Bimal Gurung vs Union Of India

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:-

Signature Not Verified Digitally signed by NIDHI AHUJA Date: 2018.03.16 16:48:58 IST Reason:

“A. Transfer the investigation of all the FIRs lodged against the present Petitioner and other members of the GJM, 2

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 3

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. 4 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.

5

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, 6

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 7

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 8

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 9

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 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 10

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 11

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 12

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 13

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 14

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 15

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 16 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.

17

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 18

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 19

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 20

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 21

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 22

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.