Page No.# 1/ vs The State Of Assam And 4 Ors
2025 Latest Caselaw 5263 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And 4 Ors on 13 June, 2025

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GAHC010136672017




                                                             2025:GAU-AS:7757

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/4703/2017

         DHANANJOY SAIKIA
         S/O. LT. KAMALA SAIKIA, R/O. P.B. CHALIHA ROAD, WARD NO. 9,
         BEJBARUAH CHUK, SIVASAGAR, P.O. and P.S. SIVASAGAR, PIN-785640,
         ASSAM.



         VERSUS

         THE STATE OF ASSAM and 4 ORS.
         REPRESENTED BY THE COMMISSIONER and SECRETARY TO THE GOVT.
         OF ASSAM MINISTRY OF HOME and POLITICAL AFFAIRS, DISPUR,
         GUWAHATI-781006.

         2:THE DIRECTOR GENERAL OF POLICE
         ASSAM
          ULUBARI GUWAHATI-781007.

         3:THE SUPERINTENDENT OF POLICE
          SIVASAGAR
          DIST. SIVASAGAR
          PIN-785640 ASSAM.

         4:THE OFFICER-IN-CHARGE
          SIVASAGAR POLICE STATION
          SIVASAGAR
          DIST. SIVASAGAR
          PIN-785640 ASSAM

         5:THE CENTRAL BUREAU OF INVESTIGATION
          REP. BY ITS INSPECTOR GENERAL
          HAVING ITS OFFICE AT NARENGI
          GUWAHATI-781020
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Advocate for the Petitioner   : MS.M GOSWAMI, MR.S BHARALI,MR.M DAS,MR.N K NEOG

Advocate for the Respondent : MR B N SARMA (SR. GA, ASSAM, R-1 TO 4), MR.S C

KEYAL(ASSTT. SOLICITOR GEN. OF INDIA, R-5),SC, CBI

BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

For the Petitioner :Mr. S. Bharali, Advocate.

      For the Respondents             : Mr. D. Nath, Sr. Govt. Advocate.

      Date of Hearing                 : 26.09.2024, 03.10.2024,18.03.2025

      Date of Judgment & Order : 13.06.2025

               JUDGMENT & ORDER(CAV)

1. Heard Mr. S. Bharali, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Senior Government Advocate, Assam representing the State respondents.

2. The present writ petition is filed with a prayer for proper investigation of Sivasagar PS case No. 291/1991 registered under Sections 365/302 IPC read with Sections 3/4/5 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA Act, 1987) inasmuch as it is alleged that due to apathy of the investigating agencies, the investigation was not carried out properly and there are serious lapses and irregularities in the investigation apparent from the case diary.

3. Mr. Bharali, learned counsel for the petitioner alleges that there are serious lapses and irregularities in the investigation, which is apparent from the case diary.

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4. According to Mr. Bharali, learned counsel for the petitioner, argues that there are glaring illegality in the investigation of the case and therefore, this constitutional Court in exercise of its power under Article 226 of the Constitution of India may direct, a fresh or de-novo investigation though final closure report, has been submitted during the pendency of this writ petition, inasmuch as from the materials available on record, which are not in dispute, it is clear that the investigation has not been conducted in a proper and objective manner. In this regard, Mr. Bharali, learned counsel for the petitioner places reliance on the decision of the Hon'ble Apex Court in the case of Neetu Kumar Nagaich Vs State of Rajasthan & Ors. reported in (2020) 16 SCC 777.

5. Referring to the judgment of the Hon'ble Apex Court in the case of Pooja Pal Vs. Union of India and Ors . reported in (2016) 3 SSC 135, Mr. Bharali, learned counsel for the petitioner further contends that the investigating authorities are absolutely biased and they have shown their incompetence and therefore, this is a fit case and is a case of rare and exceptional nature, where this Court should exercise its power under Article 226 of the Constitution of India by directing a de-novo investigation. It is further contended by Mr. Bharali, learned counsel for the petitioner that in the background of the fact of the present case, this is a fit case, where this Court may transfer the investigation to an independent agency, so as to instil confidence in public mind as regards judicial process. According to Mr. Bharali, the present one is an exceptional case and the lackadaisical approach of the investigating authority is cleared from the material available on record.

6. Mr. Bharali, by pointing out that the wife of the deceased was not examined, who could have identified the kidnapper, contends that the investigation is deficient and such conduct of the investigating officer is for reasons other then bona-fide. It is the further contention of Mr. Bharali that the then underground Page No.# 4/11

ULFA leaders, who made public statement that the victim was killed under the leadership of the surviving suspect, who was also a member of ULFA at that relevant point of time, without any instruction and authority from the ULFA, could have been ascertained from those ULFA militants, who had in the meantime came back to main stream and were very much available for examination under Section 161 Cr.P.C. However, due to deficient investigation and the reason other than bonafide, such vital witnesses are not examined resulting in miscarriage of justice.

7. Per contra, Mr. Nath, learned Senior Government Advocate for the State respondent submits that the entire investigation process was fair and impartial, unbiased and there is no motive in filing the final report and therefore, this is not a fit case to direct re-investigation/further investigation by CBI. It is contended by Mr. Nath that the investigation was duly monitored by Additional SP, (Headquarter), Sivasagar and it is an admitted position that out of four suspected accused, three had already died. According to him, the final report was submitted as there were no circumstantial or corroborative materials were found against the sole surviving suspect, namely, Jayanta Hazarika and therefore, in the aforesaid backdrop, this is not a fit case for fresh investigation.

8. Mr. Nath further contends that the final report, recently filed after second round of investigation, is pending consideration of the learned trial court and in the event this writ petition is decided, the same might influence the consideration by the learned trial court inasmuch as the learned trial court is still having the jurisdiction to direct further investigation.

9. This Court has given anxious consideration to the arguments advanced by the learned counsel for the parties. Also perused the case diary, the affidavit filed by the investigating authority and the status report.

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10. Before proceeding further on the facts and the materials available on record and the arguments advanced by the learned counsel for the parties, let this Court first record the principles of law relating to exercise of power by a constitutional Court in issuing direction to re-investigate in a pending investigation/after filing of Closure Report, which will assist this Court in arriving at a just decision.

11. It is by now well settled that that the extraordinary power of the Constitutional Court under Article 226 for issuance of direction to investigate a matter by an independent agency, which is either under investigation or is completed by the State police, must be exercised with great caution. Such an order cannot be passed as a matter of routine or merely because the parties have levelled some allegations against the local police and such power can be invoked only in exceptional situation, where it becomes necessary to provide credibility and instil confidence in the investigation or where such an order may be necessary for doing complete justice and enforcing fundamental rights.

12. To summarise, while considering a direction for an independent investigation in a pending investigation by the State police or directing fresh investigation after filing of final report, the following considerations are necessary:-

a) Whether the original investigation was tainted by bias or prejudice or other factors resulted in compromise of fairness of the investigation.

b) Whether such investigation is necessary to prevent miscarriage of justice which has occurred due to inadequate or flawed/deficient investigation.

c) Whether the facts of the given case satisfy the High Court that such investigation is necessary for a more impartial investigation, more particularly, when there is social importance and public faith is involved.

d) Such direction should be issued sparingly, cautiously and in exceptional Page No.# 6/11

circumstances where it becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national or international ramification or where such order may be necessary for enforcing fundamental rights.

13. Keeping in mind the aforesaid proposition of law, now let this Court consider the facts and circumstances of the present case.

14. This Court has perused the record including the status report, the case diary and the statements of the witnesses. As recorded hereinabove, it is the case of the investigating Officer that the victim was a journalist and he used to write against the ULFA militants and this is the motive, ULFA, a banned terrorist organisation killed him. The victim was kidnapped on 09.08.1991 by some gunmen and his body was recovered on 10.08.1991. The death was due to shock and haemorrhage and a result of injury caused by fire armed. After 9 years of investigation, Final report was submitted on 19.08.2010 on the ground that no evidence could be collected against the arrested suspects in connection with the case.

15. Before dealing with the arguments of the learned counsel for the petitioner, let this Court first record the important facts, which are as under:

I. On 09.08.1991, an FIR was lodged by the petitioner, as his father was abducted by gunmen, which was registered as Sivasagar P.S. Case No. 291/1991 under Section 361 IPC read with Sections 3/4/5 of TADA Act, 1987.

II. During the course of investigation, one Chitra Dihingia @ Prabin Borah, one Rohini Khanikar @ Johnmoni, one Bipul Phukan, one Prafulla Borah @ Thaneswar Borah, one Mohan Sarma, one Baba Phukan, one Indra Chetia, one Uma Gogoi, were arrested.

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III. Subsequently, the Closure Report in the Form of FR No. 177/98 was filed by the Investigating Officer before the learned Additional District Judge, Sivasagar.

IV. From such Final Report, it is disclosed that the deceased was the President of All Assam Journalist Union and was a reporter for many newspapers. As per the Final Report, he used to criticise the acts of ULFA militants in newspaper and it was also disclosed that on the date of kidnap itself, the kidnappers murdered him and threw his dead body in Amguri Road at Jaji and his dead body was found. In the post-mortem report, two empty cartridges were found in the body of the deceased. The car bearing registration No. AS-04-2556 and one Yamaha Motor Cycle bearing registration No. AS-04-0240 and one Maruti Zipsi having registration No.AS-01-A-6789 were seized. It was opined that the actual criminals could not be found and there is less hope of finding out of criminal in future and it was concluded that for want of sufficient proof against the accused persons, the investigation is required to be closed and the vehicle seized are required to be returned to its lawful owners.

V. Thereafter, the newly engaged Investigating Officer of the case made a prayer before the learned Designated Judge, TADA, to allow him to re- investigate the case for the reason that by now the police has collected some materials showing involvement of some persons in the commission of offence of murder of Kamala Saikia, a journalist. Accordingly, by order dated 11.12.2003, the learned Designated Judge, TADA, did not accept the Final Report and the Case Diary was sent back for re-investigation and to submit Final Form at an early date.

VI. The Investigating Authority continued to investigate for more than four years and subsequently, submitted Final Report under FR No. 32/2008 Page No.# 8/11

before the learned Designated Court, TADA.

VII. It is seen from the aforesaid Final Report that based on source information, statements of certain surrendered ULFA militants were recorded, however, during interrogation, none could say about the identity or description of the miscreants as well as the vehicle involved at the time of abduction. It was also recorded that though re-investigation was done, but no evidence could be collected against the suspects. As per the said report, four witnesses alleged the involvement of four persons in the incident and those persons are one Jayanta Hazarika @ Kushal Deori, one Ranjan Momin, one Jiten and one Netro Chetia and it is also stated in the Final Report that except Jayanta Hazarika @ Kushal Deori, all the other accused persons have in the meantime, expired. According to the Investigating Officer though the name of Jayanta Hazarika @ Kushal Deori was mentioned by four witnesses, however, there is no circumstantial and corroborative materails to prosecute him.

VIII. An objection was filed to such final report by the petitioner herein raising different grounds. Amongst other, it was contended by the petitioner in his objection petition that the suspected persons named in the FR were members of banned ULFA, but had surrendered subsequently and they are presently either the businessman or the political leader and they are getting protection of the administration. It was also contended that the Investigating Agency neither made any effort to interrogate them nor arrested them for proper investigation of the case and thus, the police had tried to cover up the entire case.

IX. Thereafter, the learned Designated Judge, TADA under its order dated 15.07.2008, taking note of the statement of the informant and the materials available in the case record concluded that there are enough Page No.# 9/11

scopes for re-investigation of the case and accordingly, for sake of justice, the Director General of Police, Assam was asked to depute one senior and experienced Investigating Officer to re-investigate into the case and to submit the Final Form.

X. While the matter was pending at that stage, an RTI was filed through an Advocate on 07.04.2016 as regards the status of the case and whether any charge sheet had been filed and whether re-investigation was completed as per order dated 15.07.2008 passed by the learned Designated Court. Thereafter, on 16.07.2016, it was replied that the re- investigation is going on and no charge sheet has been submitted.

XI. Alleging inordinate delay and that no progress has been made in the investigation due to apathy of the Investigation Officer, the present writ petition was filed on 04.08.2017,

XII. This Court under its order dated 07.08.2017, while issuing notice directed the Government Advocate to obtain instruction as to the status of investigation on or before the returnable date.

XIII. When no status report was there, this Court under its order dated 23.03.2021, present status was sought for by this Court as in the meantime almost three or half years had passed. Though the matter was thereafter listed on 24.03.2021 and on 26.07.2021, no status report was filed and this Court again issued direction for submission of the status report. Thereafter, an additional affidavit was filed by the Superintendent of Police, Sivasagar, intimating this Court that a final report was submitted being FR No. 413/2019 dated 19.08.2019, which was produced before this Court. A copy of the same was also given to the learned counsel.

XIV. Thereafter, taking note of allegation made in the petition as well as the Page No.# 10/11

litigational history including the prayer for further investigation by a competent Court, this Court under its order dated 22.07.2024 directed the authorities to produce the case diary.

XV. This Court has also perused the case diary, as recorded hereinabove.

16. The fact remains that out of four suspects, involved in the crime, only one suspect is alive and it is the case of the investigating officer that no evidence is available against such accused. The contention of Mr. Bharali that the wife of the deceased was not examined, who could have identified the kidnapper and therefore, the investigation is deficient and that, the then underground ULFA leaders, who made public statement that the victim was killed under leadership of the sole surviving suspect and that too without any instruction from the ULFA, could have been ascertained from those ULFA militants, who has in the meantime came back to main stream and were very much available for examination under Section 161 Cr.P.C., in the considered opinion of this court can very well considered by the learned trial court, who is yet to consider the final report submitted during the pendency of the writ petition.

17. This court is aware that even when final report is filed and / or a charge-sheet is filed, this court shall not be powerless under Article 226 of the Constitution of India to direct for independently investigation when this court is satisfied with existence of the circumstances as required and recorded hereinabefore.

18. In the case in hand, it may be true that there are certain deficiencies in the investigation. However, after perusal of the CD as well material available on record, this court is unable to hold that the investigation carried out was tainted by bias or prejudice which resulted in compromise of fairness of the investigation. The investigation, from the material placed before this court also do not lead to a conclusion that it was an impartial investigation.

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19. In the totality of the matter and the circumstances, this court is of the opinion that there are no such exceptional circumstances to issue a direction by an independent investigating agency at this stage inasmuch as the learned trial court can very well consider the objection raised as regards lacuna in the investigation highlighted by the petitioner, while considering the final report submitted by the investigating authority. Further the petitioner shall have a right to object to such filing of final report and seek further investigation before the learned trial court below.

20. Accordingly, this court is not inclined to allow the prayer of the petitioner directing transfer of the investigation of Sivasagar PS case No. 291/1991 under Section 365/302 IPC read with section 3/4/5 of TADA (P) Act to the CBI or any other independent investigating agency. Ordered accordingly.

21. Writ petition stands disposed of. The case diary be returned back to Mr. D Nath, learned Senior Govt. Advocate for returning the same to the learned trial court.

22. However parting with the record, it is made clear that the issue involved in the writ petition is for an independent investigation and therefore, the determination made in this writ petition shall not influence the learned trial court in determining the acceptance or non-acceptance/ further investigation of the aforesaid PS case.

JUDGE

Comparing Assistant