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.
(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.
SUPREME COURT OF INDIA
(SURINDER SINGH NIJJAR AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.)
Bharati Tamang Vs. Union of India & Ors.
Citation;2014 CRLJ 156 SC
Fakkir Mohamed Ibrahim Kalifulla, J.;- The petitioner is the widow of one late Madan Tamang R/o
Rhododendron Dell, District Darjeeling, West Bengal. According to the petitioner, her husband, who was
the President of a political party called Akhil Bhartiya Gorkha League (in short “ABGL”), was brutally
murdered on the morning of 21st May, 2010 under the gaze of general public, police and security
personnel by the supporters of rival party called Gorkha Jan Mukti Morcha known as “GJMM” and that
after the brutal attack on the deceased Madan Tamang he was rushed to a nearby hospital where he was
pronounced dead. Alleging that the whole 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.”
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.
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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 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 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 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 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
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appear to be the party-men of GJMM as disclosed in the charge-sheet filed by CBI. The conversation also
related to the preparation made by the deceased Madan Tamang for holding his party’s Foundation Day
Celebration on 21st May, 2010, the idea of the GJMM to somehow or other abort the preparation made by
the ABGL by its President Madan Tamang even at the cost of his elimination. The conversation continued
in the early hours of 21.05.2010 till 10.54 am i.e. the time when the killing of Madan Tamang had taken
place at the place of occurrence. A vivid description as to the manner in which the occurrence took place
was also talked about by the conversationists. We, however, wish to make it clear here and now that our
reference to the said transcription and to some of the details contained should not be taken to mean that
we had expressed any 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, 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 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 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,
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but yet no effort was taken by the police to arrest them between May, 2010 to February, 2013. According
to learned senior counsel because this Court ordered notice in this writ petition, the prosecution in order to
make it appear as though some seriousness was bestowed in its actions, the arrests were made while 13
other accused surrendered after the notice was issued in this writ petition.
12. Here again, it will have to be stated that the said submission cannot be simply brushed aside when it
comes to the question of testing the seriousness and truthfulness with which the investigating agency was
proceeding while carrying out the investigation for detecting the crime and also for that purpose
apprehending the accused in order to proceed with the case of the prosecution with all its earnest efforts.
Even in that context it will have to be stated that the claim that so many of the accused were absconding
and, therefore, the prosecution was disabled to proceed with its case effectively and its inability to
apprehend the accused inspite of its best efforts appears to be not true and has to be looked at with grave
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 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 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 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.
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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 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 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 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
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.
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19. Mr. Rohatgi learned senior counsel while countering the submissions of Mr. Ram Jethmalani learned
senior counsel contended that the petitioner does not pray to this Court to find anyone guilty nor even add
anyone as accused. According to Mr. Rohatgi, learned senior counsel, the petitioner is a widow, whose
husband was done to death in broad day light in the presence of witnesses, police personnel and other
security persons, that since authenticated official transcription of interceptions are available there should
have been proper investigation and the culprits must have been brought to book. He further contended
that the very fact that the State police and CID displayed their total disinclination to book the real culprits
and hold proper investigation to unearth the truth, the case was handed over to CBI. Since for more than
two years many of the accused were freely moving around the Darjeeling town, who were not
apprehended and the real culprits were not brought to book even after the investigation was taken over by
the CBI, it became imminent for the petitioner to approach this 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 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 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,
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 interceptions heavily relied upon by the
petitioner to rope in respondents No.10 to 15 cannot be countenanced.
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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 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 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 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
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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 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 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 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. 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
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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 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.
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
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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 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 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 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.
(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.
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. 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. ix. It is the further claim of the prosecution and the petitioner that the
whole conversation was between accused 23, 13, 15 and respondent No.10 as well as certain other
persons all of whom are the party men of GJMM. x. The intercepted transcript allegedly disclose that
there was conversation between the persons about the manner in which the occurrence took place when
the killing of Mr. Madan Tamang took place around 10 am. xi. In the complaint lodged by the General
Secretary of ABGL on 21.05.2010 at 6.30 pm the complainant referred to the identified assailants,
namely, A-9, A-10, A-12, A-13, A-14 and A-15 apart from alleging that respondents No.10 to 15 were
continuously threatening Mr. Madan Tamang both in the Press as well as in the public meeting. xii. In the
complaint it was further alleged that in such threats it was specifically averred that one day or other
Madan Tamang would be killed and that therefore the attack at the venue of the meeting of ABGL was
preplanned and 10th respondent was mastermind along with respondents 11 to 15. xiii. In the FIR apart
from making specific reference to A-9, A-10, A-12, A-13, A-14 and A-15 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
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. 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 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 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 . 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 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 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 be in the interest of public at large and therefore as has been pointed out by this Court in the various
decisions, which we have referred to in the earlier paragraphs, we find that it is our responsibility to
ensure that the prosecution agency is reminded of its responsibility and duties in the discharge of its
functions effectively and efficiently and ensure that the criminal prosecution is carried on effectively and
the perpetrators of crime are duly punished by the appropriate Court of law.
41. In as much as the petitioner only seeks for handling of the case of murder of her deceased husband by
the prosecuting agency, namely, the CBI here with utmost earnestness against all the accused who were
involved in the crime, we feel that by issuing appropriate directions in this writ petition and by
monitoring the same the grievances expressed by the petitioner can be duly redressed and the interest of
the public at large can be duly safeguarded.
42. In that view we issue following directions:
I. The pending Sessions case on the file of Sessions Judge, Darjeeling 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 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.
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.
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