TaxTMI 
TaxTMI 
2013 (10) TMI 1297
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng prayers in the writ petition: "a. Issue a Writ of Mandamus or any other Writ, Order or Direction in the nature of Mandamus quashing the Charge Sheet No.76 of 2010 submitted on August 30th 2010 by the C.I.D. Homicide Squad, West Bengal along with Supplementary Charge Sheet No.04(3) dated August 20, 2011 (C.B.I.) filed in G.R. Case No.148 of 2010 by the CBI on 20.08.2011 and the proceedings emanating therefrom pending before the Court of the Chief Judicial Magistrate, Darjeeling in Sessions Case No.77 of 2010. b. Issue a Writ of Mandamus or any other Writ, Order or Direction in the nature of Mandamus appointing an independent Special Investigation Team comprising of Senior Officers headed by a competent person or authority of impeccable credentials to conduct an investigation de novo into the conspiracy and gruesome murder of Madan Tamang on May 21st 2010 at Darjeeling and to take all necessary consequential steps/actions pertaining thereto; c. Alternatively direct further/fresh investigation by the DIG level Officer of the CBI into the aspects contained and highlighted by the Petitioner in Annexure P/43." 2. We heard Mr. Mukul Rohatgi, learned senior counsel for the peti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he occurrence had taken place in a public place and there were several eye-witnesses to the incident and also various other clinching materials with the prosecution, there was a deliberate attempt on behalf of the prosecution to suppress the truth to enable the real culprits escape from the clutches of the police. Mr. Rohatgi learned senior counsel brought to our notice a newspaper clipping in which the photograph of the deceased Madan Tamang was displayed in a seriously injured condition, who was assisted by one of his supporters, as well as, few policemen and submitted that the person who assisted the deceased Madan Tamang was not even examined and his statement was not recorded immediately in order to find out the real culprits. 6. Our attention was also drawn to the transcripts of official intercepts of phone conversations between the President and General Secretary of GJMM and their local cadres, just before and after the gruesome murder of Madan Tamang. As far as the authenticity of the said transcripts is concerned, it was brought to our notice that in the counter affidavit filed by the CBI in the Crl.M.P. No.14236 of 2013 in paragraph 5(g) it was stated that the CBI trie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce of the transcripts, inasmuch as, even the prosecution agency, namely, the CBI does not dispute about its existence as well as its authenticity, though its awaits the outcome of the Forensic Report. 8. Our attention was also brought to the FIR lodged by the General Secretary of ABGL on 21.05.2010 which was registered by the Sadar Police Station, Darjeeling at 6.30 pm. While narrating the occurrence the complainant referred to some of the identified assailants, namely, A-9, A-10, A-12, A-13, A-14 and A-15 and it was also alleged that respondents 10 to 15 were continuously threatening Madan Tamang both in the press as well as in the public meetings and that such threats included that one day or other he would be killed. It was, therefore, alleged that the attack at the venue of the meeting organized by ABGL and the brutal killing of the deceased Madan Tamang was conspired, planned and R10 was the mastermind along with respondents 11 to 15. There was specific reference to A-9, A-10, A-12, A-13, A-14 and A-15 as well as respondents 10 to 15 in the FIR registered by the Sadar Police Station. Based on the said FIR, the State police laid the chargesheet under Section 173 by filing i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se that they were freely roaming around in the city of Darjeeling, but yet no effort was taken by the police to arrest them between May, 2010 to February, 2013. According to learned senior counsel because this Court ordered notice in this writ petition, the prosecution in order to make it appear as though some seriousness was bestowed in its actions, the arrests were made while 13 other accused surrendered after the notice was issued in this writ petition. 12. Here again, it will have to be stated that the said submission cannot be simply brushed aside when it comes to the question of testing the seriousness and truthfulness with which the investigating agency was proceeding while carrying out the investigation for detecting the crime and also for that purpose apprehending the accused in order to proceed with the case of the prosecution with all its earnest efforts. Even in that context it will have to be stated that the claim that so many of the accused were absconding and, therefore, the prosecution was disabled to proceed with its case effectively and its inability to apprehend the accused inspite of its best efforts appears to be not true and has to be looked at with grave s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion is still in progress to unearth the criminal conspiracy, that 31 persons have been chargesheeted against whom sufficient material have been collected while two of the accused, namely, Nicol Tamang and Dinesh Subba are yet to be arrested as they continued to abscond. According to the CBI since those two accused played key role in the murder of the deceased Madan Tamang, only after their arrest, the CBI will be able to make significant progress as regards the conspiracy though, however, the trial is being proceeded with awaiting their arrest. It is also stated that the person who was found present along with the deceased Madan Tamang immediately after his assault was also identified as one Karma Tamang who is also related to the deceased and that since he has shifted his abode to Nepal, that effort has been taken to record his statement under Section 161 Cr.P.C., though the said person was apprehensive to make any statement to the police. As far as the intercepted telephonic conversations, the CBI would state that unless its contents are authenticated by ascertaining the actual voice interceptions no conclusion can be drawn. It was, therefore, contended that as soon as the forens....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rding to him that case was due to a communal frenzy and it was a case of retaliation murder, in which 15 persons were burnt alive. He would contend that that case was an appeal against acquittal by both the Courts below and the full record of the investigation and the evidence was before this Court in which a direction came to be issued for reinvestigation and, therefore, the said judgment cannot be a guiding factor. As far as the present case was concerned, he would contend that this was a case in which the occurrence took place on 21.05.2010 and the resultant murder of the President of ABGL was due to political rivalry as between ABGL and GJMM and that on the fateful day when a huge crowd gathered, it was free for all and, therefore, it would be next to impossible to identify who were the perpetrators of the crime. The learned senior counsel contended that, therefore, the prayer of the petitioner to implicate respondents 10 to 15 by directing the prosecution agency cannot be ordered. The learned senior counsel contended that for that purpose the intercepted transcription of the telephonic conversation cannot be relied upon which would be hit by the provisions of the Indian Telegr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isting, namely, the snail pace in which the case is being prosecuted, the absconding of key accused and others for several years who were, however, roaming around in the city of Darjeeling and were not even arrested in spite of their notable presence in the town and who could be ultimately apprehended only after the writ petition was entertained by this Court. The learned counsel also referred to the rejection of their bail applications by the trial Court once and within a short span of a month's time without CBI being represented in the Court the bail was being granted. The learned senior counsel further pointed out that the CBI did not take any action for the cancellation of their bail which was, however, cancelled at the initiative taken by the petitioner and that too by the High Court of Calcutta which calls for a serious consideration of this Court to issue appropriate directions. 20. The learned senior counsel would, therefore, contend that this Court should order for reinvestigation by keeping in abeyance the trial commenced already based on a tardy investigation by entrusting the whole case to a Special Investigation Team governed by the provisions of the special Act of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in Pooran Mal's (supra) it should be held that the interceptions heavily relied upon by the petitioner to rope in respondents No.10 to 15 cannot be countenanced. 22. Though at first blush the submission of the learned senior counsel appears to be a formidable one, on a detailed reading of paragraph 24 of the said judgment, we find that the legal position is the other way about. In paragraph 24, the Constitution Bench of this Court, after making a detailed reference to earlier decisions, namely, Barindra Kumar Ghosh v. Emperor reported in ILR 37 Calcutta 467, Emperor Vs. Allahdad Khan reported in ILR 35 Allahabad 358, Kuruma Vs. Queen reported in 1955 AC 197, Herman King Vs. The Queen reported in (1969) 1 AC 304, stated to the legal position as under in the last part of paragraph 24: "24.....In other words search and seizure for the purposes of preventing or detecting crime reasonably enforced was not inconsistent with the constitutional guarantee against search and seizure. It was held in that case that the search of the appellant by a Police Officer was not justified by the warrant nor was it open to the Officer to search the person of the appellant without taking him before....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efore, impressed by the submission of Mr. Ram Jethmalani learned senior counsel in contending that no reliance can be placed upon the intercepted materials as that would amount to violation of a constitutional right of the concerned individuals. We find that in the present case the investigation has not yet been fully concluded since even according to the CBI the intercepted materials have been forwarded to the forensic laboratories for ascertaining its authenticity and correctness of the alleged conversation between certain persons and therefore, it cannot even be held at this stage that reference to such interception is totally prohibited while examining the grievances of the petitioner in this writ petition. As far as the proposition of law declared in the said decision is concerned there can be no two opinions about the said position. But in the case in hand since even according to the CBI, the intercepted material has been referred to forensic laboratory for its report there will be time enough for the accused to work out their remedy before the trial Court by challenging the correctness or otherwise of the report of the forensic laboratory. We, therefore, do not find any scop....
X X X X Extracts X X X X
X X X X Extracts X X X X
....position relating to Section 319(1) of the Cr.P.C. has clearly set out which empowers all the Courts including the Sessions Court to add any person, not being the accused before it, but against whom there appears, during trial, sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused. As far as the proposition of law declared, there can be no two opinion. The contention of Mr. Ram Jethmalani, learned senior counsel is that in the light of the said power available with the trial Court there is no necessity for issuing any direction in this writ petition for including respondents No.10 to 15 also as accused to be tried in the pending sessions case. While endorsing the legal position stated in the decision relied upon, we only state that since the petitioner is not seeking for including the respondents No.10 to 15 as accused, we do not find any scope to apply the said principle to the facts of this case in as much as, it is for the investigating agency to determine based on the evidence already gathered and to be gathered, as to whether or not any one, much less respondents No.10 to 15, should also be arrayed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....man Rights Commission Vs. State of Gujarat and others reported in (2009) 6 SCC 767, in paragraph 40, this Court issued directions in order to ensure that the criminal prosecution which was entrusted with special investigation team is not hampered by any other intruders including the State Government and ensure that the real culprits are brought to book. 31. In the decision of Babubhai Jamnadas Patel Vs. State of Gujarat and others reported in (2009) 9 SCC 610, this Court has highlighted the powers of the High Court as well as this Court in monitoring the criminal investigation. The relevant part of the decision can be found out in paragraphs 40, 44, 49 and 50 which are as under: "40. The area of dispute ultimately narrows down to the question as to whether the courts can monitor investigations in respect of offences alleged to have been committed when the investigation had already been commenced by the investigating agency. 44. In cases where it has been brought to the notice of the courts that investigation into an offence was not being carried on in the manner in which it should have been carried on, directions have been given by the courts to the investigating agencies ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., to hand over the investigation to an independent agency like CBI. 82.......The report of the CBI Authorities shall be filed in this Court when this Court will pass further necessary orders in accordance with the said report, if necessary. We expect that the Police Authorities of Gujarat, Andhra Pradesh and Rajasthan shall cooperate with the CBI Authorities in conducting the investigation properly and in an appropriate manner." (Emphasis added) 33. In the decision of Babubhai Vs. State of Gujarat and others reported in (2010) 12 SCC 254, in paragraph 40, this Court held that the scheme of investigation particularly Section 173(8) Cr.P.C. provides for further investigation and not of reinvestigation but held in paragraph 42 as under: "42. Thus, it is evident that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, if considers necessary, may direct for investigation de novo wherein the case presents exceptional circumstances." (Emphasis added) 34. Therefore, at times of need where this Court finds that an extraordinary or exceptional circumstance arise and the necessity for reinvestigation would be imperative in such extraord....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be handed over to CBI or to any other independent agency in order to do complete justice. h) In exceptional circumstances the Court in order to prevent miscarriage of criminal justice and if considers necessary may direct for investigation de novo. 38. Keeping the above well settled principles in mind when we examine the facts placed before us, we find that the following situations are/were prevalent till the present writ petition came to be filed in this Court in December 2012 relating to the murder of Mr. Madan Tamang which occurred on 21.05.2010 under the gaze of general public, police and security personnel. i. The occurrence took place at around 10 am in the morning and that too in the heart of the town of Darjeeling. ii. The deceased Madan Tamang at the time of his assassination was the president of the political party called 'Akhil Bhartiya Gorkha League' (in short "ABGL") and there was a deep rooted rivalry as between the said party and the other party called 'Gorkha Jan Mukti Morcha' known as "GJMM". iii. On the fateful day of the murder of Madan Tamang, he had organized the founder's day of his party ABGL and he was busily engaged in the preparation of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....302 read with 34 IPC. Significantly there was no charge laid under Section 120B IPC in the chargesheet. xv. The statement of 2nd accused Prashant Chhetry under Section 161 was recorded wherein there is reference to the occurrence and also the implication of respondents 10 to 15. xvi. The investigation which was initially carried out by the State police was subsequently entrusted with its own CID Wing and that thereafter the CBI took over the investigation on 19.01.2011. xvii. In the final report filed by the CBI apart from other offences the accused were also charged for the offence under Section 120B and in Annexure 5 to the final report of CBI, 30 persons were arrayed as accused which consisted of persons who were already arrested and those who were absconding. At that stage only one accused was enlarged on bail. xviii. While accused 1 to 7 were arrested and accused 26 was granted bail, the rest of the accused, namely, A-8 to A-25 and A-27 to A-30 were stated to be absconding right from day one. xix. The status about the arrest of some of the accused and many of the absconding accused was prevailing from May, 2010 till this writ petition was entertained on 03.12.2012.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... accused persons are all active supporters of GJMM and due to the prevailing law and order situation in Darjeeling the CBI is facing much difficulty since most of the chargesheeted accused take shelter either in Nepal or Sikkim apart from other hindrances such as the murder of one of its informer in November, 2011 and the killing of one of the absconding accused. xxix. According to the CBI there is fear psychosis prevailing in Darjeeling and, therefore, there are great hurdles in the CBI proceeding with the process of investigation in the usual pace. xxx. Though on behalf of the petitioner it was contended that the investigation should be entrusted with the NIA or any other Special Investigating Team it was submitted before us by the learned senior counsel for the petitioner that the investigation can be continued by the CBI itself and that for a fair trial the case can be transferred if not to any place outside the State of West Bengal at least to Calcutta. xxxi. Though two of the accused are yet to be apprehended by the CBI the trial stated to have commenced in the Darjeeling Court which has now be stayed by the orders of this Court. 39. Having noted the above features in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lt with under the provisions of the criminal law of prosecution. Any slackness displayed in that process will not be in the interest of public at large and therefore as has been pointed out by this Court in the various decisions, which we have referred to in the earlier paragraphs, we find that it is our responsibility to ensure that the prosecution agency is reminded of its responsibility and duties in the discharge of its functions effectively and efficiently and ensure that the criminal prosecution is carried on effectively and the perpetrators of crime are duly punished by the appropriate Court of law. 41. In as much as the petitioner only seeks for handling of the case of murder of her deceased husband by the prosecuting agency, namely, the CBI here with utmost earnestness against all the accused who were involved in the crime, we feel that by issuing appropriate directions in this writ petition and by monitoring the same the grievances expressed by the petitioner can be duly redressed and the interest of the public at large can be duly safeguarded. 42. In that view we issue following directions: I. The pending Sessions case on the file of Sessions Judge, Darjeeling s....