Wp(Crl.) No.6/202 vs The State Of Tripura Represented ...
2021 Latest Caselaw 1053 Tri

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                         HIGH COURT OF TRIPURA
                               AGARTALA

                               WP(Crl.) No.6/2021
Mrs. Buddhapati Chakma, W/o Late Pindulal Chakma, Village -
Burshingpara, P.O : Laljuri, Kanchanpur Police Station, North Tripura
district, Tripura, Pin - 799270.
                                                        .............. Petitioner(s).

                                       - Vs. -
The State of Tripura represented by the Chief Secretary, Government of
Tripura, New Secretariat Building, P.S. NCC, P.O - Secretariat, Agartala,
West Tripura, Pin - 799010.
                                                       .............. Respondent(s).

                               _B_E_ F_O_R_E_
        HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
              HON'BLE JUSTICE MR. S G CHATTOPADHYAY
           For Petitioner(s)             : Mr. Nitesh Kumar Singh, Advocate.
           For Respondent(s)             : Mr. S S Dey, Advocate General,
                                           Mr. Ratan Datta, Public Prosecutor.
           Date of hearing               : 22nd June, 2021.
           Date of judgment              : 11th October, 2021.
           Whether fit for reporting     : No.


                                JUDGMENT

(Akil Kureshi, CJ).

This petition is filed by the wife of one Pindulal Chakma who died

on 4th November 2020 due to the injuries caused by a violent mob with deadly

weapons in an incident which took place on 22nd October 2020. The deceased

belonged to a Scheduled Tribe(ST). An FIR for the incident in question was Page - 2 of 15

filed before the Kanchanpur Police Station by one Ratneshwar Chakma

believing that the investigation is not proceeding properly. Since the police

failed to make arrests of the accused persons or to include the provisions of

Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act,

1989 (hereinafter to be referred to as "SC ST Act"), the wife of the deceased

has filed this petition which includes following prayers :

(i) For transferring the investigation to the Central Bureau of

Investigation(CBI).

(ii) To invoke the penal provisions of SC ST Act against the

perpetrators.

(iii) To declare Burshingpara village under Kanchanpur Police

Station as an identified area in terms of Section 2(c) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Rules, 1995 (hereinafter to be referred to as "the said Rules of

1995").

(iv) To deploy sufficient force in the area to protect the resident

members of Scheduled Tribe.

(v) To provide compensation of Rs.8,25,000/- to the petitioner and

the dependents of the deceased in terms of the Rules of 1995 and to Page - 3 of 15

provide other support such as family pension and Government job

to one member.

(vi) To order inquiry against Officer-in-Charge of Kanchanpur

Police Station and Sub-Divisional Magistrate(SDM) of Kanchanpur

for wilful neglect of duties which led to murder of the husband of

the petitioner.

[2] Facts leading to this petition can be summarised as under :

(i) According to the petitioner, her husband and his brother were allotted

lands under Forest Rights Act, 2006 under two separate allotment orders both

dated 3rd May 2009. The non-tribal residents of the area wanted to grab these

lands. Complaints of illegal land grabbing of the tribals by non-tribals were

also made to the Minister of Tribal Welfare and Forest in November 2018

who had asked the SDM to look into the matter and do the needful. This,

however, did not lead to any resolution.

(ii) On 19th October 2020, the members of one Vivekananda Memorial

Club of Kanchanpur started constructing pandals for Durga Puja on the lands

allotted to Pindulal Chakma and his brother (since deceased) without their

consent. The family members of the land allottees objected to this activity. On

21st October 2020, wife of deceased Premlal Chakma (brother of Pindulal

Chakma) along with a community leader also approached the Kanchanpur Page - 4 of 15

Police Station seeking protection against land grabbing by the members of

Vivekananda Memorial Club. They were diverted to the SDM upon which a

memorandum was presented to SDM on 21st October 2020. However, no

action was taken on the same.

(iii) Due to inaction of the SDM, at about 10:00 O'clock in the morning of

22nd October 2020 the members of Chakma tribe of the village organized a

peaceful protest at Laljuri bridge, Kanchanpur. At around 11.30 a.m a mob of

about 150-200 members and supporters of Vivekanda Memorial Club who

were non-tribals attacked the protestors with dao, lathi, iron rod, spade etc.

and caused grievous injuries to Pindulal Chakma and one Bikanta Chakma.

(iv) These attackers did not allow the injured persons to be admitted at

nearby Laljuri Hospital and, therefore, they had to be taken to Machmara

Primary Health Centre situated nearly 10 kilometres away from where

Pindulal Chakma was referred to Dharmanagar District Hospital. At

Dharmanagar District Hospital, condition of Pindulal Chakma deteriorated

and therefore was referred to ILS Hospital, Agartala, where he succumbed to

his injuries on 4th November 2020.

(v) An FIR was lodged before Kanchanpur Police Station regarding this

incident, on 22nd October 2020, in which it was alleged that the mob of about

150-200 persons belonging to Vivekananda Memorial Club had attacked the Page - 5 of 15

peaceful protestors with weapons such as lathi, dao, iron rod and caused

serious injuries to Bikanta Chakma and Pindulal Chakma and the victims are

in serious condition.

[3] The petitioner has pointed out that instead of carrying out

investigation into the commission of serious offences under Indian Penal

Code(IPC) and SC ST Act, the administration forced the tribal protestors to

sign an agreement that they would not object to the Vivekananda Memorial

Club organising Durga Puja and after Durga Puja, the administration will

demarcate the lands allotted to the tribals by the Government. This document

carries the signatures of the Deputy Collector, Officer-in-Charge of

Kanchanpur Police Station, Sub-Divisional Police Officer, Block

Development Officer etc. as witnesses. Significantly, neither Pindulal

Chakma nor the wife of his deceased brother are signatories to this so-called

agreement.

[4] The petitioner contends that though the offences punishable under

SC ST Act are writ large on the face of the record these provisions have not

been invoked. The attackers did not allow the injured victims to be admitted

at the nearby health centre and, therefore, they had to be taken to a hospital

nearly 10 kilometres away. The petitioner further points out that the police

authorities failed to take any action pursuant to the complaint of Pindulal Page - 6 of 15

Chakma made on 21st October 2020. In light of these developments, the

members of the tribal community of the region had also made a representation

to the Chief Minister of the State on 6th November 2020. However, no action

has been taken by the Government so far.

[5] The contention of the petitioner and her counsel is that the investigation

carried out by the police authorities so far is just eyewash. Even otherwise,

the members of the Vivekananda Memorial Club are so powerful that the

police authorities are unlikely to take any serious action. The members of the

Club are roaming freely creating atmosphere of fear and, therefore, it is

necessary to declare the village as an identified area prone to atrocity in terms

of Rule 2(c) of the Rules of 1995. The petitioner points out that no

compensation in terms of the provisions under the SC ST Act and the Rules

made thereunder has also been prayed. It is in this background that the above

noted prayers have been made.

[6] On the other hand, State has filed a reply in which it is stated that

upon receipt of the complaint the same was registered as an FIR for

commission of offences punishable under Sections 341, 326, 327 read with

Section 34 IPC. The investigating officer has recorded the statements of the

witnesses and arrested one Rakesh Chandra Nath. Houses of Kalyan Nath,

Gokul Nath and Gourab Nath were raided but they were not found.

Page - 7 of 15

Subsequently, Gokul Nath was arrested on 5th November 2020. Upon the

death of the injured Pindulal Chakma Section 302 IPC was also added. An

application was filed before the SDJM Kanchanpur, on 13th November 2020,

for permission to add the provisions of SC ST Act. The learned Judge

however refused to grant such permission by passing an order on 18th

November 2020. Two of the accused are still absconding and, therefore, not

yet arrested. Steps are taken for publication of their photographs in local

newspapers and TV channels appealing to the public to provide information

about their whereabouts.

[7] It is stated that the question of providing compensation to the

family of the deceased Pindulal Chakma is under consideration before the

State Government. The District Magistrate and Collector has recommended

for grant of compensation from Chief Minister Discretionary Fund in his

report dated 5th March 2021. The District Magistrate and Collector has also

written a letter on 9th March 2021 to the Secretary, Revenue Department, to

treat the incident as one of the atrocity on Scheduled Tribes and to provide

financial assistance from the Chief Minister Discretionary Fund. On 1st April

2021, Deputy Secretary, Revenue also wrote a letter to the Deputy Secretary,

Home for providing such financial assistance. It is stated that the process for

providing financial assistance is under active consideration.

Page - 8 of 15

[8] It is denied that the injured victims were not allowed to be treated at

Laljuri Hospital but the deponent has stated that "it is true that the injured was

shifted to Machmara Public Health Centre for treatment considering the

boiling circumstances of the area and the fact that the incident took place at

Laljuri".

[9] The allegation of coercion in executing the so-called agreement,

dated 22nd October 2020, is denied. It is stated that the same was done with

the consent of all parties and stakeholders ignoring the fact that neither

Pindulal Chakma nor the wife of his deceased brother who are land allottees

are signatories to this document.

[10] It is stated that ingredients of SC ST Act were not disclosed in the

FIR. However, subsequently, the investigating officer had submitted a petition

before the learned Magistrate who refused to grant permission for addition of

these provisions.

[11] Having heard learned counsel for the parties and having perused the

documents on record what emerges is that a serious complaint of members of

the tribal community being attacked by a mob with deadly weapons causing

serious injuries was reported to the Police Station on 22 nd October 2020. The

background of the attack, as alleged by the petitioner, was that the members Page - 9 of 15

of the non-tribal community were trying to disturb the possession of the lands

allotted to the tribals by the Government. Attempts were made to construct

Pandals on their lands forcibly without their consent. When the members of

the tribal community had gathered for a peaceful protest, a mob of nearly 150-

200 non-tribals attacked them causing serious injuries to at least two of the

protestors. One of the injured, Pindulal Chakma, succumbed to the injuries on

4th November 2020. The other injured person also had received serious

injuries.

[12] Though the respondents in the affidavit which has been filed by the

Deputy Secretary, Home, have denied that the injured were not allowed to be

treated at nearby Laljuri Hospital, as noted, have clearly admitted that they

were taken to Machmara Public Health Centre (which according to the

petitioner was situated nearly 10 kilometres away connected by hilly road) for

treatment considering tense situation in the area. Thus, even the

administration admits that it was not safe for the injured to be treated in the

local Public Health Centre and on account of which the injured had to be

shifted to a hospital situated at a considerable distance.

[13] When two persons had received serious injuries caused with deadly

weapons allegedly by a mob of nearly 150-200 persons, it is rather strange

that the FIR did not include Section 307 IPC. In the retrospect, the fact of one Page - 10 of 15

of the injured succumbing would establish seriousness of the injuries. The

attempt on part of the administration to bring about a so-called agreement on

22nd October 2020 itself is also rather unusual. In the normal circumstances of

minor breach of peace, the administration may be well within its right to

broker peace between warring groups to achieve more lasting peaceful

solution in the locality. However, when an offence as serious as one

punishable under Section 307 of IPC is disclosed, the same cannot be a matter

of compromise. The fact that such compromise was hurriedly stitched on the

date of the incident itself and which does not carry the signatures of Pindulal

Chakma or his family members and the wife of his deceased brother whose

patta lands were at the centre of controversy, also shows the hollowness of the

agreement. As noted, the agreement contained the signatures of Government

officials and police officers who were expected to enforce law and ensure

peace and tranquillity in the region. Instead of carrying out prompt

investigation into the allegations of commission of serious offences if they are

found trying to bring about a forced agreement, the same is bound to send

wrong signals and further embolden the perpetrators.

[14] The fact that after months of commission of the offence, two of the

accused cited by the witnesses are still not apprehended is also a matter of

serious concern. We also fined that the State-administration has not shown Page - 11 of 15

sufficient seriousness in invoking the provisions under SC ST Act in the

investigation. Firstly, it was not necessary for the investigating officer to

approach the Magistrate for adding the said provisions. If he was of the

opinion that after filing of the FIR during the investigation such offences are

disclosed he had the power to add the provisions and carryout the

investigation if he was competent to do so or to handover the investigation

before the competent police officer. At best, he owed a duty to the Magistrate

to convey addition of the new provisions in the investigation. Having applied

before the Magistrate for such purpose, the State-administration did not carry

the order of the Magistrate refusing to grant such permission any further. We

have perused the order of the Magistrate, dated 18th November 2020, in which

for refusing the permission all that has been stated is as under :

" ........... This Court perused the application of the police as regards addition of charges and heard the submissions of Ld counsels. This court finds merits in the submissions of Ld defence counsel and concurs with the arguments. Therefore the prayer of police for adding additional charges under SC/ST act is declined. ............"

[15] The order of the learned Magistrate is devoid of any reasons. Mere

recording that he had perused the application of the police officer but he finds

merits in the submissions of the defence counsel and concurs with the

arguments for rejecting the application of the police, is no reason. What were Page - 12 of 15

the arguments of the counsel of the defence with which the learned Judge

concurred and why is not recorded. Such an order should have been

challenged by the State-administration. In exercise of extraordinary writ

jurisdiction, we would quash the order in order to grant the relief to the

petitioner for addition of the said provisions, though formally before us this

order is not challenged. This mere technicality would not detain us from

granting effective relief to the petitioner in this respect.

[16] The State-administration has also handled the question of payment

of compensation to the wife and dependents of the deceased Pindulal Chakma

rather callously. Despite recommendations by the Officials, the final decision

is not taken for months on end. The right to receive such compensation would

flow from the provisions of the SC SC Act and the Rules made thereunder as

well as in terms of the scheme framed by the State-administration for

providing financial assistance from the Chief Minister Discretionary Fund.

Financial assistance from such fund will be largely ex-gratia in nature,

nevertheless once the State-administration frames a scheme for the purpose of

deciding the entitlement of the victims, the parameters of the scheme must be

applied uniformly and equally to all without discrimination. In this context,

there would arise a corresponding right in a victim to be treated equally and

for being provided financial assistance if under similar circumstances the Page - 13 of 15

scheme envisages and the Government has granted in the past. Question for

declaring the area as identified area is also pending since long without final

outcome. Such sensitive and urgent issues cannot brook long delays.

[17] Having said all that, we do not find this is a case where the

investigation should be handed over to the CBI. Undoubtedly, the High Court

as a Constitutional Court and a Writ Court has the power to transfer such

investigation to the CBI even without the consent of the State Government as

is laid down by series of judgments of Supreme Court. However, such power

should be exercised in rare and exceptional cases. Considering the issues

involved and the factual and legal complexities of the investigation, we do not

think that this case presents such rare or exceptional circumstances where the

CBI should be involved. However, looking to the slow progress in the

investigation and the past incidents noted in the earlier portion of this

judgment, the investigation must be taken away from the purview of the local

police authorities and be handed over to a Special Investigation Team(SIT)

that shall be constituted by this Court.

[18] Under the circumstances, the petition is disposed of with following

directions :

(i) Offences punishable under Section 3(2)(v) and (v-a) of SC ST Act shall be added to the investigation.

Page - 14 of 15

(ii) Further investigation shall be carried out by a Special Investigation Team(SIT) which would be headed by the Superintendent of the District, assisted by the Dy.S.P who shall work under the guidance and supervision of the S.P.

(iii) Request for transferring the investigation to CBI is refused.

(iv) The State-administration shall proceed to determine the compensation payable to the family of the victim at appropriate stage in terms of the provisions contained in the SC ST Act and the Rules made thereunder in view of the addition of the offences punishable under the SC ST Act. In the meantime, an ad-hoc amount of Rs.5,00,000/- shall be paid over to the petitioner, widow of the deceased Pindulal Chakma which payment shall be adjusted towards the compensation that may be found payable under the provisions of the SC ST Act and the Rules made thereunder or under the scheme framed by the State Government for financial assistance from the Chief Minister Discretionary Fund, as the case may be. This amount shall be paid within 1(one) month from today.

(v) The Home Department shall take a final decision without any further delay and in any case, within 1(one) month from today with respect to the proposal for declaring the village in question as a disturbed area in terms of Section 2(c) of the SC ST Act.

(vi) Further prayers of the petitioner for grant of family pension or Government job to the member of the family of the deceased Page - 15 of 15

must rest on the outcome of the investigation particularly with respect to commission of offence under SC ST Act and the Government schemes in this regard which are not brought on record by either side. We, therefore, refrain from giving any such directions and leave it open to the petitioner to agitate these prayers in future if the circumstances so justify.

(vii) The original papers pertaining to the case which are placed before us may be returned to the respondents.

Pending application(s), if any, also stands disposed of.

      ( S G CHATTOPADHYAY )                          ( AKIL KURESHI, CJ )




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