Brief facts of the case

The appellant’s younger brother was murdered on 29^th of August 1975. First information was lodged with the Kotwali police station.

The allegation of the applicant is that the investigation into the murder of the deceased was carried on by the police in a pre-functionary and unfair manner despite repeated representations to various authorities made by the appellant as well as a witness to the murder. The reason for the same was that the persons accused of the commission of the murder were persons belonging to or at any rate supported by the Communist Party of India (which was at that time ruling party in the State of West Bengal).

However, 14 months, after the murder, the police submitted chargesheet against respondent Nos. 1 to 9 for offences under section 302, 364 and 120 B of the Indian penal code.

The appellant was living in the United Kingdom, he repeatedly requested the government of West Bengal to appoint a special public prosecutor to conduct the trail, but there was no response from the government.

Meanwhile the appellant tried to contact the Public prosecutor in connection with a trial but no such proper reply was given. The appellant tried to meet the district magistrate in reference to the trial; the district magistrate refused to meet the apparent and referred him to the superintendent of police.

Meanwhile, the district magistrate issued an order appointing Shri S.N. Ganguly, advocate a special public prosecutor. Surprisingly, the public prosecutor of that district appeared to defend respondent Nos. 1 to 9 when the trial began.

Shri S. N. Ganguly who appeared for the prosecution requested for an adjournment in order to enable him to prepare for the case, but the additional Sessions Judge granted him only one day and was wholly insufficient, as a result Shri S. N. Ganguly returned the brief.

On the same night, the district magistrate addressed a letter to Shri S.S. Sen, additional public prosecutor was a junior of public prosecutor to conduct the prosecution in place of Shri S.N. Ganguly.

Consequently, Shri S. S. Sen additional public prosecutor who had received the papers in connection with the case only the previous night appeared for the prosecution alone unaided by any other lawyer and examine 11/19 prosecution witnesses were present on that day and he finished the evidence before the lunch recess.

There was still a witness during the trial, no such police protection was been provided for them.

The additional Sessions Judge granted the prayer of complainant to adjourn the trial to enable him to move the High Court to transfer the case. Whereas, the division bench of the Calcutta High Court directed the learned additional Sessions Judge to take all necessary steps to see that none of the prosecution witness are in any way threatened by respondent.

Despite of this direction intimidation of the witness continued and nothing was done to protect them.

Application was made to the additional Sessions Judge for calling the material witness and the tape record statement, the same was rejected.

The complainant preferred a revision application against this order to the Calcutta High Court but the revision application was rejected by the Calcutta High Court.

Thereafter the trial went on and Shri S. S. Sen produced only to witness out of the list of 12 submitted and refuse to call the appellant and other witnesses in spite of the fact that the appellant was material witness.

Meanwhile, the appellant made an application before the learned additional Sessions Judge for calling him as a court witness, same was been rejected and another application was filed to stay the proceedings in order to enable him to move the Calcutta High Court against the order but the same was also rejected. And thereafter the learned additional Sessions Judge pronounced the order, finding respondent Nos. 1 to 9 not guilty of the offence charged against them in equity and them for those charges.

The appellant thereafter prefer an application before the division bench of the Calcutta High Court by the same was been rejected by the Calcutta High Court and thereupon prefer the special leave petition before the Supreme Court.

Supreme Court’s observation:-

The Supreme Court observed that the order passed by the learned additional Sessions Judge acquitting respondents was unfair so far as the prosecution is concerned and was heavily loaded in favour of respondents, Supreme Court found it difficult to understand ethics of the legal profession and fair play in the admission of justice, that the public prosecutor could appear on behalf of respondents.

Further the court observed that when the trial commenced, Shri S. N. Ganguly, who was appointed as special public prosecutor to conduct the prosecution, asked for an adjournment of trial and the trial was adjourned only for one day as a result Ganguly returned the brief and late in the evening Shri Sen was asked to conduct the prosecution.

Supreme Court come to the conclusion that, “we have no doubt that under these circumstances the trial could not be regarded as parent just so far as the prosecution was concerned. The entire course of events shows that the conduct of trial was heavily loaded in favour of respondents. The trial must in the circumstances be held to be vitiated and a quarter of respondents as a result of such trial must be set aside. It is imperative that in order that people may not lose faith in the admission of criminal justice, no one should be allowed to subvert the legal process. Most should go away with the feeling that he could not get justice from the court because the other side was socially, economically or politically powerful and good many political process. That would subversive of the rule of law”.

And therefore the appeal was allowed, judgement and order of the learned additional Sessions Judge acquitting respondents as well as the order passed by the High Court rejecting the application of the appellant was set aside and directed to have a retrial of respondents on the selfsame charges. And in the interest of the justice, Supreme Court accordingly directed the Sessions case to be transferred to the city civil and Sessions Court, Calcutta. And further in order to have a fair prosecution, Supreme Court directed the State government to appoint a senior advocate practising on the criminal side in the city civil and Sessions Court, Calcutta as special public prosecutor in consultant with appellant and the complainant.