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Tripura High Court · body

2016 DIGILAW 72 (TRI)

State of Tripura v. Ranjit Debbarma

2016-03-16

DEEPAK GUPTA

body2016
JUDGMENT : This petition by the State is directed against the order dated 19.01.2015 passed by the learned Additional Sessions Judge, West Tripura, Agartala in case No.S.T.159 of 2004 whereby he rejected the application filed by the prosecution for permitting into file additional charge-sheet and framing charges against the respondent Ranjit Debbarma under Sections 148/149/307/326/ 302/120B/109/121/121A of the Indian Penal Code (IPC) read with Section 27 of the Arms Act. 2. The facts leading to the filing of this petition are that on 14.11.1999 an extremely unfortunate incident took place at Panchabati market under the Sidhai Police Station. At about 6 p.m. 20/25 terrorists armed with sophisticated weapons came to the Panchabati market and started rioting. They murdered as many as 18 persons in cold blood. Thereafter, these persons caused grievous hurt to 11 persons and kidnapped 5 persons from the spot. 3. This case was registered as Sessions Trial 159 of 2004. In the charge-sheet filed in the case, 10 persons were shown to be accused out of which 7 were apprehended and 3 were declared to be absconders. The 7 charge-sheeted persons were (i) Arun Debbarma, (ii) Nandi Kumar Debbarma, (iii) Dulal Pandey, (iv) Ashok Debbarma, (v) Subodh Debbarma, (vi) Sudhan Debbarma, and (vii) Binoy Debbarma. They were charged for the following offences:- “That, all of you along with 20/25 others on 14.11.1999 at about 6-00 p.m. at Panchabati Market, under Sidhai Police Station were members of an unlawful assembly and did in prosecution of the common object of that assembly commit the offence of rioting and at that time were armed with sophisticated arms and thereby committed an offence punishable under Section 148 of the Indian Penal Code and within my cognizance. Secondly, that all of you along with 20/25 others on the same date, time and place were members of an unlawful assembly and in prosecution of the common object did commit murder by intentionally or knowingly causing the death of 18 persons namely (1) Tapash Dhar, (2) Makhan Lal Saha, (3) Monomohan Saha, (4) Amulya Chandra Saha, (5) Sankar Sarkar, (6) Hemalata Sarkar, (7) Gita Rani Debnath, (8) Rakhal Das, (9) Monoranjan Deb, (10) Rathindra Bhusan, (11) Suman Das, (12) Bushu Urang, (13) Nripendra Das, (14) Sukumar Debnath, (15) Gopesh Saha, (16) Sankar Saha, (17) Sonatan Sarkar, (18) Bishu Sarkar, by shooting and thereby committed an offence punishable under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code and within my cognizance. Thirdly, that all of you along with 20/25 others on the same date, time and place were members of an unlawful assembly and in prosecution of the common object of that assembly voluntarily caused grievous hurt to eleven persons namely- (1) Bapan Saha, (2) Bishu Sarkar, (3) Prabhat Paul, (4) Swapan Saha, (5) Niranjan Das, (6) Bikash Debnath, (7) Sabyasachi Chakraborty, (8) Nirmal Debnath, (9) Usha Rani Sarkar, (10) Radha Rani Sarkar, (11) Ratna Deb by means of sophisticated fire arms which are instruments for shooting and thereby committed an offence punishable under Section 326 of the Indian Penal Code read with Section 149 of the Indian Penal Code and within my cognizance. Fourthly, that all of you along with 20/25 others on the same date, time and place were members of an unlawful assembly and in furtherance of the common object of that assembly kidnapped five persons, namely- (1) Jiban Saha, (2) Manindra Chandra Roy, (3) Ratan Saha, (4) Manik Saha, (5) Nepal Saha in order that the said persons might be murdered and thereby committed an offence punishable under Section 364 of the Indian Penal Code read with Section 149 of the Indian Penal Code and within my cognizance. Lastly, that all of you along with 20/25 others on the same date, time and place possessed sophisticated fire arms and also fired causing murder of 18 persons and caused grievous hurt to 11 persons and thereby committed an offence punishable under Section 27 of the Arms Act and within my cognizance. Lastly, that all of you along with 20/25 others on the same date, time and place possessed sophisticated fire arms and also fired causing murder of 18 persons and caused grievous hurt to 11 persons and thereby committed an offence punishable under Section 27 of the Arms Act and within my cognizance. And I hereby direct that all of you be tried by this Court of Sessions on the said charges.” 4. The remaining 3 accused persons were Takhirai Debbarma, Sachin Debbarma and Rupendra Debbarma. The respondent Ranjit Debbarma was not shown as an accused in the charge-sheet. 21 witnesses were examined in the case and thereafter the case was fixed for recording the statement of the accused under section 313 of the Code of Criminal Procedure (Cr.P.C). 5. At that stage, on behalf of the prosecution an application was filed for withdrawal of prosecution against Sri Arun Debbarma, Sudhan Debbarma, Ashok Debbarma, Binoy Debbarma, Subodh Debbarma and Nandiram Debbarma. Therefore, other than Dulal Pandey, the prosecution sought to withdraw the prosecution against all the accused persons. The statements of the prosecution witnesses were recorded and the evidence of the prosecution completed on 29.7.2005. Thereafter, the case was adjourned to 06.9.2005 for recording the statement of the accused under section 313 of Cr.P.C. On 06.9.2005 the matter was adjourned to 02.11.2005 for recording the statement under section 313 Cr.P.C. On this date, the learned Addl. P.P. filed an application under section 321 of Cr.P.C. praying for withdrawal of case against 6 out of the 7 accused persons. This application was heard and decided on 02.11.2005 and the learned Court below allowed the prosecution to be withdrawn. 6. It is, indeed, shocking that in a case where as many as 18 people were killed, 11 people received bullet injuries and 5 people were kidnapped, the State decided to withdraw the prosecution. The reasons given for withdrawal were that the aforesaid 6 accused persons were surrendered extremists who had given up the path of violence and crime with the intent to lead normal life in the mainstream of society. It was further stated in the application that the State Government had accepted the surrender and as a matter of policy encouraged all extremists to come over ground and lead a normal life assuring them that their past misdeeds shall not disturb their future. It was further stated in the application that the State Government had accepted the surrender and as a matter of policy encouraged all extremists to come over ground and lead a normal life assuring them that their past misdeeds shall not disturb their future. This policy is adopted to stop further violence and crime by the extremists and in order to bring peace and harmony in the society. It was, therefore, prayed to permit the prosecution from withdrawing the prosecution against the aforesaid 6 accused persons. 7. There can be no quarrel with the proposition that if underground militants come back to society, they should be rehabilitated and as far as possible they should not face unnecessary trials. With this petition, the petitioners have attached the policy framed by the central government in this behalf. The policy was framed by the Government of India on 10.5.2005 and it is the revised scheme for surrender-cum-rehabilitation of militants in the north east. This is a policy framed by the Central Government and it came into force w.e.f. 01.4.2005. The objectives of the scheme state that it has been framed with a view to wean away misguided youth and hardcore militants who have strayed into the fold of militancy and now find themselves trapped into that net. The scheme also has been framed with the purpose of ensuring that those who surrender do not join militancy again. There are certain parameters of the scheme and one of the parameters is that the person must have surrendered with a weapon. Clause 3.3 of the scheme reads as follows:- “3.3 Crimes committed by the militants. 3.3.1 Minor crime cases against successfully rehabilitated surrenderess will be withdrawn. 3.3.2 The surrenderees who have committed heinous crimes like murder, rape, abduction etc. will be subject to the due process of law and surrender shall not imply amnesty from the crimes. 3.3.3 A surrenderee who indulges in crime while under rehabilitation shall forfeit the benefits under the Scheme.” 8. A bare reading of this clause shows that the scheme clearly envisaged that those militants who had surrendered but who had committed heinous crimes like murder, rape, abduction etc. would be subject to the due process of law and surrender would not imply amnesty from the crimes. In my considered view, the scheme rightly debarred the withdrawal of cases relating to heinous offences. would be subject to the due process of law and surrender would not imply amnesty from the crimes. In my considered view, the scheme rightly debarred the withdrawal of cases relating to heinous offences. There can be no large scale pardon with regard to such serious offences. In the present case, with which we are concerned, 18 innocent persons were killed in the market, many received injuries and 5 were kidnapped. I see no reason why in such a case the prosecution should have been withdrawn. 9. I am also constrained to observe that the learned trial Court did not apply his mind to the case while permitting the withdrawal of the prosecution. Section 321 of the Criminal Procedure Code which deals with withdrawal of prosecution clearly provides that the Court must consent to withdrawal of the prosecution. In cases relating to murder, rape and other heinous offences, the Courts cannot stand as mute spectator and just allow the application for withdrawal of prosecution. It is the duty of the Court to ensure that the application has been filed with a genuine motive. In the present case, the evidence was already complete. The Court was duty bound to scan the evidence and determine whether an offence was made out against any one of the accused or not. 10. Even the Public Prosecutor is not bound to act upon the dictates of the State Government. He is first and foremost an officer of the Court and in case, according to him, a case is made out he should not sign an application for withdrawal of the prosecution. The role of the Public Prosecutor is extremely important. It is also the role of the Judge to ensure that complete justice is done. Justice has to be given to even the victims of these horrible crimes. What will the family members of those who have been killed or kidnapped in this incident say if the perpetrators of the crime are allowed to go scot free only because the State Government and the Public Prosecutor decide to withdraw the prosecution. Therefore, the role of the Court is very important. 11. The Apex Court in S.K. Shukla & others v. State of U.P. & others, [ AIR 2006 SC 413 ] held as follows:- “33. Therefore, the role of the Court is very important. 11. The Apex Court in S.K. Shukla & others v. State of U.P. & others, [ AIR 2006 SC 413 ] held as follows:- “33. xxx xxx xxx Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The Government may suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so. However, Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application under that section. If the Public Prosecutor received such instructions, he cannot be said to act extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government, since a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is appointed by the government for conducting in court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public Prosecutor and the Government. If the Government gives instructions to a Public Prosecutor to withdraw from the prosecution of a case, the latter after applying his mind to the facts of the case may either agree with instructions and file a petition stating grounds of withdrawal or disagree therewith having found a good case for prosecution and refuse to file the withdrawal petition. In the latter event the Public Prosecutor will have to return the brief and perhaps to resign, for, it is the Government, not the Public Prosecutor, who is in the know of larger interest of the State". The Public Prosecutor cannot act like a post box or act on the dictate of the State Governments. He has to act objectively as he is also an officer of the Court. At the same time court is also not bound by that. The courts are also free to assess whether the prima facie case is made or not. The court, if satisfied, can also reject the prayer. He has to act objectively as he is also an officer of the Court. At the same time court is also not bound by that. The courts are also free to assess whether the prima facie case is made or not. The court, if satisfied, can also reject the prayer. However in the present case we have examined the matter and found that there is a prima facie case to proceed against the accused persons under Section 4(b) of the Act and other provisions of the Explosive or Arms Act, therefore, the sanction granted by the Government and application moved by public prosecutor for withdrawal of the cases cannot be sustained. Hence writ petition Nos.132-134 of 2004 is accordingly allowed and the order of the State Government dated 29.8.2003 withdrawing the cases against the accused persons is quashed, likewise direction to the public prosecutor for withdrawing the cases from the Court.” Unfortunately, in this case the withdrawal order was passed in the year 2005. More than 10 years have elapsed and it is not possible for this Court to do anything further in the matter. 12. Trial, therefore, proceeded against only one accused Dulal Pandey. He was acquitted under section 232 of Cr.P.C. on the ground that there was no evidence against him. As far as the other three absconding accused are concerned, I am told that two are still absconding and one has been apprehended and now trial has started against him. 13. At this stage, the prosecution moved another application for filing a supplementary charge-sheet against the respondent Ranjit Debbarma. It is alleged that Ranjit Debbarma is a well known terrorist. He was the leader of the All Tripura Tiger Force (ATTF) and that he had started a movement for the secession of the seven sister States of the North East from the Union of India. 14. The prosecution story is that the respondent is an extremist, a terrorist and has been leading insurgency activities against the Union of India. It is alleged that he is promoting disharmony between different communities and is also leading those sections of insurgents who are raising the call for a separate nation outside the Union of India. 15. 14. The prosecution story is that the respondent is an extremist, a terrorist and has been leading insurgency activities against the Union of India. It is alleged that he is promoting disharmony between different communities and is also leading those sections of insurgents who are raising the call for a separate nation outside the Union of India. 15. On the other hand, the stand of the respondent is that whatever he may have done in the past he has now been sending communications to all including the Hon’ble Prime Minister of India that he is willing to surrender and that he is willing to enter into peaceful negotiations and also accepts the supremacy of the Indian State. 16. The question before this Court is not whether the respondent Ranjit Debbarma is guilty or not. The sole question is whether supplementary charge-sheet could be filed against the respondent alone without making the other conspirators accused in the case. No doubt, the charges levelled against the respondent are very serious. Now, the prosecution after 10 years has woken up and alleges that this entire incident at Panchabati market at Sidhai was planned by Ranjit Debbarma. What is the evidence in this regard? 17. The first statement is of one Budhi Charan Debbarma. In this statement, the witness states that he was also an extremist but is presently posted in the Police Line, Dhalabil, Khowai. According to him, he joined the ATTF in the year 1993 and Ranjit Debbarma was the Chairman of the ATTF and he was residing at Dhaka. According to the statement, Ranjit Debbarma used to visit Satchari camp 2/3 times a month and used to organize meetings with the group Commanders and without his instructions or orders, no attack of ATTF group could take place in Tripura. It is further alleged that in the first part of November, 1999 Ranjit Debbarma visited Satchari camp and called a meeting with all the Area Commanders. Budhi Charan Debbarma was also present since he was a Sergeant and in that meeting Ranjit Debbarma directed and ordered Sachin Debbarma to attack Panchabati market under Sidhai since Sachin Debbarma was the Sector Commander of Sidhai. Thereafter, the attack was carried out in which 18 persons were killed, 11 injured and 5 were kidnapped. Budhi Charan Debbarma was also present since he was a Sergeant and in that meeting Ranjit Debbarma directed and ordered Sachin Debbarma to attack Panchabati market under Sidhai since Sachin Debbarma was the Sector Commander of Sidhai. Thereafter, the attack was carried out in which 18 persons were killed, 11 injured and 5 were kidnapped. One thing is clear that this witness Budhi Charan Debbarma was also a part of the conspiracy for this attack since he was a Sergeant and present at the meeting. 18. The other statements are similar in nature and, therefore, it is not necessary to quote them completely. However, it would be necessary to mention that the second statement is of Sri Jogendra Debbarma who states that he was also a member of the ATTF and was holding the rank of Lieutenant with code name “Lemon” and he was present in the meeting where this attack was planned. Third statement is of Ratna Debbarma. He was holding the rank of S.S. Captain in the ATTF with code name of “Michael”. He was also present in the meeting where the attack was planned. The fourth statement is of Jagadish Debbarma. He was holding the rank of Captain in the ATTF with code name of “Jester”. He was also present in the meeting where the plan was hatched. The fifth statement is of Sri Rajani Debbarma. He was holding the rank of Lieutenant in the ATTF with code name of “Royal” and he was also present in the meeting where the plan was hatched. The next statement is of Subhas Debbarma who was also willing to join the ATTF extremist group and had received training at various places in Bangladesh and then returned to Satchari camp. He was the Sector Commander of ATTF in Takarjala area and he was present in the meeting where the plan was hatched. The next statement is of Sushil Debbarma who was on sentry duty at Satchari camp and had learnt about the discussion held at the meeting. His statement is not of much value because he does not say that he was part of the meeting or that he himself heard the statements. He only states that he heard about the discussion. The last statement is of one Sri Ashok Debbarma. He was also holding the rank of Sergeant and was present in the meeting where the plan was hatched. 19. He only states that he heard about the discussion. The last statement is of one Sri Ashok Debbarma. He was also holding the rank of Sergeant and was present in the meeting where the plan was hatched. 19. The statements of all these witnesses have been recorded in the month of March and April, 2014. All these witnesses had surrendered many years back. There is virtually no explanation why they did not make any statement earlier. Assuming that these statements are correct, the question that has rightly been raised by the learned Additional Sessions Judge is why has the State not prosecuted these persons. Assuming that Ranjit Debbarma gave the call or ordered the attack but these persons were part and parcel of the meeting and, therefore, they are as much coconspirators and criminals and in case, the State Government is actually interested in launching prosecution against the perpetrators of the crime, then all these persons should also be made accused. The government does not have the right to decide which of the criminals shall face trial and who shall not face trial. 20. The statements of these witnesses are like statements of accomplices. They implicate themselves because even they had knowledge about the crime to be committed and had taken part in the meeting. Even assuming that they had no active role to play but the conspiracy was hatched in their presence. A number of them were holding senior posts in the ATTF and they were part and parcel of the entire conspiracy to kill innocent persons. The learned Additional Sessions Judge has rightly held that the prosecution cannot pick and choose to prosecute some of the accused persons and decide not to prosecute others. As I have pointed out earlier, the prosecution against 6(six) accused persons was also wrongly withdrawn and now this criminal negligence is being further compounded by the prosecution by filing charge-sheet only against Ranjit Debbarma and not against the others. 21. The State in its wisdom had chosen to withdraw prosecution against 6(six) of the persons who according to the prosecution had actually murdered the innocent persons. 21. The State in its wisdom had chosen to withdraw prosecution against 6(six) of the persons who according to the prosecution had actually murdered the innocent persons. When it comes to the hatching of the conspiracy, the persons on whose statement reliance is placed are as much a part of the conspiracy as Ranjit Debbarma and, therefore, it is for the State to decide whether it wants to launch prosecution against all of them but it cannot be permitted to launch prosecution only against Ranjit Debbarma. It is, however, made clear that if the State is willing to launch prosecution against all the persons including the persons who have made the statements, it may do so. 22. Therefore, I do not find any merit in the petition which is accordingly dismissed. Send down the lower court records forthwith.