Calcutta High Court (Appellete Side)
For The vs State Of on 28 September, 2016
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 28.09.2016
C.R.M. No. 5221 of 2015 with C.R.M. No. 5222 of 2015 with C.R.M. No. 5223 of 2015 with C.R.M. No. 5224 of 2015 with C.R.M. No. 5294 of 2015 with C.R.M. No. 5295 of 2015 With CRAN 1362 of 2016 Mr. Sekhar Kumar Basu, Sr. Advocate, Mr. Souvik Mitter, Mr. Sayan De ......For the petitioners in CRM 5221 of 2015, CRM 5222 of 2015, CRM 5223 of 2015 and CRM 5224 of 2015 and CRM No. 5294 of 2015, petitioner nos. 1 to 7 Mr. Debasish Roy, Mr. Sandipan Ganguly .... For the petitioners 8-9 in CRM 5294 of 2015 Mr. Sudipta Moitra, Mr. Tirthankar Ghosh, Mr. Sayan De .... For the petitioners in CRM 5295 of 2015.
Mr. Ashraf Ali .... For the CBI.
Mr. Indranil Roy,
Mr. Arnab Mukherjee
...For the widow (Bharati Tamang)
of the deceased.
Further investigation of the CBI Special Crime Branch, Kolkata case no. RC-1(S)/11/Kol dated 19.01.2011 was undertaken by the CBI pursuant to an order passed by the Apex Court on October 8, 2013 in connection with Writ 2 Petition (Crl) No. 159 of 2012. The above application was moved before the Apex Court by the widow of the victim Madan Tamang, who was killed on May 21, 2010.
After completion of the further investigation the CBI on May 29, 2015 submitted supplementary charge-sheet under section 150/506/302 IPC and under section 147/148/149/427/506/302/120B IPC respectively against the petitioners and comprehensive report before the Principal District and Sessions Judge, Bichar Bhavan, Kolkata.
Having regard to the fact, upon receipt of the supplementary charge-sheet learned Chief Judge, City Sessions Court, Calcutta issued warrant of arrest against the petitioners, on the prayer of the CBI. Apprehending arrest they have now applied for anticipatory bail before this court.
All the aforesaid anticipatory bail applications were for the first time listed before this bench for hearing on June 10, 2015 and again on June 12, 2015 and on both the days hearing was adjourned since the counsel of the parties and counsel of CBI were not available. However, on June 15, 2015 and June 16, 2015 the matter was heard-in-part and hearing was adjourned for two weeks on the prayer of the learned counsel for the CBI. Again on July 1, 2015 the hearing was adjourned for a period of four weeks, at the behest of the CBI, since CBI intended to engage a senior counsel. On July 31, 2015 the learned Additional Solicitor General Mr. Manindar Singh (for the sake of brevity hereinafter referred to as the "ASG") appeared on behalf of the CBI and filed an affidavit challenging the maintainability of the aforesaid anticipatory bail applications and hearing was 3 adjourned for a period of 4 weeks for filing affidavit-in-opposition by the petitioners and the same were filed within the stipulated period.
It be noted that when earlier on two occasions, these applications were heard-in-part then neither the counsel of CBI nor the counsel appearing for the widow of the victim raised any question on the point of maintainability.
Thereafter, as many as on nine occasions, on August 26, 2015; November 17, 2015; December 8, 2015; February 15, 2016; February 17, 2016; March 1, 2016; April 6, 2016; April 26, 2016 and June 29, 2016 hearing was adjourned due to the non-availability of the learned ASG and finally on July 29, 2016 he appeared and concluded his submission on the point of maintainability.
The main thrust of argument of the learned ASG rest and emanated from the directions issued by the Hon'ble Supreme Court in connection with Writ Petition (Crl) No. 159 of 2012 (paragraph 41 and 42) and its conclusion (paragraph 43). It was vehemently contended by keeping the writ petition pending with those unusual directions, the Apex Court clearly and expressly intended to monitor and supervise further investigation and ensure expeditious conclusion of the trial. According to the learned ASG on the face of the direction of the Apex Court that during further investigation CBI shall ensure collection of all required evidence and the accused persons found to be involved in the offence be brought before the court for being dealt with in accordance with law the right of the petitioners, charge-sheeted accused to approach this court for anticipatory bail shall no more survive and simultaneously when a rider added in the order that the petition is kept pending for passing necessary order, if and when required, 4 the jurisdiction of the High Court to even entertain these applications for anticipatory bail stands ceased. Therefore, these applications for anticipatory bail can only be entertained and adjudicated by the Apex Court alone and not by any other court not even by the High Court. He further contended in the above backdrop High Court should decline to entertain this application for anticipatory bail and the petitioners if are so advised they might approach the Apex Court for pre-arrest bail. He further submitted because of pendency of these applications for anticipatory bail, the commencement of trial has been delayed for about a year, although according to the directions of the Apex Court, the trial ought to have been commenced by now. He then contended the trial court was fully justified in issuing warrant of arrest against the petitioners in as much as there was a specific direction of the Apex Court as soon as the investigation would be over the accused persons should be brought before the trial court. In his conclusion, the stipulation in the order of the Apex Court, that "the accused persons be brought before the trial court", only implied that they should be produced in court by the investigating agency and under arrest not by any other mode prescribed under code of criminal procedure.
The above contention of the learned ASG, questioning the maintainability of these applications of anticipatory bail was vehemently resisted and refuted from the side of the petitioners. It was contended by no stretch of imagination, it can be said that the Apex Court either curtailed the statutory right of the petitioners, who have now been charge-sheeted, to seek the remedy of pre-arrest bail in terms of the provisions of section 438 CrPC or imposed any restrictions on 5 the power of the High Court to entertain such application and to exercise its power conferred thereunder. It was further submitted when the widow of the deceased victim approached the Apex Court for further investigation and such prayer was allowed and the CBI, which was earlier investigating the case, was directed to make further investigation and submit its report within the stipulated period and the case was transferred from the District and Sessions Court, Darjeeling to the court of learned Chief Judge, City Sessions Court, Calcutta and the writ petition was kept pending only to monitor the investigation and to ensure that during such investigation CBI must get all co-operation from the local police and the State Government and to further ensure expeditious conclusion of the trial. It was vehemently contended that the contention of the learned ASG that to ensure expeditious commencement and the conclusion of the trial, the Apex Court intended the charge-sheeted accused persons be brought before the trial court under arrest by CBI and thereby their statutory right to seek remedy of pre-arrest bail has been stalled is completely mis-conceived, preposterous and needs no attention. He then vehemently urged the right to apply for anticipatory bail available to an accused, who is apprehending arrest for having committed a non-bailable offence is in conformity with the provisions of Article 21 of the Constitution and by no means it can be claimed that by a judicial order such right has been curtailed.
At this stage, we gave an expressed opportunity to the learned counsel appearing on behalf of the de facto complainant to address us on the issue, he 6 however, chose to adopt the submissions of the learned Additional Solicitor General.
Since, at the very outset of his appearance, the learned ASG in his submissions raised a question of maintainability of these applications for anticipatory bail, we feel, it would be ideal for us to decide such issue first and then the fate of these anticipatory bail applications on its merit.
Heard the learned counsel appearing on behalf of the respective parties on the point of maintainability of these applications for anticipatory bail. Considered their respective submissions. Very carefully perused the order passed on October 8, 2013 in connection with Writ Petition (Crl) No. 159 of 2012.
More than three decades back, before a Constitutional Bench of the Apex Court in the case of Shri Gurbaksh Singh Sibbia and others vs. State of Punjab reported in 1980 SCC (Cri) 465 the scope and validity of section 438 CrPC (the provisions for anticipatory bail) fell for consideration. The very qualifying words of the judgment.............. "These appeals by special leave involve a question of great public importance bearing, at once, on personal liberty and the investigational powers of the police. The society has a vital stake in both of these interests, though their relative importance at any given time depends upon the complexion and restrains of political conditions. Our task in these appeals is how best to balance these interests while determining the scope of Section 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974)" - unequivocally demonstrate the great concern of the Apex Court to examine the scope of the provisions of 7 anticipatory bail in the light of personal liberty of a person guaranteed under Article 21 of the Constitution.
To reach to a just decision in the controversy, we are now confronting with on the point of maintainability of this application for anticipatory bail, it would be enough for us to refer a few of the observations of the Supreme Court from the said decision;
Para-12:- We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor General or the constraints which the Full Bench of the High Court has engrafted on the power conferred by Section 438. Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our criminal jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, insofar as the right to apply for bail is concerned. It had before it two cognate provisions of the Code:
Section 437 which deals with the power of courts other than the Court of 8 Session and the High Court to grant bail in non-bailable cases and Section 439 which deals with the "special powers" of the High Court and the Court of Session regarding bail. The whole of Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail.
Para-26:- We find a great deal of substance in Mr Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes 9 a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.
In its above decision, the Constitution Bench clearly and expressly emphasized and laid down the provisions of anticipatory bail is conceptualized under Article 21 of the Constitution and designed to secure personal liberty and freedom of a person apprehending arrest for committing a non-bailable offence and there should not be any unnecessary restriction on its scope. Till date, there has been no departure from such authoritative judicial view.
It would be worthwhile to refer, two co-ordinate division benches of the Hon'ble Supreme Court (although smaller in number from that of the Constitution bench) quite recently, in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others reported in (2011) 1 SCC (Cri) 514 and in the case of Bhadresh Bipinbhai Sheth vs. State of Gujarat and another reported in (2016) 1 SCC 152, reiterated the views expressed by the Constitutional Bench without a slightest deviation and interpreted the scope of the provisions of anticipatory bail in the light of personal liberty of a person guaranteed under Article 21 of the Constitution.
It would not be out of place to refer one of the decision of the Apex Court in the case of Som Mittal Vs. Government of Karnataka, reported in (2008) 2 SCC (Cri) 73, where the issue before the court was different and relates to quashing of a complaint but in the said decision the Apex Court expressed its 10 deep concern and disapprove the deletion of the provisions of anticipatory bail from the statute book in the State of U.P. and desired that such provisions be restored.
Thus, the question of maintainability of these applications for anticipatory bail is now to be adjudicated in the light of the settled legal positions, that by various authoritative judicial pronouncement the right to apply for anticipatory bail is recognized as an integral part of the personal liberty and freedom guaranteed under Article 21 of the Constitution and construing the true purport and effect of the order passed by the Apex Court in connection with Writ Petition (Crl) No. 159 of 2012. Of course, however, whether relief sought for be granted or not, is completely a different issue and ought to be decided on the merit of the prosecution case and other relevant factors.
However, before entering into the core issue the facts which gave rise to these applications for anticipatory bail be briefly noted.
On May 21, 2010 one Madan Tamang a leader of ABGL (Akhil Bharatio Gorkha League), a political party was supervising the arrangement for celebration of the foundation day of their party at a place called Club Side Road Stand just below the planters' club, Darjeeling and at that time, a group of 400 supporters of the rival political party GJMM being armed with khukries, patang, swords, sticks and firearms attacked and brutally killed him. It was alleged by the de facto complainant the incident took place in presence of police, security personnel, media persons and members of the general public and in broad day 11 light. Following the aforesaid incident an FIR relating to the offence punishable under section 147/148/149/427/506/302/120B IPC was registered at Darjeeling Sadar Police Station. Initially, the investigation was undertaken by the local police and then same was handed over to the CID, West Bengal. On August 30, 2010 in connection with that case CID submitted charge-sheet against 30 accused persons for having committed offence punishable under section 147/148/149/427/506/302/34 IPC with a prayer to permit them to continue with further investigation. On January 19, 2011 the Government of West Bengal issued a notification under section 6 of the Delhi Special Police Establishment Act and the investigation of the case was entrusted to the CBI and that gave rise to CBI Special Crime Branch, Kolkata case no. RC-1(S)/11/Kol dated 19.01.2011. On August 20, 2011 CBI after completion of investigation submitted supplementary charge-sheet against one Dipen Malay. However, on the allegations that investigations by the CBI was not at all done properly and neither the truth was unfolded and nor the real culprit were apprehended, Ms. Bharati Tamang, the widow of the deceased, invoking Article 32 of the Constitution approached the Hon'ble Apex Court by moving the aforesaid writ petition.
It appears from the above order of the Apex Court, the writ petition was moved seeking following reliefs,
a) The charge-sheet submitted by the CID, West Bengal and the supplementary charge-sheet submitted by the CBI be quashed. 12
b) There should be a de novo investigation by a Special Investigating Team.
c) Alternatively further/fresh investigation by an officer in the rank of DIG, CBI or by the National Investigating Agency.
On the face of the reliefs sought for, the observation of the Apex Court in paragraph 41 of its judgment, is quite relevant and is quoted below, "41. In as much as the petitioner only seeks for handling of the case of murder of her deceased husband by the prosecuting agency, namely, the CBI here with utmost earnestness against all the accused who were involved in the crime, we feel that by issuing appropriate directions in this writ petition and by monitoring the same the grievances expressed by the petitioner can be duly redressed and the interest of the public at large can be duly safeguarded."
It is therefore, abundantly clear on the face of the prayer of de facto complainant, for further investigation by CBI, the Apex Court found the relief sought for can be meted out by issuing appropriate direction for further investigation and monitoring the same.
Now, coming to the direction issued by the Apex Court and enumerated in paragraph 42 of the aforesaid order the facts emerged,
a) Sessions case pending in the court of the Sessions Judge, Darjeeling was transferred to the court of the Principal District and Sessions Judge, Calcutta Civil and Sessions Court and the records be sent down to the transferee court 13 within two week from the production of the copy of the order before the court, where the case is pending;
b) Upon receipt of the case records the Principal District and Sessions Judge, Calcutta Civil and Sessions Court shall forthwith commence proceeding by ensuring the presence of the accused and the prosecution agency.
c) The further investigation shall be carried out by the CBI and be monitored by Mr. Rajiv Singh, Joint Director, CBI and during further investigation, CBI shall ensure collection of all required evidence and all accused involved in the offence be brought before the court for being dealt with in accordance with law.
d) No trial shall commence until CBI concludes further investigation and submits its comprehensive report before the Principal District and Sessions Judge, Calcutta Civil and Sessions Court and such comprehensive report shall be filed expeditiously within three months from the date of pronouncement of the order.
e) The Principal District and Sessions Judge, Calcutta Civil and Sessions Court shall commence the trial after the comprehensive final report is filed by the CBI and all the accused are brought before the court for their trial.
f) The CBI shall also file comprehensive report before the Apex Court for further direction, if required.
14
g) The Principal District and Sessions Judge, Calcutta Civil and Sessions Court shall also be at liberty to approach the Apex Court and seek appropriate direction in order to ensure the directions issued by the Apex Court are duly complied with.
h) The Central Government, the State Government and all other agencies shall render the required support to the CBI, the prosecuting agency, so that the directions issued by the Apex Court are duly complied with and to ensure that there shall not be any further delay in proceeding with the trial.
In concluding portion of its order, the Hon'ble Supreme Court in paragraph 43 amongst other observed ........ "This order, is therefore passed for the present. The writ petition is kept pending for passing necessary orders if and when required in future". ......... This observation is very relevant and important for reaching just decision in the case.
It be noted that CBI being unable to complete the investigation within the stipulated period of three months, moved the Apex Court for extension of time by filing a substantive application and concluded further investigation, taking another 16 months and filed supplementary charge-sheet in court and simultaneously, comprehensive report before the Apex Court. We have been informed by Mr. Ashraf Ali, the counsel for CBI, after obtaining instruction from the investigating officer of the case, present in court, that after passing of the order for further investigation on October 8, 2013 the above writ application was never listed before the Apex Court and no further order was ever passed in 15 connection therewith. We have also been informed neither the trial court nor the widow of the victim Madan Tamang, the writ petitioner, has ever approached the Apex Court for any direction.
Indisputably, the above writ petition is still pending before the Apex Court and the Apex Court not only directed further investigation by CBI but also observed and intended that the same should be monitored, with liberty to the CBI and the trial court to approach it for further directions, if so required. However, from a plain reading of the order it cannot either be presumed nor the order can be construed, that the Apex Court intended even remotely whenever any incidental cause of action shall arise in future either during the investigation or during the trial, the investigating agency or the trial court has to approach the Apex Court for direction, despite the fact both the investigating agency and the trial court are statutorily empowered (under the CrPC or any other statutory provisions) to take decision relating to the issue independently. So far as the accused persons are concerned, whose involvement in the offence were yet to be surfaced during further investigation, there was no remote indication in the order of the Apex Court, in such a situation, their right available under criminal law of the land and Constitution, shall remain suspended and in all such situations instead of approaching trial court or High Court to seek redressal of their grievances they have to approach the Apex Court seeking remedies. There is also no remote indications the most valuable right of any person arraigned as an accused (in the present case the petitioners whose involvement allegedly transpired during further investigation) to apply for anticipatory bail, a provision 16 introduced in the statutes in the light of liberty and freedom of a person guaranteed under Article 21 of the Constitution, stands curtailed and superseded and in such a situation his remedy would lie before the Apex Court only and not before any other court, in terms of the provisions of CrPC.
The concept and procedure of monitoring criminal investigation by the Apex Court by issuing continuing mandamus for the first time applied, followed and adopted, in our jurisprudence by a three Judges Bench of the Apex Court in the case of Vineet Narain and others vs. Union of India and another reported in (1998) 1 SCC 226, popularly known as Jain Hawala case. In paragraph 8 and 9 of that decision, the Apex Court observed as follows, "8. The sum and substance of these orders is that the CBI and other governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would end the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found 17 it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive; this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of "continuing mandamus".
9. Even after this matter was brought to the Court complaining of the inertia of CBI and the other agencies to investigate into the offences because of the alleged involvement of several persons holding high offices in the executive, for quite some time the disinclination of the agencies to proceed with the investigation was apparent. The accusation, if true, revealed a nexus between high-ranking politicians and bureaucrats who were alleged to have been funded by a source linked with the source funding the terrorists. In view of the funding also through foreign currency, some undesirable foreign elements appeared to be connected. This revealed a grave situation posing a serious threat even to the unity and integrity of the nation. The serious threat posed to the Indian polity could not be underscored. The obvious need for an expeditious and thorough probe which had already been delayed for several years could not but be countenanced. The continuing inertia of the agencies to even commence a proper investigation could not be tolerated any longer. In view of the persistence of that situation, it became necessary as the proceedings progressed to make some orders which would activate the CBI and the other agencies to at least commence a fruitful investigation. 18 Merely issuance of a mandamus directing the agencies to perform their task would be futile and, therefore, it was decided to issue directions from time to time and keep the matter pending requiring the agencies to report the progress of investigation so that monitoring by the court could ensure continuance of the investigation. It was, therefore, decided to direct the CBI and other agencies to complete the investigation expeditiously, keeping the court informed from time to time of the progress of the investigation so that the court retained seisin of the matter till the investigation was completed and the charge-sheets were filed in the competent court for being dealt with, thereafter, in accordance with law."
Subsequently, in the case of Jakia Nasim Ahesan and another vs. State of Gujarat and others reported in (2011) 12 SCC 302 another three Judges Bench of the Apex Court while applying the principle of continuing mandamus and intended to monitor a criminal investigation, following the decision of the Apex Court in the case of Vineet Narain and others vs. Union of India and another (supra), Union of India vs. Suhil Kumar Modi 1999 SCC (cri) 84; M.C. Mehta vs. Union of India (Taj Corridor scam) (2008) 1 SCC (Cri) 216; Narmada Bai vs. State of Gujarat (2011) 2 SCC (Cri) 526 in paragraph 9, 12, 13 and 14 of its decision observed, "9. We are of the opinion that bearing in mind the scheme of Chapter XII of the Code, once the investigation has been conducted and completed by SIT, in terms of the orders passed by this Court from time to time, there is 19 no course available in law, save and except to forward the final report under Section 173(2) of the Code to the court empowered to take cognizance of the offence alleged. As observed by a three-Judge Bench of this Court in M.C. Mehta (Taj Corridor Scam) vs. Union of India [(2007) 1 SCC 110 : (2007) 1 SCC (Cri) 264] , in cases monitored by this Court, it is concerned with ensuring proper and honest performance of its duty by the investigating agency and not with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge-sheet in the competent court, according to the ordinary procedure prescribed by law.
12. Having so directed, the next question is whether this Court should continue to monitor the case any further. The legal position on the point is made clear by this Court in Union of India v. Sushil Kumar Modi, wherein, relying on the decision in Vineet Narain v. Union of India [(1996) 2 SCC 199 : 1996 SCC (Cri) 264] , a Bench of three learned Judges had observed thus:
(Sushil Kumar Modi case SCC p. 662, para 6) "6. ... that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all 20 matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure.
We make this observation only to reiterate this clear position in law so that no doubts in any quarter may survive."
13. In M.C. Mehta v. Union of India [(2008) 1 SCC 407: (2008) 1 SCC (Cri) 216], a question arose as to whether after the submission of the final report by CBI in the Court of Special Judge, pursuant to this Court's directions, this Court should examine the legality and validity of CBI's action in seeking a sanction under Section 197 of the Code for the prosecution of some of the persons named in the final report. Dismissing the application moved by the learned amicus curiae seeking directions in this behalf, a three-Judge Bench, of which one of us (D.K. Jain, J.) was a member, observed thus: (SCC p. 412, para 9) "9. ... The jurisdiction of the court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the court satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with his judicial functions. Constitutional scheme of this country envisages dispute resolution mechanism by an independent and impartial tribunal. No authority, save and except a superior court in the hierarchy of judiciary, can issue any direction which otherwise takes away the 21 discretionary jurisdiction of any court of law. Once a final report has been filed in terms of sub-section (1) of Section 173 of the Code of Criminal Procedure, it is the Magistrate and Magistrate alone who can take appropriate decision in the matter one way or the other. If he errs while passing a judicial order, the same may be a subject- matter of appeal or judicial review. There may be a possibility of the prosecuting agencies not approaching the higher forum against an order passed by the learned Magistrate, but the same by itself would not confer a jurisdiction on this Court to step in."
14. Recently, similar views have been echoed by this Court in Narmada Bai v. State of Gujarat [(2011) 5 SCC 79: (2011) 2 SCC (Cri) 526] . In that case, dealing with the question of further monitoring in a case upon submission of a report by CBI to this Court, on the conclusion of the investigation, referring to the earlier decisions in Vineet Narain [(1996) 2 SCC 199 : 1996 SCC (Cri) 264] , Sushil Kumar Modi [(1998) 8 SCC 661 : 1999 SCC (Cri) 84] and M.C. Mehta (Taj Corridor Scam) [(2007) 1 SCC 110 : (2007) 1 SCC (Cri) 264] , speaking for the Bench, one of us, (P. Sathasivam, J.) has observed as under: (Narmada Bai case [(2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] , SCC p. 102, para 70) "70. The above decisions make it clear that though this Court is competent to entrust the investigation to any independent agency, once the investigating agency complete their function of 22 investigating into the offences, it is the court in which the charge- sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of Section 173(8) of the Code. Thus, generally, this Court may not require further monitoring of the case/investigation. However, we make it clear that if any of the parties including CBI require any further direction, they are free to approach this Court by way of an application."
In the aforesaid decisions, starting from the decision of Vineet Narain and others vs. Union of India and another (supra), it was uniformly held by the Apex Court, where continuing inertia of the Investigating Agencies, may be that of CBI or local police or any other government agencies, to properly investigate a criminal case and carry out their public duty is manifest from the materials placed before the court, the necessity of monitoring the progress of investigation by issuing continuing mandamus would at once arise to activate the investigating agency to commence and proceed with fruitful investigation. It was unequivocally observed the object behind monitoring investigation is to apprise and inform the court from time to time, the progress of investigation but not to direct or channel investigation in any manner that may prejudice the right of those who might be accused and task of monitoring would end the moment the charge-sheet is filed. In the case of M.C. Mehta (Taj Corridor Scam) vs. Union of India (supra) it was categorically held that while monitoring the case court is only concerned with ensuring proper and honest performance of its duty by the investigating 23 agency and not with the merits of the accusation in investigation, which are to be determined at the trial on filing of the charge-sheet in the competent court.
In the self-same decision, it was further held, the jurisdiction of the court to issue a writ of continuing mandamus is only to see that proper investigation is carried out. Once the court satisfies itself that a proper investigation is carried out, it would not venture to take over the function of the Magistrate or pass any order which would interfere with the judicial functions. Constitutional scheme of this country envisages dispute resolution mechanism by an independent and impartial tribunal. No authority, save and except a superior court in the hierarchy of judiciary, can issue any direction which otherwise takes away the discretionary jurisdiction of any court of law.
However, in the present case from the order passed on October 8, 2013 in connection with the aforesaid writ application whereby further investigation by the CBI was directed nothing could be shown to us by the learned Additional Solicitor General that Supreme Court issued any direction which otherwise has taken away the discretionary jurisdiction of this court to entertain these applications for anticipatory bail.
Now, it would be more apposite to note these applications for anticipatory bail are outcome of the further investigation which was undertaken by the CBI pursuant to the direction of a division bench of the Apex Court presided over by the Hon'ble Justice Surinder Singh Nijjar, in the case of Bharati Tamang vs. Union of India and others Writ Petition (Criminal) No. 158 of 2012. 24 Subsequently, another Bench also presided over by His Lordship, in the case of Sushila Devi vs. State of Rajasthan and others (2014) 1 SCC 269 on an identical situation observed as follows, "28. After analysing all these decisions, it appears to us that this Court has already in a catena of decisions held and pointed out that the monitoring of a case is continued till the investigation continues but when the investigating agency, which is appointed by the court, completes the investigation, files a charge-sheet and takes steps in the matter in accordance with the provisions of law before a competent court of law, it would not be proper for this Court to keep on monitoring the trial which is continuing before a competent court. Accordingly, we are of the opinion that since the investigation has already been completed, charge-sheet has been filed, trial has already commenced, it is not necessary for this Court to continue with the monitoring of the case in question.
29. In these circumstances, we have to answer the question in the negative. Accordingly, we direct that it is not necessary to monitor the matter in question any further since the matter is in the domain of the competent court. All the applications are accordingly disposed of."
In view of above, we are of the opinion, that no embargo was put by the Apex Court while passing order on October 8, 2013 in connection with the writ petition in question (Bharati Tamang vs. Union of India and others Writ Petition (Criminal) No. 158 of 2012), restricting the jurisdiction of this court to 25 entertain any application for anticipatory bail of those accused persons, whose involvement might be transferred during the course of investigation and these applications for anticipatory bail are very much maintainable.
Following the assassination of Madan Tamang, the husband of the writ petitioner (Bharati Tamang), an FIR was registered at Darjeeling Sadar police station (FIR No. 89/10) under Section 147/148/149/427/506/302/120B IPC. The initial investigation was carried out by the local police then by the Criminal Investigation Department (CID), West Bengal and after completion of its investigation on August 30, 2010 charge-sheet was submitted against 30 accused persons for the self-same offences with a prayer for permission to continue with further investigation. On January 19, 2011 pursuant to a notification issued under Section 6 of the Delhi Special Police Establishment Act, 1946 the further investigation of the case was entrusted to the CBI, Special Crime Branch, Kolkata when a regular case was registered (RC-1(S)/11/Kol) for the self-same offences. Thereafter, in the midst of further investigation on August 20, 2011 the supplementary charge-sheet was filed by the CBI against one co- accused that was also for the self-same offences and before the CBI finally closed the investigation, the wife of the deceased moved the aforesaid writ application.
On the face of the contention of the learned Additional Solicitor General both in his oral submissions and in the affidavit filed on behalf of the CBI that due to the pendency of these applications before us and having regard to the fact an order of not to arrest was passed by this court, the trial has been delayed, 26 although Apex Court directed soon after submission of the charge-sheet after further investigation trial to be commenced immediately, we feel before parting with, following facts may be highlighted, These applications for anticipatory bail were listed before this Bench on June 10, 2015. On that day and again on 12, 2015 this court suo moto adjourned the haring of those applications since the counsel of the parties including the counsel for the CBI were not available. Thereafter on June 15, 2015 and June 16, 2015 we heard the counsel for the parting including the counsel for the CBI, Md. Ashraf Ali. Neither the counsel of the CBI nor the counsel of the de facto complainant challenged the maintainability of these applications for anticipatory bail except opposing the same. On June 16, 2015 the hearing was adjourned for two weeks on the prayer of the learned counsel for the CBI. Again on July 2, 2015 the hearing was adjourned for a period of four weeks at the behest of the CBI since CBI intended to engage a senior counsel. We allowed such prayer and directed the matter to be listed on July 31, 2015. On July 31, 2015 the learned Additional Solicitor General Mr. Maninder Singh appeared on behalf of the CBI and filed an affidavit challenging the maintainability of the aforesaid anticipatory bail applications when hearing was adjourned for a period of four weeks to enable the petitioners to file their affidavit-in-opposition and the CBI to file its reply and the matter was directed to be listed on August 26, 2015. It be noted this particular Bench was not sitting from August 3, 2015 to August 17, 2015 since one of us (Malay Marut Banerjee, J) was to sit in Circuit at Andaman Nicobar. On August 26, 2015 all these anticipatory bail applications 27 were listed before us, when from the side of the CBI a prayer was made for adjournment and to fix a date between October 14, 2015 to October 16, 2015. However, that being the last week before the commencement of puja vacation on the prayer of the counsel of the petitioners and with the consent of the CBI, the hearing of the case was again fixed on November 17, 2015. On November 17, 2015 we once again heard the learned ASG and on joint prayer hearing was adjourned till December 8, 2015. Thereafter, on December 8, 2015 the hearing was adjourned till February 9, 2016. Thereafter the matter was listed on February 15, 2016. On that day the prayer for adjournment was once again made by the counsel of the CBI till May 4, 2016. Since the counsel for the de facto complainant opposed such prayer for adjournment and insisted for early hearing the counsel for the CBI agreed that the matter be listed on April 6, 2016 and prayer was allowed. In the meanwhile 2 to 4 days the matter was listed before us. That was because the counsel of the de facto complainant complained that the petitioners are terrorising the witnesses and such complaint being vehemently resisted from the side of the petitioners, we allowed them to file affidavit and counter affidavit. On April 6, 2016 once again prayer for adjournment was made on behalf of the learned ASG till April 26, 2016. On April 26, 2016 once again prayer for adjournment was made on behalf of the ASG till May 16, 2016. Since that was the last week before summer recess, the counsel of the petitioners prayed the hearing be fixed after reopening of the court after summer vacation. Finally, according to the convenience of the learned Additional Solicitor General hearing was adjourned till June 29, 2016. Again on June 29, 2016 prayer for 28 adjournment was made on behalf of the learned ASG till July 28, 2016. On July 28, 2016 the learned ASG as also the learned counsel for the petitioners were heard at length on the question of maintainability of these applications for anticipatory bail and hearing was adjourned till the next day. On July 29, 2016 the hearing was adjourned till August 3, 2016 as jointly prayed for by the counsel for the parties. Thereafter, on August 3, 2016 the hearing was adjourned till August 4, 2016. Again the matter was heard on August 10, 2016 and on the prayer of the learned counsel for the CBI Mr. Ashraf Ali hearing was adjourned for a period of one week. Then again on August 22, 2016 hearing was adjourned till August 29, 2016 on the prayer of the CBI. On August 30, 2016 hearing was again adjourned for a period of another week on the prayer of the CBI. On September 8, 2016 and September 14, 2016 , September 20, 2016 hearing was adjourned on the prayer of CBI. On September 21, 2016 the hearing was adjourned since the counsel of the de facto complainant was not available. On September 22, 2016 the counsel for the de facto complainant appeared and submitted that they were adopting the submissions of the learned Additional Solicitor General appearing on behalf of the CBI. On that day, hearing on the question of maintainability was closed.
In view of what has been discussed and analysed hereinabove, the preliminary objection raised on behalf of the CBI against the maintainability of the applications under Section 438 CrPC is overruled.
29
Urgent photostat certified copy of this order, if applied for, be given to the parties, if not in course of today positively by tomorrow.
(Ashim Kumar Roy, J.) (Malay Marut Banerjee, J.) 30 Later 28.09.2016 After pronouncement of the order, the learned counsel for the CBI, Mr. Ashraf Ali prays for an adjournment of hearing of this case for a period of 2 months. Since the matter is pending for long, we are not inclined to grant any such long adjournment and are of the view that for ends of justice these applications for anticipatory bail must be decided on merit at once. We, therefore, direct this matter be listed on coming Monday i.e., 03.10.2016 at the top.
(Ashim Kumar Roy, J.) (Malay Marut Banerjee, J.)