The court established that the extraordinary power under Article 226 for investigation must be exercised cautiously and only in exceptional circumstances to ensure judicial integrity.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. S. Bharali, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Senior Government Advocate, Assam representing the State respondents.

2. The present writ petition is filed with a prayer for proper investigation of Sivasagar PS case No. 291/1991 registered under Sections 3 65 /302 IPC read with Sections 3 /4/5 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA Act, 1987) inasmuch as it is alleged that due to apathy of the investigating agencies, the investigation was not carried out properly and there are serious lapses and irregularities in the investigation apparent from the case diary.

3. Mr. Bharali, learned counsel for the petitioner alleges that there are serious lapses and irregularities in the investigation, which is apparent from the case diary.

4. According to Mr. Bharali, learned counsel for the petitioner, argues that there are glaring illegality in the investigation of the case and therefore, this constitutional Court in exercise of its power under Article 226 of the Constitution of India may direct, a fresh or de-novo investigation though final closure report, has been submitted during the pendency of this writ petition, inasmuch as from the materials available on record, which are not in dispute, it is clear that the investigation has not been conducted in a proper and objective manner. In this regard, Mr. Bharali, learned counsel for the petitioner places reliance on the decision of the Hon'ble Apex Court in the case of Neetu Kumar Nagaich Vs. State of Rajasthan & Ors. (2020) 16 SCC 777 .

5. Referring to the judgment of the Hon'ble Apex Court in the case of Pooja Pal Vs. Union of India and Ors. /b>. (2016) 3 SSC 135, Mr. Bharali, learned counsel for the petitioner further contends that the investigating authorities are absolutely biased and they have shown their incompetence and therefore, this is a fit case and is a case of rare and exceptional nature, where this Court should exercise its power under Article 226 of the Constitution of India by directing a de-novo investigation. It is further contended by Mr. Bharali, learned counsel for the petitioner that in the background of the fact of the present case, this is a fit case, where this Court may transfer the investigation to an independent agency, so as to instil confidence in public mind as regards judicial process. According to Mr. Bharali, the present one is an exceptional case and the lackadaisical approach of the investigating authority is cleared from the material available on record.

6. Mr. Bharali, by pointing out that the wife of the deceased was not examined, who could have identified the kidnapper, contends that the investigation is deficient and such conduct of the investigating officer is for reasons other then bona-fide. It is the further contention of Mr. Bharali that the then underground ULFA leaders, who made public statement that the victim was killed under the leadership of the surviving suspect, who was also a member of ULFA at that relevant point of time, without any instruction and authority from the ULFA, could have been ascertained from those ULFA militants, who had in the meantime came back to main stream and were very much available for examination under Section 161 Cr.P.C. However, due to deficient investigation and the reason other than bonafide, such vital witnesses are not examined resulting in miscarriage of justice.

7. Per contra, Mr. Nath, learned Senior Government Advocate for the State respondent submits that the entire investi