• Case name: Bharti Tamang v. Union of India & Ors.
• Citation: 2013 15 SCC 578
• Court: Supreme Court of India
• Bench: Surinder Singh Nijjar, Fakkir Mohamed Kalifulla J.
• Parties: Petitioner: Bharti Tamang
Respondents: Union of India and Others
• Brief facts:
In Darjeling district of West Bengal, there were 2 groups- Akhil Bharatiya Gorkha League (hereinafter ABGL) and rival party Gorkha Jaan Mukti Morcha (hereinafter GJMM). On 21st May, there was a meeting where Madan Tamang, President of ABGL and also the petitioner’s husband was assassinated by the supporters of GJMM. The deceased was rushed to the hospital where he was declared dead. First investigation was done by the state police, then CID and then CBI.
The initial chargesheet was filed by CID and then a supplementary chargesheet was filed by CBI.
The petitioner, wife of the deceased, filed a writ petition before Supreme Court citing defective investigation.
Issue: The petitioner filed the writ petition of mandamus citing three issues-
1. The preliminary chargesheet filed by CID and the final chargesheet filed by CBI be quashed.
2. Independent Special investigative team be constituted comprising of Senior Officers headed by a competent person or authority of impeccable credentials to conduct an investigation de novo into the conspiracy and gruesome murder of Madan Tamang.
3. Alternatively direct further/fresh investigation by the DIG level Officer of the CBI.
• Argument of the petitioner:
The contentions put forth by the counsel of petitioner to put forth the lacking of the investigation were-
1. The incident took place in public, yet there was such lack of witnesses.
2. In the newspaper coverage, it showed the deceased when injured was assisted by a few policeman and a supporter of his party, Kamra Tamang carrying him to the ambulance. Why were there statements not taken immediately. Why was it taken after such long duration.
3. On 21st May, the incident took place at 10:54 AM but FIR was lodged by General Secretary of ABGL at 6:30PM. While narrating the occurrence the complainant referred to some of the identified assailants, namely, A-9, A-10, A-12, A-13, A-14 and A-15 and it was also alleged that respondents 10 to 15 were continuously threatening Madan Tamang both in the press as well as in the public meetings and that such threats included that one day or other he would be killed. It was, therefore, alleged that the attack at the venue of the meeting organized by ABGL and the brutal killing of the deceased Madan Tamang was conspired, planned and R10 was the mastermind along with respondents 11 to 15.
4. Arrest was made with much delay thereby giving time to the accused to flee.
5. GJMM’s members’ phone calls were intercepted between 20th May, 9.02 pm to 5.12 pm of 21st May. The whole conversation was between accused Nos. 23, 13, 15, R10 and certain other persons all of whom appear to be the party-men of GJMM. The conversation also related to the preparation made by the deceased Madan Tamang for holding his party’s Foundation Day Celebration on 21st May, 2010, the idea of the GJMM to somehow or other abort the preparation made by the ABGL by its President Madan Tamang even at the cost of his elimination. The conversation continued in the early hours of 21st May till 10.54 am i.e. the time when the killing of Madan Tamang had taken place at the place of occurrence. A vivid description as to the manner in which the occurrence took place was also talked about by the conversationists.
6. CBI faced non co-operation by the state police. Police had said that the accused had fled but later it was found that the accused was present at a taxi stand and they were also roaming freely around the city of Darjeeling. CBI had also applied for the case to be transferred to the Calcutta High Court. It was pending.
• Argument of the respondent: The contention raised by the counsel of the defendant was that the Respondent 10 to 15 was falsely implicated in the case. As it was a free event, many by-standers were present. They were merely present there. Also he contended that the incident occurred at 10:54 in the morning but FIR was lodged at 6:30 in the evening. Why did no one come forward to lodge an FIR thus pointing out to the fact that members of ABGL were also involved. It was also contended that phone tapping was an infringement of fundamental rights.
The Supreme Court observed that-
1. Test of admissibility of evidences lies in its relevancy.
2. Unless there is an express or implied constitutional prohibition or other law, evidence placed as a result of an illegal search or seizure is not liable to be shut out.
3. If deficiency in investigation or prosecution is visible or can be perceived by piercing the veil which tries to hide the realities or covering the obvious deficiency, Courts have to deal with iron hands.
4. It is as much duty of prosecutor as the Court to ensure full and material facts are brought on record so that no miscarriage of justice ensues.
5. To ensure criminal prosecution is done justice, in appropriate cases, the Supreme Court can constitute a Special Investigative Team and also give directions to Central and State Governments and other authorities to give all required assistance to such constituted investigating team in order to book the real culprit.
6. While entrusting criminal prosecution with other instrumentalities of State or by constituting a special investigation team, the High Court or the Supreme Court can monitor it to ensure proper conduct of prosecution.
7. In appropriate cases, even if chargesheet is filed it is open for court, even for High Court to direct investigation to be handed to CBI or other independent agency.
8. In exceptional cases, Courts may direct for investigation de novo.
No quashing of chargesheet was done.
• Further development: The case was transferred to Calcutta and further investigation was ordered to be done by CBI.