# BHARATI TAMANG v. UNION OF INDIA & ORS - **Citation:** [2013] 14 S.C.R. 525 - **Court:** Supreme Court of India - **Decided:** 2013-10-08 - **Case number:** Writ Petition (Crl.} No.159 of 2012 - **Bench:** Surinder Singh Nijjar, Fakkir Mohamed Ibrahim Kalifulla - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bharati-tamang-v-union-of-india-ors-29176 - **Pages:** 40 ## Headnote A B 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 1 sec 560 relied on Para 35 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. 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. b. 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 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 pertaining thereto; H 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 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 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, A13, 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 R 10 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 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 B 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 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 D E 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 8 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 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 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 c 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.