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TMI Blog2018 (3) TMI 2026X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the control of the Government of West Bengal; and B. Transfer the investigation of all the current FIRs lodged against the present Petitioner and other members of the GJM, from the West Bengal Police to any independent investigation agency like the NIA, CBI or any other independent investigation agency which is not under the control of the Government of West Bengal; and C. Issue a writ of Mandamus or any other Writ, Order or direction in the nature of Mandamus, directing that any future FIRs/complaints filed against the present Petitioner and other members of the GJM, which pertains to the ongoing agitation in the State of West Bengal, be transferred to and investigated by the said independent investigation agency; and D. Grant anticipatory bail and protection against any coercive steps to the present Petitioner in the FIRs registered by the West Bengal Police, details of which are provided in ANNEXURE P-4, during the course of such investigation by the said independent investigation agency; and E. Grant anticipatory bail and protection against any coercive steps to the present Petitioner in all FIRs registered by the West Bengal Police, during the course of such investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers on 06.06.2017 and thereafter. Petitioner in the writ petition has pleaded that there are around 300 FIRs, which has been registered against the members and supporters of GJM. In Annexure P-4, the Petitioner has given a list of available FIRs against Bimal Gurung and others detailing 112 FIRs, out of which in 31 FIRs, the Petitioner-Bimal Gurung is named. The FIRs relates to various offences under Indian Penal Code; Prevention of Destruction of Public Property Act; Arms Act; the Unlawful Activities (Prevention) Act, 1967; Indian Explosives Act; WBMPO Act and National Highways Act. In different FIRs, offences ranged from offences Under Sections 121, 121A, 143, 148, 149, 153A, 186, 189, 323, 324, 325, 326, 307, 332, 333, 353 and 302 Indian Penal Code. 4. Petitioner's case further is that false FIRs have been lodged against the Petitioner and his supporters. Petitioner further alleged that on 17.06.2017, the West Bengal police opened fire at GJM supporters and members, causing death of innocent GJM supporters. On 27.06.2017, GJM party members withdraw from the GTA Act. Petitioner and all the other members have unilaterally resigned from the GTA. On 03.07.2017, Petitioner on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby violating fundamental right guaranteed Under Article 21 of the Constitution of India. The State Government and the State Police have dealt with absolute highhandedness to quell the democratic and peaceful agitation by illegally executing Gorkhaland members and activists and injuring over 200 supporters. 6. The Petitioner is directly named in 31 FIRs. There is a genuine fear of bias and prejudice against Petitioner and all members of GJM and the investigation being carried out against the members of GJM is clearly politically motivated and directed by the Government of West Bengal. The language in FIR No. 182 of 2017 dated 19.08.2017 and Anr. FIR No. 8 of 2017 dated 24.08.2017 lodged at another police station, which is 44 Kms away narrated two different incidents of alleged blasts. However, the language used in both these FIRs is identical clearly indicating that a draft has been circulated to the police directing them to register FIRs relating to blasts. Writ Petitioner pleads that 11 members and supporters of GJM have been killed. On the aforesaid facts and grounds, prayers as noted above have been made in the writ petition. 7. This Court issued notice in the Writ Petition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch ended in year 2011 after constitution of Gorkhaland Territorial Administration Act. Agitation has been launched by GJM led by Bimal Gurung, since the month of May/June, 2017 by stoking the passion of common public on the alleged language issue. In the counter affidavit, it has been claimed that GJM protested against the alleged imposition of Bengali language on the hill by the State Government, though, there was no notification by the Government to that effect. The GJM led by the Petitioner continued with their agitational program which took the shape of violent agitation on 08.06.2017 when GJM party, led by Petitioner-Bimal Gurung staged violent demonstrations in front of Bhanu Bhawan, Darjeeling, where State Cabinet, led by Chief Minister was holding a meeting. The mob breached the first barricade and proceeded towards the second. They threw stones and bombs. A few supporters of GJM also fired upon the police. To disperse the unlawful assembly the police had to resort to various measures. 7 police vehicles, a police assistant booth, private vehicles and NBSTC bus was burnt and many police personnel including PSO to the ADG, North Bengal were injured. On 15.06.2017, on receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties including 05 police properties. During the entire period of bandh, all schools and colleges were closed for 104 days. Tea Gardens in the hills were also closed leading to the loss of livelihood of thousands of tea estate labourers. Bandh adversely affected the world famous tea industry of Darjeeling. The band also adversely affected the thriving tourism industry of Darjeeling. A total of 371 No. of cases of attack on police, unlawful assembly, arson, rioting, bomb explosion, use of firearms etc. has been registered in Darjeeling, Kalimpong and Alipurduar districts. Out of 371 cases, Petitioner is named as Accused in 56 cases. Out of 371 cases, 145 number of cases, have been started on suo moto action by the police whereas other cases have been started on the complaints of other victims. 11. Series of bomb blast have also been alleged in the counter affidavit, accusing Petitioner and other supporters of GJM, with regard to which, several FIRs have been lodged. The GJM supporters have indulged in large scale violence causing damage to private and public property. Cases have been registered against the Petitioner, supporters and other miscreants of attack on police, arson, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ze and threaten the members of GJM and to quell the legitimate political movement of the Gorkha people, who are seeking a separate State to protect their identity, existence and interests. The Government of West Bengal has dealt with absolute high handedness to quell the democratic and peaceful agitation. Almost all cases are registered by the State Police, by taking suo-moto cognizance of fabricated instances, simply to bring the Petitioner in custody and quell the legitimate political movement. The investigations are over and some of the FIRs and charge sheets have been filed, which have been also annexed in the counter affidavit, which clearly shows that conspiracy to charge the Petitioner in all those cases are present since from beginning and no real investigation has actually taken place. The weapons recovered are sealed and stamped packets, which weapons were merely planted by the police from some malkhana. Cases registered of bomb blasts under the Unlawful Activities (Prevention) Act are all false and were registered when the Petitioner was discharged from the trial court from the murder of one Mr. Madan Tamang on 17.08.2017. Execution of Dawa Bhutia, by illegally entering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged with word to word similarity which indicates that FIRs have been lodged in mechanical manner with only intent to rope in Petitioner and other members. The West Bengal Police at the instance of the Government was lodging different FIRs alleging commission of different offences only to quell the democratic and peaceful demonstration of the Petitioner and his Party. It is submitted that alleged recovery of huge arms and ammunitions are false and bogus. It was well planted recovery of AK-47, arms and ammunitions and for which blame has been made on Petitioner and other Party members. The Petitioner submits that neither fair investigation is being conducted by the Police of West Bengal nor the Petitioner has any hope of any fair investigation in large number of cases. The reports have been hurriedly filed which also indicates the shoddy manner in which investigation was conducted. It is submitted that the cases where Police personnel have been made Accused on killing of a person, investigation by CID has not yet been completed. It is submitted that mere fact that charge-sheet has been filed in some cases and the trial has commenced is no ground for denying to transfer the investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d entire procedure. 19. It is further submitted that the most of the cases where investigation has been transferred by this Court are the cases which were filed at the instance of the victims and not by the Accused. The reason for such indulgence is that the Accused has sufficient opportunity of representation, whereas the victim does not have any, hence, it is to safeguard the victim's cause that courts have to step in to ensure fair investigation and trial. Further, the Petitioner cannot seek transfer of investigation in cases where charge-sheet has already been filed and trial has commenced. The allegations of bias against the entire State machinery are unfounded and unsubstantiated. The Petitioner has not made out any allegation against the judicial machinery available in the State. The cases against the Petitioner are serious in nature and the instant writ petition has been filed solely to scuttle investigation against the Petitioner. The submission of the Petitioner that certain FIRs are identical in word by word, in no manner, is to dilute the seriousness of the allegations for which FIR has been registered. 20. It is submitted that whenever the power has been exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has implied power and jurisdiction to direct for the transfer to CBI to investigate a cognizable offence but also has obligation to exercise the said power with great caution which must be exercised sparingly, cautiously and in exceptional situations. In paragraph 70 with regard to exercise of such power following has been laid down by the Constitution Bench: 70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor. 26. 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 K.V. Rajendran v. Superintendent of Police, CBCID South Zone, (2013) 12 SCC 480, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case are concerned with the demonstrations and the bandh call given by GJM. 29. A full Bench of the Kerala High Court in Bharat Kumar v. State of Kerala and Ors. AIR 1997 Ker. 291 had occasion to consider fundamental rights and bandh given by political parties. The Kerala High Court while describing call for bandh held that call for a bandh is distinct and different from call for a general strike or the call for hartal. The intention of the callers of the bandh is to ensure that no activity either public or private is carried on that day. The full Bench considered different aspects of bandh in reference to fundamental rights of other persons Under Article 19(1). In paragraph 17 full Bench of Kerala High Court laid down following: No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or nation and is entitled to prevent the citizens not in sympathy with its viewpoint, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the nation. Such a claim would be unreasonable and could not be accepted as a legitimate exercise of a fundamental r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strike no person has any right to cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty and property of any citizen or destruction of life and property, and the least to any government or public property. It is high time that the authorities concerned take serious note of this requirement while dealing with those who destroy public property in the name of strike, hartal or bandh. Those who at times may have even genuine demands to make should not lose sight of the overall situation eluding control and reaching unmanageable bounds endangering life, liberty and property of citizens and public, enabling anti-social forces to gain control resulting in all-around destruction with counterproductive results at the expense of public order and public peace. No person has any right to destroy another's property in the guise of bandh or hartal or strike, irrespective of the proclaimed reasonableness of the cause or the question whether there is or was any legal sanction for the same. The case at hand is one which led to the destruction of property and loss of lives, because of irresponsible and illegal acts of some in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demands of various Sections of the society of varied kinds. It is also becoming a common ground that religious, ethnic, regional language, caste and class divisions are frequently exploited to foment violence whenever mass demonstrations or dharnas, etc. take place. It is unfortunate that more often than not, such protestors take to hooliganism, vandalism and even destroy public/private property. In the process, when police tries to control, the protestors/mob violently target policemen as well. Unruly groups and violent demonstrations are so common that people have come to see them as an appendage of Indian democracy. All these situations frequently result in police using force. This in turn exacerbates public anger against the police. In Kashmir itself there have been numerous instances where separatist groups have provoked violence. In this scenario, task of the police and law-enforcing agencies becomes more difficult and delicate. In curbing such violence or dispersing unlawful assemblies, police has to accomplish its task with utmost care, deftness and precision. Thus, on the one hand, law and order needs to be restored and at the same time, it is also to be ensured that unne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2017, the High Court has made directions to the State to take necessary action similar to earlier directions in respect of the functioning of essential services due to the illegal and disruption measures adopted by the GJM. It is sufficient to refer to order dated 14.07.2017 where the Calcutta High Court noticed the following: The State Government and the Central Government have filed their respective affidavits. The affidavit on behalf of the Central Bureau of Investigation (in short, the C.B.I.) has not been filed as yet. The situation in Darjeeling and Kalimpong districts is deteriorating rapidly day by day. Insurgency and the violent agitations are continuing unabated. The life and properties of the general public are in danger. xxx xxx xxx The situation in Darjeeling and Kalimpong districts has escalated since the agitation started on 8th June, 2017. Despite our earlier orders directing both the State and the Central Governments to ensure that peace and normalcy are restored in the aforesaid two districts, it is apparent that the endeavour on the part of the State Government and the Central Government is wanting. Otherwise had the Governments worked together, by now the situa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been registered after May, 2017 regarding various subversive activities. We, however, clarify that in principle when transfer of one case is permissible, number of cases may not be an impediment in transfer of more than one case. Even if only those cases are to be taken into consideration where Petitioner is named Accused, there are no such special grounds made out in the writ petition on which even those cases be considered for transferring the investigation. 41. 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer nor any such person has been impleaded in the writ petition so as to consider the allegation of bias. It is very easy to make allegations of bias against a person but it is difficult to substantiate the same. 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 Para 83 of the Constitution Bench judgment in Lalita Kumari v. Government of Uttar Pradesh and Ors. (supra), following observations were made: 83. In terms of the language used in Section 154 of the Code, the police is duty-bound to proceed to conduct investigation into a cognizable offence even without receiving information (i.e. FIR) about commission of such an offence, if the officer in charge of the police station otherwise suspects the commission of such an offence. The legislative intent is therefore quite clear i.e. to ensure that every cognizabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is judgment of Mithilesh Kumar Singh v. State of Rajasthan (supra). The above case was a case where daughter of the Petitioner died by falling from four storied College Hostel. Petitioner came with the case that investigation conducted by the local police was not fair and the version put up by the police that the girl committed suicide is not correct. In the above context this Court held that a trial based on a partisan, motivated, one-sided, or biased investigation can hardly be fair. In paragraphs 11 and 12 following has been laid down: 11. Such being the importance of fair and proper investigation, this Court has in numerous cases arising out of several distinctly different fact situations exercised its power of transferring investigation from the State/jurisdictional police to the Central Bureau of Investigation under the Delhi Police Establishment Act. There was mercifully no challenge to the power of this Court to direct such a transfer and in my opinion rightly so as the question whether this Court has the jurisdiction to direct transfer stands authoritatively settled by the Constitution Bench of this Court in State of W.B. v. Committee for Protection of Democratic Righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts own facts and does not help the Petitioner in the present case. 45. Judgment of Sanjiv Kumar v. Om Prakash Chautala (supra) was again a case filed by Sanjiv Kumar who was a whistle-blower alleging large-scale corruption and tampering of records in filling up of about 4000 posts of JBT teachers in State of Haryana. The writ petition filed by Sanjiv Kumar being W.P.(Crl.) No. 93 of 2003 was disposed of by this Court directing the complaint to be investigated by CBI. There were certain cases which were under the investigation against the Petitioner himself which were also entrusted to the CBI. The said case was on its own facts one does not lend support to the Petitioner. 46. Most of the cases which were cited before us by the parties are the cases where this Court exercised jurisdiction Under Article 32 in transferring the investigation at the instance of the victims. For a victim the investigation in a case is of much significance. In the event, a proper investigation is not carried out and relevant evidence which would have been collected by due care and caution, is not collected, the victim is sure not to get justice on such faulty investigation. In case of faulty investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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