Accused Moves Supreme Court Against Calcutta HC Order For CBI Probe Into TMC Leader Tapan Dutta's Murder

A Special Leave Petition (SLP) has been filed by accused Asit Gayen before the Supreme Court against an order of the Calcutta High Court wherein investigation into the murder of Trinamool Congress leader Tapan Dutta was transferred to the Central Bureau of Investigation (CBI) from CID, West Bengal. 

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 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.

On August 30, 2012, the CID had filed a charge-sheet against five accused persons- namely Ramesh Mahato, Sasti Gayen, Asit Gayen, Subhas Bhowmik and Kartik Das, who allegedly owed allegiance to the TMC. The CID had filed a supplementary charge-sheet on September 26, 2012. 

Senior Advocate Sidharth Dave appearing for Gayen mentioned the matter before a vacation bench comprising of Justices Surya Kant and JB Pardiwala. 

The Court was apprised that the High Court had disposed of the plea after 10 years and had transferred the investigation to the CBI and had also changed the public prosecutor in the case. Accordingly, a prayer was made for urgent listing of the matter citing 'grave urgency'. 

Agreeing to list the matter on an urgent basis, the Bench remarked that the matter would come up for hearing on June 4. 

In the plea, it was argued that the Single Judge of the High Court ought not to have directed the transfer of investigation in a writ proceeding especially when a Division Bench of the High Court had remanded the matter for expeditious re-trial. 

"By doing so, the learned Single Judge virtually nullifies the effect of the Judgment of the Division Bench which was affirmed by this Hon'ble Court. The Impugned Order therefore, operates in vacuum, since the question of further investigation does not arise after a direction for re-trial is issued", the plea averred further. 

It was also contended that the direction of further investigation and transfer of investigation was issued after a lapse of 11 years from the date of the incident, without there being any exceptional, or, extraordinarily case for transfer of investigation. 

The Court was also apprised that the impugned order had resulted in a de novo trial even after a Division Bench of the High Court while hearing an appeal against the judgment of the Trial Court had not found proper to do so. 

"..The Single Judge passed an order for investigation after a full fledged trial were all 36 witnesses were examined and in a situation when the accused has already disclosed its defense in the trial and in complete ignorance of the law that after trial no investigation can be ordered to fill up the lacuna", it was argued. 

Impugned judgment 

Justice Rajasekhar Mantha of Calcutta High Court had opined that the pressure on the State police to shield certain persons and their nefarious actions cannot be ruled out and had accordingly underscored, 

"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."

Justice Mantha had further averred that 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 had 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 had been 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 had also noted that such public figures enjoy huge control and clout that could influence the investigation and prosecution, and consequently the direction of the case.

The Court had also underscored that 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 had held 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."

Accordingly, the High Court had directed CID West Bengal to immediately hand over the investigation to the CBI and had further ordered the concerned Trial Court to complete the trial within a period of 6 months. 

Case Title: Asit Gayen v. Protima Dutta

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