JUDGMENT

Rajasekhar Mantha, J. - The questions that arise for consideration in the instant writ petition are, inter alia, whether the High Court, under Article 226 can transfer the investigation from the State Police to Central Bureau of Investigation (CBI), and also order change of prosecutor; after a Division Bench of the High Court, while considering an appeal from an order of acquittal, orders retrial, after applying Section 311 of the Cr.PC.

2. The facts relevant to the instant case are that one Tapan Dutta (husband of the petitioner) who was a prominent member of the ruling party Trinamool Congress, started agitation against the illegal filling up of water bodies in the Bally-Jagacha area in Howrah district. He also formed an association called Bally Jagacha Jalabhumi Bachao Committee to get others to rally behind the cause. The said water bodies were being filled up by a property developer named Anmol South City Ltd., a joint venture between the State Government and certain private persons, inter alia, the Anmol Group of Companies and one Maa Tara Developers. The landfill was being undertaken for the proposed development of an industrial park at Mouja Jagadishpur and Joypur in Howrah district. The petitioner herself was also a supporter of the said ruling party as well, and a member of the local panchayat.

3. On the 6thof May, 2011, the said Tapan Dutta was shot dead at 9:45 pm in the late evening, while he was returning to his house riding a motorcycle. On the same day, FIR No. 205 of 2011 was registered by the Bally Police Station, Howrah, under Sections 302/34/120B IPC read with Sections 27 and 35 of the Arms Act. On that very day i.e. 6th May, 2011, at about 23:25 hrs, one Bablu Prasad, pillion rider on the motorcycle on which the deceased was gunned down, also registered a written complaint.

4. In course of the investigation, when the police visited the writ petitioner, she named 12 persons who were responsible for the death of her husband and also supplied a large number of documents. The said persons being Sasti Gayen, Asit Gayen, Kalyan Ghosh, Gobindo Hazra, Amit Pal Chowdhury, Ajay Pal Chowdhury, Malay Dutta, Panchu Bagani, Lakshmi kanta Haldar, Babu Mondal, Poritosh Bar, Ramesh Mahato and Arup Roy (currently a minister in the State Cabinet).The petitioner informed the police that the actual motive behind the murder of her husband was his opposition to, and agitation against, the landfill. This was confirmed by the petitioner, in writing to the Bally Police Station.

5. On the 13th of June, 2012, the writ petitioner filed WP 12171(W) of 2012 seeking transfer of investigation into Bally Police Station Case No. 205 of 2011 to the Central Bureau of Investigation (CBI). Immediately thereafter, on 18th June, 2012, the instant writ petition was filed with the same prayers but giving more particulars. W.P 12171 (w) of 2012 was not pressed thereafter.

6. The investigation was transferred by the State, from the Bally PS to the CID, West Bengal.

7. Initially, a charge sheet was filed on 13th August, 2011, against 5 persons, namely, Subhas Bhowmick, Kartick Das, Ramesh Mahato, Sasti Gayen and Asit Gayen. Subsequently, a supplementary charge sheet was submitted on 26th September, 2011, against two more persons, namely, Santosh Singh and one B. Raju. Additional witnesses were also named. It was specifically mentioned that no charges have been framed against most of the persons named by the petitioner in her written complaint.

8. Sessions Trial No. 88 of 2012 commenced, and judgment was delivered on 7th January, 2015, by the Additional District and Sessions Judge, Fast Track Court-I, Howrah, acquitting all the five accused persons (Subhas Bhowmick, Kartick Das, Ramesh Mahato, Sasti Gayen and Asit Gayen) under Section 235 of the Cr.PC, and the trial against Santosh Singh and B. Raju was deferred as they continued to remain absconding.

9. The Sessions Judge found the following improprieties in the investigation and the prosecution.

(a) R