In a very significant development with far reaching consequences, the Calcutta High Court has in an extremely laudable, landmark, learned and latest judgment titled Protima Dutta v. The State of West Bengal & Ors in W.P.A. No. 12526 of 2012 with CAN 9 of 2021 and with CAN 10 of 2022 and cited in 2022 LiveLaw (Cal) 228 pronounced most recently on June 9, 2022 in exercise of its Constitutional writ jurisdiction on appellate side has transferred to the Central Bureau of Investigation (CBI) the probe pertaining to the murder of Trinamool Congress leader Tapan Dutta. Tapan who was then the Vice President of Trinamool Congress Bally Jagacha block unit in Howrah was shot dead on May 6, 2011. Tapan was spearheading a movement that was launched to stop the filling up of 750-acre wetland, when he was killed.

As an inevitable fallout, the State government of West Bengal had ordered a CID probe into this killing. We then saw subsequently how Pratima Dutta who is the widow of the deceased TMC leader had moved the High Court seeking an impartial 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 Court accordingly ordered the CBI enquiry in this high profile case.

To start with, this extremely laudable, learned, landmark and latest judgment authored by a Single Judge Bench of Calcutta High Court comprising of Justice Rajasekhar Mantha first and foremost stipulates in para 1 that:
The questions that arise for consideration in the instant writ petition are, inter alia, whether the High Court, under Article 226 can transfer the investigation from the State Police to Central Bureau of Investigation (CBI), and also order change of 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.

To put things in perspective, the Bench then envisages in para 2 that:
The facts relevant to the instant case are that one Tapan Dutta (husband of the petitioner) who was a prominent member of the ruling party Trinamool Congress, started agitation against the illegal filling up of water bodies in the Bally-Jagacha area in Howrah district. He also formed an association called Bally Jagacha Jalabhumi Bachao Committee to get others to rally behind the cause. The said water bodies were being filled up by a property developer named Anmol South City Ltd., a joint venture between the State Government and certain private persons, inter alia, the Anmol Group of Companies and one Maa Tara Developers. The landfill was being undertaken for the proposed development of an industrial park at Mouja Jagadishpur and Joypur in Howrah district. The petitioner herself was also a supporter of the said ruling party as well, and a member of the local panchayat.

It would be worthwhile to mention that the Bench then notes in para 3 that:
On the 6thof May, 2011, the said Tapan Dutta was shot dead at 9:45 pm in the late evening, while he was returning to his house riding a motorcycle. On the same day, FIR No. 205 of 2011 was registered by the Bally Police Station, Howrah, under Sections 302/34/120B IPC read with Sections 27 and 35 of the Arms Act. On that very day i.e. 6th May, 2011, at about 23:25 hrs, one Bablu Prasad, pillion rider on the motorcycle on which the deceased was gunned down, also registered a written complaint.

It cannot be glossed over that the Bench then observes in para 4 that:
In course of the investigation, when the police visited the writ petitioner, she named 12 persons who were responsible for the death of her husband and also supplied a large number of documents. The said persons being Sasti Gayen, Asit Gayen, Kalyan Ghosh, Gobindo Hazra, Amit Pal Chowdhury, Ajay Pal Chowdhury, Malay Dutta, Panchu Bagani, Lakshmi kanta Haldar, Babu Mondal, Poritosh Bar, Ramesh Mahato and Arup Roy (currently a minister in the State Cabinet).The petitioner informed the police that the actual motive behind the murder of her husband was his opposition to, and agitation against, the landfill. This was confirmed by the petitioner, in writing to the Bally Police Station.

As it turned out, the Bench then mentions in para 5 that:
On the 13th of June, 2012, the writ petitioner filed WP 12171(W) of 2012 seeking transfer of investigation into Bally Police Station Case No. 205 of 2011 to the Central Bureau of Investigation (CBI). Immediately thereafter, on 18th June, 2012, the instant writ petition was filed with the same prayers but giving more particulars. W.P 12171 (w) of 2012 was not pressed thereafter.

As we see, the Bench then points out in para 6 that:
The investigation was transferred by the State, from the Bally PS to the CID, West Bengal.

Be it noted, the Bench then discloses in para 8 that:
Sessions Trial No. 88 of 2012 commenced, and judgment was delivered on 7th January, 2015, by the Additional District and Sessions Judge, Fast Track Court-I, Howrah, acquitting all the five accused persons (Subhas Bhowmick, Kartick Das, Ramesh Mahato, Sasti Gayen and Asit Gayen) under Section 235 of the Cr.PC, and the trial against Santosh Singh and B. Raju was deferred as they continued to remain absconding.

It is worth noting that the Bench then observes in para 61 that:
This Court notes that the petitioner had already filed the writ petition seeking transfer of the investigation to the CBI. The trial could not be stopped since the Co-ordinate Bench had not so ordered. The petitioner’s stand as regards faulty investigation is vindicated by the findings of the Sessions Judge, and the Division Bench of this Court. The evidence of the petitioner was led by the prosecution and she was not asked to indicate as to whether any other person was involved in the murder of her husband. The responsibility to assist the trial judge, in the process of unearthing the truth, rests in the prosecution and the State, in the current scheme of the Cr.PC. The petitioner cannot be faulted for not exercising powers that were not available to her in the first place.

While driving home the dire need for an impartial and effective investigation agency, the Bench holds in para 78 that:
A comprehensive, honest, sincere and fair investigation, is imperative and indispensable for an effective and fair prosecution, as well as trial. 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.

Quite forthrightly, the Bench then underscores in para 83 that:
In light of the omissions on the part of the CID, West Bengal recorded by the trial judge and as found by the Division Bench of this Court, referred to hereinabove, it is quite clear that investigation in the instant case by the CID, West Bengal, has been perfunctory. 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 instill public faith in the investigation and trial, which provides sufficient impetus for the change in the investigation agency.

While emphasizing the need for an impartial and effective prosecution, the Bench then mandates in para 84 that:
The role of a prosecutor in ensuring a fair and speedy trial cannot be overemphasized. While it is true that prosecutors in general, and public prosecutors in particular, are appointed by the State to represent the interests of the victim, they are not part of the ‘Executive’. The Superior Courts have repeatedly held that Prosecutors are meant to function as ‘ministers of justice’ under the Scheme of the Code of Criminal Procedure, and any indication of bias or external control over the Prosecutor, is material enough for judicial intervention.

Notably, the Bench then remarks in para 89 that:
In India as well, following a recommendation of the Law Commission of India, in its 154th Report, published in 1996, had proposed for a statutory amendment to the Cr.PC that would allow for the establishment of an independent prosecuting agency, called the Directorate of Prosecutions. This was effectuated by an amendment in 2006, that inserted Section 25-A into the Cr.PC, setting up Directorates of Prosecution in every State.

Adding more to it, the Bench then observes in para 90 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. They enjoy huge control and clout that could influence the investigation and prosecution, and consequently the direction of the case. This issue was specifically dealt with by the Law Commission of India in its 239th Report submitted to the Supreme Court, in light of the writ petition filed in Virender Kumar Ohri vs. Union of India in WP (C) No. 341/2004. In that writ petition as well, the Court was concerned with a case wherein serious offences had been committed by the ‘influential persons in public life’ and their henchmen, who had then attempted to interfere with the investigation, prosecution and trial in various ways, raising questions about the efficacy of the existing systems in counter-balancing against such delays, subversions and interferences.

Pertinently enough, the Bench then discloses in para 91 that:
The relevant parts of the abovementioned 239th Report are set out hereinbelow:

2.2 The causes for delay before the case reaches the Court for trial:
2. Police are either hesitant to proceed with the investigation against important/influential persons or they are under pressure not to act swiftly especially if the person accused is in power or an active member of the ruling party. They adopt a pusillanimous attitude when the accused are such persons. 3. Corruption at Police Station level is affecting the timely and qualitative investigation. Further, the Police Stations are understaffed and the police personnel lack motivation to act without fear or favour.

7. Sanctions for prosecution are unduly delayed by the Governments. These reasons are not peculiar to cases of public men – they are all problems surrounding the Criminal Justice system as a whole.

2.5 Public Prosecutors:

1. Vacancies in the offices of PP/APP resulting in one PP/APP shuttling from one Court to another thereby causing dislocation of Court work. There is no effective mechanism to oversee the functioning of Public Prosecutor. The recruitment process is either deficient or politically manipulated. The provision in Section 24(4) of Cr.P.C. which requires the District Magistrate to prepare a panel of names fit to be appointed as PPs/Addl.PPs for the district in consultation with the Sessions Judge, has been deleted or amended by many States. It is the sole prerogative of State Government to appoint PPs and Addl.PPs of their choice in many States.
    

Most forthrightly, the Bench then holds in para 92 that:
In light of the findings of both the Trial Judge as well as the Division Bench of the High Court on the failure of and the laxity exhibited by the Prosecutor in placing evidence before the Court, and adequately questioning witnesses; combined with the above decisions and Law Commission Reports, this Court is of the view that the Prosecutor has failed in adequately discharging duties. 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.

Of course, the Bench then notes in para 93 that:
Section 311 of the Cr.PC is meant to enable the Trial Court to arrive at the truth, and to render a just decision in the case. The Trial Court achieves this after discovering all relevant facts based on proper proof of the same, by summoning and examining the witness or witnesses who can give relevant evidence, irrespective of the fact whether they have been named as witnesses in the charge sheets. This Section consists of two parts, the first part gives any Court discretion at any stage of any inquiry, trial or other proceeding under the Cr.PC to examine any person in attendance, or to re-call/re-examine any person already examined; while the second part makes it mandatory for the Court to do so, if it appears essential to the just decision of the case.

Briefly stated, the Bench then emphatically says in para 94 that:
While it may appear that the powers under this Section are extremely wide and discretionary, the Apex Court has repeatedly held that it must be exercised with extreme care, caution and circumspection, and only in certain circumstances, based on whether the facts and circumstances of the case demands so.

Quite glaringly, the Bench then states in para 109 that:
In the facts of the case it is noticed that the omissions of the petitioner, therefore, are hardly relevant in the process of ascertaining and finding the truth. The failure of the investigators and prosecutors, as already found by the Sessions Court and the High Court calls for necessary intervention by this Court, in the facts of this case. After all, the responsibility of punishing the real wrong doers, with or without exercise of powers under Section 311 and 319 of the CrPC, is that of all stakeholders under the Cr.PC.

While conceding the need for extraordinary steps in such rare cases, the Bench then points out in para 110 that:
The contention of Mr Chakraborty that change of an investigator and prosecutor has never happened in a proceeding under article 226 after the trial has been completed, cannot inhibit, and should not stand in the way of ordering measures for ensuring that the wheels of justice move in the right direction. The truth and nothing but the truth has to be ascertained. This is indeed a rare and extraordinary case calling for extraordinary measures.

To be sure, the Bench then specifies in para 111 that:
The accused persons and the State may have also been partially responsible for the delay in the hearing of this petition. The accused and State had challenged the order of the Coordinate Bench dated 4th May 2015, referring the writ petition to be heard before a Division Bench. The Supreme Court has upheld the same and directed this writ petition to be heard after disposal of the CRA 688 of 2016 and GA 3 of 2015 by order dated 27th January 2017 passed in Criminal Appeal No. 179 of 2017. The accused was unsuccessful thereafter, in sustaining the acquittal order before this Court (Division Bench Judgment dated 10th April 2017) and were also unsuccessful before the Supreme Court (order dated 8th May 2017 in SLP (Crim) 3661 and 3662 of 2017). They sought to participate in the hearing of the writ petition before the Division Bench and sought to formally intervene. At their instance they were directed by the Hon’ble Supreme Court (order dated 9.8.2017 in Criminal Appeal 1361 of 2017) to make all submissions in the writ petitions without being added as parties. They applied before the Division Bench hearing this writ petition for retransfer to the Single Bench which was allowed (14th March 2022). The respondents therefore cannot complain of any belatedness in consideration of the prayer for transfer of investigation/prosecution to an independent agency.

It deserves noting that the Bench then observes in para 112 that:
The subsequent events, i.e. the completion of the trial and the order of the Division Bench for the same to be conducted afresh, are indeed relevant. The observations of the Division Bench confirming the observations of the Trial judge and finding further omissions must be taken note of by this Court. This is in line with the decision in the Shri Kishan case (Supra) cited by Mr Chakraborty, Ld Counsel.

Most significantly, the Bench then minces no words to hold in para 113 that, 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 instill faith in the family of the victim and the public at large.

Equally significant is that the Bench then states in para 114 that:
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.

No less significant is that the Bench then also hastens to add in para 115 that, Although there is no specific prayer for change of prosecutor, the orders are made on the basis of the prayer for ‘any other relief’ made by the petitioner and in exercise of the powers of this Court under Article 226 of the Constitution of India. As noted by the Supreme Court in the case of State of Rajasthan vs. Hindustan Sugar Mills Ltd. reported in 1988 AIR 1621: 1988 SCR Suppl. (1) 461, that the High Court while exercising its high prerogative jurisdiction under Article 226 has the power to mould the reliefs in a just and fair manner as necessitated by the demands of the situation. In the present case, this Court finds that the change of the prosecution agency is also necessary.

Most commendably, the Bench then directs in para 116 that:
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.

Most remarkably, the Bench then directs in para 117 that:
It is ordered that the Trial shall be taken up, and completed within a period of 6 months from the date of its commencement afresh, in terms of the order of the Division Bench dated 10th April 2017 passed in GA 3 of 2015 and CRA 688 of 2016. The Trial Court shall however proceed in the matter uninfluenced by any observation made by this Court on the merits of the subject matter of the main case before it.

As a corollary, the Bench then holds in para 118 that:
In light of the above findings, W.P.A. No. 12526 of 2012, CAN 9 of 2021, CAN 10 of 2022 are accordingly disposed of. Any and all existing and connected applications shall stand disposed of as well.

Finally, the Bench then concludes by holding in para 120 that:
All parties are directed to act on a server copy of this order duly downloaded from the official website of this Court.

In sum, the Calcutta High Court has accorded cogent and credible reasons for ordering CBI to probe TMC leader Tapan Dutta’s murder. The Court has minced no words to make it absolutely clear that there was pressure on West Bengal Police to shield certain persons. It is definitely a right step in the right direction which must be applauded. Let us fervently hope that the truth comes out soon and those criminals who are behind Tapan’s murder are accorded the strictest punishment.

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh