# BIMAL GURUNG v. UNION OF INDIA & ORS

- **Citation:** [2018] 4 S.C.R. 843
- **Court:** Supreme Court of India
- **Decided:** 2018-03-16
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bimal-gurung-v-union-of-india-ors-32885
- **Pages:** 32

## Headnote

Investigation: Transfer of investigation to independent
agency - Exercise of power for transferring 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 when it is imperative to retain public confidence
in the impartial working of the State agencies.
Investigation: Transfer of investigation to central investigating
agency - Writ petition seeking transfer of investigation of all FIRs
lodged against the petitioner and other members of Gorkha Janmukti
Morcha (GJM) to an independent investigation agency - FIRs relates
to various offences under IPC, Prevention of Destruction of Property
Act, Arms Act, Indian Explosives Act, WBMPO Act and National
Highway Act - Petitioner's case was that in the light of stand off
between the State of West Bengal over the issue of separate State
for Ghorkhaland, many prominent leaders and members of GJM
were falsely implicated in frivolous cases and there was an imminent
threat to their safety and life - Prayer for transfer was on the ground
that there was bias and prejudice against petitioner and all members
of GJM and the investigation carried out against the members of
GJM was clearly politically motivated - Held: The records show
that there was sufficient material to indicate the severe damage to
life and property in the District of Darjeeling and Kalimpong and
the protest was no longer peaceful and democratic - Deaths of
several persons which included police personnel is admitted by both
the parties - Names of petitioner and other members of GJM
appeared in large number of cases - The State is obliged to maintain
law and order and protect life and property of the citizens - The
cases lodged in the FIR submitted at the instance of the Police or
other complainants cannot be discarded on the specious plea that
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they have been lodged due to bias of the State and with the intent to
persecute the petitioner - 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 - In the facts of the case, it is not a fit case to
exercise jurisdiction under Art.32 to transfer the cases en masse to
an independent agency.
Public functionaries: Duties and powers - The "State" is a
political unit vested with constitutional duties and obligations - The
Governor of the State formally represent the State in whom the
executive power of the State is vested and exercised by him either
directly or through officers subordinate to him in accordance with
the Constitution of India - Under List II, Entry I of Seventh Schedule
of the Constitution, "public order" is a subject allocated to the
State - All legislative and executive powers in reference to public
order is thus vested in the State - 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.
Police Administration: Duties and powers - 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 - 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.
Constitution of India: Arts.19(1)(a) and (b) - Right to hold
demonstration, limitation - Held: Arts.19(1)(a) and (b)

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[2018] 4 S.C.R. 843
843
BIMAL GURUNG
v.
UNION OF INDIA & ORS.
(Writ Petition (Criminal) No. 182 of 2017)
MARCH 16, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Investigation: Transfer of investigation to independent
agency - Exercise of power for transferring 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 when it is imperative to retain public confidence
in the impartial working of the State agencies.
Investigation: Transfer of investigation to central investigating
agency - Writ petition seeking transfer of investigation of all FIRs
lodged against the petitioner and other members of Gorkha Janmukti
Morcha (GJM) to an independent investigation agency - FIRs relates
to various offences under IPC, Prevention of Destruction of Property
Act, Arms Act, Indian Explosives Act, WBMPO Act and National
Highway Act - Petitioner's case was that in the light of stand off
between the State of West Bengal over the issue of separate State
for Ghorkhaland, many prominent leaders and members of GJM
were falsely implicated in frivolous cases and there was an imminent
threat to their safety and life - Prayer for transfer was on the ground
that there was bias and prejudice against petitioner and all members
of GJM and the investigation carried out against the members of
GJM was clearly politically motivated - Held: The records show
that there was sufficient material to indicate the severe damage to
life and property in the District of Darjeeling and Kalimpong and
the protest was no longer peaceful and democratic - Deaths of
several persons which included police personnel is admitted by both
the parties - Names of petitioner and other members of GJM
appeared in large number of cases - The State is obliged to maintain
law and order and protect life and property of the citizens - The
cases lodged in the FIR submitted at the instance of the Police or
other complainants cannot be discarded on the specious plea that
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they have been lodged due to bias of the State and with the intent to
persecute the petitioner - 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 - In the facts of the case, it is not a fit case to
exercise jurisdiction under Art.32 to transfer the cases en masse to
an independent agency.
Public functionaries: Duties and powers - The "State" is a
political unit vested with constitutional duties and obligations - The
Governor of the State formally represent the State in whom the
executive power of the State is vested and exercised by him either
directly or through officers subordinate to him in accordance with
the Constitution of India - Under List II, Entry I of Seventh Schedule
of the Constitution, "public order" is a subject allocated to the
State - All legislative and executive powers in reference to public
order is thus vested in the State - 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.
Police Administration: Duties and powers - 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 - 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.
Constitution of India: Arts.19(1)(a) and (b) - Right to hold
demonstration, limitation - Held: Arts.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 damages the public and
private properties and harm lives of people, it goes beyond
fundamental rights guaranteed under Art.19(1) and becomes an
offence punishable under law.
Dismissing the writ petition, the Court
HELD: 1. The law is well settled that power of transferring
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investigation to other investigating agency must be exercised in
rare and exceptional cases where the Court finds it necessary in
order to do justice between the parties to instil confidence in the
public mind, or where investigation by the State Police lacks
credibility. [Para 26] [862-C]
K.V. Rajendran v. Superintendent of Police, CBCID
South Zone, Chennai (2013) 12 SCC 480 : [2013] 9
SCR 199 - relied on
2. Article 19 protects important attributes of personal
liberty. 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. 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 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 and disorderly demonstration and this
would not obviously be within Article 19(1)(a) or (b). [Para 28]
[862-G-H; 863-A-D]
Anita Thakur and others v. Government of Jammu and
Kashmir and others (2016) 15 SCC 525 - relied on.
3.1 The order of Calcutta High Court indicates that
situations in districts of Darjeeling and Kalimpong were
deteriorating and insurgency and violent agitations were
continuing unabated and the protest no longer remained peaceful
and democratic. The allegations made in various FIRs cannot be
rejected as false and concocted as contended by the petitioner.
BIMAL GURUNG v. UNION OF INDIA & ORS.
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On the record there is sufficient material to indicate the severe
damage to live and property. 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. The
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.
[Paras 37-39] [868-G-H; 869-A, C-D]
3.2 The present case is a case where the petitioner as
Leader of GJM is a spearheading an agitation against the State
demanding a separate State-hood. The State is obliged to maintain
law and order and to protect life 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 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. 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 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
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to register F.I.R. as required by Cr.P.C. 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. It is very easy to make allegations of bias
against a person but it is difficult to substantiate the same. In the
present case, neither there are any pleading nor any material to
come to a conclusion that State functionaries including police
functionaries are biased against the petitioner. Thus, the
allegations of the bias made against the State and police
functionaries had to be rejected and petitioner cannot be
permitted in saying that the FIRs lodged against him are result
of a bias of the State or police personnels. [Para 41] [869-G-H;
870-A-E, G-H; 871-A-B]
Lalita Kumari v. Government of Uttar Pradesh & Ors.
(2014) 2 SCC 1 : [2013] 14 SCR 713 - followed.
4. For a victim the investigation in a case is of much
significance. In the event, a proper investigation is not carried
out and relevant evidence which would have been collected by
due care and caution, is not collected, the victim is sure not to
get justice on such faulty investigation. In case of faulty
investigation, 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 it is
not 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. [Para 46] [874-C-F]
State of West Bengal and others v. Committee for
Protection of Democratic Rights, West Bengal and others
(2010) 3 SCC 571 : [2010] 2 SCR 979 - followed.
Dharam Pal v. State of Haryana and others (2016) 4
SCC 160 : [2016] 1 SCR 194 - partly held inapplicable.
Mithilesh Kumar Singh v. State of Rajasthan and others
BIMAL GURUNG v. UNION OF INDIA & ORS.
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(2015) 9 SCC 795; Sanjiv Kumar v. Union of India
and others (2005) 5 SCC 510 - distinguished.
Bharat Kumar v. State of Kerala & Ors. AIR 1997 Ker.
291; The Communist Party of India (M) v. Bharat Kumar
& Ors. (1998) 1 SCC 201 : [1997] 5 Suppl. SCR 131;
James Martin v. State of Kerala (2004) 2 SCC 203 :
[2003] 6 Suppl. SCR 910 - referred to.
Case Law Reference
[2010] 2 SCR 979
followed
Para 17
(2005) 5 SCC 510
distinguished
Para 17
[2016] 1 SCR 194
partly held inapplicable Para 17
(2015) 9 SCC 795
distinguished
Para 17
[2013] 9 SCR 199
relied on
Para 26
AIR 1997 Ker. 291
referred to
Para 29
[1997] 5 Suppl. SCR 131
referred to
Para 30
[2003] 6 Suppl. SCR 910
referred to
Para 31
(2016) 15 SCC 525
relied on
Para 32
[2013] 14 SCR 713
followed
Para 41
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 182 of 2017.
Under Article 32 of the Constitution of India.
P. S. Patwalia, Sr. Adv., Ms. Natasha Dalmia, Harshika Verma,
Sakshi Kakkar, Somiran Sharma, Advs. for the Petitioner.
Ms. V. Mohana, Kapil Sibal, A. M. Singhvi, Rakesh Dwivedi,
Kalyan Banerjee, Sr. Advs., S. Wasim A. Qadri, Ms. Madhavi Divan,
Ms. Nidhi Khanna, Ayush Puri, Mukesh Kumar Maroria, Suhaan
Mukherji, Kunal Chatterji, Raja Chatterjee, Ms. Nandani Mukherjee,
Chanchal Kumar Ganguli, Piyush Sachdev, Adeel Ahmed, Ms. Runa
Bhuyan, Ms. Nandini Sen Mukherjee, Advs. for the Respondents.
The Judgment of the Court was delivered by
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
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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, 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 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.
BIMAL GURUNG v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
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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. 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 subdivision 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.
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
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Act; the Unlawful Activities (Prevention) Act, 1967; Indian Explosives
Act; WBMPO Act and National Highways Act. In different FIRs,
offences ranged from offences under Sections 121, 121A, 143, 148,
149, 153A, 186, 189, 323, 324,325, 326, 307, 332, 333, 353 and 302 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 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 coaccused 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 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
BIMAL GURUNG v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
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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 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 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 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,
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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 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 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
BIMAL GURUNG v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
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and other incriminating articles were seized. Police parties were attacked
by supporters of GJM on several 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 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 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
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Darjeeling. A total of 371 No. of cases of attack on police, unlawful
assembly, arson, rioting, bomb explosion, use of firearms etc. has been
registered in Darjeeling, Kalimpong and Alipurduar districts. Out of 371
cases, petitioner is named as accused in 56 cases. Out of 371 cases,
145 number of cases, have been started on suo moto action by the police
whereas other cases have been started on the complaints of other victims.
11. Series of bomb blast have also been alleged in the counter
affidavit, accusing petitioner and other supporters of GJM, with regard
to which, several FIRs have been lodged. The GJM supporters have
indulged in large scale violence causing damage to private and public
property. Cases have been registered against the petitioner, supporters
and other miscreants of attack on police, arson, 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 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 properties,
photographs referring to particular cases have also been brought on record
along with the counter affidavit.
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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 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 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.
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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 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 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 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
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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
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 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.
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19.