Supreme Court of India
BHARATI TAMANGversusUNION OF INDIA & ORS.
- Citation
- 2013 INSC 698
- Decided
- 8 October 2013
- Disposal
- Directions issued
- Bench
- S S NIJJAR
Holding
Where investigation is demonstrably deficient, the Supreme Court may order continuation of the investigation by the CBI under judicial monitoring, transfer the trial, and admit evidence obtained illegally unless expressly prohibited by law.
Summary
The widow of Madan Tamang, a political leader murdered in public, filed a writ petition under Article 32 seeking quashing of charge‑sheets and a fresh investigation by an independent Special Investigation Team, alleging that the State police, CID and CBI investigations were faulty. The Supreme Court examined the adequacy of the investigations, the admissibility of intercepted telephone conversations, and the Court's power to monitor and direct investigations. It held that evidence obtained by illegal search is admissible unless expressly prohibited, and that intercepted material can be relied upon pending forensic verification. Finding serious lapses, the Court directed that the CBI continue the investigation under the close monitoring of its Joint Director, that the pending Sessions case be transferred to the Calcutta Sessions Court, and that the trial be stayed until a comprehensive CBI report is filed. The petition was allowed with these directions to ensure a fair and effective prosecution.
Issues considered
- The adequacy and propriety of the investigations conducted by State police, CID and CBI.
- Whether intercepted telephone conversations are admissible as evidence in the absence of a specific statutory prohibition.
- The scope of the Supreme Court's power under Article 142 to direct, monitor, or order a fresh investigation and to transfer a trial.
- The applicability of Section 5 of the Indian Telegraph Act and Rule 419A of the Telegraph Rules to the intercepted material.
Legislation cited
- Criminal Procedure Code (CrPC)s. 173, s. 173(8), s. 319
- Indian Penal Code (IPC)s. 120B, s. 147, s. 148, s. 149, s. 161, s. 302, s. 34, s. 427, s. 506
- Indian Telegraph Act, 1885s. 5
- Telegraph Rules, 1951s. Rule 419A
Subjects
murderpolitical rivalryinvestigationCBISpecial Investigation Teamevidence admissibilityintercepted communicationsjudicial monitoringtransfer of trialArticle 32writ of mandamus
Judgment
[2013] 14 S.C.R. 525
BHARAT! TAMANG A
v.
UNION OF INDIA & ORS.
(Writ Petition (Crl.} No.159 of 2012)
OCTOBER 08, 2013
B
[SURINDER SINGH NIJJAR AND
FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.]
Investigation - Entrustment of - To independent
investigating agency - Murder of political leader - C
Investigation by State Police, CID and CBI - Dissatisfied with
the investigation, writ petition by wife of the deceased seeking
investigation by higher authorities of CBI - Alleging that
investigation was faulty - Held: In order to ensure that the
criminal prosecution is carried on without any deficiency, Court D
can constitute Special Investigation Team - The courts can
also monitor such investigation - The proceedings/
investigation in the present case was not carried out in a
satisfactory manner - Therefore, it is directed that
investigation shall be continued by CBI, but shall be E
monitored' by Joint Director, CBI - The pending Sessions
case in Darjeeling, shall be transferred to the Sessions Court
in Calcutta - The Calcutta Sessions Court shall be at liberty
to approach Supreme Court and seek appropriate <Jjrections.
Investigation - Deficiency in - Role of Court - Held: If F
deficiency in investigation. and prosecution is visible or can
be perceived by lifting the veil which try to hide the realities
or covering the obvious deficiency, courts to deal with the
same with iron hands within framework of law.
G
Evidence - Admissibility of - Held: Test of admissibility
of evidene lies in its relevancy - Evidence placed as a result
of even an illegal search or· seizure is not liable to be shut
out, unless there is an implied or express prohibition in the
525 H
526 SUPREME COURT REPORTS [2013] 14 S.C.R.
A consitution or other law - In the facts of the case, plea
objecting to the reliance on intercepted transcription of the
telephonic conversation on the ground of its being violative
of constitutional rights and being in violation of s. 5 of
Telegraph Act rlw. r.419(A) of Telegraph Rules, is r.ot correct
B as investigation has not yet concluded and truthfulness or
otherwise of the intercepted conversation is yet to be
ascertained by Forensic report.
Petitioner, the wife of a deceased political leader filed
C the present writ petition questioning the investigation
conducted, in respect of death of her husband, by State
police, CID and CBI. She prayed for quashing of the
charge-sheet and supplementary charge-sheet by CID
and CBI respectively and the proceeding emanated
therefrom. She further sought for appointment of
D independent Special Investigation Team to conduct an
investigation de novo.
The case of the petitioner was that her husband, the
deceased, President of political party Akhil Bhartiya
E Gorkha League (ABGL), was brutally murdered under the
gaze of general public, police and security personnel, by
the supporters of the rival party i.e. Gorkha Jan Mukti
Morcha (GJMM). The petitioner alleged that respondent-
assailants used to threaten the deceased. She relied on
F transcripts of official intercepts of phone conversations
between the President and General Secretary of GJMM
and their local cadres.'
The respondents-assailants interalia contended that
that they cannot be implicated in the case; and that
G reliance on intercepted transcription of the telephonic
conversation would be hit by s. 5 of Telegraph Act rlw.
r.419A of Telegraph Rules.
Plea of CBI was that it is not able to get much
H support from local public, due to fear psychosis. CBI
BHARATI TAMANG v. UNION OF INDIA 527
submitted that in order to have an effective investigation A
and prosecution of the accused in a successful manner,
it would be more appropriate to transfer the case from
Darjeeling to Calcutta.
Passing the order and keeping the petition pending 8
for passing necessary orders if and when required, by the
Court
HELD: 1. The test of admissibility of evidence lies in
its relevancy. Unless there is an express or implied
constitutional prohibition or other law, evidence placed C
as a result of even an illegal search or seizure is not liable
to be shut out. 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 D
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. [Para 37) [554-A-E]
E
Barindra Kumar Ghosh vs. Emperor ILR 37 Calcutta
467; Emperor vs. Allahdad Khan ILR 35 Allahabad 358;
Kuruma vs. Queen 1955 AC 197; Herman King vs. The
Queen (1969) 1 AC 304 - relied on.
Pooran Mal vs. The Director of Inspection (Investigation), F
New Delhi and Ors. (1974) 1 SCC 345: 1974 (2) SCR ,704 -
referred to.
2. It cannot be said thaf no reliance can be placed
upon the intercepted materials as that would amount to G
violation of a constitutional right of the concerned
individuals. 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
H
528 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B the said decision is concerned there can. be no two
opinions about the said position. But in the present case,
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
c remedy before the trial Court by challenging the
correctness or otherwise of the report of the forensic
laboratory. Therefore, there is no scope to non suit the
petitioner on that ground. [Para 25) [547-C-G]
3. Neither Section 5 of Telegraph Act nor Rule 419(A)
D Telegraph Rules 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
E to the forensic laboratory and the i:eport is awaited. [Para
24) [547-B-C)
4. In order to ensure that the criminal prosecution is
carried on without any deficiency, in appropriate cases,
F 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
G 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. In appropriate cases even if the chargesheet
H
BHARAT! TAMANG v. UNION OF INDIA 529
is filed, it is open for this Court or even for the High Court A
to direct investigation of the case to be handed over to
CBI or to any other independent agency in order to do
complete justice. In exceptional circumstances, the Court
in order to prevent miscarriage of criminal justice and if
considers necessary may direct for investigation de novo. B
[Para 37] [554-E-H; 555-A-B]
Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat
and Ors. (2004) 4 SCC 158: 2004 (3) SCR 1050; National
Human Rights Commission vs. State of Gujarat and ors. , C
(2009) 6 SCC 767: 2009 (7) SCR 236; Babubhai Jamnadas
Patel vs. State of Gujarat and Ors. (2009) 9 SCC 610;
Rubabbuddin Sheikh vs. State of Gujarat and Ors. (2010) 2
SCC 200: 2010 (1) SCR 991; Babubhai vs. State of Gujarat
and Ors. (2010) 12 SCC 254: 2010 (10) SCR 651; Centre
for Public Interest Litigation and Ors. vs. Union of India and D
Ors. (2011) 1 SCC 560; Ram Jethmalani and Ors. vs. Union
of India and Ors. (2011) 8 sec 1: 2011 (8) SCR 725 - relied
on.
S.P. Gupta vs. Union .of India and Anr. (1981) Supp. SCC E
87; Rajiv Ranjan Singh 'La/an' and Anr. vs. Union of India
and Ors. (2006) 6 SCC 613: 2006 (4) Suppl. SCR 742; Bholu
Ram vs. State of Punjab and Anr. (2008) 9 SCC 140: 2008
(12) SCR 959; Joginder Singh and Anr. vs. State of Punjab
and Anr. (1979) 1 SCC 345: 1979 (2) SCR 306 - held F
inapplicable.
5. It is correct 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 G
occurrence took place, there was serious lapse in
apprehending many of the accused and the absconding
of the prime accused till this date disclose that there was
total lack of seriousness by the prosecution agency in
carrying out the investigation. The circumstances pointed H
530 SUPREME COURT REPORTS [2013] 14 S.C.R.
A out on behalf of the petitioner, namely, the absconding
of many of the accused between May, 201 O 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
B 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
c 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.
0
Any slackness displayed in that process will not be in the
interest of public at large and therefore it is responsibility
of the Court to ensure that the prosecution agency is
reminded of its responsibility and duties in the discharge
E 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. [Para 40) [561-B-H; 562-A]
6. In as much as the petitioner only seeks for
F handling of the case of murder of her deceased husband
by the prosecuting agency, namely, ihe CBI with utmost
earnestness against all the accused who were involved
in the crime, by issuing appropriate directions in this writ
petition and by monitoring the same, the grievances
G expressed by the petitioner can be duly redressed and
the interest of the public at large can be duly
safeguarded. [Para 41) [562-8-C]
7. The pending Sessions case on the file of Sessions
Judge, Darjeeling shall be transferred to the Principal
H
BHARATI TAMANG v. UNION OF INDIA 531
District and Sessions Judge of the Calcutta Civil and A
Sessions Court along with all the records and material
objects within two weeks from the date of production of
the copy of this order. The investigation shall continue
to be carried out by the CBI but shall be monitored
closely by Joint Director, CBI. The investigation by the B
CBI shali ensure that all required evidence are gathered
by proceeding to make further investigation in order to
ensure that no stone is left unturned in proceeding with
the case of the prosecution and all accused involved in
the offence are brought before Court for being dealt with c
in accordance with law. The trial which was commenced
in the abse.nce 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
0
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. The Principal
District a\id Sessions Judge of the Calcutta Civil and
Sessions Court shall commence the trial after the E
comprehensive final report is filed by the CBI and all the
accused concerned are brought before Court for the trial.
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. The F
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. [Para 42] (562-D-E, G-H; 563-A-G] G
Case Law Reference:
1974 (2) SCR 704 relied on Para 18
ILR 37 Calcutta 467 relied on Para 22 H
532 SUPREME COURT REPORTS [2013) 14 S.C.R.
A ILR 35 All 358 relied on Para 22
1955 AC 197 relied on Para 22
(1969) 1 AC 304 relied on Para 22
(1981) Supp. sec 87 held inapplicable Para 26
B
2006 (4) Suppl. SCR 742held inapplicable Para 26
2008 (12) SCR 959 held inapplicable Para 27
1979 (2) SCR 306 held inapplicable Para 27
c 2004 (3) SCR 1050 relied on Para 28
2009 (7) SCR 236 relied on Para 30
(2009) 9 sec 61 o relied on Para 31
D 2010 (1) SCR 991 relied on Para 32
2010 (10) SCR 651 relied on Para 33
c2011 > 1 sec 560 relied on Para 35
E 2011 (8,) SCR 725 relied on Para 36
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 159 of 2012.
Under Article 32 of the Constitution of India.
F
Siddharth Luthra, ASG, Mukul Rohatgi, U.U. Lalit, Ram
Jethmalani, Mukul Gupta, Kalyan Kr. Bandopadhyay, K.
Radhakishna, Arunabh Chowdhury, Amit Sharma, Pragya
Baghel, Vaibhav Tomar, Karma Dorjee, G. Panmei, Nikilesh
G Ramachandran, Niraj Jha, Bedan Gurung, Shantanu Singh,
Karan Kalia, Dipankar Dey, Gitanju Suraj, T.A. Khan Anjali
Chauhan, Syed Tanweer Ahmad, Arjun Diwan, B.V. Balaram
Das, Anip Sachthey, Mohit Paul, Dr. Ashok Dhamija, Sonia
Dhamija, B. Krishna Prasad for the appearing parties.
H The Judgment of the Court was delivered by
BHARATI TAMANG v. UNION OF INDIA 533
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. The A
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, B
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 c
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 D
or Direction in the nature of Mandamus quashing
the Charge Sheet No. 76 of 2010 submitted on
August 30th 2010 by the C.l.D. Homicide Squad,
West Bengal along with Supplementary Charge
Sheet No.04(3) dated August 20, 2011 (C.B.1.) filed E
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. F
b. Issue' a Writ of Mandamus or any other Writ, OrCler
or Direction in the nature of Mandamus appointing
an independent Special Investigation Team
comprising of Senior Officers headed by a G
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
H
pertaining thereto;
534 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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."
B 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,
C 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
D 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
the petitioner there was a deep rooted rivalry as between the
F 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
G 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
H venue in the morning of 21st May, 2010 overseeing the
BHARAT! TAMANG v. UNION OF INDIA 535
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
preparations for the meeting by his party-men, a group of about A
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. B
The occurrence was stated to have been widely 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 C
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 D
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 E
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 F
General Secretary of GJMM and their local cadres, just before
and after the gruesome murder of Madan Ta'mang. 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 G
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
H
536 SUPREME COURT REPORTS [2013) 14 S.C.R.
A 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
B 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
c investigation in order to identify the real culprits 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
D 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
E 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
F in the early hours of 21.05.2010 till 10.54 am i.e. the time when
t~e killing of Madan Tamang had taken pl~ce at the place of
occurrence. A vivid description as to the manner in which the
occurren,be took place was also talked about by the
conversationists. We, however, wish to make it clear here and
G 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 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
H existence of the transcripts, inasmuch as, even the prosecution
BHARAT! TAMANG v. UNION OF INDIA 537
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
agency, namely, the CBI does not dispute about its existence A
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 B
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 C
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 D
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 Fl R 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 r~ad E
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 F
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 G
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 unearth the truth
and that inspite of such abundant information available, there H
538 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B 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
C 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 AB to A25 and A27 to A30. A26 was
stated to be on bail.
D 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
E 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
F 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
G 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
H petition.
BHARAT! TAMANG v. UNION OF INDIA 539
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
12. Here again, it will have to be stated that the said A
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 B
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 c
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 D
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
E
that those accused were 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 F
absconding for a, long time while some other accuse9
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 G
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
H
540 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B 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.
c 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
D 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
E nave 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
F Tamang, only after their arrest, the CBI will be able to make
significant progre::;s as regards the conspiracy though, howeyer,
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
G also identified as one Karma Tamang wtio 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
H conversations, the CBI would state that unless its contents are
BHARAT! TAMANG v. UNION OF INDIA 541
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
authenticated by ascertaining the actual voice interceptions no A
conclusion can be drawn. If 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 B
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 the
murder of one of its informer in November 2011, the killing of C
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 D
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. E
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 F
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 G
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
H
542 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
8
cannot be compared with the case in Zahira Habibulla H.
Sheikh and another Vs. State of Gujarat and others reported
in (2004) 4 sec 158 which was relied upon by the petitioner.
According to him that case was due to a communal frenzy and
C 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
D 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,
E 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
F contended that for that purpose the intercepted transcription of
the, telephonic conversation cannot be relied 4pon 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
G this Court in Pooran Mal Vs. The Director of Inspection
(Investigation}, New Delhi and others 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
H the learned senior counsel would contend that it would be highly
BHARATI TAMANG v. UNION OF INDIA 543
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
premature at this stage to conclude that such conversation really A
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 B
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
c
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 D
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 E
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 F
to book even after the investigatio~ 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, G
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 H
544 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B 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.
c 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
D Act of the National Intelligence Agency or any other
independent body. The learned senior counsel also contended
that in the interest of justice and fair-play, the case should be
transferred to any other nearby State.
E 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 decisigns relied upon by
learned senior counsel for the petitioner as well as Mr. Ram
Jethmalani learned senior counsel who appeared for
F 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
G Mr. Ram Jethmalani learned senior counsel to contend that the
intercepted materials relating to some of the accused and
respondents No.1 O 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
H
BHARAT! TAMANG v. UNION OF INDIA 545
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
express or necessarily implied prohibition in the Constitution A
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 B
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 c
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 D
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
interceptions heavily relied upon by the petitioner to rope in E
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 F
legal position is th~ 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. G
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
H
546 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B 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 against
search of person or property without consent did not take
c 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
D
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
E 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
F 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
G 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
H and gathering every minute details and materials and place it
BHARATI TAMANG v. UNION OF INDIA 547
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
before the concerned adjudicative machinery in order to enable A
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 B
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 C
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 D
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 a.nd correctness of the alleged convers.ation E
between certafn 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 F
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 G
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 H
548 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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 oblique consideration. Mr. Ram Jethmalani learned
B 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
c 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,
0
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
E 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
F discrepancies in the process of investigation. For the very same
reasons we do not find any support in the decision in Rajiv
Ranjan Singh 'La/an' and another Vs. Union of India and
others reported in (2006) 6 sec 613.
G 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
H in (1979) 1 SCC 345. In Joginder Singh (supra) the position
BHARAT! TAMANG v. UNION OF INDIA 549
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
relating to Section 319(1) of the Cr.P.C. has clearly set out A
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 B
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 c
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
0
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 E
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 F
genuine grievances were brought to its notice for, redressal.
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 G
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
H
550 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B
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
c 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 trving to hide
the realities or covering the obvious deficiencies. courts
D 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)
E
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 thereby tried to hide the realities the Court
F should deal with the same with the iron hand appropriately within
the framework of law.
30.ln the decision of National Human Rights Commission
Vs. State of Gujarat and others reported in (2009) 6 SCC 767,
G 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.
H
BHARATI TAMANG v. UNION OF INDIA 551
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
31. In the decision of Babubhai Jamnadas Patel Vs. A
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: 8
"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. c
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 D
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 F
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.
G
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
H
552 SUPREME COURT REPORTS [2013] 14 S.C.R.
A to submit an additional charge-sheet, if circumstances so
required, in accordance with law."
(Emphasis added)
B 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
C 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
D 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
E 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
F 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
G 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
H
BHARATI TAMANG v. UNION OF INDIA 553
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
an appropriate manner." A
(Emphasis added)
33. In the decision of Babubhai Vs. State of Gujarat and
others reported in (2010) 12 sec 254, in paragraph 40, this
Court held that the scheme of investigation particularly Section B
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 c
justice. if considers necessary. may direct for investigation
de novo wherein the case presents exceptional
circumstances."
(Emphasis added)
D
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 Pub/it Interest E
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.
F
36. In the decision of. Ram Jethmalani and others Vs.
Union of India and others reported (2011) 8 SCC 1 (to which
one 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 G
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
H
554 SUPREME COURT REPORTS [2013) 14 S.C.R.
A 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 (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 (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 (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 (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
F 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
G 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.
H (g) In appropriate cases even if the chargesheet is filed
BHARAT! TAMANG v. UNION OF INDIA 555
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
it is open for this Court or even for the High Court A
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 B
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 C
following situations are/were prevalent till the present· writ
petition came to be filed in this Court in December 2012 relating
I'
to the murder of Mr. Madan Tamang which occurred on
21.05.2010 under the gaze of general public, police and
security personnel. D
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 E
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". F
iii. Ori 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 G
he was slain.
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
H
'
556 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B
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
c 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
D 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
E 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
F as certain other persons all of whom are the party
men ofGJMM.
x. The intercepted transcript allegedly disclose that
there was conversation between the persons about
the manner in which the occurrence took place when
G 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
H complainant referred to the identified assailants,
BHARAT! TAMANG v. UNION OF INDIA 557
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
namely, A-9, A-10, A-12, A-13, A-14 and A-15 A
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 B
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.
c
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
D
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 E
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 F
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 G
offence under Section 1208 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.
H
558 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B 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
c 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.
D 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,
E Darjeeling dil)rnissing the bail application disclose
that the accused were absconding for a long time
and, therefore, bail could not be granted at that
stage.
xxiii. The learned Sessions Judge also noted that the
F 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
G 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
H
BHARAT! TAMANG v. UNION OF INDIA 559
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
that the accused concerned in the bail application A
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 W3s in custody for more than 7 months. B
>ON. 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 C
accused is dead.
>ONi. 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 D
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 E
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
F
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.
G
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
H
560 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
B
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
c 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
D 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
E
'commenced in the Darjeeling Court which has now
be stayed by the ord~rs of this Court.
39. Having noted the above features in the case of the
prosecution and considering the grievances expressed by the
F 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
G August, 2011 by the CBI in GR Case No.148 of 201 O; 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
H conspiracy and gruesome murder of the deceased Madan
BHARAT! TAMANG v. UNION OF INDIA 561
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Tamang on 21st May, 2010 and alternatively direct for further/ A
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 B
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 the occurrence took place on 21.05.2001 there was
serious lapse in apprehending many of the accused and the C
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 D
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
{TlUrder took place due to political rivalry cannot be a ground E
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 F
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
be in the interest of public at large and therefore as has been G
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 H
562 SUPREME COURT REPORTS (2013] 14 S.C.R.
A 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
B 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.
c
42. In that view we issue following directions:
I. The pending Sessions case on the file of Sessions
Judge, Darjeeling shall be transferred to the
D 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
F 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.
G
Ill. 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
H required evidence are gathered by proceeding to .
BHARAT! TAMANG v. UNION OF INDIA 563
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
make further investigation in order to ensure that no A
stone is left 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.
B
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
c
and Sessions Court and such comprehensive
report shall be filed expeditiously preferably within
three months from the date of pronouncement of
this order.
D
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. E
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 F
Calcutta Civil and Sessions Court. will also be at
liberty to approach this Court and seek for
appropriate directions in order to ~nsure that the
directions issued by this Court are duly complied
with. G
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 H
564 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 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
8
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
C also to the High Court of Calcutta.
Kalpana K. Tripathy Writ Petition Pending
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