a senior police officer who is supposed to uphold the law and serious allegations of violation of Police Regulation of Bengal (PRB) is involved in this case.

(v) Petitioner herself has made prayer in the Writ Petition for investigation by the Central Bureau of Investigation (CBI) and in the alternate by any other agency.

36. In view of the discussions made above I am of the considered view that the petitioner has been able to make out a case for further investigation and I am inclined to entrust this case to the DIG, West Bengal, Bhabani Bhawan for further investigation taking into consideration all aspects including those which have been referred in the discussion made above and I direct him to personally investigate this case and submit progress report to this Court on 7th February, 2020. Reason for not entrusting this case to the Central Bureau of Investigation (CBI) according to me is that this case does not fall within those rare and exceptional circumstances or have national or international ramifications apart from the fact that a person aggrieved can claim only that the offence he alleges be investigated properly but he has no right to claim that it be investigated by a particular agency of his choice.

37. Question of granting of compensation to the petitioner is premature at this stage.

38. Registrar, appellate side, shall send a copy of this order to the DIG, West Bengal, Bhabani Bhawan, immediately.

39. This Writ Petition W.P. No. 35802 (W) of 2013 is accordingly disposed of. There will be no order as to costs.

40. Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.