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TMI Blog2013 (10) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... to hide the realities or covering the obvious deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law - It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice - In order to ensure that the criminal prosecution is carried on without any deficiency, in appropriate cases this Court can even constitute Special Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution - While entrusting the criminal prosecution with other instrumentalities of State or by constituting a Special Investigation Team, the High Court or this Court can also monitor such investigation in order to ensure proper conduct of the prosecution - n appropriate cases even if the chargesheet is filed it is open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any other independent agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, 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. - Decided in favour of appellant. - W.P.(CRL.) 159 OF 2012 - - - Dated:- 8-10-2013 - NIJJAR, S.S KALIFULLA, FAKKIR MOHAMED IBRAHIM,JJ. For The Appellant : Ms. Pragya Baghel For The Respondent : Mr. B.V. Balaram Das and Others JUDGMENT : 1. The petitioner is the widow of one late Madan Tamang R/o Rhododendron Dell, District Darjeeling, West Bengal. According to the petitioner, her husband, who was the President of a political party called Akhil Bhartiya Gorkha League (in short ABGL ), was brutally murdered on the morning of 21st May, 2010 under the gaze of general public, police and security personnel by the supporters of rival party called Gorkha Jan Mukti Morcha known as GJMM and that after the brutal attack on the deceased Madan Tamang he was rushed to a nearby hospital where he was pronounced dead. Alleging that the whole invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner there was a deep rooted rivalry as between the two political parties, namely, ABGL and GJMM for quite some time, that the deceased Madan Tamang who was attempting to spearhead his party with certain objectives wanted to gather the support of the people of Darjeeling and with that view he organized a meeting to be held in the heart of the town of Darjeeling on certain occasions prior to 21.05.2010 and finally irrespective of the alleged resistance on the side of GJMM he stated to have scheduled the Founders Day meeting on 21st May, 2010 in the morning hours at a venue called Club Side Road Stand, just below Planters Club, Darjeeling. It is further alleged that when the deceased Madan Tamang was at the venue in the morning of 21st May, 2010 overseeing the preparations for the meeting by his party-men, a group of about 400 supporters of GJMM armed with khukries, patang, swords, sticks and firearms attacked him and brutally axed him to death with the aid of sharp weapons. It was also alleged that the said occurrence took place in the presence of police, security personnel, media persons and members of the general public. The occurrence was stated to have been widely capture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution deserves consideration. 7. A cursory glance of the transcription, as published in the Indian Express Edition of 15th July, 2010, discloses that it related to the period between 20th May, 2010, 9.02 pm to 5.12 pm of 21st May, 2010. The whole conversation was between accused Nos. 23, 13, 15, R10 and certain other persons all of whom appear to be the party-men of GJMM as disclosed in the charge-sheet filed by CBI. The conversation also related to the preparation made by the deceased Madan Tamang for holding his party s Foundation Day Celebration on 21st May, 2010, the idea of the GJMM to somehow or other abort the preparation made by the ABGL by its President Madan Tamang even at the cost of his elimination. The conversation continued in the early hours of 21.05.2010 till 10.54 am i.e. the time when the killing of Madan Tamang had taken place at the place of occurrence. A vivid description as to the manner in which the occurrence took place was also talked about by the conversationists. We, however, wish to make it clear here and now that our reference to the said transcription and to some of the details contained should not be taken to mean that we had expressed any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. It was then brought to our notice that the Final Report filed by the CBI wherein apart from the offences for which the accused were charged in the Final Report of the State police, offence under Section 120-B was also added and in Annexure 5 to the Final Report the names of the accused persons numbering 30 and of whom those who were already arrested and those who were absconding and also one accused who was granted bail was disclosed. The said Annexure 5 discloses the accused who were arrested were accused 1 to 7 and the absconding accused were A8 to A25 and A27 to A30. A26 was stated to be on bail. 11. Mr. Rohatgi learned senior counsel in his submissions further contended that the said position which remained static from May, 2010 continued till notice was issued in this writ petition on 03.12.2012 and that only thereafter there were some attempts made to nail the culprits. The learned senior counsel also brought to our notice the arrest memos in respect of accused nos.9, 10, 13, 14 and 15 who were arrested on 15.02.2013 at 0505 hrs. at a taxi stand of Darjeeling Railway Station. All the five accused were arrested at the same place and it was submitted by learned senior c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e noted that in that case the accused was in custody for more than 2 years while the present accused for whom the bail was moved were absconding for a long time and could be arrested only on 15th February 2013. 14. Mr. Rohatgi learned senior counsel while referring to the said order of the learned Sessions Judge dated 17.04.2013, however, pointed out that just a month later i.e. on 18.05.2013 that very learned judge granted bail by noting that none appeared for CBI and that the accused concerned in the application were in custody for about 7 months. Mr. Rohatgi learned senior counsel pointed out that when the arrest itself came to be made only on 15.02.2013 the statement found in the said order dated 18.05.2013 that the accused concerned were in custody for more than 7 months, was apparently a wrong statement. 15. Mr. Rohatgi learned senior counsel also made a detailed reference to the counter affidavit filed by the CBI in the Criminal Miscellaneous Petition. Having gone through the counter affidavit filed by CBI it is relevant to cull out certain factors which have been tacitly admitted by CBI as regards the investigation process initiated by it for the first time, the devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to unearth the conspiracy part with certain amount of certainty. 17. It was, however, submitted on behalf of CBI that in order to have an effective investigation and prosecution of the accused in a successful manner, it would be more appropriate to transfer the case from Darjeeling to Calcutta. The CBI stated to have moved the Calcutta High Court for transfer and, therefore, it has no objection to the case being transferred from Darjeeling to Calcutta. The stand of the CBI also reveals that after the occurrence which took place on 21st May, 2010 and after the FIR was registered, the case which was handled by the local police stated to have been entrusted with the CID Wing and that thereafter on 19.01.2011 the CBI took over the investigation. Initially chargesheet was filed by the CID team on 30.08.2010 and after CBI took over the investigation a supplement chargesheet was stated to have been filed on 20th August, 2011, in which, the charge of conspiracy also came to be added apart from the other charges mentioned in the chargesheet dated 30.08.2010. 18. As far as respondents 10 to 15 are concerned, Mr. Ram Jethmalani, learned senior counsel would contend that this case can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inly in a writ petition under Article 32 of the Constitution such direction cannot be issued. 19. Mr. Rohatgi learned senior counsel while countering the submissions of Mr. Ram Jethmalani learned senior counsel contended that the petitioner does not pray to this Court to find anyone guilty nor even add anyone as accused. According to Mr. Rohatgi, learned senior counsel, the petitioner is a widow, whose husband was done to death in broad day light in the presence of witnesses, police personnel and other security persons, that since authenticated official transcription of interceptions are available there should have been proper investigation and the culprits must have been brought to book. He further contended that the very fact that the State police and CID displayed their total disinclination to book the real culprits and hold proper investigation to unearth the truth, the case was handed over to CBI. Since for more than two years many of the accused were freely moving around the Darjeeling town, who were not apprehended and the real culprits were not brought to book even after the investigation was taken over by the CBI, it became imminent for the petitioner to approach this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel referred to the head note at page 348 wherein it is noted that the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law of evidence, obtained as a result of illegal search or seizure same is not liable to be shut out. The learned senior counsel while referring to the above passage in the said judgment also made reference to Section 5 of the Indian Telegraph Act, 1885 as well as Rule 419A of the Indian Telegraph Rules, 1951. By referring to Section 5 of the said Act the learned senior counsel contended that Section 5(2) puts an embargo on disclosure of such transcription except under certain exigencies and that under Rule 419A which was referable to Section 5(2) of the said Act the interception of any message can be disclosed only based on an order made by the Secretary to the Government of India in the Ministry of Home Affairs or by the Secretary to the State Government In-charge of the Home Department and merely based on the intercepted materials published in a newspaper whose authenticity is greatly doubtful, no reliance can be placed upon the same by the petitioner in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. In other words, what has been emphasized by the Constitution Bench is that the test of admissibility of evidence lies in relevancy and unless there is an express or necessarily implied prohibition in the constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. Apparently and justifiably the said legal position as propounded always have universal application, as in order to dispense justice and ensure that the real culprits are brought to book, the investigating agency should make every endeavour to unearth the truth by scrutinizing and gathering every minute details and materials and place it before the concerned adjudicative machinery in order to enable the Court examining the guilt or otherwise of an accused to reach a just conclusion. 24. When we consider the submission of learned senior counsel, we find that neither Section 5 nor Rule 419(A) can have any application at the present juncture. There is also no Constitutional embargo to be considered at this stage where the CBI has taken steps to ascertain the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en ABGL and GJMM the grievances expressed in the writ petition is out and out related to various discrepancies and slackness in the course of investigation of a murder case, which of course related to the husband of the petitioner and the grievances cannot be held to be purely personal based on any political vendetta. Therefore, the reliance placed upon the said decision also does not support the stand of respondents No.10 to 15. It will have to be further stated that the present writ petition is not by way of public interest litigation and the prayer of the petitioner is not to redress any public grievance but grievances relating to the death of a person who is none other than the husband of the petitioner in a broad day light whose murder case is yet to reach to its finality due to the alleged discrepancies in the process of investigation. For the very same reasons we do not find any support in the decision in Rajiv Ranjan Singh Lalan and another Vs. Union of India and others reported in (2006) 6 SCC 613. 27. As far as the reliance placed upon the decision in Bholu Ram Vs. State of Punjab and another reported in (2008) 9 SCC 140, wherein in paragraph 28, this Court has refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diverted by manipulative red herrings. 56 The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope. Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (Emphasis added) 29. The above principles makes the position clear to the effect that the administration of justice, lethargic action of courts may result in failure of justice and, therefore, when deficiency in investigation or prosecution is visible or can be perceived by lifting the veil and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s so required, in accordance with law. (Emphasis added) 32. Again in the subsequent decision in Rubabbuddin Sheikh Vs. State of Gujarat and others reported in (2010) 2 SCC 200, this Court has highlighted as to how under certain circumstances the investigation can be entrusted with independent agencies like CBI and also monitor the further progress of the case after the final report is filed by the CBI. The relevant paragraphs are 60 and 82 which are as under: 60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr. Rohatgi, learned Senior Counsel appearing for the State of Gujarat that after the charge-sheet is submitted in the court in the criminal proceeding it was not open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce placed as a result of even an illegal search or seizure is not liable to be shut out. c) If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law. d) It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. e) In order to ensure that the criminal prosecution is carried on without any deficiency, in appropriate cases this Court can even constitute Special Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution f) While entrusting the criminal prosecution with other instrumentalities of State or by constituting a Special Investigation Team, the High Court or this Court can also monitor such investigation in order to ensure proper conduct of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 to 5.12 pm of 21st May, 2010. ix. It is the further claim of the prosecution and the petitioner that the whole conversation was between accused 23, 13, 15 and respondent No.10 as well as certain other persons all of whom are the party men of GJMM. x. The intercepted transcript allegedly disclose that there was conversation between the persons about the manner in which the occurrence took place when the killing of Mr. Madan Tamang took place around 10 am. xi. In the complaint lodged by the General Secretary of ABGL on 21.05.2010 at 6.30 pm the complainant referred to the identified assailants, namely, A-9, A-10, A-12, A-13, A-14 and A-15 apart from alleging that respondents No.10 to 15 were continuously threatening Mr. Madan Tamang both in the Press as well as in the public meeting. xii. In the complaint it was further alleged that in such threats it was specifically averred that one day or other Madan Tamang would be killed and that therefore the attack at the venue of the meeting of ABGL was preplanned and 10th respondent was mastermind along with respondents 11 to 15. xiii. In the FIR apart from making specific reference to A-9, A-10, A-12, A-13, A-14 and A-15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail application were in custody for about 7 months, which does not reflect the correct facts, since the arrest itself came to be made on 15.02.2013 on the date when order was passed on 18.05.2013 it cannot be said that he was in custody for more than 7 months. xxv. While after the CBI took over investigation, 31 persons have been chargesheeted two of the prime accused namely Nicol Tamang and Dinesh Subba are still absconding while one of the accused is dead. xxvi. It is also on record that against the grant of bail by the learned Sessions Judge on 18.05.2013, no steps were taken by the CBI for its cancellation, while effort was made by the petitioner for the cancellation of bail by moving the High Court. It is also on record that the High Court having noted certain discrepancies in the grant of bail by the learned Sessions Judge ordered for its cancellation against which the concerned accused moved this Court by way of an Special Leave petition (Crl.) No.6831-6832 of 2013 in which order was passed by this Court on 02.09.2013. xxvii. The person who was holding the deceased Madan Tamang at the time when he was assaulted and was in a seriously injured condition was identified a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner that the proceeding of the case by the prosecution either by the State Police or by the CID and after it was taken over by CBI was not carried out in a satisfactory manner. The very fact that after the occurrence took place on 21.05.2001 there was serious lapse in apprehending many of the accused and the absconding of the prime accused Nicol Tamang and Dinesh Subba till this date disclose that there was total lack of seriousness by the prosecution agency in carrying out the investigation. The circumstances pointed out on behalf of the petitioner, namely, the absconding of many of the accused between May, 2010 and February, 2013 was a very relevant circumstance which gives room for suspicion in the mind of this Court as to the genuineness with which the case of the prosecution was being carried out. The submission that the murder took place due to political rivalry cannot be a ground for anyone, much less, the investigation agency to display any slackness or lethargic attitude in the process of investigation. Whether it be due to political rivalry or personal vengeance or for that matter for any other motive a murder takes place, it is the responsibility of the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding with the case of the prosecution and all accused involved in the offence are brought before Court for being dealt with in accordance with law. V. The trial which was commenced in the absence of the arrest of the remaining accused shall not be proceeded with until the CBI concludes its further investigation and submit its comprehensive report before the transferred Court, namely, the Principal District and Sessions Judge of the Calcutta Civil and Sessions Court and such comprehensive report shall be filed expeditiously preferably within three months from the date of pronouncement of this order. VI. The Principal District and Sessions Judge of the Calcutta Civil and Sessions Court shall commence the trial after the comprehensive final report is filed by the CBI and all the accused concerned are brought before Court for the trial. VII. Simultaneously the CBI shall file a copy of its comprehensive report before this Court in this writ petition for passing further directions if any required. VIII. The Principal District and Sessions Judge of the Calcutta Civil and Sessions Court will also be at liberty to approach this Court and seek for appropriate directions in order t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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