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Writ Petition (Crl.) No. 159 of 2012 (Under Article 32 of the Constitution of India). Case: Bharati Tamang Vs Union of India (UOI) and Ors.. Supreme Court (India)

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Case NumberWrit Petition (Crl.) No. 159 of 2012 (Under Article 32 of the Constitution of India)
CounselFor Appearing Parties: Siddarth Luthra, ASG, Mukul Rohatgi, U.U. Lalit, Ram Jethmalani, Mukul Gupta, Kalyan Kr. Bandopadhyay and K. Radhakrishna, Sr. Advs., Arunabh Chowdhury, Amit Sharma, Pragya Baghel, Vaibhav Tomar, Karma Dorjee, G. Panmei, Nikilesh Ramachandran, Niraj Jha, Bedan Gurung, Shantanu Singh, Karan Kalia, Dipankar Dey, Gitanju ...
JudgesSurinder Singh Nijjar and Fakkir Mohamed Ibrahim Kalifulla, JJ.
IssueIndian Telegraph Act, 1885 - Sections 5, 5(2); Indian Penal Code (IPC) - Sections 34, 120B, 147, 148, 149, 302, 427, 506; Code of Criminal Procedure (CrPC) - Sections 161, 173, 173(8), 319, 319(1); Indian Telegraph Rules, 1951 - Rule 419A; Constitution of India - Articles 32, 142
Citation2013 (13) SCALE 108
Judgement DateOctober 08, 2013
CourtSupreme Court (India)

Judgment:

Fakkir Mohamed Ibrahim Kalifulla, J.

1. The Petitioner is the widow of one late Madan Tamang R/o Rhododendron Dell, District Darjeeling, West Bengal. According to the Petitioner, her husband, who was the President of a political party called Akhil Bhartiya Gorkha League (in short "ABGL"), was brutally murdered on the morning of 21st May, 2010 under the gaze of general public, police and security personnel by the supporters of rival party called Gorkha Jan Mukti Morcha known as "GJMM" and 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.

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 lens men, 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 eyewitnesses 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 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 conversationalists. 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 Indian Penal Code. It was pointed out that there was no charge laid under Section 120B Indian Penal Code. 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...

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