Judgment:
A.K. Mathur, C.J.
1. We have heard the learned counsels for the parties.
2. This is a public interest litigation filed by the Committee for Protection of Democratic Rights, West Bengal being a registered body under the Registration of Societies Act which has brought this public interest litigation with the following prayers:
(a) A writ in the nature of Mandamus directing that the investigation in Garbeta P.S. case No. 3 of 2001 arising out of a written complaint lodged by one Abdul Rahman Mondal on 4th January, 2001 at Garbeta P.S. be forthwith handed over and be conducted by the Central Bureau of Investigation being the respondent No. 7 herein.
(b) A Writ and/or order or orders in the nature of Certlorarl directing the respondent Nos. 1 to 6 herein to certify and produce before the Hon'ble Court all records and the case diary pertaining to the Garbeta P.S. Case No. 3 of 2001 dated 4.1.2001, so that the same may be perused and appropriate orders be passed so that consclo-nable justice be done.
(c) Rule Nisi in terms of prayers (a) and (b) above.
(d) An order directing that the investigation in Garbeta Police Station Case No. 3 of 2001 arising out of a written complaint lodged by one Abdul Rahman Mondal on 4.1.2001 at Garbeta Police Station be forthwith handed over and be conducted by the Central Bureau of Investigation being the respondent No. 7 herein.
(e) Ad-interim order in terms of prayer (d) above.
(I) And for such further order or orders as Your Lordshlips may deem fit and proper.'
3. We need not to go into the allegations made by one political party against another political party. We are concerned with an unfortunate incident that took place on 4th January. 2001 in the village of Chhoto Angaria in Anchal No. III Police Station--Garbeta District Mldnapore. It is alleged that on 4th January, 2001 at 10.30 p.m. eleven persons were murdered by the persons belonging to one political party and the Fir of that incident was lodged on 5th January, 2001 at 10.30 a.m. by Abdul Rahman Mondal. It is alleged that some miscreants attacked with fire arms and other explosives as a result of which eleven persons were killed and FIR was lodged on 5th January, 2001. Inspite of that no effective steps were taken by the police. Therefore this public interest litigation has been filed before this Court making serious allegations against the police that they are not prosecuting the investigation expedittously causing serious prejudice to the fairness of the investigation at the behest of political party in power.
4. We directed the Advocate General on 2nd March. 2001 to file affidavit in opposition by 7th March, 2001 and the affidavit in reply, if there any, be filed within one week and the matter was directed to come up in the list on 14th March. 2001. Thereafter, the matter was taken up on 16th April, 2001 and on that date, we directed the Advocate General to place the report of the investigation said to have been conducted by the C1D. West Bengal and we also directed that a requisition be sent to the Secretary. National Human Rights Commission, New Delhi requesting them to send a report of the investigation conducted by their Officers. We also directed the Secretary, State Human Rights Commission. West Bengal to send a report of the investigation conducted by their officers on that matter. The report of the CID, West Bengal who conducted the investigation has been placed before us as welt as the report of the investigation conducted by the officers of the National Human Rights Commission has also been placed. We have a report of the investigation sent by the Secretary of the State Human Rights Commission. No independent investigation was conducted by State Human Rights Commission.
5. We have gone through all the reports and also heard the learned counsels for the parties and learned counsel for Kaushol Kishor Singh, the added respondent No. 8 herein, who was permitted to intervene in this matter.
6. The learned counsel for the petitioner has strenuously urged before us and drew our attention to the various averment's made by him as also report submitted by the CID, West Bengal. He has also pointed the names of eleven dead persons in the FIR stated to have been lodged by Abdur Rahman Mondal on 5th January, 2001 and the names of the assailants were also mentioned in the FIR but the police has not either been able to ascertain the identity of the aforesaid persons and no arrest has yet been made excepting one mastan All Mondal and Manwar Bhangi (not named in the FIR).
7. The learned counsel for the petitioners submits that in the present sitLiation where there is serious allegations against party in power whose members are involved in attack no fair investigation is possible from State Police. Therefore, it is just and proper in order to maintain rule of law, let an investigation be taken up by the CBI. As against this. Mr. Advocate General submits that the CID, West Bengal has been entrusted with the investigation and they are prosecuting their investigation promptly and two persons have been arrested and further positive steps are being taken by the investigating agency. Mr. Advocate General has also invited our attention to section 161 of the Criminal Procedure Code statement made by Abdur Rahman Mondal that there are certain inconsistencies in the statements of Abdur Rahman Mondal and the FIR lodged by him.
8. Having regard to the facts and circumstances of this case, the fact that emerges is that the incident took place on 4th January, 2001 more than 3 months have lapsed yet all accused persons named in the FIR have not been arrested except two--one named in the FIR and another in course of investigation. Eleven persons are said to have died as alleged in the FIR and according to the statement of Abdur Rahman Mondal under section 161 Cr.PC 5 persons have died. But no serious attempts have been made toidentify those eleven or five persons said to have died at the incident, though the police has registered the case under section 302 of 1PC along with the other section till this date. We have not been informed whether that five persons or eleven persons were really killed on that spot or not. Even three months have elapsed, the police has not been able to come to a definite conclusion whether those aforesaid persons are dead or alive. On the contrary, the Advocate General said that the complainant might have removed dead bodies of eleven persons. This is a mere conjecture, no finding of any Investigating agency. In FIR eight persons are named as assailant but no serious attempts was made by the police to arrest those eight persons named in the FIR except one when more than three months have lapsed.
9. Every party is entitled to a fair investigation which is the mandate of Article 21 of the Constitution. In the present case, the allegation that all the assailants were said to be member of the ruling party and the manner in which the Investigation has been undertaken, we are not hopeful that the State investigating Agency will be able to do proper justice with investigation. The FIR was lodged on 4th January, 2001 and even today, after expiry of three months, no whereabouts of eleven dead persons were found. No serious attempts were made to arrest these persons named in the FIR. Our attention was invited to a case reported in : 1985CriLJ516 (State of West Bengal & Anr. v. Sampta Lal & Ors.). In that case, the question of appointment of a Special Officer (CBI) under order of this Court to conduct the enquiry with regard to the death of two young boys was ordered by this Court. Aggrieved against that the matter was taken up to the apex Court and their Lordships held that Court has directed CBI inquiry without hearing State or its Officers. However, in the present case we have heard the learned Advocate General and gone through the Investigation papers, all the reports, FIR and relevant statement under section 161 Cr.PC. of Abdur Rahman Mondal. Therefore, this case is distinguishable on facts.
10. Our attention was also invited to the decision reported in : (1992)1SCC397 (Gudalure M.J Cherian & Ors. v. Union of India & Ors.). In this case rape of nuns were committed and FIR of this incident was filed and police did not arrest the persons who were named in the FIR, but asked the victims to identify the arrested persons as culprits. Though investigation was completed and charge sheet was submitted, at that stage a public interest litigation was filed seeking a direction to entrust the Investigation to the CBI and transfer the case from Sessions Judge. Moradabad (U.P) to Sessions Judge, Delhi, in this case their Lordships denied the prayer for transferring the case from Sessions Judge, Moradabad (U.P.) to Sessions Judge, Delhi and observed 'But in a given situation, to do Justice between the parties and to install confidence in public mind Court may ask CBI to investigate' The apex Court directed further investigation by the CBI.
11. In the case reported in : 1994CriLJ111 (R.S. Sodhi v. State of U.P.) there was a fake encounter with the police and serious allegations were leveled against local police officer. Therefore, their Lordships observed that in such a situation to entrust the investigation to State Police will lack credibility. Therefore, their Lordships directed investigation by an independent agency that is CBI to investigate into the matter.
12. Our attention was also drawn to the celebrated judgment of the apex Court given in the case of Vineet Narain & Ors. v. Union of India reported in : 1998CriLJ1208 . In that case also fairness in the investigation was emphasised.
13. Our attention was also invited to a judgment in the case of Shyamal Kumar Dhar & Anr. v. State reported in 1998 CWN 154. In this case this Court directed the CBI to Investigate and find out about the missing girl.
14. Suffice it to say that whenever the Court is satisfied that investigation was not conducted impartially, fairly or in objective manner or it islikely to be tainted by irrelevant considerations and the Court reaches to the conclusion that in a given situation investigation by an independent Investigating Agency is imperative to do justice to the parties it can always order Investigation by an independent agency.
15. In the present case, we have already mentioned above, that the incident took place on 4th January. 2001 at 10.30 p.m. and an FIR was filed next morning, that is on 5th January, 2001 at 10.30 p.m. by Abdul Rahman Mondal who was an eye witness of the incident and named eight persons as assailant and eleven persons are said to have died on the spot but uptill this date it has not been able to identify whether the persons named in the FIR as deceased have really died or not No arrest has been made except the one out of the eight assailants. The investigation has proceeded in a most dilly-dally fashion. More than three months have elapsed of the incident of such grave nature which has shaken the country, but the investigating Agency has not been able to make any break through. In the face of these facts and in the background that all the assailants are supporters of the party in power, therefore, deliberately the investigation is not proceeding with a speed which it ought to have been. In this background we have a strong reservation about the impartiality and fairness in the investigation by the State Police because of the political implications. Therefore, we are of the opinion that no useful purpose would be served in continuing the Investigation by the State Investigating Agency. This is also for the reason that even if the State Investigating Agency conduct the investigation and come to some conclusion that too would be looked upon with the reservation because of the allegation that all the assailants are members of the ruling party. Therefore, it is all the more necessary that in order to do justice in this case and in order to maintain impartiality and fairness in the investigation and to uphold the Rule of Law let this inquiry be conducted by an independent agency that is, CBI.
16. In these circumstances we direct the Director, Bureau of Central Investigation to depute some of his officials not below the rank of superintendent of Police to take up this investigation and expeditiously complete the investigation as far as possible within three months from the date of receipt of this order and bring all the culprits to the book.
17. The aforesaid petitioner is thus disposed of with the above directions.
18. The report, which has been received from the Secretary, Human rights Commission, New Delhi may be sent back by the Registrar General, Appellate Side by speed post in a sealed cover.
19. The Registrar General, Appellate Side of this Court is directed to send a copy of this order to the Director, Central Bureau of Investigation, New Delhi at the cost of the Court forthwith.
20. Request for stay of operation of this order made by the learned Advocate General is considered and rejected.
Let the xerox plain copies of this order duly counter-signed by Assistant Registrar (Court) be handed over to the learned counsels for the respectiveparties.
21. Petition disposed of