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Judgment
Mr. Joymalya Bagchi, J. - Heard the parties.
The petitioners have approached this Court in CRR 3901 of 2015 assailing the order dated 8.10.2015 whereby the learned trial Court rejected their prayer for adding opposite parties no.2, 4, 5, 6 and 9 therein as accused persons. They also pray for transfer of the proceeding from the learned Court of the Additional Sessions Judge, First Court, Bongaon, North 24 Parganas to the learned Court of City Sessions Court, Calcutta or any other Court outside the jurisdiction of North 24 Parganas in CRR 3958 of 2015.
In the course of hearing of the aforesaid petitions, I was informed that there is a writ petition being WP 7308(W) of 2015, had also been preferred by the petitioners praying for further investigation/re-investigation of the matter in the case by Central Bureau of Investigation. The said matter was assigned to me to be heard along with the aforesaid petitions.
Mr. Bhattacharya, learned Senior Advocate appearing for the petitioners submits that petitioner no.1 is the unfortunate grandmother of the victim and had witnessed him being murdered by the accused persons and the opposite parties no.2 to 9 in CRR 3901 of 2015. He submits that the investigation in the instant case was a sham and was directed not to unravel the truth but to screen the real offenders. He further submits that the statements of the witnesses were recorded in order to exonerate the opposite parties no.2 to 9 herein and the trial which ensued therefrom in the Court of the learned Additional Sessions Judge, First Court, Bongaon, North 24 Parganas is a travesty of justice inasmuch as none of the witnesses examined therein are germane for unfolding of the prosecution case and at best can be construed to be defence witnesses examined to destablilise the prosecution case. Even prosecution witnesses like P.W.1, 8 and 9 who have resiled away from their earlier statements recorded under Section 161 of the Code of Criminal Procedure before the investigating officer had not been declared hostile by the public prosecutor. P.W.7 was examined to improbabilise the prosecution version. He, accordingly, prays that reinvestigation be conducted in the case by a Central agency like Central Bureau of Investigation so as to ensure a fair and impartial investigation in the matter and to transfer the proceeding in the instant case to a neutral place. He submits that the trial at Bongaon is being conducted in a surcharged atmosphere where the petitioners and their witnesses do not feel comfortable and the learned Public Prosecutor is not rendering adequate assistance to the petitioners in participating in the trial of the instant case.
Mr. Singh, learned Public Prosecutor appearing for the State submits that pursuant to directions passed by this Court, further investigation was conducted and a report was filed after the concerns of the petitioners were addressed and as it, prima facie, appeared that the allegations against the opposite party nos. 2 to 9 were not established, they were not charge-sheeted in the instant case. Statement of the petitioners were recorded under Section 164 of the Code of Criminal Procedure which clearly shows that the investigating agency collected all possible evidence in support of the prosecution case.
Mr. Basu and Mr. Moitra, learned Senior Advocates appearing for the opposite party nos. 2 to 9 herein submit that the trial is in progress and under such circumstances prayer for further investigation was not warranted. They further submit that investigation was made in all aspects of the matter and it is within the domain of the prosecution to decide the manner in which it shall conduct its case and examine witnesses.
In the backdrop of the aforesaid submissions, I have examined the materials on record. I find that the statement of the petitioners were recorded under Section 164 of the Code of Criminal Procedure and it appears that the petitioner no.1 claimed to have witnessed the incident and named the opposite party nos. 2 to 9 as the assailants of the victim. Statements of other witnesses under Section 161 of the Code of Criminal Procedure have been recorded who also which also claim to have seen the incident but failed to name the assailants. In the backdrop of such factual matrix, I fail to appreciate as to what prevented the investigating agency from putting up the opposite party nos.2 to 9 in T.I. Parade examination for identification by the prosecution witnesses. Without resorting to such course, I find that the investigating agency recorded statements of persons either to improbabilise the version of petitioner no.1 as an eyewitness or for the purpose of establishing a purported alibi of the opposite party nos.2 to 9 herein who have claimed to be present in a political meeting held at a different place at the material point of time. In the face of such indifferent investigation, it appears the mere slender material collected by the investigating agency in support of the prosecution case are the statements of the petitioners recorded under Section 161 of the Code of Criminal Procedure and thereafter under Section 164 of the Code of Criminal Procedure. I find that out of nine witnesses examined during trial by the prosecution, I am unable to understand why P.W.2 to 7 were examined as they play no role in unfolding the prosecution case. No doubt it is the wisdom of the Public Prosecutor to decide which witnesses he would like to examine to establish his case but one is left wondering when one notices that the Public Prosecutor instead of examining the most vital witness like P.W.1 chose to examine witnesses who instead of building the prosecution case seeks to bolster defence version of opposite party no.2 to 9 herein. It is also a matter of concern that two witnesses namely P.W.8 and 9 were found to have resiled from their earlier version were not declared hostile by the Public Prosecutor.
In this factual matrix and in view of the averments made in the petition for transfer that the petitioners and their lawyer feel extremely ill at ease in participating in the trial pending at Bongaon and in light of the brooding spectra of malevolent influence of the opposite parties no.2 to 9 herein who are well connected political personalities in the concerned district, I am of the opinion that to inject a semblance of fairness and credibility in the prosecution and to instill confidence in the minds of the victims, one of whom claims to have seen the untimely ghastly end of her grandson before her own eyes, the prosecution requires to be invigorated by transfer of the proceeding to a place where the petitioners and their witnesses feel confident to participate and depose in the instant case without any fear or apprehension whatsoever.
Conduct of the Public Prosecutor, in the instant case, particularly, the manner of his choosing witnesses and his failure not to declare witnesses, resiling from their earlier statements, as hostile does not inspire confidence. In this situation, I feel interest of justice would be best served if in addition to transfer of the proceeding, an experienced lawyer of unanimous repute is appointed as a special Public Prosecutor for the purpose of conducting the trial in a fair and impartial manner. Under such circumstances, I suggested the name of Mr. Ashoke Baxi, an eminent lawyer of repute and a former Public Prosecutor of the State to conduct the trial as a special Public Prosecutor and none of the parties have raised any objection thereto.
Accordingly, I appoint Shri Ashoke Baxi, learned Advocate and former Public Prosecutor of the State of West Bengal as a Special Public Prosecutor to conduct the trial of the instant case on behalf of the State. In this regard, reference may be made to Centre for Public Interest Litigation v. Union of India, (2012) SCC 117, where the Apex Court appointed a Special Public Prosecutor to ensure effective prosecution in a Court monitored investigation. Similarly, in the instant case, where prayer for further investigation/re-investigation is pending before me in W.P. 7308(W) of 2015, I have chosen to take recourse to such exceptional measure in exercise of my constitutional powers of judicial superintendence to ensure fair and impartial trial in the matter.
I have also chosen to transfer the proceeding and direct handling of the prosecution by a special Prosecutor in the course of pending hearing of C.R.R. 3901 of 2015 and W.P. 7308 (W) of 2015, as I find that the materials on record are extremely flimsy and there appears to be a concerted effort to withhold the best evidence in this case. Hence, I am inclined to examine the prayer for summoning the opposite party nos. 2, 4, 5, 6 and 9 herein as accused''s and for directing further/re-investigation by CBI only after recording of more cogent evidence like that of petitioner no.1 in the instant case.
In view of the aforesaid discussion I direct as follows:
(a) The impugned proceeding is transferred from the learned Court of the Additional Sessions Judge, First Court, Bongaon, North 24 Parganas to the learned Court of City Sessions Court, Calcutta. The trial shall be conducted by the learned Chief Judge, City Sessions Court, Calcutta or any other judge to whom the same may be transferred by the learned Chief Judge.
(b) Mr. Ashoke Baxi, learned Advocate and former Public Prosecutor is appointed as Special Public Prosecutor in the instant case and shall conduct the prosecution henceforth. The State through the legal Remembrancer is directed to forthwith appoint Mr. Baxi as Special Public Prosecutor under section 24(8) of the Code of Criminal Procedure. The Special Public Prosecutor shall take immediate steps to examine petitioner no.1 as a prosecution witness and shall place her evidence on record and/or other evidence that may be recorded before this Court on the next date of hearing. The lawyer of the petitioners would be entitled to assist the Special Public Prosecutor in terms of the proviso to section 24(8) of the Code.
(c) It would also be open to the Special Public Prosecutor to assess the materials collected till date and delete such witnesses cited in the charge-sheet, who in his considered opinion may not be relevant for unfolding of the prosecution case. It shall also be open to him in consultation with the petitioners/victims to summon additional witnesses or production of documents, if necessary, for a just decision of the case.
(d) The trial shall continue as directed and a report thereof including the deposition of petitioner no.1 shall be filed before this Court by the State on the next date of hearing.
(e) The petitioners shall be given police protection at their residence as well as for the purpose of their going to the trial Court and deposing in the matter.
CRR 3958 of 2015 and CRAN 1597 of 2016 are, thus, disposed of.
The other matters be placed for further hearing four weeks hence.
Registry as well as the learned Public Prosecutor is requested to transmit a copy of the order to the learned Legal Remembrancer and other concerned authorities including Mr. Baxi, learned Advocate, for necessary action.
Records of the instant case be forthwith transmitted to the Court of Sessions, Calcutta from the Court of the learned Additional Sessions Judge, First Court, Bongaon, North 24 Parganas and steps be taken for recording deposition of the petitioner no.1 within two weeks from date.
Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.
Let a plain photocopy of this Order, duly countersigned by the Assistant Registrar (Court), be handed over to the learned Public Prosecutor on usual undertaking.
CRR 3958 of 2015 and CRAN 1597 of 2016 is disposed of. CRR 3901 of 2015 and CRAN 1595 of 2016 with W.P. 7308(W) of 2015 be placed for further hearing four weeks