S. Talapatra, J.

(1) On consensus of the counsel representing the parties, this petition is taken up for disposal at the motion stage in, consideration of the urgency attached to the matter.

(2) The petitioner is the wife of a slain journalist, namely, Anil Majumder who was holding the post of Executive Editor of an Assamese daily, aji. On 24. 3. 09 when the said journalist was returning home by his car being AS-0l-A-8-5973 and when his car reached a nearby place to his residence at Rajgarh road at about 10 pm and he was getting down from the said car, he was shot at allegedly by a group of unknown persons who were waiting at that spot. The driver of the vehicle is an eye witness to the said gruesome murder. It is averred that one Khagen Sarma lodged the FIR with the Officer-in-Charge of Chandmari police station briefly narrating the commission of the said cognizable offence and the police on receipt of the said FIR registered the Chandmari PS case No. 114 of 2009 under Section 302/34 IPC read with Section 27 of the Arms Act. It further appears from the narrative as embodied in the writ petition that the killing of the said journalist stirred a sharp reaction in the society particularly in the media community. Even the Chief Minister of the State publicly condemned such killing and assured that the murder of the said journalist would be investigated with "top most priority" by the Criminal Investigation Department (CID) to nab the assailants. In para 7 of the petition, the petitioner stated as under :

"that the petitioner begs to state that her husband already published various news items based on facts in the daily news paper aji against a police officials i. e Sr. S. P. Sri Bijoy Krishna Remchetri for which he even received calls of threatening to his life which was communicated to the earlier Central Minister Sri Matang Singh and other office colleague and persons. It is also stated that some land mafia may also involved in his murder case as he received threatening call from a sulfa man. There is a dispute of land of aji office" situated at Borthakur Mill road of Ulubari at Guwahati and land case pending between LOC scheme hero - Rejen Bora and Anil Majumder. Moreover, there are some pending defamation cases against Anil Majumder. All the clues who may be involved in the said murder case was published in the various newspaper and if the investigation is conducted in proper way, the culprits of said murder case would be apprehended by the police/ CID police etc. But neither the police administration nor the CID has taken the matter seriously nor investigated the matter in its proper perspective, whereby denying the justice to the petitioner. "

(3) The petitioners grievance, in a nut shell, is that despite she received solace and assurance of doing justice from the top brass of the administration, but no positive signs of succeeding in the investigation surfaced as yet. The petitioner knocked the office of the CID which is entrusted with the investigation and also the office of the Director General of Police, but could not have any satisfactory reply regarding the progress of the investigation. Ultimately, the petitioner claims to have realized that the Government and its agencies never bothered to do the investigation to nab the culprits rendering justice to the bereaved family comprising of the petitioner and her two minor daughters who respectively lost husband and father at the prime phase of life. She, therefore, stated to have lost confidence in the investigation as being conducted by the CID. This writ petition has been filed for securing a genuine and fair investigation in the murder of the said journalist in as much as the murder had invaded the fundamental right as enshrined in Article 21 of the Constitution. The petitioner has categorically alleged against the CID that the said agency was dealing with the investigation in such a manner that ultimately it would be instrumental to disappearance of the evidence. On discovery of such lackadaisical attitude of the CID and its manner of investigation, the petitioner approached this Court seeking a direction to the Government of Assam to handover the said case to an independent investigation agency like the Central Bureau of Investigation (CBI) as established under Delhi Special Police Establishment Act,1946 for making a fair and just investigation to ensure justice.

(4) On 23. 11. 11 when the matter was taken up, this Court directed the State respondents to furnish a status report in regard to the Chandmari PS case No. 114 of 2009 (herein-after the police case) within 3. 11. 11. But the State respondents failed to furnish the status report on that occasion and the matter was again listed on 19. 12. 11. When a warning was sounded to the State respond-ents that no further time would be provided to the State Government for that purpose. However, the State respondents filed a status report under Memo No. CID/ssp/pf/2011/162 dated 29. 11. 11 in a sealed cover. This Court has considered the said status report and finds that a serious contradiction is apparent so far the statement appearing at para 7 of the writ petition as reproduced and the statement of the writ petitioner as stated to have been made to the investigating agency. It is also found that one of the very important leads in the investigation has not been pursued by the CID at all for undisclosed reason. Moreover, the commission of offence though occurred on 23. 4. 09, the investigating agency did not succeed to book the culprits and it appears further that they have been lost in the lurch. It has also been found that the investigating agency has virtually completed the investigation with murder of the one of the suspects and that appears to be a sheer escapade and a strange way to draw curtain over the investigation. With serious concern, this Court finds that the investigating agency has been traipsing so long and definitely that can point the needle of suspicion to the role of the investigating agency i. e CID. This Court finds further that the Government of Assam is not averse to the effective investigation in the murder of the said journalist. It is the principle of justice that justice has not only to be done but it has to be shown to have done. No citizen should be pushed in such a corner where he or she should burn his or her confidence in rule of law. Whatever possible within the framework of the constitution shall be provided to keep the confidence of the citizens in the rule of law kindled. As regards the scope of directing investigation by the CBI by the High Court under Article 226 of the Constitution of India is no more res integra. In State of West Bengal and Ors. Vs. Committee for Protection of Democratic Rights and Ors. as reported in 2010 3 SCC 571 , the Apex Court held in para 68 as under:

"68. Thus having examined the rival contentions in the context of the constitutional scheme, we conclude as follows :- (i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.

(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.

(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover. in a federal constitution the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review.

(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that the Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.

(v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution.

(vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other. an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute. In our opinion exercise of such power by the constitutional Courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty.

(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion would not amount to infringement of either the doctrine of separation of power or the federal structure. "

The aforesaid decision of the Supreme Court was reiterated in Ashok Kr. Todi Vs. Kishwar Jahan and Ors. , as reported in 2011 (3) SCC 758. In para 29 of the said judgment it has been held in reference to Committee for Protection of Democratic Rights (supra) that the issue which was referred for the opinion of the Constitution Bench was whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the CBI established under the Delhi Special Police Establishment Act,1946 (for short, the Special Police Act) to investigate the cognizable offence, which is alleged to have been taken place within the territorial jurisdiction of a State, without the consent of the State Government. The Constitution Bench after adverting to the required factual details, rival contentions and the relevant constitutional provision has concluded (SCC p. 602, para 69)"69. In the analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. "

In Committee for Protection of Democratic Rights (supra), the Supreme Court sounded caution in the following words in regard to exercise of the power as opened up. "this extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. " (para 70)

(5) Having situated thus, this Court has considered the rival contentions as available from the averments of the writ petition and the said status report. It surfaces that a reputed editor of an Assam daily has been murdered in a gruesome manner and the assassins are still at large. From the status report, it transpires that a vital lead has not been surprisingly pursued and that lead was abandoned for the by the CID. Another aspect that surfaces from the status report is linkages of the persons at the high places. Apart that, this Court anxiously has taken into consideration of the rights as guaranteed under Article 21 of the Constitution of India relating to life of a citizen. The details of the status report have not been disclosed for obvious reason and in the interest of justice. The investigating agency is no doubt traipsing and the petitioner has reasons to lose confidence in the investigation. In such circumstances, this Court in the fitness of things cannot remain bystander particularly when the matter has been brought before it. To instil confidence of a citizen in the rule of law and to do complete justice, this Court directs the State respondents to handover the investigation of Chandmari PS case No. 114 of 2009 as registered under Sections 302/34 IPC read with Section 27 of the Arms Act within a period of fifteen days from the date of receipt of a copy of this order to the Central Bureau of Investigation (CBl) as established under Special Police Act and it is expected that necessary decision and reference inclusive of all actions incidental thereto in this regard be taken by the Government of Assam in the Department of Home in all earnestness.

(6) This Court records appreciation for the role played by the learned Addl. Senior Government Advocate, Assam in disposal of this case.

(7) Return the status report in a sealed cover to the learned Addl. Senior Government Advocate forthwith.

(8) With these observations and directions, the writ petition is allowed. No order as to cost.