Read Judgement: Susmita Saha Dutta v. The Union of India and Ors

Tulip Kanth

Kolkata, August 19, 2021: In the case of post-poll violence in West Bengal earlier this year, a Bench of five judges of the Calcutta High Court has directed that heinous crimes such as murder and rape be investigated by the CBI and other cases related to the violence be probed by the Special Investigation Team (SIT). It has been held that it shall be a Court-monitored investigation.

The High Court also directed that immediate action shall be taken by the State to pay compensation to the victims of crimes as per the policy of the State, after due verification. 

The investigating authorities, CBI and SIT have also been asked to submit their status report in Court within six weeks. 

The High Court has also straightened out that the fact-finding Committee, NHRC, any other Commission or Authority and the State shall immediately hand over the entire record of the cases entrusted to the CBI for investigation. All the authorities in the State or any other agency, if requested, have been directed to cooperate with the CBI and the SIT in conducting fair investigation of cases.

This litigation is in relation to the incidents of violence which occurred immediately after or contemporaneously to the announcement of the West Bengal assembly poll results on May 2, 2021. 

After the 2021 Assembly Elections in the State, a batch of Petitions were filed alleging post poll violence including crimes such as murder and rape. Later, a fact-finding committee was constituted and an interim report was submitted by the Committee. The High Court then found that prima-facie the stand taken by the petitioners that there was post-poll violence, stood established. The case was then adjourned to August 2, 2021 for arguments.

The main allegation, in the series of Writ Petitions, was that the people, who supported opposite political parties other than the ruling party Trinamool Congress in the recently concluded Assembly Elections in the State,  were made to suffer at the hands of the supporters/workers of the ruling party.

This verdict, pertaining to the allegation of state inaction on the incidents of post-poll violence, has been passed by a five-judge Bench comprising Acting Chief Justice Rajesh Bindal, Justice I.P. Mukerji, Justice Harish Tandon, Justice Soumen Sen and Justice Subrata Talukdar. Four Judges have given separate opinions concurring with the Acting Chief Justice.

It has been specifically noted in the Judgment that some of the glaring cases of murder and rape have been tried to be downplayed by the State. Out of 268 FIRs claimed to be registered by the police suo moto, copies of only 219 could be found.

The Court made it clear that the figure submitted by the State itself belies the stand taken by it that the post-poll violence was controlled the moment the new government had taken over on May 05, 2021 and secondly, number of cases were registered much after the violence had already taken place, only because the High Court was monitoring the cases and a Committee had also been constituted.

“If any offence is committed even before declaration of result and has connection with election process, even that can also be considered as part of the post poll violence. Any threat to a victim or a complainant afterwards is also continuation of offence related to the polls,” opined Acting Chief Justice Rajesh Bindal.

With regard to the allegation of police inaction, it has been observed that the police having not properly responded to all the issues raised and trying to downplay the same, it certainly needs investigation by an independent agency. 

Commenting on the National Human Rights Commission’s role in this litigation, Justice I. P. Mukerji stated that the Committee constituted by the Commission had only power under the Court’s order to report on facts as gathered by them on investigation. They had to observe the procedure prescribed by the Protection of Human Rights Act, 1993. They had no jurisdiction to make any recommendation or to express any opinion.

“What is very serious is that the state has not responded to the alleged offences of murder and rape tabulated as referred to in the judgment of the Hon’ble the Chief Justice (Acting). The offences are grievous, serious and heinous. It may be as a result of post poll violence. It may well be in the usual course of affairs. The fact remains that each of these offences needs serious investigation”, noted Justice I. P. Mukerji.

While noting that the Court cannot be a mute spectator nor should be apathetic to the voices of the persons who felt aggrieved but must rise to an occasion to protect such rights, Justice Harish Tandon also emphasised that there is no fetter on the part of the Court to entrust investigation to impartial, independent agency constituted for the purpose of rendering justice to deprived persons.

Justice Soumen Sen concurring with the conclusions of the esteemed Judges, added that in a democracy voice of dissent has to be heard and respected. It was also brought to light that the Final Report clearly indicated that hardly 14% of the accused named in the FIRs lodged by West Bengal police were arrested and out of those arrested, 80% were released on bail. 

“Judiciary as the last hope of the victims in discharge of its constitutional duties and obligations strike upon the party-political coercion of the holders of public office and use of state machinery for party purposes in order to restore faith in the constitution – the sacred parchment. In this way constitution endows those who wish to act appropriately in their role and resist any pressure with a strong legal position,” said Justice Soumen Sen.

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