2018 (3) TMI 2026 - SC - Indian Laws

Seeking Transfer of investigation of all First Information Reports lodged against the Petitioner and other members of GJM, to any independent investigation agency - HELD THAT - The law is thus well settled that power of transferring investigation to other investigating agency must be exercised in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the State Police lacks credibility. Such power has to be exercised in rare and exceptional cases. In PROF. K.V. RAJENDRAN VERSUS SUPERINTENDENT OF POLICE, CBCID SOUTH ZONE, CHENNAI ORS. 2013 (8) TMI 1055 - SUPREME COURT , this Court has noted few circumstances where the Court could exercise its constitutional power to transfer of investigation from State Police to CBI such as (i) where high officials of State authorities are involved, or (ii) where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, or (iii) where investigation prima facie is found to be tainted/biased. The present case is a case where the Petitioner as Leader of GJM is a spare heading an agitation against the State demanding a separate State-hood. The State is obliged to maintain law and order and to protect live and property of the citizens. It has to take necessary steps to contain such agitation and restore the peace. The cases lodged in the FIR submitted at the instance of the Police or other complainants cannot be discarded on the specious pleas that they have been lodged due to bias of the State and with the intent to persecute the Petitioner. The State is a political unit vested with constitutional duties and obligations. The Governor of the State formally represent the State in whom the executive Power of the State is vested and exercised by him either directly or through officers subordinate to him in accordance with the Constitution of India. Under List II, Entry I of Seventh Schedule of the Constitution, Public order is a subject allocated to the State - In the present case, neither there are any pleading nor any material to come to a conclusion that State functionaries including police functionaries are biased against the Petitioner. Thus, the allegations of the bias made against the State and police functionaries had to be rejected and Petitioner cannot be permitted in saying that the FIRs lodged against him are result of a bias of the State or police personnels. In case of faulty investigation, where an Accused has been wrongly roped in, he has right to seek all remedies before Court of Law for further investigation and a Court of Law is able to marshall all evidence and capable of discerning truth from evidence on record. Although as a principle, there is no fetter on an Accused to move a Court of Law for transfer of investigation, but on the facts of this case as noted above, this is not a fit case where this Court may exercise jurisdiction Under Article 32 to transfer the cases en masse to an independent agency. The present case cannot be said to be a case of individual's persecution by the State authority. The Petitioner is not entitled for any relief. The writ petition is dismissed.

Issues Involved:
1. Transfer of investigation to an independent agency.
2. Allegations of false FIRs and police bias.
3. Right to peaceful demonstration under Article 19.
4. Judicial precedents on transfer of investigation.
5. State’s obligation to maintain law and order.
6. Specific case of police officer’s death and related reliefs.

Detailed Analysis:

1. Transfer of Investigation to an Independent Agency:
The petitioner, President of Gorkha Janmukti Morcha (GJM), sought the transfer of all FIRs lodged against him and other GJM members to an independent agency like NIA or CBI, alleging bias and political motivation by the West Bengal Police. The court noted that the power to transfer investigations should be exercised sparingly, cautiously, and in exceptional situations. The court emphasized that such orders are not to be passed routinely or merely because allegations are made against local police.

2. Allegations of False FIRs and Police Bias:
The petitioner claimed that numerous FIRs were lodged against him and GJM members as a result of political vendetta and bias by the West Bengal Police. The court found no substantial evidence to support the allegations of bias or mala fide intentions by the state or police officials. It was noted that the petitioner did not provide specific allegations against any individual state functionary or police officer, nor were such persons impleaded in the writ petition.

3. Right to Peaceful Demonstration under Article 19:
The court discussed the constitutional rights under Article 19(1)(a) and (b) which protect the freedom of speech and expression and the right to assemble peaceably without arms. The court acknowledged that while peaceful demonstrations are protected, any form of violent demonstration that damages public or private property or harms individuals goes beyond the scope of these fundamental rights and becomes punishable under law.

4. Judicial Precedents on Transfer of Investigation:
The court referred to several precedents, including the Constitution Bench judgment in State of West Bengal v. Committee for Protection of Democratic Rights, which laid down that the power to transfer investigations to a central agency should be exercised with great caution and only in exceptional cases. The court also cited Dharam Pal v. State of Haryana, which reiterated that transfer of investigation is warranted only when necessary to do justice and instill public confidence.

5. State’s Obligation to Maintain Law and Order:
The court emphasized the state’s constitutional obligation to maintain law and order and protect lives and properties. It was noted that the allegations of destruction of property and loss of lives, including police personnel, were serious and could not be dismissed as false or concocted. The court observed that the state had to take necessary steps to contain the agitation and restore peace.

6. Specific Case of Police Officer’s Death and Related Reliefs:
In a related writ petition, the petitioner, mother of a deceased police officer, sought protection for her family and expeditious trial of the case involving her son's death. The court noted that the trial was already ongoing and allowed the petitioner to approach the state for appropriate reliefs. The writ petition was dismissed with the liberty to seek further reliefs from the state.

Conclusion:
The Supreme Court dismissed the writ petition seeking transfer of investigations to an independent agency, finding no exceptional circumstances warranting such a transfer. The court upheld the state’s actions in maintaining law and order and found no substantial evidence of bias or mala fide intentions by the police. The related petition concerning the death of a police officer was also dismissed, with the petitioner granted liberty to seek appropriate reliefs from the state.

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