SIT Probe Failed To Yield Any Result: Gauhati High Court Transfers 7 Yrs Old 'Political' Kidnapping Case To CBI, Says State's Consent Not Required

The Gauhati High Court recently transferred the investigation of a 2016 kidnapping case involving the brother of then member of North Cachar Hills Autonomous Council, on the ground that the Assam Police and SIT constituted to carry out the investigation have failed to yield any result.

The single judge bench of Justice Suman Shyam observed,

“I also find from the materials on record that even the constitution of SIT constituted for carrying out investigation in connection with the case has failed to yield any result and from the affidavit submitted by the respondent no. 3 i.e. the Superintendent of Police, Dima Hasao District as well as from the submission of the learned Government Advocate, Assam, the likelihood of any further progress in the investigation conducted by the SIT appears to be minimal. Situated thus, the only way forward in this case appears to be to handover the investigation to a specialized agency such as the CBI.”

The petition was filed by the wife of the victim who was allegedly kidnapped by unidentified miscreants on January 27, 2016 from Dima Hasao District of Assam. It has been alleged in the FIR registered under Sections 365, 506 and 34 of IPC that victim's elder brother (who was the then member of the North Cachar Hills Autonomous Council) had received threats, asking him to abstain from participating in the emergent meeting of the North Cachar Hills Autonomous Council (NCHAC), held on January 29, 2016, as otherwise, he would face dire consequences.

It has also been alleged that the kidnapping took place so as to prevent the victim’s above-mentioned elder brother from participating in the emergent meeting scheduled on January 29, 2016 wherein, “no confidence motion” brought against the executives in power in the autonomous Council was to be discussed.

As the Assam Police had conducted investigation in connection with the case but could not make any headway in the process, the victim’s wife approached the High Court by way of the present writ petition seeking a direction from the Court to handover the investigation of the case to the CBI.

During the pendency of the writ petition, a three member Special Investigation Team (SIT) headed by the Superintendent of Dima Hasao District took over the investigation in connection with the case and a report was submitted to the High Court on August 03, 2023.

On perusal of the said report, it was highlighted that except making a few arrests and recording statements of few witnesses, the SIT could not make much headway nor it conclude the investigation, as a result of which, no charge sheet could be filed in connection with the case till today.

The Senior Counsel, B. D. Das appearing for the petitioner argued that it is a clear case of “political assassination” and the same would be apparent from the fact that after the release of the six arrested persons, their wives had been appointed in different departments of the Council and the main suspect is roaming freely.

It was further submitted that it is clear case of violation of Fundamental Rights of the petitioner and her husband and since the incident took place in a politically sur-charged situation where there is direct evidence to suggest that the kidnapping was carried out for a political purpose, unless the matter is handed over to a specialized agency like the CBI, the petitioner would not get justice.

The Deputy Solicitor General of India RKD Choudhury appearing for the CBI submitted that the agency is reluctant to take over investigation in this case due to resource crunch.

However, the DSGI further submitted that when it comes to the question of violation of fundamental right to life of a citizen and in view of the fact that there are allegations of political motive behind the incident, the relief sought for in the writ petition cannot be denied merely on the ground of resource crunch faced by the CBI.

The Court noted that the husband of the petitioner had gone missing on January 27, 2016 and prior to that a telephone call was received by his elder brother, who was a member of the NCHAC at the relevant point of time, threatening him to abstain from taking part in the meeting scheduled to be held on January 29, 2016 wherein, a crucial agenda of removal of the party in power from office was to be discussed and since then, the whereabouts of the victim is unknown.

It was further observed by the Court that in the present case, the probability of political motive behind the incident cannot be ruled out.

The Court relied upon the judgment of the Supreme Court in State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others (2010) 3 SCC 571 in which it was held that the jurisdiction of the High Court under Article 226 of the Constitution of India to issue a direction to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of the State will neither impinge upon the federal structure of the constitution nor violate the “Doctrine of Separation of Power” and shall be valid in law.

“In view of the above, this Court is of the considered opinion that this matter deserves to be handed over to the CBI. Since it is a question of life and liberty of a citizen and in view of the factual backdrop of this case, this Court is unable to agree with the stand of the CBI that due to resource crunch, the matter should not be sent to the CBI for investigation,” the Court said.

The Court directed the State to initiate all steps to handover the investigation in connection with the case to the CBI by following the due process of law.

“Once the records are handed over to the respondent no. 4, investigation be carried out by the CBI as expeditiously as possible, so as to bring the process to its logical end,” it noted.

Case Citation: 2023 LiveLaw (Gau) 93

Case Name: Jaisodi Thaosen @ Jaisodi Kemprai v. The State of Assam & 2 Ors.

Case No.: WP(C)/259/2022

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