Bharati Tamang Vs Union of India & Ors.

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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.159 OF 2012

Bharati Tamang …Petitioner

VERSUS

Union of India & Ors. … Respondents

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

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

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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 investigation

which was initially held by the State police and thereafter

by the CID and later by the CBI, was faulty in every respect,

the petitioner has come forward with the following 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.”

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2. We heard Mr. Mukul Rohatgi, learned senior counsel for the

petitioner, Mr. Ram Jethmalani learned senior counsel for

the respondents 10 to 15, Mr. Siddharth Luthra, Additional

Solicitor General for CBI, Mr. Kalyan Kr. Bandopadhyay,

senior counsel for State of West Bengal and Mr. K.

Radhakrishna, learned senior counsel for the Union of India.

3. In order to appreciate the grievances of the petitioner and

also to note the various features involved in the prosecution

proceedings right from the date of occurrence, namely, 21st

May 2010 till this date, it will be necessary to note down the

various developments and incidents that were brought out

by the petitioner, the CBI, as well as, certain orders passed

by the Sessions Court, Darjeeling and certain orders passed

by the High Court of Calcutta. It will also enable this Court

to find out whether the prayer of the petitioner deserves to

be granted.

4. In the course of his submissions Mr. Rohatgi learned senior

counsel took us through the manner in which the

occurrence had taken place on 21st May, 2010. According to

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the 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

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captured by the lensmen, Press as well as media which was

also telecast very widely in the television network as well as

through print media.

5. According to the petitioner, though the 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

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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 tried to collect the

records of the telephonic conversation from the West

Bengal Police which was published in the Indian Express

Edition of 15th July, 2010 and that, however, ultimately the

hard disc used by the Intelligence Bureau of West Bengal for

recording the telephonic conversation of intercepted

numbers of different leaders/activists of GJMM was cloned

and sent to Central Forensic Science Laboratory, New Delhi.

Therefore, according to CBI, the authenticity of the alleged

transcript is yet to be finally ascertained including the

truthfulness of the so called conversation between the

President, the General Secretary and the local cadres of

GJMM. It will have to be, however, noted that at the present

stage, for the purpose of investigation, the submission

made on behalf of the petitioner that the said transcription

gives sufficient clues and enough material to carry out an

effective investigation in order to identify the real culprits

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for bringing them to book and to effectively proceed with

the case of the 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

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some of the details contained should not be taken to mean

that we had expressed any opinion either as to existence of

the transcription or about the truthfulness or otherwise of

the contents of the transcription. Prima facie, we want to

make a note of the existence 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,

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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 its Final Report for offences

under Sections 147, 148, 149, 427, 506 and 302 read with

Section 34 IPC. It was pointed out that there was no charge

laid under Section 120-B IPC. As many as 30 persons were

arrayed as accused in the said chargesheet. The statement

of second accused Prashant Chhetry was recorded under

Section 161, in which the narration of the occurrence was

noted. The said statement implicated among other persons

R10 to 15 as well.

9. Mr. Rohatgi learned senior counsel in his submissions made

it clear that he was not attempting to rely upon the said

statement knowing full well as to what extent the said

statement under Section 161 can be used. But according to

learned senior counsel, the contents of the said statement

would give enough scope for the investigating agency to

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unearth the truth and that inspite of such abundant

information available, there was total sluggishness in the

investigation process. In our opinion, to some extent, we do

find considerable force in the said submission.

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

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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 counsel that the statement of the prosecution agency

that the accused were absconding was far from truth,

inasmuch as the very arrest at a taxi stand near a Railway

Station disclose 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

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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 suspicion. It will have to be stated

that if five of the accused were available at 0505 hrs. at the

taxi stand of the Darjeeling Railway Station, it is hard to

believe that those accused were really absconding and that

police was unable to apprehend them earlier, though, they

could have arrested them on 15.02.2013 whole hog in a

place where all of them could be taken into custody without

much effort. Similarly, the surrendering of 13 other persons

closely after the arrest of the abovesaid five accused only

shows that the claim of the police that those accused were

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really absconding was far from truth and cannot be

believed.

13. The reasoning in the order dated 17.04.2013 passed by the

learned Sessions Judge, Darjeeling while dismissing the bail

application also disclose that the accused were absconding

for a long time while some other accused continued to

abscond and, therefore, there was no scope for granting

bail. When a reference was made to the bail granted by the

High Court, the learned Sessions Judge 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

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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

development that had taken place thereafter and the

present stage at which it stands in order to arrive at a just

conclusion. In the counter affidavit it is stated that the

investigation 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

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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 forensic report is received, the CBI will

be able to proceed further with its investigation effectively.

16. The CBI fairly admitted that the accused persons are active

supporters of GJMM and that due to the prevailing law and

order situation in Darjeeling the CBI is facing much difficulty

since most of the chargesheeted accused took shelter either

in Nepal or Sikkim apart from the other hindrances such as

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the murder of one of its informer in November 2011, the

killing of one of the absconding accused which disabled the

CBI in making good progress in the investigation. According

to the CBI, due to fear psychosis prevailing in the region,

the CBI is not able to get much support from the local

public. The CBI would, however, claim that it was because of

its sustained efforts it was able to arrest five of the accused

on 15.02.2013 and 13 of the absconding accused

surrendered in June, 2013. According to the CBI, the

moment two absconding accused, namely, Nicol Tamang

and Dinesh Subba are apprehended, it will be able 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

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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 cannot be compared with the case in Zahira

Habibulla H. Sheikh and another Vs. State of Gujarat

and others reported in (2004) 4 SCC 158 which was relied

upon by the petitioner. According 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

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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 Telegraph Act, namely,

Section 5 read along with Rule 419A. According to learned

senior counsel, by virtue of the Constitution Bench decision

of this Court in Pooran Mal Vs. The Director of

Inspection (Investigation), New Delhi and others

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reported in (1974) 1 SCC 345 in particular paragraph 24 any

such direction would be a constitutional violation and,

therefore, the same should not be ordered. In any event, as

regards the telephonic conversation the learned senior

counsel would contend that it would be highly premature at

this stage to conclude that such conversation really

emanated as between respondents No.10 to 15 and some of

the accused and on that basis proceed against respondents

No.10 to 15. The learned senior counsel contended that in

the course of trial if the trial Court is convinced of the

involvement of any other person in the act of crime, the

Court has enormous powers under Section 319 Cr.P.C. and

by invoking the said power the trial Court can always

implicate any other person as accused, but certainly 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

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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 Court. Learned

senior counsel contended that such indifferent attitude

displayed by the State police and now by the CBI was

demonstrably present in the light of glaring factors existing,

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

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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 the National Intelligence Agency or any other

independent body. The learned senior counsel also

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contended that in the interest of justice and fair-play, the

case should be transferred to any other nearby State.

21. Having thus noted the various factual aspects in this writ

petition relating to the murder of Mr. Madan Tamang we

also wish to refer to some of the decisions relied upon by

learned senior counsel for the petitioner as well as Mr. Ram

Jethmalani learned senior counsel who appeared for

respondents No.10 to 15. In Pooran Mal (supra), which is a

Constitution Bench judgment, reference has been made as

to what extent reliance can be placed upon the intercepted

conversation between the parties whose litigation was being

tried by the Court of law. The said decision was relied upon

by Mr. Ram Jethmalani learned senior counsel to contend

that the intercepted materials relating to some of the

accused and respondents No.10 to 15 cannot form the basis

for claiming any relief in this writ petition. The learned

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,

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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 to support her claim in this writ petition. By referring

to the above statutory prescriptions the learned senior

counsel contended that going by the Constitution Bench

decision in Pooran Mal’s (supra) it should be held that the

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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 a Justice of the Peace. Nevertheless it was held that the Court had a discretion to admit the evidence obtained as a result of the illegal search and the constitutional protection

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against search of person or property without consent did not take away the discretion of the Court. Following Kuruma v. Queen (supra) the Court held that it was open to the Court not to admit the evidence against the accused if the Court was of the view that the evidence had been obtained by conduct of which the prosecution ought not to take advantage. But that was not a rule of evidence but a rule of prudence and fair play. It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, 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.”

23. A close reading of the above passage discloses that barring

an express or 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. 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

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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 truthfulness or

otherwise or the reliability of the intercepted conversation has

only been forwarded to the forensic laboratory and the report

is awaited.

25. We are not, therefore, 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

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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 scope to non suit the petitioner on that ground.

26. Reliance was placed upon the Constitution Bench decision

of this Court in S.P. Gupta Vs. Union of India and another

reported in 1981 (Supp) SCC 87 wherein, in paragraph 24, this

Court cautioned that the Court should be careful to see that

the member of the public, who approaches the Court by way

of a Public Interest Litigation act bona fide and not for

personal gain or private profit or political motivation or other

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oblique consideration. Mr. Ram Jethmalani learned senior

counsel appearing for respondents No.10 to 15 contended that

the petitioner who has now become the leader of ABGL after

the demise of her husband has come forward with the writ

petition to march a political gain and, therefore, none of her

grievances expressed in the writ petition should be

countenanced. By applying the above principle, set out by the

Constitution Bench, we are not in a position to appreciate the

said submission, inasmuch as, we find that de hors the

political rivalry between 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

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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 referred to

the ultimate conclusion set out in paragraph 6 of Joginder

Singh and another Vs. State of Punjab and another

reported in (1979) 1 SCC 345. In Joginder Singh (supra) the

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

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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 as accused.

28. We also wish to refer to some of the decisions relied upon

by Mr. Rohatgi learned senior counsel for the petitioner as to

how far the grievances of the petitioner can be redressed in

this proceedings. In the famous decision of Zahira Habibulla

H. Sheikh (supra), this Court has expressed its strong view as

to the necessity of courts to be alive to the situations where

genuine grievances were brought to its notice for redressal.

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Paragraphs 54 and 56 are relevant for our purpose and the

relevant portions therein read as under:

“54……When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system ultimately destroying the very justice-delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and 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

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by lifting the veil and thereby tried to hide the realities the

Court should deal with the same with the iron hand

appropriately within the framework of law.

30. In the decision of National Human 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.

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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 to conduct the investigation according to certain guidelines, as otherwise the very purpose of the investigation could become fruitless. The decisions cited by Mr. Nariman do not militate against the concept of the Court’s power, where necessary, to direct the authorities to conduct themselves in a particular way.

49. The various decisions cited by Mr. Dave endorse the view that when required not only could the High Court or this Court direct the investigating agencies to conduct the investigation in a fair and unbiased manner, but that in exercise of its powers under Article 142 of the Constitution, the Supreme Court could also issue directions for enforcement of fundamental rights and to ensure that complete justice was done to the parties.

50. In fact, in Kashmeri Devi case this Court had directed the Magistrate to exercise powers under Section 173(8) CrPC to direct CBI to make a proper and thorough investigation in an independent and objective manner and to submit an additional charge- sheet, if circumstances 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

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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 over the investigation to the independent agency like CBI. It cannot be said that after the charge-sheet is submitted, the court is not empowered, in an appropriate case, 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

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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

extraordinary cases even de novo investigation can be

ordered.

35. In the 2G Spectrum case in Centre for Public Interest

Litigation and others Vs. Union of India and others

reported in (2011) 1 SCC 560, this Court gave extensive

directions in paragraph 19 and also directed the CBI to

produce the progress report before this Court.

36. In the decision of Ram Jethmalani and others Vs. Union

of India and others reported (2011) 8 SCC 1 (to which one

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us Justice S.S. Nijjar was a party) considering the nature of

grievances expressed by the writ petitioner, constituted a

High Level Committee as an Special Investigation Team in

order to ensure that an effective investigation is carried out

and the culprits were brought to book.

37. From the various decisions relied upon by the petitioner

counsel as well as by respondents counsel, the following

principles can be culled out.

(a) The test of admissibility of evidence lies in its relevancy.

(b) Unless there is an express or implied constitutional

prohibition or other law, evidence 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.

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(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 prosecution.

(g) In 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 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.

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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 said

meeting at the place where he was slain.

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iv. Though it was not in dispute that police personnel were

present at the place of occurrence, no report about the

incident came to be registered and that the complaint

came to be registered at the instance of the General

Secretary of ABGL by around 6.30 pm of the same date.

v. The occurrence was vividly captured by the media and

other network apart from wide coverage given by the

print media.

vi. De hors the reliability or otherwise of the transcripts of

the intercepted conversation of some of the accused and

the office bearers of GJMM, the availability of such

transcripts is not in dispute.

vii.It is the case of the CBI itself that the transcripts of the

intercepts have been secured by it and that has been

forwarded to the Forensic Laboratory and the report is

awaited.

viii. The content of the transcripts which was initially

published in the Indian Express Edition of 15th July 2010

allegedly reveals that it related to the period between

9.02 pm of 20th May, 2010 to 5.12 pm of 21st May, 2010.

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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

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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 there is also reference to

respondents 10 to 15.

xiv. In the final report filed by the State police the offences

were under Sections 147, 148, 149, 427, 506 and 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

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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.

xx.After notice was issued in this writ petition, 5 of the

accused were arrested at 5.05 am on 15.02.2013 at a

taxi stand of Darjeeling railway station.

xxi. It was also stated that apart from the arrest of 5

accused, 13 other accused surrendered after the

issuance of the notice in this writ petition.

xxii. The order dated 17.04.2013 of the Sessions Judge,

Darjeeling dismissing the bail application disclose that

the accused were absconding for a long time and,

therefore, bail could not be granted at that stage.

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xxiii. The learned Sessions Judge also noted that the grant

of bail by the High Court in respect of one of the accused

was due to the fact that he was in custody for more than

2 years, while the accused for whom the bail was moved

before him was absconding for a long time and came to

be arrested only on 15th February, 2013.

xxiv. In the subsequent order dated 18.05.2013 the learned

Sessions Judge while granting bail stigmatically noted

that none appeared for CBI and that the accused

concerned in the 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

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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 as one Karma

Tamang who was found to be living in Nepal and his

statement was recorded after the CBI took over the

investigation.

xxviii. According to the CBI the 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

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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 the case of the

prosecution and considering the grievances expressed by the

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petitioner in the writ petition, the prayer of the writ petitioner

is four-fold. The petitioner seeks for the issuance of

certiorarified Mandamus to quash the chargesheet No.76 of

2010 dated 30th August, 2010 by the CID, Homicide Squad,

West Bengal along with the supplementary chargesheet No.04

(03) dated 20th August, 2011 by the CBI in GR Case No.148 of

2010; for the issuance of a mandamus for appointing an

independent Special Investigation Team comprising of senior

official headed by a competent person or authority of

impeccable credentials to conduct the investigation de novo

into the conspiracy and gruesome murder of the deceased

Madan Tamang on 21st May, 2010 and alternatively direct for

further/fresh investigation by an officer of the level of DIG of

the CBI or for direction to entrust the investigation to the

National Investigation Agency.

40. Having noted the various relevant features, we find force in

the submission of learned counsel 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

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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 police to come up to the expectation

of the public at large and display that no stone will remain

unturned to book the culprits and bring them for trial for being

dealt with under the provisions of the criminal law of

prosecution. Any slackness displayed in that process will not

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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:

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I. The pending Sessions case on the file of Sessions Judge,

Darjeeling shall be transferred to the Principal District

and Sessions Judge of the Calcutta Civil and Sessions

Court. Such transfer shall be effected by the Sessions

Court, Darjeeling to the file of the Principal Judge of the

Calcutta Civil Court along with all the records and

material objects within two weeks from the date of

production of the copy of this order.

II. On such transfer of records being made by the Sessions

Judge, Darjeeling and receipt of the same along with the

material objects, the Principal District and Sessions Judge

of the Calcutta Civil and Sessions Court shall forthwith

commence the proceedings by ensuring the presence of

all concerned both accused as well as the prosecution

agency.

III.The investigation shall continue to be carried out by the

CBI but shall be monitored closely by Mr. Rajiv Singh,

Joint Director, CBI.

IV.The investigation by the CBI shall ensure that all required

evidence are gathered by proceeding to make further

investigation in order to ensure that no stone is left

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unturned in proceeding 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.

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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 to ensure that the directions issued by this Court

are duly complied with.

IX.It is needless to state that to enable the CBI, the

Prosecuting Agency and the trial Court to effectively

comply with our directions, the State Government,

Departments of the Central Government and all other

agencies whose assistance is required by the CBI or the

Court shall render the required support without giving

room for any delay being caused in proceeding with the

trial.

43. This order is, therefore, passed for the present. The writ

petition is kept pending for passing necessary orders if and

when required in future. A copy of this order shall be

forwarded to the Sessions Judge, Darjeeling, the Principal

District and Sessions Judge of the Calcutta Civil and Sessions

Court and also to the High Court of Calcutta.

.….…….……….………………………J.

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[Surinder Singh Nijjar]

..….…….………………………………J.

[Fakkir Mohamed Ibrahim Kalifulla]

New Delhi; October 08, 2013

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