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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 182 OF 2017

BIMAL GURUNG                    … PETITIONER

VERSUS

UNION OF INDIA & ORS.       … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

The petitioner, the President of Gorkha Janmukti

Morcha (hereinafter referred to as “GJM”), has filed

this  Writ  Petition  under  Article  32  of  the

Constitution  of  India  praying  for  transfer  of

investigation  of  all  First  Information  Reports

lodged against the petitioner and other members of

GJM, to any independent investigation agency.  In

the Writ Petition, following prayers have been made

by the petitioner:-

“A.  Transfer the investigation of all the  FIRs  lodged  against  the  present Petitioner and other members of the GJM,

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details of which are provided in Annexure P-4, 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

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  by  the  said independent investigation agency, and

F.Grant police protection to the present Petitioner,  provided  by  any  independent

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police  force  which  is  not  under  the control of the State of West Bengal, at the  expense  of  the  present  Petitioner; and

G.Pass such further or other orders as this  Hon'ble  Court  may  deem  fit  and proper.

AND  FOR  THIS  ACT  OF  KINDNESS  THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY”

2. The petitioner’s case in the writ petition is

that  GJM  led  by  the  petitioner,  has  been  at  the

forefront  of  the  Gorkhaland  agitation  since  2007.

GJM is a registered political party, which has also

participated in the municipal elections, elections

of  autonomous  body  of  GTA  (Gorkhaland  Territorial

Administration), Lok Sabha elections and West Bengal

assembly  elections.   On  18.07.2011,  A  Tripartite

accord was signed between the State of West Bengal,

Ministry of Home Affairs, Government of India and

Gorkha Janmukti Morcha for setting up an autonomous

body  (Gorkhaland  Territorial  Administration  –

“GTA”), empowered with administrative, financial and

executive  powers  with  regard  to  various  subjects.

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The Gorkhaland Territorial Administration Act, 2011

was enacted to provide for the establishment of a

Gorkhaland Territorial Administration for the region

comprising  the  three  sub-divisions,  Darjeeling,

Kalimpong, Kurseong and some mouzas of Siliguri sub-

division  in  the  district  of  Darjeeling  and  for

certain  matters  incidental  thereto.   The

petitioner’s  case  is  that  on  15.05.2017,  Hon’ble

Minister of Education, Government of West Bengal in

a  press  conference  stated  that  Bengali  would  be

compulsory  in  all  schools  in  West  Bengal.  The

Gorkhas  viewed  this  as  an  encroachment  on  their

language,  i.e.  Nepali/Gorkhali.   A  Facebook  post

dated 16.05.2017 made by the Chief Minister of West

Bengal  has  also  been  referred  to,  which  mentions

that one of the three languages would have to be

Bengali.  The above has been stated to be beginning

of protest carried on by different associations of

Gorkhas and the GJM.  

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3. On 30.05.2017, GJM claimed to convene an indoor

meeting  of  various  intellectuals  to  assess  their

views.  Petitioner claims that several persons have

been wrongfully booked under Sections 120-B, 153A,

505 and 34 Indian Penal Code (hereinafter referred

to as “I.P.C.”).  Petitioner alleged that further

FIRs  have  been  lodged  against  the  petitioner  and

other  GJM  members  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  I.P.C.;  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,

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189, 323, 324,325, 326, 307, 332, 333, 353 and 302

I.P.C.           

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 behalf

of GJM has written to the Home Minister, Government

of India demanding a CBI inquiry into the death of

three persons caused on 17.06.2017.  The petitioner

also wrote to National Human Rights Commission on

03.07.2017.  The petitioner in the writ petition has

referred  to  various  FIRs  lodged  in  June,  July  &

August, 2017.  Petitioner has further stated that on

18.08.2017,  blast  occurred  in  Darjeeling  town,  in

which again the police arraigned the petitioner for

this  crime  and  filed  an  F.I.R.  No.  182  of  2017

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against  petitioner  and  other  GJM  leaders.

Petitioner’s case is that different FIRs were lodged

in identical wording to that of F.I.R. No. 182 of

2017.   Petitioner  further  refers  to  death  of  one

Dawa Bhutia, GJM supporter on 01.09.2017, who died

in  a  shoot  out.  Petitioner’s  case  is  that  Sikkim

Police has registered a case against S.P. Kalimpong

in  the  above  respect.   On  20.09.2017,  the  Chief

Minister of West Bengal has reconstituted the Board

of  Administrators  of  the  Gorkhaland  Territorial

Administration  and  nominated  Shri  Binoy  Tamang  as

its  Chairperson  simply  because  he  sided  with  the

State  Government.   Binoy  Tamang  was  a  close

associate of petitioner, who was also co-accused in

several  cases  along  with  the  petitioner.   On

26.09.2017,  Hon’ble  Home  Minister,  Government  of

India appealed to withdraw the bandh.  Consequently,

the  Bandh  was  called  off.   Reference  to  Writ

Petition  (Crl.)  No.  148/2017  by  Mr.  Roshan  Giri,

General  Secretary  of  GJM  was  also  made,  where

intervention  of  this  Court  was  asked  for  to

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investigate  the  extra  judicial  killings  of  10

supporters  of  the  movement  by  GJM  by  the  State

Police,  where  this  Court  has  issued  notice  on

06.10.2017.   

5. Petitioner  also  referred  to  raid  dated

13.10.2017  by  West  Bengal  Police  accompanied  by

large  number  of  Central  Forces  at  Patleybas   and

Limbu busty areas of Darjeeling, where recovery of

AK-47 rifles was falsely shown by the police.  On

the  aforesaid  facts,  the  petitioner  sought  the

transfer  of  investigation  of  all  cases  to  an

independent investigating agency.  Petitioner’s case

is that in the light of recent stand off between the

State  of  West  Bengal  and  the  members  of  GJM  and

agitation  in  West  Bengal  over  the  issue  of  a

separate  State  for  Gorkhaland,  many  prominent

leaders  and  members  of  the  GJM  are  being  falsely

implicated  in  frivolous  cases  and  there  is  an

imminent threat to their safety and life, thereby

violating fundamental right guaranteed under Article

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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 another 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

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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 on

20.112017  and  directed  that  in  the  meantime  no

coercive  steps  shall  be  taken  against  the

petitioner.   The  State  of  West  Bengal  filed  an

application  to  recall  the  order  dated  20.11.2017

referring to 53 cases pending against Bimal Gurung

and  24  under  trial  cases.   The  reply  to  the

aforesaid  I.A.  has  been  filed  by  the  petitioner

dated 23.11.2017.  Rejoinder Affidavit on behalf of

respondent  Nos.  2  to  9  in  reply  to  the  counter

affidavit filed by the petitioner in I.A. No. 125288

of  2017  has  also  been  filed.  A  detailed  counter

affidavit has been filed by the State of West Bengal

to which a rejoinder affidavit has also been filed.

8. In the counter affidavit, the State has come up

with  the  case  that  in  several  cases,  warrant  of

arrests have been issued against the petitioner by

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the  Courts  of  learned  CJM,  Darjeeling.   A

proclamation has also been issued under Section 82

Cr.P.C. against the petitioner.  The petitioner is

wanted in large number of cases and to avoid his

arrest, he has filed the writ petition under Article

32 and has not appeared.  In the counter affidavit,

it is stated that there are 56 criminal cases, in

which  petitioner  is  named.   The  cases  relates  to

FIRs filed in May, 2017 to October, 2017.  A detail

of said cases have been mentioned at page Nos. 139

to 145 of the counter affidavit in Table 1.  In

Table 2, at Page 145 of the counter affidavit, there

is  mention  of  22  under  trial  cases  against  the

petitioner – Bimal Gurung, which relates to cases

lodged against him from the year 2007 to 2013. In

Para  7  of  the  counter  affidavit,  the  State  has

further given details of 47 cases, which relates to

the  First  Information  Reports  lodged  against  the

petitioner in June to October, 2017.  In 47 cases,

charge  sheets  has  also  been  filed  against  the

petitioner  after  completing  the  investigation  in

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which prima facie material is claimed to have been

found  against  the  petitioner.   Charge  Sheet  in

reference  to  Sadar  P.S.  Case  No.  213/2017  dated

13.10.2017  under  Sections  121/121A/153A/323/120B/

307/302 I.P.C. read with Section 25(i)(a)/27/35 of

Arms Act and Section 3/4, Explosives Act have been

referred to in which charge sheet and supplementary

charge sheet has been filed.   

9. The respondent’s case in the writ petition is

that in the year 2007, Gorkha Janmukti Morcha (GJM)

led by Shri Bimal Gurung started the agitation for

Gorkhaland  State,  which  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

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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 of specific information, Police party raided

party office of GJM at Patleybash, Darjeeling, where

two  improvised  fire  arms,  gun  powder  and  other

incriminating articles were seized.  Police parties

were  attacked  by  supporters  of  GJM  on  several

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occasions, reports of which instances were lodged to

control the rampant mob.  The District Magistrate,

Darjeeling had requisitioned Army on 08.06.2017 for

aid to civil authority in view of local disturbances

in order to prevent loss of life and property of

residents  and  visitors.   Army  aid  in  that  phase

continued  till  24.06.2017.   Again  Army  was

requisitioned  on  08.07.2017  in  Darjeeling  and

Jorbunglow PS areas for the same purpose. Further

Army Aid was requisitioned again on 18.07.2017 in

Darjeeling,  Jorbunglow,  Kurseong  and  Mirik  Police

Station.   Further,  during  this  period,  additional

contingent of 11 companies of CAPF were deployed in

the hills in addition to 4 companies of CAPF already

deployed  in  the  area  to  bring  the  law  and  order

situation under control.

10. On  13.10.2017,  the  police,  on  receipt  of

specific information, raided a place situated in the

forest  on  the  banks  of  Choti  Rangit  River,  where

during the raid the petitioner-Bimal Gurung and his

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team opened fire at the police team by reason of

such  attack  on  police,  S.I.  Amitava  Mallick

sustained  bullet  injuries  and  died.   During  the

raid, police seized 09 AK-47 rifles, Gelatin Sticks,

detonators and 1800 live ammunitions.  The details

of articles which were seized on such raid have been

detailed in para 24(hh) at Page Nos. 50 to 56 of

counter-affidavit.  During investigation, it could

be learnt that this place in the midst of forest,

was used as arm training camp for the henchmen of

Bimal Gurung.  The GJM has declared complete bandh

in June, 2017 and during the entire period, which

bandh continued for 104 days, the police, CAPF and

Army had acted with utmost restraint and have used

force only in order to protect lives and properties

of public and Government.  Due to the violent attack

by the GJM supporters two police personnel have died

and 119 police personnel sustained injuries.  During

this  period,  violent  agitators  burnt  76  vehicles

including  25  police  vehicles  and  vandalized  37

vehicles including 17 police vehicles.  Apart from

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that  they  committed  arson  in  168

buildings/properties  including  20  police

buildings/properties.  In addition, they vandalized

31  buildings/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.  

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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, rioting

etc.  The petitioner is not entitled for the relief

as claimed in the writ petition.  Allegation that

police  has  registered  cases  falsely  on  the

petitioner  and  his  supporters  is  denied.

Allegations  that  recovery  of  arms  and  ammunitions

were recovery of those arms, which were planted by

the police is also vehemently denied.  The State has

also  referred  to  orders  passed  by  Calcutta  High

Court in Writ Petition No. 15306 of 2017 where the

High  Court  has  issued  various  directions  on

16.06.2017, 07.07.2017, 11.07.2017 and 14.07.2017.   

12. The State case is that even the High Court in

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its order has noted that situation in Darjeeling and

Kalimpong districts is deteriorating rapidly day by

day.  Insurgency  and  the  violent  agitations  are

continuing  unabated.   The  High  Court  itself  has

directed the Central Government to deploy four more

companies of CRPF, which was deployed by the Central

Government  as  was  noticed  by  the  High  Court

subsequently on 19.07.2017.  The State consistently

denied  any  extra  judicial  killings  of  supporters

requiring any investigation.  It is further denied

that any perverse steps have been taken by the State

Agencies in order to quell the so called democratic

and alleged peaceful movement.  It is pleaded that

present petition being based on incorrect fact, full

of suppression of material facts, no relief should

be granted.  It is the petitioner who has been for a

long time evading process of law by not cooperating

with any investigation by police authorities and not

appearing before the trial court.  In the counter

affidavit,  the  respondents  have  annexed  various

photographs capturing damage to public and private

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properties,  photographs  referring  to  particular

cases have also been brought on record along with

the counter affidavit.   

13. Petitioner has filed a rejoinder affidavit again

reiterating  the  prayer  for  independent

investigation.  Petitioner’s case is that petitioner

is a well known political leader and he is being

persecuted  by  the  State  and  its  agencies.   The

petitioner was provided police protection prior to

June,  2017.   The  petitioner  further  pleads  that

cases  against  the  petitioner  originating  prior  to

2017 should be withdrawn as per GTA Act, 2011. He

has  also  referred  to  clause  29  of  Tripartite

agreement entered in the year 2011.  Petitioner’s

case is that all cases registered post May, 2017 are

lodged with an intention to pressurize 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

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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 into the State of

Sikkim. On 01.09.2017, the West Bengal Police, led

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by  Superintendent  of  Police,  Mr.  Yadav,  Kalimpong

went  deep  inside  at  Namchi,  Sikkim  and  shot  one

person named Dawa Bhutia, without any provocation,

against which a FIR has been registered by Namchi

Police  Station  against  police  personnel  headed  by

S.P., Kalimpong.  Death of certain supporters of GJM

has also been mentioned in the rejoinder affidavit

and name of 11 persons have been given, who died

allegedly  by  various  police  actions.   Petitioner

further  stated  that  respondents  have  continued  to

commit atrocities on innocent supporters of GJM.  It

is further alleged that police officials are picking

and choosing the supporters of the petitioner and

threatening  them  to  surrender  and  change  their

allegiance  to  a  leader  sponsored  by  the  State

Government.

14. We have heard Shri P.S. Patwalia, learned senior

counsel  for  the  petitioner,  Shri  Kapil  Sibal,

learned  senior  counsel,  Dr.  A.M.  Singhvi,  learned

senior counsel, Shri Rakesh Dwivedi, learned senior

counsel  and  Shri  Kalyan  Banerjee,  learned  senior

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counsel have been heard for the respondents. Learned

Attorney  General  has  appeared  for  the  Union  of

India.

15. Shri  P.S.  Patwalia,  learned  senior  counsel

appearing  for  the  petitioner  submits  that  the

petitioner who is President and Leader of GJM Party

has been carrying out only democratic and peaceful

agitation in support of the long standing demand of

separate State of Gorkhaland.  It is submitted that

Education Minister and Chief Minister of State of

West  Bengal  announced  that  Bengali  shall  be  a

compulsory  language  in  the  entire  State  of  West

Bengal.  He  submits  that  meeting  was  convened  on

30.05.2017 by the intellectual and literary persons

for exchange of ideas with regard to which FIR was

lodged without any provocation. He further submits

that  demonstration  and  agitation  with  regard  to

which FIRs have been lodged against the petitioner

and  other  members  of  GJM  which  were  false  and

without  any  reason  and  only  to  persecute  the

23

petitioner  and  other  members  of  the  party.  He

submits that in the Police firing several members of

the  GJM  have  been  killed  whereas  FIRs  have  been

lodged against the petitioner and other members of

the Party for killing of their own supporters which

is  unbelievable  and  false.   He  submits  that  FIR

No.182 of 2017 pertaining to bomb blast and several

other subsequent FIRs were lodged 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

24

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  investigation.  He  submits  that  this

Court has already held that mere filing of charge-

sheet and commencing of trial is no ground to refuse

in  entrusting  the  investigation  to  an  independent

agency.  

16. Learned counsel for the petitioner submits that

the investigation of all the FIRs be transferred to

any independent agency including NIA, CBI on which

West Bengal Government has no control for a fair and

correct investigation. He submits that peaceful and

25

democratic  demonstration  cannot  be  curbed  in  the

manner in which State of West Bengal is doing.

17. Learned counsel for the petitioner in support of

his submission has placed reliance on the judgments

of this Court in State of West Bengal and others vs.

Committee for Protection of Democratic Rights, West

Bengal and others, (2010) 3 SCC 571, Sanjiv Kumar

vs. Union of India and others, (2005) 5 SCC 510,

Dharam Pal vs. State of Haryana and others, (2016) 4

SCC  160  and  Mithilesh  Kumar  Singh  vs.  State  of

Rajasthan and others, (2015) 9 SCC 795.

18. Shri Kapil Sibal and Dr. Abhishek Manu Singhvi,

learned senior counsel appearing for the State of

West  Bengal  refuting  the  submission  of  learned

counsel  appearing  for  the  petitioner  contend  that

present is not a case where this Court may exercise

jurisdiction under Article 32 for granting relief as

claimed in the writ petition. It is submitted that

the  petitioner  has  sought  for  transfer  of

26

investigation of FIRs lodged against him and other

members of GJM as well. This petition is neither a

representative nor a PIL so that the petitioner can

espouse the cause of all members of the GJM who are

culpable  or  liable  to  be  prosecuted.  The

petitioner's prayer that any future FIRs/complaints

may  also  be  transferred,  is  also  a  prayer  which

cannot  be  considered.  It  is  incumbent  upon  the

petitioner to identify the cases which need to be

transferred  and  make  out  grounds  for  transfer  of

each of such cases. The prayer seeking transfer of

all  the  FIRs  enmass  including future FIRs is not

maintainable.  The  primary  contention  of  the

petitioner is that the allegations against him are

false and that he is not culpable in any of the

cases registered against him. For such allegations,

the  petitioner  has  full  opportunity  to  raise  all

legal  and  factual  defences  and  has  remedies

available  under  the  Criminal  Procedure  Code.  The

petitioner  cannot   be  allowed  to  bypass  the

provisions of the Cr.P.C. and entire procedure.

27

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

28

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 by this Court or by the High Court for the

transfer of investigation to a Central Agency it was

based on the facts of each case. Looking into the

facts of the present case, where not only there is

serious threat to law and order and the public order

by  violent  acts  life  and  property  has  also  been

damaged.   Distrust  on  whole  State  machinery  and

judicial  system  cannot  be  accepted.  It  is  the

responsibility of the State to maintain the law and

order and to protect the lives and properties of the

citizens. A State cannot abdicate its obligation to

quell the violent agitation and to take appropriate

action permitted under law.  

21. Shri  Rakesh  Dwivedi,  learned  senior  counsel,

appearing for the Director General of Police, adopts

29

the submission raised by Shri Kapil Sibal and Dr.

A.M. Singhvi, and he submits that Police officers

and authorities are taking action as per law and the

allegation that there is any bias on the part of the

Police  authorities  towards  the  petitioner  is

unfounded. There have been cases registered against

the petitioner even before starting of the agitation

from May, 2017. The petitioner and his supporters by

violent  agitation  had  made  the  entire  area  stand

still causing loss of lives and properties of the

residents.  

22. Learned Attorney General appearing for the Union

of India submits that Union of India has rendered

all necessary help as per the request of the State

for  providing  Central  Forces  to  the  State  for

maintaining peace.  Learned Attorney General submits

that Union Government is always ready to comply with

any direction issued by this Court in this regard.  

23. We  have  considered  the  submissions  of  the

learned  counsel  for  the  parties  and  perused  the

30

records.  

24. Before we advert to the facts of the present

case and prayers made in the writ petition, it is

useful to recall necessary principles as enumerated

by this Court while exercising jurisdiction by this

Court  under  Article  32  or  the  High  Court  under

Article  226  for  transferring  investigation  of  a

criminal case to a Central Agency. The Constitution

Bench of this Court in State of West Bengal (supra)

has authoritatively laid down that the High Court

under Article 226 and this Court under Article 32

can  issue  direction  to  CBI  to  investigate  a

cognizable offence within the State without consent

of that State. The Constitution Bench also in the

above context has held that although this Court 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.

31

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,  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.  Otherwise  CBI  would be flooded with a large number of cases and with limited resources, may find it difficult  to  properly  investigate  even serious cases and in the process lose its credibility  and  purpose  with unsatisfactory investigations.”

32

25. The two-Judge Bench of this Court in Dharam Pal

vs.  State  of  Haryana  and  others  (supra)  while

referring  to  the  principles  for  transferring

investigation has laid down following in paragraphs

18, 19 and 24:

“18. A  three-Judge  Bench  in  K.V. Rajendran v. Supt. of Police reiterating the said principle stated that: (SCC p. 485, para 13)

“13.  …  the  power  of  transferring such investigation must be in rare and  exceptional  cases  where  the court finds it necessary in order to do justice between the parties and  to  instil  confidence  in  the public mind, or where investigation by  the  State  police  lacks credibility and it is necessary for having ‘a fair, honest and complete investigation’,  and  particularly, when  it  is  imperative  to  retain public confidence in the impartial working of the State agencies.”

19. The Court, after referring to earlier decisions,  has  laid  down  as  follows: (K.V. Rajendran case, SCC p. 487, para 17)

“17. In view of the above, the law can  be  summarised  to  the  effect that the Court could exercise its constitutional  powers  for transferring an investigation from

33

the  State  investigating  agency  to any other independent investigating agency like CBI only in rare and exceptional  cases.  Such  as  where high officials of State authorities are  involved,  or  the  accusation itself is against the top officials of the investigating agency thereby allowing  them  to  influence  the investigation, and further that it is so necessary to do justice and to  instil  confidence  in  the investigation  or  where  the investigation is prima facie found to be tainted/biased.”

24. Be  it  noted  here  that  the constitutional  courts  can  direct  for further investigation or investigation by some  other  investigating  agency.  The purpose  is,  there  has  to  be  a  fair investigation and a fair trial. The fair trial may be quite difficult unless there is  a  fair  investigation.  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

34

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 vs. Superintendent of Police, CBCID South

Zone, Of Police, (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  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.

27. Before we apply the above principles laid down

by this Court to find out whether the facts of the

35

present  case  are  rare  and  exceptional  where  this

Court  has  to  exercise  power  under  Article  32  to

transfer  enmass cases to other agency, we need to

advert what is the nature and extent of democratic

and  peaceful  demonstration  as  protected  by  our

Constitution violation of which may raise violation

of fundamental rights of a person.  

28. Article  19  of  the  Constitution  of  India

guarantees some of most important fundamental rights

to  the  citizens.  Article  19  protects  important

attributes of personal liberty. Right to freedom of

speech  and  expression  as  guaranteed  under

Article 19(1)(a) and the right to assemble peaceably

and without arms as protected by Article 19(1)(b)

are  the  rights  which  in  reference  to  the  present

case have importance. The right of freedom of speech

and  expression  coupled  with  right  to  assemble

peaceably and without arms are rights expression of

which  are  reflected  in  carrying  demonstration  on

several occasions.  Freedom to air once view is the

36

life line of any democratic institution. The word

freedom  of  speech  must  be  broadly  construed  to

include  right  to  circulate  once  view  by  word  or

mouth or through audio visual instrument. Right of

public  speech  is  one  form  of  expression  which  is

also  a  part  of  freedom  of  speech  and  expression.

Demonstrations are also a mode of expression of the

rights  guaranteed  under  Article  19(1)(a).

Demonstrations  whether  political,  religious  or

social or other demonstrations which create public,

disturbances or operate as nuisances, or create or

manifestly threaten some tangible public or private

mischief,  are  not  covered  by  protection  under

Article 19(1). A demonstration might take the form

of an assembly and even then the intention is to

convey  to  the  person  or  authority  to  whom  the

communication is intended the feelings of the group

which assembles. From the very nature of things a

demonstration  may  take  various  forms;  “it  may  be

noisy and disorderly”, for instance stone-throwing

by a crowd may be cited as an example of a violent

37

and  disorderly  demonstration  and  this  would  not

obviously be within Article 19(1)(a) or (b). We in

the  present  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 Vs. State of Kerala & 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

38

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  right  by  a political party or those comprising it. The claim for relief by the petitioners in these original petitions will have to be considered in this background.”

30. An appeal was filed against the said judgment

before this Court. A three-Judge Bench of this Court

in The Communist Party of India (M) vs. Bharat Kumar

& Ors., (1998) 1 SCC 201,  affirmed the judgment of

the Kerala High Court. While affirming the judgment

following was laid down in paragraph 3:

“3. On a perusal of the impugned judgment of the High Court‡, referring to which learned counsel for the appellant pointed out  certain  portions,  particularly  in paras 13 and 18 including the operative part in support of their submissions, we find that the judgment does not call for any interference. We are satisfied that the distinction drawn by the High Court between a “Bandh” and a call for general strike or “Hartal” is well made out with reference to the effect of a “Bandh” on the fundamental rights of other citizens. There  cannot  be  any  doubt  that  the fundamental  rights  of  the  people  as  a whole cannot be subservient to the claim

39

of fundamental right of an individual or only a section of the people. It is on the basis of this distinction that the High  Court  has  rightly  concluded  that there  cannot  be  any  right  to  call  or enforce a “Bandh” which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. We may also add that the reasoning given by the High Court,  particularly  those  in  paragraphs 12, 13 and 17 for the ultimate conclusion and directions in paragraph 18 is correct with which we are in agreement. We may also  observe  that  the  High  Court  has drawn  a  very  appropriate  distinction between a “Bandh” on the one hand and a call for general strike or “Hartal” on the other. We are in agreement with the view taken by the High Court.”

31. The  two-Judge  Bench  of  this  Court  in  James

Martin vs. State of Kerala, (2004) 2 SCC 203, which

was a case where in reference to Bharat bandh call

sponsored  by  political  parties,  appellant  was

prosecuted for the offence under Section 304 Part I,

326 and 324 read with Section 34 IPC and 25-B(1) of

Arms Act, 1959 and was convicted. While dealing with

the  case  this  Court  made  the  following  pertinent

observations:

“24. Before  we  part  with  the  case,  it needs to be noted that in the name of

40

hartal or  bandh or 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 of bandh or hartal or strike.”

32. A two-Judge Bench of this Court in Anita Thakur

and others vs. Government of Jammu and Kashmir and

others, (2016) 15 SCC 525  in which one of us Dr.

A.K.  Sikri  was  a  member  had  occasion  to  consider

41

Article 19 in reference to a protest march organised

by  a  group  of  people.  While  dealing  with  the

demonstration  under  Article  19(1)(a)  and  (b)

following was laid down in paragraph 12:

“12. We  can  appreciate  that  holding peaceful  demonstration  in  order  to  air their  grievances  and  to  see  that  their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1) (a),  19(1)(b)  and  19(1)(c)  of  the Constitution.  Article  19(1)(a)  confers freedom of speech to the citizens of this country and, thus, this provision ensures that the petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b)  confers  the  right  to  assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under  Article  19(1)(d),  again,  ensures that  the  petitioners  could  take  out peaceful march. The “right to assemble” is  beautifully  captured  in  an  eloquent statement  that  “an  unarmed,  peaceful protest procession in the land of “salt satyagraha”,  fast-unto-death  and  “do  or die”  is  no  jural  anathema”.  It  hardly needs  elaboration  that  a  distinguishing feature  of  any  democracy  is  the  space offered  for  legitimate  dissent.  One cherished  and  valuable  aspect  of political life in India is a tradition to express grievances through direct action or  peaceful  protest.  Organised,  non- violent protest marches were a key weapon

42

in the struggle for Independence, and the right  to  peaceful  protest  is  now recognised as a fundamental right in the Constitution.”

33. This  Court,  however,  noticed  that  more  often

than  not,  such  protestors  take  to  hooliganism,

vandlism and even destroy public/private property.

Following observations have been made in paragraph

16:

“16. Before  adverting  to  the  issue  at hand, we would like to make some general remarks about the manner in which these demonstrations  are  taking  shape.  Recent happenings  show  an  unfortunate  trend where  such  demonstrations  and  protests are on increase. There are all kinds of protests: on social issues, on political issues and on 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.

43

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 unnecessary  force  or  the  force  beyond what is absolutely essential is not used. Policemen are required to undergo special training to deal with these situations. Many times the situations turn ugly or go out  of  control  because  of  lack  of sufficient  training  to  the  police personnel  to  deal  with  violence  and challenges to their authority. There are various documents in the form of police manual  and  even  international  covenants proscribing use of unnecessary force and mandating that force should only be used when  it  is  absolutely  necessary.  Even when  used,  it  should  be  minimum  and proportional to the situation and its use to be discontinued as soon as the danger to life and property subsides.”

34. From the above, it is clear that Article 19(1)

(a)  and  (b)  gives  constitutional  right  to  all

citizens  freedom  of  speech  and  expression  which

includes carrying out public demonstration also but

public  demonstration  when  becomes  violent  and

44

damages the public and private properties and harm

lives of people it goes beyond fundamental rights

guaranteed  under  Article  19(1)  and  becomes  an

offence punishable under law.

35. Before any further discussion we record a note

of caution. In the present case we are not called

upon  to  express  any  opinion  as  to  whether

allegations  made  in  FIRs  which  have  been  lodged

against the petitioner and other supporters of GJM

are true or false. The issue is as to whether, as

prayed  by  the  petitioner,  investigation  in  such

cases are required to be transferred to a central

investigate agency. Thus our observations are only

in reference to answer the prayer made in the writ

petition. Our observation is not to be treated as

any expression of opinion on the allegations made in

FIRs. We do not express any opinion either in favour

or  against  the  petitioner  with  regard  to  the

allegations made in various FIRs.  Our observations

shall not influence any investigating agency or any

45

Court which happen to deal with the criminal cases

which are referred to in the writ petition.

36. Reference has been made to the various orders of

the  High  Court  which  were  passed  by  the  Calcutta

High Court in Writ Petition No.15306(W) of 2017. The

grievance raised in the said writ petition was that

Gorkha Janmukti Morcha (GJM) has organised a bandh

since 9th June, 2017 which has paralysed the working

in  the  hill  area,  more  specially  in  Darjeeling.

Referring to the order dated 07.08.2017, 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.

46

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 situation could have been brought under control. This one-upmanship of the Central  Government  and  the  State Government is causing harm to the people of the two districts of Darjeeling and Kalimpong.  Public  property,  power installations  have  become  casualties  in the large-scale arson and agitation.”

37. The  above  order  indicates  that  situations  in

districts  of  Darjeeling  and  Kalimpong  were

deteriorating and insurgency and violent agitations

were  continuing  unabated.   The  protest  no  longer

remained peaceful and democratic.  The allegations

made of the offences with regard to which various

47

FIRs have been lodged can not be rejected as false

and concocted as contended by the petitioner. On the

record there is sufficient material to indicate the

severe damage to live and property.  

38. Learned counsel for the respondent has rightly

contended  that  it  cannot  be  imagined  that  State

Police  of  West  Bengal  itself  has  destructed  the

property  including  Police  vehicles  only  for  the

purpose of foisting cases against the petitioner and

its  supporters.  Deaths  of  several  persons  which

included Police personnel is admitted to by both the

parties.  More than 300 cases have been filed with

regard  to  which  FIRs  have  been  lodged  after  May,

2017.

39. As noted above, the petitioner's prayer is to

transfer the investigation of all the FIRs lodged

against the petitioner and other members of GJM as

per Annexure P4. Annexure P4 contains details of 112

cases in which petitioner is named in 31 cases. The

48

offences alleged in the cases are serious offences

including offences under Section 121, 121A, 153A and

offences  under  Unlawful  Act,  1967  as  well  as

offences under Section 307, 302 IPC etc. Transfer of

investigation of such large number of cases enmass

is  neither  practicable  nor  justified.  The

jurisdiction under Article 226 and Article 32 with

regard to transfer of investigation of cases has to

be exercised on facts of each and every case. There

are no grounds available in the aforesaid 112 cases

so  as  this  Court  may  exercise  jurisdiction  under

Article  32  for  transfer  of  investigation  in  all

cases.  

40. The petitioner is named only in 31 cases but a

large  number  of  accused  are  involved  in  all  the

cases  in  Annexure  P4.  From  the  counter-affidavit

further details have been brought on record which

indicate that in 56 cases petitioner is accused and

there are total 371 cases which have been registered

after  May,  2017  regarding  various  subversive

49

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  can  not  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

50

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.

All legislative and executive powers in reference to

Public order is thus vested in the State.  There is

a Council Of Ministers with the Chief Minister as

the  head  to  aid  and  advise  the  Governor  in  the

exercise of his functions, except in so far as he is

by or under the Constitution required to exercise

his functions or any of them in his discretion.  The

State  functions  through  its  various  organs

consisting of different personnels and authorities .

State  functionaries  have  their  own  rights  and

obligations  entrusted  to  them  under  different

Statutes governing the field.  The Code of Criminal

Procedure is one of such Statutes, which govern the

51

law relating to criminal procedure.  The authorities

and  police  officers,  who  are  entrusted  different

obligations and functions under the Code of Criminal

Procedure, has to act as ordained by the Code of

Criminal  Procedure.   It  is  an  obligation  of  the

police  officers  to  register  a  First  Information

Report when they receive any information regarding

commission of a cognizable offence.  For recording

such offences, they are neither required to await

any  instructions  from  any  authority  or  State  nor

they have to abdicate their obligation to register

F.I.R.  as  required  by  Cr.P.C.   The  Constitution

Bench of this Court in Lalita Kumari Vs. Government

of  Uttar  Pradesh  &  Ors.,  (2014)  2  SCC  1  has

elaborately considered the obligation to register an

F.I.R.  when  information  of  cognizable  offence  is

received by a police personnel.  Following are the

relevant observations made by the Constitution Bench

speaking through Justice P. Sathasivam that “When a

cognizable offence takes place before the eyes of

police personnel, he is not to await any information

52

or any other source for registering a F.I.R., it is

his  obligation  and  duty  to  register  a  F.I.R.”.

Thus, F.I.R. registered at the instance of police

leading  serious  offences  involving  petitioner  and

supporters of GJM, cannot be discarded on the plea

that it was police, who has roped in the petitioner

and other supporters by lodging the F.I.R.  No bias

or mala fide has been pleaded against any individual

State  functionary  or  police  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

53

State  or  police  personnels.   In  Para  83  of  the

Constitution  Bench  Judgment  in  Lalita  Kumari  Vs.

Government  of  Uttar  Pradesh  &  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 cognizable offence is promptly investigated in accordance with law. This being the legal position, there is  no  reason  that  there  should  be  any discretion or option left with the police to  register  or  not  to  register  an  FIR when  information  is  given  about  the commission of a cognizable offence. Every cognizable  offence  must  be  investigated promptly in accordance with law and all information provided under Section 154 of the  Code  about  the  commission  of  a cognizable offence must be registered as an FIR so as to initiate an offence. The requirement of Section 154 of the Code is only  that  the  report  must  disclose  the commission  of  a  cognizable  offence  and that  is  sufficient  to  set  the investigating machinery into action.”

42. One of the submissions raised by the petitioner

is  that  the  mere  fact  that  in  certain  cases  the

54

charge-sheet has been submitted and no investigation

pending  can  also  be  transferred.  Petitioner  has

relied on the judgment of  Dharam Pal vs. State of

Haryana (supra) where this Court had held that the

commencement  of  a  trial  and  examination  of  some

witnesses  cannot  be  an  absolute  impediment  for

exercising  the  constitutional  power  vested  in  the

High Court and this Court to ensure a fair and just

investigation.  In  paragraph  25  of  the  judgment

following has been stated:

"25.  We may further elucidate. The power to  order  fresh,  de  novo  or reinvestigation  being  vested  with  the constitutional  courts,  the  commencement of  a  trial  and  examination  of  some witnesses  cannot  be  an  absolute impediment  for  exercising  the  said constitutional  power  which  is  meant  to ensure a fair and just investigation. I can never be forgotten that as the great ocean  has  only  one  test,  the  test  of salt, so does justice has one flavour, the flavour of answering to the distress of  the  people  without  any discrimination....”

43. As per law laid down by this Court in the above

case when the power can be exercised even after the

55

commencement of the trial there cannot be any fetter

to  the  power  of  this  Court  in  transferring  the

investigation even after the filing of the charge-

sheet but in view of the facts and reasons as stated

above present is not a case where this Court may

exercise jurisdiction under Article 32 to transfer

the investigation in large number of cases enmass

registered against the petitioner and other members

of the GJM. A judgment on which reliance has been

placed by the petitioner is judgment of  Mithilesh

Kumar  Singh  vs.  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:

56

"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 Rights (2010 3 SCC 571).

12. Even so the availability of power and its  exercise  are  two  distinct  matters. This  Court  does  not  direct  transfer  of investigation just for the asking nor is transfer directed only to satisfy the ego or  vindicate  the  prestige  of  a  party interested  in  such  investigation.  The decision  whether  transfer  should  or should  not  be  ordered  rests  on  the Court's  satisfaction  whether  the  facts and circumstances of a given case demand such an order. No hard-and-fast rule has been  or  can  possibly  be  prescribed  for universal application to all cases. Each case will obviously depend upon its own facts.  What  is  important  is  that  the Court  while  exercising  its  jurisdiction to direct transfer remains sensitive to the  principle  that  transfers  are  not ordered  just  because  a  party  seeks  to lead  the  investigator  to  a  given conclusion. It is only when there is a reasonable  apprehension  about  justice

57

becoming  a  victim  because  of  shabby  or partisan investigation that the Court may step  in  and  exercise  its  extraordinary powers. The sensibility of the victims of the crime  or their  next of  kin is  not wholly  irrelevant  in  such  situations. After all transfer of investigation to an outside  agency  does  not  imply  that  the transferee agency will necessarily, much less  falsely  implicate  anyone  in  the commission  of  the  crime.  That  is particularly so when transfer is ordered to  an  outside  agency  perceived  to  be independent of influences, pressures and pulls  that  are  commonplace  when  State Police  investigates  matters  of  some significance. The confidence of the party seeking transfer in the outside agency in such  cases  itself  rests  on  the independence of that agency from such or similar other considerations. It follows that  unless  the  Court  sees  any  design behind the prayer for transfer, the same must be seen as an attempt only to ensure that  the  truth  is  discovered.  The hallmark of a transfer is the perceived independence of the transferee more than any  other  consideration.  Discovery  of truth  is  the  ultimate  purpose  of  any investigation  and  who  can  do  it  better than an agency that is independent.”

44. The above was a case where writ petition was

filed  under  Article  32  by  the  victim  who  is  the

father of the deceased and the Court was satisfied

that  circumstances  as  pleaded  by  the  petitioner

required  investigation  by  the  independent  agency

58

like CBI. The said case was on its own facts and

does not help the petitioner in the present case.

45. Judgment  of  Sanjiv  Kumar  vs.  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

59

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,  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, we do not think it to be a fit case

where  this  Court  may  exercise  jurisdiction  under

Article  32  to  transfer  the  cases  enmass  to  an

independent agency. The present case cannot be said

to  be  a  case  of  individual's  persecution  by  the

State authority.  

47. In view of the foregoing discussion, we are of

60

the view that the petitioner is not entitled for any

relief. The writ petition is dismissed.

...............................J. ( A.K. SIKRI )

...............................J. ( ASHOK BHUSHAN )

NEW DELHI, MARCH 16, 2018.

61

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 201 OF 2017

GANGA MALIK                    … PETITIONER  

VERSUS

UNION OF INDIA & ORS.       … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

The petitioner's case in this writ petition is that

her son, Amitava Malik, Sub­Inspector of Police was

killed on 13.10.2017 when Police party which consisted

of Amitava Malik proceeded to arrest several accused who

were camping at south bank of river   Chhota Rangeet,

P.S. Sadar, Dajeeling. While chasing the miscreants the

Police personnel were fired upon in which Amitava Malik

son of the petitioner died. The petitioner in this writ

petition has prayed for the following relief:

a) Issue a writ of mandamus or any other appropriate writ order or direction to the respondents to ensure that the petitioner and her family's life is protected;

b) Issue a writ of mandamus or any other appropriate writ order or direction to respondent No.2, State of West Bengal to

62

expeditiously conclude the trial in Sadar PS Case No.213 dated 13.10.2017 preferably within a time bound manner and punish the culprits;

c) Issue a writ of mandamus or any other appropriate writ order or direction to the respondent to pay compensation to the petitioner for the irreparable loss of losing her son which cannot be quantified in monetary terms.

2. Petitioner in the writ petition has stated that Case

No.213 has already been registered in P.S. Sadar in

which charge­sheet has also been submitted and trial is

going on. In so far as trial of criminal case is

concerned the law shall take its own course. In so far

as other reliefs, we are of the view that it is open for

the petitioner to approach respondent No.2 for

appropriate relief.

3. By granting the aforesaid liberty to the petitioner,

the writ petition is dismissed.

...............................J. ( A.K. SIKRI )

...............................J. ( ASHOK BHUSHAN )

NEW DELHI, MARCH 16, 2018.