Judgment:
Bhaskar Bhattacharya, J.
1. This mandamus appeal is at the instance of the State of West Bengal and is directed against order dated 31st July, 2007 passed by a learned Single Judge of this Court by which His Lordship passed an interlocutory order in a pending writ application by directing the Central Bureau of Investigation ('CBI') to take charge of the investigation relating to the alleged kidnapping of the son of the writ petitioner. His Lordship directed the CID, West Bengal, to hand over all the records of the investigation so long made by the CID, West Bengal, to the Director, CBI. His Lordship further directed that the matter should appear after eight weeks and the CBI should submit a report to the Registrar General of this Court on the returnable date.
2. The writ petitioner/respondent filed a writ application being W.P. No. 12426 (W) of 2006 thereby praying for direction upon the State-respondent to take effective step to trace out the son of the writ petitioner who was missing from 20th September, 2004 and to hand over the custody of the said missing son of the petitioner. The writ petitioner prayed for further direction upon the State-respondents to discharge their statutory duties effectively and to conduct free, fair and effective investigation so that the son of the petitioner could be recovered and the offenders could be brought to book without any delay whatsoever.
3. The writ application was entertained in the month of May, 2006 by the learned Single Judge and thereafter, His Lordship on May 19, 2006, directed the respondents to file affidavit disclosing the steps taken by them. While passing such direction, it was specifically recorded that His Lordship was utterly dissatisfied by the state of affairs appearing from the submissions made by the learned Advocate for the State with regard to the progress of investigation made by them. His Lordship further made it clear that unless convincing progress was made in the investigation and the same was disclosed in the affidavit, His Lordship would like to assign the investigation to the CBI.
4. Subsequently, various dates were fixed but as it appears from the orders passed on those dates, there was no further progress of the investigation at the instance of the CID, West Bengal.
5. Ultimately, by the order impugned herein His Lordship decided to entrust the CBI with the investigation.
6. Mr. Adhikary, the learned Additional Advocate General appearing on behalf of the State-appellant strenuously contended before us that the CID, West Bengal, by observing the provisions of the law conducted the investigation with prompt and aptitude and there was no negligence or inaction on their part and, therefore, there was no occasion for entrusting the CBI with the investigation. Mr. Adhikary by strongly relying upon the decision of the Supreme Court in the case of State of Bihar and Anr. v. Ranchi Zila Samata Party and Anr. reported in : 1996CriLJ2168 , contended that no ground has been made out for referring the matter to the CBI. He also relied upon the decision of the Supreme Court in the case of State of West Bengal and Ors. v. Sampat Lal and Ors. that is reported in : 1985CriLJ516 , for convincing us that it is a fit case where we should not approve the direction of the learned Single Judge impugned in this appeal.
7. Mr. Kalyan Bandyopadhyay, the learned senior Advocate appearing on behalf of the writ petitioner/respondent, on the other hand, has supported the order passed by the learned Single Judge and has contended that although the son of the writ petitioner had been missing for the last three years, till date, no effective step has been taken for tracing out the whereabouts of the said boy and consequently, the learned Single Judge rightly passed the order impugned.
8. We have heard the learned Counsel for the parties and gone through the entire materials on record including the case diary produced by Mr. Adhikary before us. We find that there are sufficient grounds for dissatisfaction of His Lordship over the manner of investigation. It appears that the police suspected that the son of the petitioner was in the custody of one Vineeth Kumar Singh who was subsequently arrested and placed in the jail in Uttar Pradesh and in spite of taking custody of the said Vineet Kumar Singh in the month of February, 2007, the CID, West Bengal, could not take effective step for finding out the missing person, the son of the writ petitioner. We do not find any substance in the contention of the appellant that the CID, West Bengal did its best in the matter of investigation.
9. Mr. Adhikary, at this stage, points out that even in the writ application, there was no prayer for shifting the investigation to the CBI and therefore, according to him, there was no justification of passing the order impugned. Mr. Adhikary even reminded us that the power of this Court to order investigation by the CBI without the consent of the State is under consideration before the Constitution Bench of the Apex Court and contended that we should not at this stage approve the order of the learned Single Judge. We are, however, of the view that having regard to the nature of the allegation and after taking into consideration the fact that the son of the writ petitioner was allegedly kidnapped with the object of getting ransom on 20th September, 2004, His Lordship was quite justified in entrusting the CBI with the investigation by passing direction upon the CID, West Bengal to hand over all the papers relating to investigation to the CBI. It appears from the Case Diary that even after the interrogation of Vineet Kumar Singh, the CID, West Bengal as not taken any further effective step for finding out the whereabouts of the missing person. Enough opportunities were given to the CID, West Bengal to complete the investigation within a reasonable time but the way the investigation has proceeded, the Court has ample reasons to be anxious about the life of the son of the petitioner. If further time is wasted without any prompt and appropriate investigation, the possibility of fruitful result in the matter would be remote particularly because the missing person according to the CID, West Bengal is most probably removed from the State of West Bengal and in the sense, the CID, West Bengal is to some extent in a disadvantageous position from the one if the missing person was not removed from this State. Therefore, notwithstanding the fact that no specific prayer was made in the writ application praying for shifting the investigation to the CBI, the Court has power to pass such direction for the proper investigation and protection of the life of the son of the writ petitioner after taking into consideration the facts of this case.
10. As regards the power of this Court to order investigation by CBI without the consent of the State, as pointed out by the Apex Court in the cases of Kashmeri Devi v. Delhi Administration : 1988CriLJ1800 and Maniyeri Madhavan v. Sub-Inspector of Police, : 1993CriLJ3063 and several other subsequent decisions of the Apex Court, the High Court has such power in appropriate cases. It is true that a Bench consisting of two-Judges of the Apex Court has referred such question to the larger Bench; but merely because such question has been referred to a Larger Bench by a subsequent decision of two-Judges Bench, the decisions laid down in the earlier cases do not cease to be precedents and so long these decisions are not disapproved by the larger Bench, those are binding as valid precedent.
11. We now propose to deal with the decisions cited by Mr. Adhikary in this regard.
12. In the case of State of West Bengal v. Sampat Lal and Ors. (supra), it was held that the appointment of Special Officer with a direction to inquire into the commission of an offence could only be on the basis that there had not been a proper investigation. In that case, the subject-matter was the mysterious death of two young boys and though the police investigation was pending, the High Court had on the basis of two letters of the citizens of the particular locality and on the basis of newspaper reports, directed State Govt. to appoint a Special Officer in whom the powers of inquiry was to be vested, after issuing notice to the State Government but without affording it an opportunity of being heard. In such a case, the Apex Court held that without the papers of investigation laid before it for being satisfied that the investigation had either not been proper or adequate, the High Court should not have appointed the Special Officer. In the case before us, the learned Single Judge gave full opportunities to the State to affirm affidavit and repeatedly asked the investigation agency to take appropriate steps and ultimately, being dissatisfied with the mode of investigation passed the order impugned. We have also gone through the case diary and do not find any reason to take a view different from the one taken by the learned Single Judge. Therefore, the decision in the case of Sampat Lal (supra), cannot have any application to the facts of the present case.
13. In the case of State of Bihar and Anr. (supra), the question before the Supreme Court was whether in the facts of that case, the direction by the High Court for investigation by CBI was proper or not. In such context, it was held that where large-scale defalcation of public funds, fraudulent transaction and falsification of accounts, to the tune of around Rs. 500 crore, came to light in the Animal Husbandry Department of the State of Bihar, the High Court in the exercise of powers under Article 226 in a Public Interest Litigation rightly took the investigation away from the State police and entrusted it to Central Bureau of Investigation and such power was neither exercised to give any advantage to a political party or group of people nor to cast a slur on the State police, but was done to investigate corruption in public administration, misconduct by the bureaucracy, fabrication of official records, and misappropriation of public funds by an independent agency that would command public confidence. We fail to appreciate how the said decision can have any application to the facts of the present case where the learned Single Judge for proper investigation and protecting the life of a citizen has after waiting for more than one year from the date of presentation of the writ application and three years after the date of alleged kidnapping has decided to shift the investigation to the CBI when from the investigation so far done it reveals that the missing person was taken beyond the jurisdiction of the State of West Bengal and the CID, West Bengal, could not find sufficient clue as regards the whereabouts of the missing person.
14. We, therefore, find that the decisions cited by Mr. Adhikary are of no M avail to his clients. We, thus, find no reason to interfere with the order passed by the learned Single Judge and consequently, dismiss this appeal. The interim stay granted earlier stands vacated. No costs. The CID, W.B. is directed to comply with the direction of the learned Single Judge immediately.
Sadhan Kumar Gupta, J.
I agree.