Pressure On WB Police To Shield Certain Persons: High Court Orders CBI To Probe TMC Leader Tapan Dutta's Murder

The Calcutta High Court on Thursday transferred to the Central Bureau of Investigation (CBI) the probe relating to murder of Trinamool Congress leader Tapan Dutta. The CID West Bengal which was probing the case was directed to immediately handover the investigation to the CBI.

Dutta, then vice-president of Trinamool Congress' Bally Jagacha block unit in Howrah, was shot dead on May 6, 2011. The block unit was spearheading a movement to stop the filling up of 750-acre wetland, when Datta was killed.

Thereafter, the State had had ordered a CID probe into the murder case. Subsequently, Pratima Dutta, the widow of the deceased TMC leader had moved the High Court seeking a CBI enquiry into the case alleging that Minister for Food Processing, Arup Roy, who also belongs to the Trinamool Congress, was involved in the conspiracy of her husband's killing and was an accused in the case.

The question in consideration before Justice Rajasekhar Mantha was whether the High Court, under Article 226 of the Constitution can transfer the investigation from the State Police to the CBI and also order for the change of the prosecutor; after a Division Bench of the High Court, while considering an appeal from an order of acquittal, orders retrial, after applying Section 311 of the Cr.PC.

Pursuant to the rival submissions, the Court opined that the pressure on the State police to shield certain persons and their nefarious actions cannot be ruled out and accordingly observed, 

"This Court's mind is not free from doubt that the murder in question might have been the result of a rivalry and a conspiracy. The victim may have been obstructing huge monetary and/or political gain that some persons were after. Such persons are politically powerful and well connected. A fair and effective investigation may indeed open a can of worms, or expose any likely role of influential persons. The pressure on the State police and the investigation agencies to shield certain persons and their nefarious actions cannot therefore be ruled out. Change of the investigating and prosecuting agency in the instant case is also necessary to instil faith in the family of the victim and the public at large."

Ordering for a CBI probe, the Court directed, 

"This Court directs that, investigation and prosecution in the matter is to be transferred to the Central Bureau of Investigation forthwith. The CBI may, in its discretion, conduct further investigation, as it deems necessary. "

The Court underscored that a comprehensive, honest, sincere and fair investigation, is imperative and indispensable for an effective and fair prosecution, as well as trial. It was further observed that the right of an accused to a fair trial, has been guaranteed under Article 21 of the Constitution and that an integral part of the right to a fair trial, is a fair investigation, since the absence of the latter contaminates any possibility of the former.

" A proper and effective investigation is a sine quo non to a fair trial. It is necessary for arriving at the truth, which is the fundamental object and purpose of the Criminal Justice delivery system. Neither should any innocent person be punished, nor should any of the real culprits escape the long arm of the law", the Court opined. 

Justice Mantha further averred that as recorded by the concerned trial judge as well as by the Division Bench of this Court, it is quite clear that investigation in the instant case by the CID, West Bengal, has been perfunctory. Opining that there is an immediate need to instil public faith in the investigation and trial, the Court remarked, 

"The petitioner's contentions and apprehensions have thus been vindicated. The State agencies have clearly failed to effectively investigate the crime and bring the actual culprits to book. There is thus, an urgent and immediate need to instil public faith in the investigation and trial, which provides sufficient impetus for the change in the investigation agency."

It was further opined that the independence of both the investigation and the prosecution from the executive control of the State, and of the Prosecution from the investigating agency becomes all the more crucial and necessary in crimes involving 'influential persons', like public figures, members of political parties, and persons related to them. The Court noted that such public figures enjoy huge control and clout that could influence the investigation and prosecution, and consequently the direction of the case.

Reliance in this regard was also placed on the 239th Report of the Law Commission of India which was submitted to the Supreme Court in the case of Virender Kumar Ohri v. Union of India. 

Accordingly, the Court held that in the instant case the laxity exhibited by the Prosecutor in placing evidence before the Court and adequately questioning witnesses show that the Prosecutor has failed in adequately discharging his duties. Opining that a change in the prosecuting agency is imperative, the Court remarked further,

"The prosecution must be kept away from the reach of any State or political influence in view of the likely involvement of powerful and politically influential persons .This Court is this of the view that a change in the Prosecution or Prosecution Agency is vital and imperative to ensure that the truth emerges in the matter."

Opining further on the powers of the Trial Court under Section 311 of the CrPC, the Court opined that such powers must be exercised with extreme care, caution and circumspection. Justice Mantha further underscored that its indiscriminate use, especially in situations where there are glaring holes in the efforts of the investigation and the prosecution case as in the instant case would only be equivalent to attempting to filling up the "lacunae" in the prosecution case. 

Enumerating that the Trial Court cannot by itself discharge such an onerous task without being assisted by an effective prosecutor, the Court observed, 

".. this court is of the view that the task imposed on a Trial judge would be extremely onerous, if the burden is placed entirely on the Trial Court to proceed with the Trial without an honest, effective and comprehensive/dedicated assistance of an agency to assist with effective investigation, as well as an effective prosecution. This becomes all the more relevant in light of the fact that the all Courts in the country, and Trial Courts in particular, are already extremely over- burdened with the ever increasing case load."

The Court further dismissed the contention of the State that change of an investigator and prosecutor has never happened in a proceeding under Article 226 after the trial has been completed by observing that it cannot stand in the way of ordering measures for ensuring that the wheels of justice move in the right direction. The Court remarked that the instant case is indeed a rare and extraordinary case calling for extraordinary measures.

Thus, ordering for a change in the prosecution agency, the Court observed, 

"The CID West Bengal shall therefore forthwith handover all the cause papers and evidence collected, both those on record, but not produced in the Trial. The CBI shall be entitled to access, inspect and make copies of all the evidence in the Trial."

The Court further ordered the concerned Trial Court to complete the trial within a period of 6 months from the date of its commencement afresh as per the order of the Division Bench dated April 10, 2017. 

It may be noted that a Division Bench of the High Court on on Monday upheld the order of a Single Judge bench for a CBI probe into the death of former Congress councillor of Jhalda Municipality in Purulia, Tapan Kandu who was reportedly shot dead by miscreants on March 13. 

Case Title: Protima Dutta v. The State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 228

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