ORDER
Shyamal Kumar Sen, J.
1. In the instant writ petition, the petitioners prayed for an appropriate direction to be issued upon the C.B.I. authorities to investigate and find out their missing daughter Susmita Dhar who was a student of Ist year M.A. of Jadavpur University. It has been submitted that the said girl along with her classmates, tutors and two other persons who are stated to be uncle and aunt being respondent Nos. 11 and 12 left for Chandipore on 13th May, 1995.
2. The case of the petitioners is that on 13th May, 1995 Shri Shyamal Dhar, petitioners No. 1 being the father of Susmita Dhar, took her to Howrah Station for the aforesaid journey to Chandipore. While other students who accompanied Susmita duly returned from Chandipore, the said Susmita did not return and actually she was missing from 16th May, 1995 from Santi Nivas Hotel at Chandipore. The other girls who accompanied Susmita lodged a complaint at Chandipore Police Station. A complaint was also lodged in Calcutta with the Special Superintendent, Missing Squad at Lord Sinha Road, Calcutta and subsequently on 29th May 1995 two other complaints were lodged. On 26th June, 1995 another complaint was lodged with the appropriate authority of the State.
3. It appears that the petitioners also moved a Habeas Corpus petition being Crl. Misc. No. 4916/95 before a Division Bench of this Court. The said Division Bench after hearing the petitioner, the State and other private respondents recorded how the girl was missing and it was also noted that the petitioner lodged a missing information not only with the Director General of Police, West Bengal but also made a formal complaint on 29th May, 1995 before the Criminal Investigation Department, West Bengal. The Division Bench however passed an order inter alia as follows :-
We direct the Criminal Investigation Department to carry out further investigation in the matter conjointly with Chandipore Police Station so as to find out the missing girl.
As the matter stands now, no further direction is necessary. In case the petitioner is interested to pursue further with any special criminal case, he is at liberty to do so. We do not find any prima facie case of illegal detention being made out by respondent Nos. 6 and 7 on the basis of the evidence collected at the present stage. There is no justification what soever in continuing with the present application for Habeas unless it is found out prima facie that the respondent Nos. 6 and 7 or any other persons complained against, is really guilty of detaining the missing girl unlawfully. The Criminal Investigation, however, would take its own course and as we have indicated earlier, the petitioner is at liberty to proceed in the appropriate forum with any complaint case, if he is so advised. The present proceedings be taken as disposed of.
Mr. P.R. Mondal, learned Advocate for the State has submitted that since the girl was missing from Chandipore in the State of Orisssa, this Court should not pass any order in the writ petition. It however appears that Mondal appeared before the Division Bench in the Habeas Corpus petition being Crl. Misc. Case No. 4916/ 95 wherein the Division Bench directed the Criminal Investigation Department of the State of West Bengal to carry out the necessary investigations in the matter conjointly with the Chandipore Police Station so as to find out the missing girl. It also appears from the records of the Division Bench proceeding that no objection was raised to the jurisdiction by the State Government with regard to any direction that may be passed by this Court on the alleged ground that scrutiny was made from Chandipore.
4. On the last occasion when the matter was taken up for the hearing on 15th January, 1998, I directed the D.I.G., C.I.D., West Bengal by passing the following order :-
D.I.G., C.I.D., West Bengal is directed to be present in Court at 2.00 p.m. on 19-1-1998 and produce the Case Diary of the case. D.I.G. will also submit a report on the date as to what steps have been taken with regard to the investigation of the missing girl Miss Susmita Dhar from 16-5-1995.
Let this matter appear at the top of the list on 19-1-1998 as a specially fixed matter and will be taken up at 2.00 p.m. as part heard matter.
5. Pursuant to the said direction, D.I.G., C.I.D., West Bengal has submitted his report dated 19-1-1998 wherein he has stated that all possible efforts have been made to find out the missing girl including due advertisement. The advertisement was also published in the Newspapers, T.V. and also Radio to find out the girl.
6. It may be true that efforts have been made on the part of the Investigating Agency of the Government of West Bengal to find out the girl who has not been found out as yet. The writ petitioners being the parents of the missing girl, naturally are anxious to find out their daughter and approached this Court in a writ petition and prayed for a direction upon the C.B.I. authorities to make an enquiry. Mr. Mondal, learned Advocate has referred to Section 6 of the Delhi Police Establishment Act, 1946. The said Section is set out hereinbelow :-
Section 6 : (1) Section 6 is not beyond the legislative competence of the Indian Legislature and is validly enacted. 1972 J&K LR 252 (262).
(2) Under Item 2 of List 3 in Sch. VII of the Constitution the Central Government can legislate about the police functioning in a state. As such granting of permission to the Delhi Special Police Establishment for investigation of cases relating to the employees of a State, after obtaining the requisite consent of that State cannot be said ultra vires the Constitution. 1970 Raj LW 141.
(3) When a State Government can authorise a single Officer to exercise the said jurisdiction there can be no legal objection when it authorises the entire force operating in that area belonging to that Establishment to make such investigation. .
(4) Officer of DSPE posted in State of Bihar is competent to investigate into offences committed in State of West Bengal. (1979) 2 Cal LJ 150 (158).
(5) Consent of State Government under provisions of Bombay Police Act (XXII of 1951) cannot operate as a bar to giving of consent. AIR 1969 Delhi 330 (347).
(6) The Orissa Government Notifications D/-1-8-1967 and 30-10-1967 issued by the Home Department empowering a Sub-Divisional Officer (Judl.) to hear cases indiction in any area in a State, not being a Union Territory or railway area, without the consent of the Government of that State.
7. On perusal of the Section, it appears to me that it is not possible for the Investigation Agency under the Delhi Police Establishment to investigate suo motu when a State authority is making investigation in the matter but that cannot take away the Court to pass appropriate directions in exercise of its power in writ jurisdiction, upon the C.B.I. being apart of the Investigating Agency of the Delhi Police Establishment and also to make an enquiry and investigate and submit a report to the Court. The scope of Sections 5 and 6 of the Delhi Police Establishment Act has been considered by a judgment of the Supreme Court in the case of State West Bengal v. Sampat Lal , Mr. Mondal, learned Advocate for the State has submitted that without the consent of the State Government no order can be passed directing the C.B.I. to enquire into the matter.
8. In the aforesaid decision, the same question came up for consideration. The Supreme Court in this context observed in paragraph 13 of the said judgment at page 200 of the said report inter alia as follows :-
One of the controversies which loomed large before the Division Bench of the Calcutta High Court was as to the appointment of the DIG, C.B.I. to inquire into the matter in the absence of proper consent of the State Government. That question has not been recanvassed before us and it has been accepted by counsel for all the parties including the Additional Solicitor General that while Section 6 of the Delhi Special Police Establishment Act 1946 (‘Act’ for short) would require the consent of the State Government before jurisdiction under Section 5 of that Act is exercised by officers of that establishment, when a direction is given by the Court in an appropriate case, consent envisaged under Section 6 of the Act would not be a condition precedent to compliance with the Court’s direction. In our considered opinion, Section 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation and counsel for the parties rightly did not dispute this position. In this view, the impugned order of the learned single Judge and the appellate decision of the Division Bench appointing DIG, CBI to inquire into the matter would not be open to attack for want of sanction under Section 6 of the Act.
9. Considering the aforesaid position as clarified by the Supreme Court which is recorded hereinbefore, I am of the view that this Court in exercise of powers in writ jurisdiction can pass appropriate directions upon the C.B.I. authorities to make enquiry and investigation and to take steps to find out the missing girl.
10. Accordingly, the Director, C.B.I., Eastern Region is directed to make an enquiry and investigation regarding the missing girl Susmita Dhar and submit a report to this Court within six weeks from date. In the event the Director, C.B.I. Eastern Region cannot comply with the full report, he will submit at least a provisional report to this Court on the next date fixed. Personal appearance of D.I.G., C.I.D. W.B. who is present in Court today is dispensed with.
11. Let this matter appear as a part heard matter on 6th March, 1998 at 2.00 p.m. when the Director, C.B.I. Eastern Region will send a competent officer with the report which will be filed in a sealed cover.
12. Let plain copies of this order duly counter signed by the Assistant Registrar (Court) be supplied to the learned Advocate for the parties, on their usual undertaking to apply for and obtain certified copy of the same.