The High Court has the power to transfer the investigation to the CBI even without the consent of the State Government: Tripura High Court

Page HIGH COURT OF TRIPURA 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) For Respondent(s) Mr. Ratan Datta Public Prosecutor. : Mr. Nitesh Kumar Singh Advocate. Mr. S S Dey Advocate General Date of hearing Date of judgment 22nd June 2021. 11th October 2021. Whether fit for reporting : No. Akil Kureshi CJ). JUDGMENT 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 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 Act 1989the wife of the deceased has filed this petition which includes following prayers : i) For transferring the investigation to the Central Bureau of Investigation(CBI). perpetrators. ii) To invoke the penal provisions of SC ST Act against the 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 Rules 1995 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 provide other support such as family pension and Government job to one member. the petitioner. 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 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 without their consent. The family members of the land allottees objected to this activity. On 21st October 2020 wife of deceased Premlal Chakma along with a community leader also approached the Kanchanpur Page 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 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 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 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] 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 22nd October 2020. The background of the attack as alleged by the petitioner was that the members Page 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 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 for treatment considering tense situation the area. Thus even 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 1 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 1 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 1 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 1 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) andof SC ST Act shall be added to the investigation. Page 1 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 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 1 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. ( AKIL KURESHI CJ ) 

Summary: The investigation must be taken away from the range of the local police authorities and be handed over to a Special Investigation Team(SIT) that shall be constituted by this Court. Such an opinion was held by The Hon’ble High Court Of Tripura before The Hon’ble Chief Justice Mr. Akil Kureshi and The Hon’ble Justice Mr. SG Chattopadhyay in the matter of Mrs. Buddhapati Chakma vs. The State of Tripura [WP(Crl.) No.6/2021].  The facts of the case were associated with a petition filed by the wife of Pindulal Chakma. It was reported that Pindulal Chakma, who belonged to Scheduled Tribe(ST)  succumbed to the injuries on 4th November 2020 caused by a violent mob with deadly weapons dated 22nd October 2020. It seemed that the investigation of the FIR filed for the said case was not proceeding properly. It was because the police failed to arrest the accused. The petitioner stated that the administration forced the tribal protestors to sign an agreement that they would not object to the Vivekananda Memorial Club for organising Durga Puja and after Durga Puja the administration will demarcate the lands allotted to the tribals by the Government.  It was further stated that attackers did not allow the injured victims to be admitted at the nearby health centre and due to which they had to be taken to hospital 10 kms away. The counsel representing the petitioner contended that no arrests were made by the police and that the accused were roaming freely created an atmosphere of terror. Whereas, the State, contended that the investigating officer had recorded the statements of the witnesses and arrested  Rakesh Chandra Nath. The houses of Kalyan Nath, Gokul Nath and Gourab Nath were raided but they weren’t found. It was also stated that the compensation to the family was under consideration before the State Government. The submissions stated that the said agreement alleged to be coerced was denied.  After considering all the arguments, The Hon’ble Court held that “… 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.” The Hon’ble High Court Of Tripura stated that “… Further prayers of the petitioner for grant of family pension or Government job to the member of the family of the deceased 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… Pending application(s), if any, also stands disposed of.”