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2008 DIGILAW 632 (GAU)

Prem Kanta Mahanta v. State of Assam

2008-08-28

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. This application has been filed praying for quashing the final report submitted by the CID in regard to Dispur PS Case No. 708/97 corresponding to GR Case No. 3881/97 registered under Section302/34, IPC and handing over the case to the Central Bureau of Investigation (hereafter called as "CBI") for the purpose of fair enquiry. 2. The petitioner is the father of the deceased, Mitra Dev Mahanta, who was allegedly killed by some unknown assailants in the midnight of 24.9.1987 while he was on way to his residence from his work place in his Maruti car. On the next day, i.e. on 25.9.1987, the deceased's brother, Sri Prabin Manata, lodged an FIR before the Dispur Police Station and a case, being Dispur PS Case No. 708/97 was registered under Section 302/34, IPC. One Sub-Inspector, Sri R. Konwar was entrusted to investigate the matter. The said Investigating Officer visited the place of occurrence and started investigation and while investigating the case, he seized some incriminating articles, namely, 3 Nos. of empty caches and Maruti car of the victim from the place of occurrence. The Investigating Officer seized one 38 Revolver and 10 rounds of live ammunition and 6(six) numbers of bullet heads from the place of occurrence and the body of the deceased and the same were sent to FSL, Kahilipara for examination and to ascertain whether the said Revolver was used in the killing of deceased Mitradev Mahanta with the seized bullets by the assailants. After few days of the occurrence, the Investigating Officer also recovered one Revolver from the place in the next Bye Lane where the said incident took place. This Revolver was also sent to Guwahati FSL. But during the progress of investigation, the said Investigating Officer, R. Konwar was replaced by another Investigating Officer, Sri U. Baruah. As the expert of the Guwahati FSL could not give any positive opinion, the aforesaid seized articles were sent to CFSL, Kolkata, but they also could not give any definite opinion. Before receipt of the report from CFSL, Kolkata, the Dispur Police Station referred the case to the CID to complete the investigation. One Sri PK Baruah, the Inspector of CID, started the investigation and thereafter, Sri Kanak Hazarika, the Inspector of CID, was entrusted with the investigation of the case. During investigation, the CID suspected three persons. Before receipt of the report from CFSL, Kolkata, the Dispur Police Station referred the case to the CID to complete the investigation. One Sri PK Baruah, the Inspector of CID, started the investigation and thereafter, Sri Kanak Hazarika, the Inspector of CID, was entrusted with the investigation of the case. During investigation, the CID suspected three persons. Out of them, two suspects, namely, Biswajit Saikia @ Tapan Dutta and Maina Mahanta were shot dead after one year of the death of the deceased for which, a case being Noonmati PS Case No. 122/98 under Sections 302/307/34, IPC read with Section 27(A) of the Arms Act read with Section 10/13 of the UA (P) Act was registered. The police as well as the CID failed to apprehend any person involved in the present case. 3. It has been specifically stated in this writ petition that the first Investigating Officer R. Konwar, during the course of investigation, recovered cache of arms and ammunitions in the residential complex of the brother of one of the then sitting MLA of the ruling party situated near the house of the petitioner, and two servants of the said house, who were brought to the police station along with recovered arms and ammunition, disclosed many things to the police implicating some top politicians. It is also stated that the building from where the arms and ammunitions were recovered belonged to one Dipak Bhuyan, a surrendered ULFA militant and younger brother of the then sitting MLA, Jagadish Bhuyan. 4. In paragraph 8 of the writ petition, it is alleged that the CID after making a perfunctory investigation submitted the final report stating that out of three suspects, two had already been killed by ULFA and the action of the CID is absolutely strange and not free from colourable exercise of power and the same is not at all acceptable by the petitioner. It is also alleged that the first Investigating Officer was replaced by another Investigating Officer at the whims and caprice of some political higher-ups and the final report has been submitted perfunctorily. 5. It is also alleged that the first Investigating Officer was replaced by another Investigating Officer at the whims and caprice of some political higher-ups and the final report has been submitted perfunctorily. 5. An affidavit-in-opposition has been filed by the Superintendent of Police (City) Guwahati (Respondent No. 5) in which the fact of recovery of used cartridges, revolvers with live ammunition, Maruti Car, replacement of the first Investigating Officer by another Investigating Officer, sending of used cartridges and the seized revolver to the FSL for necessary examination and also receipt of report from the FSL Guwahati without any definite opinion and also request made subsequently to CFSL, Kolkata have been admitted. The affidavit filed by Respondent No. 5 also admitted that the investigation was handed over to the CID. The said affidavit also admitted the fact that the CFSL, Kolkata also could not ascertain the query made by the police. The affidavit has disclosed that two suspects, namely, Biswajit Saikia @ Tapan Dutta and Maina Mahanta were shot dead by some assailants and a police case was registered in this connection in Noonmati Police Station. As per the said affidavit, the FSL expert opinion was sent to the learned Chief Judicial Magistrate, Kamrup at Guwahati on 18.7.2002 and after completion of the investigation, the case was returned in FR vide Dispur FR No. 1 dated 1.1.2003. Although, it has been stated in the affidavit-in-opposition filed by the Respondent No. 5 that the investigation was impartial and free from any extraneous consideration, it has not been stated that a notice was issued to the informant, the brother of the deceased, under Section 173, Cr PC. There is also no mention whether after return of such notice from the informant, any notice was issued from the Court of the learned Chief Judicial Magistrate, Kamrup at Guwahati to the informant asking him to appear before his Court to know from him whether he would accept the FR or not is also not mentioned in the said affidavit as to whether the concerned Chief Judicial Magistrate accepted the FR as submitted by the police. There is no mention in the affidavit as to whether the police could establish the identity of the third suspect. His name does not appear in the case diary. Who is this third suspect? Is the police deliberately trying to conceal his identity for some mischievous purpose? 6. There is no mention in the affidavit as to whether the police could establish the identity of the third suspect. His name does not appear in the case diary. Who is this third suspect? Is the police deliberately trying to conceal his identity for some mischievous purpose? 6. The learned Addl. Senior Govt. Advocate, Smt. V.L. Singh has produced the record of the case, namely, the case diary of Dispur PS Case No. 708/97. The assistance of Mr. B. Gogoi, learned Addl. Public Prosecutor, Assam has also been pressed into service and with his assistance, the case diary has been scanned. I have also perused the same. It is found from the case diary that no notice has been issued by the police as contemplated under Section 173, Cr. P.C. to the informant. It is found from the record that the informant was informed casually and that too verbally, although the provisions under the Code of Criminal Procedure require a written notice for the same to the informant. The provisions under the Code of Criminal Procedure also contemplate that a notice must be issued from the Court of jurisdictional concerned Chief Judicial Magistrate or the Sub-Divisional Magistrate requiring him to appear before his Court to know whether the informant is agreeable to closure of the case and if he disagrees, he may submit a protest petition. When such protest petition is filed, the Magistrate must examine and pass necessary order in regard to the acceptance or rejection of the FR. Under the provisions of the Code of Criminal Procedure, the FR is valid only after the acceptance by the learned Chief Judicial Magistrate or the SDJM and that too after due compliance of the aforesaid requirements. There is nothing to show in the case diary that the aforesaid requirements have been complied with by the police before returning the case in FR. 7. It is interesting to note that in the affidavit filed by the Respondent No. 5, it is stated that efforts were on to apprehend the suspects during the period but they were absconding to evade police arrest, as such the arrest could not be effected. It is not comprehensible as to how the Respondent No. 5 has made such a statement after filing the FR as stated aforesaid. 8. Mr. It is not comprehensible as to how the Respondent No. 5 has made such a statement after filing the FR as stated aforesaid. 8. Mr. Mahanta, learned Counsel for the petitioner submits that the petitioner has lost confidence in the State police because of the fact that the investigation was done in a casual and perfunctory manner and the FR was submitted not in accordance with law but at the behest of vested interest and as such, there is a prima facie case for referring the matter to the CBI for impartial and effective enquiry. 9. Mr. Mahanta, learned Counsel for the petitioner, in support of his case, has referred to the case of Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary v. State of Punjab and Ors. reported in (1994) 1 SCC 616 . In the aforesaid case, one Kulvant Singh, Advocate, his wife and child were abducted and murdered and the matter was investigated by the State police and charge-sheet was submitted to the Court. The Apex Court, instead of issuing direction for reopening the investigation, directed to have a fresh enquiry through a specialized agency like CBI to do complete justice in the matter and to instill confidence in the public mind. 10. Next case referred to by Mr. Mahanta, learned Counsel for the petitioner is of R.S. Sodhi, Advocate v. State of UP and Ors. reported in 1994 Supp (1) SCC 143. In that case, 10 persons were reported to have been killed in an alleged encounter between Punjab militants and the local police. The Apex Court, considering the fact that the accusations were directed against the local police personnel, felt desirable to entrust the investigation to an independent agency like CBI so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility and in the interest of justice the State was directed to entrust the investigation to the CBI forthwith. 11. Since, according to Mr. 11. Since, according to Mr. Mahanta, learned Counsel, the petitioner has made allegation of partial and perfunctory investigation against the State Police, it is a fit case for referring the same to the CBI for the interest of justice and impartial investigation and also to instill confidence in the minds of dear and near ones of the deceased and the people at large. 12. This Court is told that the petitioner is a retired DSP and a recipient of President's medal for his distinguished police service. One could easily understand the mental shock he received due to tragic death of his promising son and the anguish over the failure of the police, once he served faithfully, to nab the culprits and solve the case. He could regain his lost faith and' rest in peace only after the culprits are booked and punished under the law. 13. Having perused and considered the materials made available before this Court, I am satisfied that there is a prima facie case for reopening the investigation and handing over the case/investigation to an independent agency preferably to the CBI. It is an established fact that the State police including the CID could not find out any clue not to speak of apprehending any culprit in this case in spite of devoting about more than 6 years from the date of occurrence. There are many loose ends, which are required to be tied up and that can be done only through an independent and impartial investigation by the CBI. 14. Before passing the final order, I refer myself to the case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr. reported in (2002) 5 SCC 521 , wherein it is held by the Supreme Court that the High Court can direct enquiry by CBI if it finds that there are sufficient materials on record and prima facie case has been made out for referring the matter to the CBI. 15. In view of the above facts and circumstances and the established law, I direct that the State-Respondents shall hand over this matter to the CBI for investigation within a period of one month from today and the CBI shall complete the investigation within a period of six months from the date of receipt of the records. 15. In view of the above facts and circumstances and the established law, I direct that the State-Respondents shall hand over this matter to the CBI for investigation within a period of one month from today and the CBI shall complete the investigation within a period of six months from the date of receipt of the records. Needless to say that the Respondent State shall hand over the case diary and all other relevant records and extend all possible cooperation to the CBI in completing the investigation. 16. With the aforesaid observation and direction, this writ petition stands allowed. Let a copy of this Judgment and order be furnished to Mrs. V.L. Singh, learned Addl. Sr. Govt. Advocate by tomorrow for her taking necessary steps. Let the case diary also be returned to the concerned Police Officer through her. Petition allowed.