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2015 DIGILAW 535 (TRI)

Court on Own Motion v. State of Tripura

2015-07-15

DEEPAK GUPTA

body2015
ORDER 1. Notices issued have been received back duly served. Mr. T.D. Majumder, learned G.A., has put in appearance on behalf of the Secretary, Home and the Deputy Director, Public Prosecution. Mr. A. Ghosh, learned P.P., has put in appearance on behalf of the Secretary, Law. Notices were sent to all the accused. Accused persons 2 to 8, 12, 13, 14, 16, 19 and 20 have been served. Accused persons 9, 10, 11 and 22 could not be served and it is stated that accused persons 15, 17, 18 and 21 have expired. So, notices could not be served upon them. In view of the orders which I propose to pass, it is not necessary to ensure the attendance of the un-served accused persons. 2. This petition has been registered suo-motu by this Court in exercise of the powers vested in this Court under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. 3. The facts leading to the registration of this petition are as follows:- As Chief Justice, on the administrative side, this Court was monitoring the pendency of old cases in the State of Tripura. There are a large number of old cases which are more than 5 years old pending in the State of Tripura. A large number of these cases related to those matters where the accused had been declared absconders and the cases had been adjourned sine-die. 4. On 14.06.2015 the Judicial Officers stationed at Agartala were asked to meet the Chief Justice along with the details of the 10 (ten) oldest cases pending with them. During this discussion, an extremely shocking case came to the notice of the Chief Justice. A sitting member of the Tripura Legislative Assembly Sri Parimal Saha was murdered on 07.4.1983. The investigation went on and the matter was committed to the Court of Sessions in March, 2006. There were as many as 24 accused. A few of them have expired by now. 5. It is not necessary to give all facts but suffice to state that somewhere by the end of 1988, the statements of all the prosecution witnesses had been recorded except for the statement of the Investigating Officer Mr. R.N. Chakraborty. However, the State then moved an application to declare Sri D. Gautam, one of the witnesses for the prosecution who was a Police Officer as hostile. R.N. Chakraborty. However, the State then moved an application to declare Sri D. Gautam, one of the witnesses for the prosecution who was a Police Officer as hostile. This application was allowed and the prosecution was permitted to cross-examine Mr. D. Gautam. This order was passed on 19.11.1988. Almost 26 years have elapsed and neither the cross-examination of Sri D. Gautam has taken place nor the Investigating Officer has been examined. In fact, Sri R.N. Chakraborty, the Investigating Officer, expired during the pendency of the trial and thereafter, the State moved an application that his son Sri Bhaskar Chakraborty be examined only for purposes of identifying the handwriting of Sri R.N. Chakraborty. What is most depressing is that neither the Presiding Officers of the Courts nor the Special Public Prosecutors nor the State ever took interest in ensuring that these two witnesses are examined. 6. One expects a sessions trial to be completed within three to six months of the charge being framed and here is a matter which is a “sensational case” as described by many Presiding Officers but two witnesses have not been examined for 26 years. For two decades the case was adjourned for one reason or the other. It appears that none was interested in handling or disposing of the case. 7. On 27.10.2009, the matter was listed before the Addl. Sessions Judge and I must say that he was one of few Presiding Officers who understood the gravity of the case and also clearly understood how the matter had clearly been delayed for such a long length of time. He passed a detailed order on 27.10.2009 which reads as follows:- “The Ld. Spl. P.P. Mr. Mihir Nandi is physically present for the prosecution. Miss. Rumela Guha, Ld. Advocate filed vokalatnama for all the charge-sheeted accused persons. 20 accused persons are also physically present in the court today. This is a case the original trial of which initiated on the basis of a charge-sheet laid by police in the year 1986 for allegedly murdering a sitting MLA and one of his associate in the month of April, 1983. This Court compelled to note it here that the original trial of the case has been delayed for such a long period. This is invariably against the ethic of rendering criminal justice to the society. No more delay in disposal of the case be encouraged by any corner. This Court compelled to note it here that the original trial of the case has been delayed for such a long period. This is invariably against the ethic of rendering criminal justice to the society. No more delay in disposal of the case be encouraged by any corner. Mr. Nandi, Ld. Spl. P.P. being assisted by Ld. Senior counsel A.M. Lodh has submitted that most part of the evidence of the prosecution was recorded as back as in the year 1987 but the case is pending for examination of only two witnesses namely, Sri Ramnarayan Chakraborty, Inspector, O/C, Bishalgarh P.S. and Sri Dhurjati Goutam, D.S.P. Issue summons upon the said two P.Ws. forthwith. To 13-11-09 for evidence of P.Ws.” 8. At the cost of repetition, I would like to state that this order was passed almost 21 years after Court had fixed a date for cross-examination of Mr. D. Gautam and for examination of Mr. R.N. Chakraborty. For 21 years, all concerned had sat silently not caring as to whether justice should be done in the case or not. 9. In this case even the witnesses time and again sought adjournments and it appears that one of the witnesses, in fact, filed a petition in the High Court challenging his being summoned to the Court. The High Court noted that the witness was only required to prove the handwriting of his father and the petition was, therefore, disposed of accordingly. Even after that the statements of these witnesses were not recorded. From 2009 onwards, I find that on most dates the prosecution did not take steps to serve the witnesses and if ever the witnesses were served, they sought an adjournment or the Public Prosecutor sought an adjournment or the defence sought an adjournment. Another method of taking an adjournment was that since the number of accused were very large, some would appear and some would not appear and adjournment would be requested. The Presiding Officers without caring to see that this is a murder trial pending for more than 25 years just kept granting dates one after another. 10. On 14.6.2012 the Presiding Officer being fed up with the continued absence of the two Special Public Prosecutors requested the Secretary, Law to the State of Tripura to look into the matter and a copy of the order was endorsed to him. 10. On 14.6.2012 the Presiding Officer being fed up with the continued absence of the two Special Public Prosecutors requested the Secretary, Law to the State of Tripura to look into the matter and a copy of the order was endorsed to him. On the next date, i.e. 16.8.2012 it was noted that no response had been received from the Law Department. The case was again adjourned to 06.10.2012 but the prosecution took no steps. Even the Special Public Prosecutor was not present and the Court passed the following order:- “No step from the side of the prosecution. Out of 20 (twenty) accused persons 10 (ten) accused persons on bail are present along with their engaged counsel and rest 10 (ten) accused persons are absent by petition on the ground stated therein and they are represented by their engaged counsel under section 317 of Cr. P.C. The petition is allowed. Learned Counsel Mr. S. Chakraborty is present for the accused persons. Mr. Chakraborty submits that it is a very old pending case pending since 1986 and the accused persons are being harassed by the prosecution by conducting their case. Seen the previous order dated 14-06-2012 and it appears that the Learned Senior Advocate Mr. A.M. Lodh assisted by Mr. M.B. Nandi was representing the State as Special P.P., but they were not taking steps since long and due to their indifference the case is being dragged. Learned P.P. also did not file any step for the prosecution. It also appears that a letter was communicated to the Law Secretary, Government of Tripura to see the matter, but till today no response is received from the Law Department. In this circumstances the court is helpless to dispose of this very old pending case due to non-action from the side of the Law Department, Government of Tripura. Again the Law Secretary, Government of Tripura is requested to see the matter for ends of justice. A copy of this order may be sent to the Law Secretary, Government of Tripura as well as to the Registrar, Hon’ble Gauhati High Court, Agartala Bench, Agartala for information. Fix 12.12.12 for order.” 11. Again the Secretary, Law was asked to look into the matter and on the next date, i.e. 12.12.2012 but no response was received from the Law Department. Fix 12.12.12 for order.” 11. Again the Secretary, Law was asked to look into the matter and on the next date, i.e. 12.12.2012 but no response was received from the Law Department. On this date, the regular Public Prosecutor appeared and stated that since the Special Public Prosecutor had been appointed by the Apex Court, the Public Prosecutor could not appear in the matter. Unfortunately, in the mean time the Special Public Prosecutor Sri A.M. Lodh expired. 12. On 17.6.2013 the matter was listed before another Addl. Sessions Judge and again a letter was sent to the Secretary, Law as well as to the Public Prosecutor asking them to ensure that the Court is assisted properly in the matter. The order dated 08.08.2013 shows that the earlier order dated 17.6.2013 had been communicated to the Secretary, Law but still none appeared on behalf of the prosecution to prosecute the case. The order of the trial Court dated 08.08.2013 reads as follows:- “5 (five) accused persons are present on bail. Rest 15 (fifteen) accused persons are absent by a petition under Section 317 of Cr. P.C. Petition is allowed. Record shows that Order dated 17-06-2013 has already been communicated to The Law Secretary, Government of Tripura, but even then none appeared today for the prosecution to conduct the case. This is an old pending case of 1986 and since long no step is being taken from the side of the prosecution and on earlier occasions The Law Secretary, Government of Tripura was requested to see the matter vide orders dated 06-10-2012, 12-12-2012 and lastly, on 17-06-2013. This is a Sessions Trial of sensational murder and the circumstances appear to be very unfortunate since none is appearing for the prosecution side to conduct the rest part of the trial and in such a circumstance this Court thinks it fit to communicate the entire matter to the learned District & Sessions Judge, West Tripura, Agartala along with copy of the aforesaid orders with request to take up the matter with the State Government and also to take appropriate step in this regard. A copy of this order also be sent to the learned P.P. and The Law Secretary, Government of Tripura. Fix 09/9/13 for order.” 13. The next order dated 09.09.2013 reads as follows:- “Nine (9) accused persons are present on bail and rest 11 nos. A copy of this order also be sent to the learned P.P. and The Law Secretary, Government of Tripura. Fix 09/9/13 for order.” 13. The next order dated 09.09.2013 reads as follows:- “Nine (9) accused persons are present on bail and rest 11 nos. of accused are absent, and a petition u/s. 317 of Cr. P.C. is filed for them. Prayer is allowed. No step is taken by the prosecution even today. No response is also received from the Law Secretary, Government of Tripura, in view of the earlier orders dated 17.6.2013 and 8.8.2013. Mr. A.M. Lodh, Senior Advocate and Mr. M. Nandi, Advocate for the prosecution were not found available in the BAR. Learned counsel Mr. H. Debnath, President of the BAR appeared before the court on request and submits that so far his information is concerned both the aforesaid appointed counsel of the prosecution are suffering from illness. However, considering the fact that no such communication regarding their illness is made by the appointed counsel for the prosecution in connection with this case, it is ordered that both the aforesaid counsel be informed to take step for and on behalf of the prosecution by the next date positively. Send a copy of this order to said counsel of the prosecution immediately for information. Also send a copy of this order to the Law Secretary, Government of Tripura. Fix 7-12-13 for step by the prosecution.” 14. Finally on 25.8.2014 a letter was received from the Deputy L.R. and Deputy Secretary, Law. This letter is purported to be dated 13.5.2013 but it appears to have reached the Court in August, 2014. Sri L.R. Khadim had been appointed Special Public Prosecutor but he also did not appear in Court till 25.8.2014. He sought time to prepare the case and the matter was adjourned on his request to 31.1.2015 on which date the newly appointed Public Prosecutor was also not present. The Judicial Officer was on leave and the matter was then taken up on 15.5.2015. Again the P.P. was not present and somebody else appeared for the prosecution. 15. This Court cannot be a silent spectator to a criminal proceeding which is lingering on for more than 32 years. The Judicial Officer was on leave and the matter was then taken up on 15.5.2015. Again the P.P. was not present and somebody else appeared for the prosecution. 15. This Court cannot be a silent spectator to a criminal proceeding which is lingering on for more than 32 years. As noted above, from 1988 till 2015, i.e. 27 long years the trial is going on only for partial examination of Sri D. Gautam who has already been examined and who was later declared a hostile and, therefore, his cross-examination by the prosecution is to be limited to the extent that he is allegedly turned hostile. The other witness to be examined is Sri Bhaskar Chakraborty who has only to prove the handwriting of his father and nothing else. It is indeed shocking that such a state of affairs is continuing in the State. 16. Sri D. Gautam is a retired police officer residing in Agartala and Sri Bhaskar Chakraborty is a serving Police Officer and it is indeed shocking that the prosecution cannot procure the presence of these two witnesses. 17. Keeping in view the aforesaid facts, on 29.6.2015 this Court had directed that notice be issued to the Secretary, Law, to the Secretary, Home and the Deputy Director of Prosecution who were directed to file their affidavits by today. Notices were also issued to all the accused who are on bail and one set of notices were also sent to the trial Court to ensure that the counsel representing the accused is served with the said notices. None has appeared for the accused today. On the last date, it was made clear that whether anybody appears for the accused or not, this Court will dispose of the matter because the rights of the accused are not going to be adversely affected in any manner whatsoever. 18. As noted above, it is indeed shocking that a sessions trial in a “sensational murder case” of a sitting member of the Legislative Assembly is pending for more than three decades. The murder took place in the year 1983. The trial commenced in the year 1986. The statements of almost all the witnesses had been recorded prior to November, 1988. Only Mr. D. Gautam who was one of the Investigating Officers was to be re-examined because he had been declared hostile with regard to a part of his statement. The murder took place in the year 1983. The trial commenced in the year 1986. The statements of almost all the witnesses had been recorded prior to November, 1988. Only Mr. D. Gautam who was one of the Investigating Officers was to be re-examined because he had been declared hostile with regard to a part of his statement. The statement of the other Investigating Officer Sri R.N. Chakraborty was to be recorded but he has unfortunately expired but now only his son Sri Bhaskar Chakraborty who is also a Police Officer is to be examined to prove the handwriting of his father. 19. I have perused the affidavits filed by the Secretary, Home as well as the Deputy Director of Public Prosecution. They have washed their hands of the matter. According to the Secretary, Home he has no control over the matter and there is no file of the case pending in his office. As far as the Deputy Director of Public Prosecution is concerned, he has in his affidavit deposed that he has been given charge of looking after cases only up to the level of C.J.Ms and he has no control over the Prosecutors and Addl. Public Prosecutors appearing in the Courts of the Sessions Judges or Addl. Sessions Judges. The Secretary, Home in his affidavit has stated that the DGP is maintaining some file with regard to this case which shows that all the witnesses were served except on one or two occasions. This Court is not concerned with the file maintained by the police. After 1973, the prosecution wing has been totally separated from the police wing. There is separation of powers. This Court is concerned with the issue as to who controls the prosecution. Who is responsible for seeing that cases are prosecuted properly? 20. As far as the present case is concerned, now it appears that 4 (four) more accused persons have died and if the case moves at this pace, then the time will surely come when all the accused persons would have died but the case would not have ended. This situation cannot be permitted to continue and will not be permitted to be continued. 21. This situation cannot be permitted to continue and will not be permitted to be continued. 21. The Secretary, Law in his affidavit has stated that when he received the copy of the order dated 17.6.2013 he immediately on the side of the order wrote “Please see whether we have directed the P.P./West to conduct the case. If not, we may appoint new lawyer”. It is obvious that the Secretary, Law took immediate action because this order was passed on 05.7.2013. Thereafter, according to the affidavit of the Secretary, Law the matter was taken up and Sri L.R. Khadim was appointed Special Public Prosecutor in this case on 22.7.2013. It is stated that a copy of this communication was sent to the Court of the learned Additional Sessions Judge, Court No. 2, West Tripura but the same does not appear to be on the record of the learned Sessions Judge. I say this because on 09.9.2013 this Addl. Sessions Judge passed another order. On this order, the Secretary, Law ordered that the matter be taken up on urgent basis and he wrote a note, relevant portion of which reads as follows:- “This is a long pending criminal case in which the murder of Parimal Saha (Bishalgarh) is being tried. Mr. A.M. Lodh was appointed to conduct the prosecution case, but he is not appearing for which the trial is being dragged. We may request the PP/West to talk to them to know whether they are willing to conduct the case or not and if not, the PP/West be requested to conduct the case. Put up draft.” 22. Thereafter, there is a note of the Deputy Law Secretary that Sri L.R. Khadim has already been appointed on 22.7.2013 and that the department may again send a copy of the appointment letter to Sri L.R. Khadim. Thereafter, another order was passed by the Court on 10.02.2014 again informing that none was appearing for the prosecution and then another order has been passed on 13.5.2014 appointing Mr. L.R. Khadim as Public Prosecutor. However, from the record I find that Sri L.R. Khadim did not appear in Court on any date except on one occasion and that too, to ask for a date. He appeared in the Court for the first time on 25.8.2014 when he sought time to prepare the case. L.R. Khadim as Public Prosecutor. However, from the record I find that Sri L.R. Khadim did not appear in Court on any date except on one occasion and that too, to ask for a date. He appeared in the Court for the first time on 25.8.2014 when he sought time to prepare the case. On his request, the case was adjourned for almost 5 (five) months to 31.01.2015 but Sri L.R. Khadim did not care to appear before the Court on that date. The Judicial Officer was also on leave on that date. So, his absence can be excused. The matter was then adjourned to 15.5.2015 on which date again the Special Public Prosecutor was not present. The role of the Court is not without blemish. Dates of 4-4/5-5 months were being given in a sessions trial which was 30 years old. This cannot be permitted. The Presiding Officer of the Court is also accountable. Without giving any reasons, lengthy dates were being given and on 15.5.2015 the next date fixed is 01.8.2015. 23. As far the delay before 2012 is concerned, the Secretary, Law states that he is not aware of what happened prior to 2012. This Court is not concerned with the individuals who held the office of the Secretary, Law. It is concerned with the institution of the Secretary, Law. If there is no Director of Prosecution and it is this office of the Secretary, Law which is monitoring the works of the Public Prosecutors then some explanations should have been given as to why nothing was done from 1989 till 2012 that too, after the Court passed orders asking the Secretary, Law to look into the matter. 24. In this view of the matter, this Court issues the following directions:- (i) Sri P.K. Biswas, learned Senior Advocate and Chairman, Bar Council of Tripura, is appointed Special Public Prosecutor in the case. (ii) He shall be paid fees which is not less than the fees paid to Sri Debasish Roy, Advocate who was appointed Special Public Prosecutor by the State in Criminal Appeal 25 of 2013 (State of Tripura vs. Birajit Sinha) and Criminal Appeal No. 5 of 2014. (iii) The case will be taken up by the trial Court on 01.10.2015 and all accused should be present before the Court on that date. In case, any accused are not present, then their bail shall be cancelled. (iii) The case will be taken up by the trial Court on 01.10.2015 and all accused should be present before the Court on that date. In case, any accused are not present, then their bail shall be cancelled. After the cancellation of the bail of the accused, they will have to approach the High Court for grant of bail and the Sessions Judge will not grant them bail. (iv) There are only two witnesses to be examined. The trial Court shall fix a date any time in the second fortnight of August, 2015 for examination of these two witnesses. It will be the responsibility of the Superintendent of Police to ensure that the witnesses are served. If the witnesses do not appear, then the Court shall issue non-bailable warrants to procure their presence. (v) Thereafter, the Court shall prepare the statements of the accused under Section 313 of Cr. P.C. and since there are about 20 accused, this process may take some time and this process of recording the statements of the accused under Section 313 Cr. P.C. be completed latest by 30.9.2015. In case, any of the accused want to lead evidence their evidence should be concluded by 30.11.2015 and arguments heard in the matter and the matter disposed of latest by 31.12.2015. (vi) It is made clear that no extension shall be granted under any circumstances whatsoever. 25. The Secretary, Law is directed to ensure that adequate funds are made available to Sri P.K. Biswas, learned Senior Counsel, to complete his case file. For this purpose, the Court shall also assist Sri Biswas and photostat copies of all the records available in the Court will be made available to Sri Biswas at the expense of the State. Sri Biswas shall also be allowed the assistance of one junior of his choice at a fees to be fixed by the Law Department. 26. The Superintendent of Police is also directed to ensure that the entire case diary of the case is handed over to Sri Biswas on or before 10.8.2015. 27. Copy of this order shall be sent to the Secretary, Law, the Secretary, Home and the Director General of Police and to the Court below for strict compliance.