2018 Supreme(SC) 234

SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
BIMAL GURUNG – PETITIONER
VERSUS
UNION OF INDIA & ORS. – RESPONDENTS
WRIT PETITION (CRIMINAL) NO. 182 OF 2017
With
GANGA MALIK – PETITIONER
VERSUS
UNION OF INDIA & ORS – RESPONDENTS
WRIT PETITION (CRIMINAL) NO. 201 OF 2017
Decided On : 16-03-2018

IMPORTANT POINTS
Investigation can be transferred only in rare and exceptional cases where necessary to do justice between the parties and instill confidence in public or where investigation by State police lacks credibility.
Demonstrations and bandhs creating public disturbances or operating as nuisances, or creating or manifestly threatening some tangible public or private mischief are not protected under Article 19. Such demonstrations and bandh become an offence punishable under law.

Headnote:(a) Criminal jurisprudence – Transfer of investigation – Only in rare and exceptional cases where necessary to do justice between the parties and instill confidence in public or where investigation by State police lacks credibility – Article 32, Constitution of India. (Para 26)

       (2016) 4 SCC 160; (2013) 12 SCC 480 – Relied upon

       (b) Constitution of India – Article 19(1)(a) – Right to freedom of speech and right to assemble peaceably and without arms – Demonstrations and bandhs – Creating public disturbances or operating as nuisances, or creating or manifestly threatening some tangible public or private mischief – Not protected – Such demonstrations and bandh become an offence punishable under law. (Para 28, 34)

       (1998) 1 SCC 201; (2004) 2 SCC 203; (2016) 15 SCC 525 – Relied upon

       AIR 1997 Ker. 291 – Cited with approval

       (c) Constitution of India – Article 32 – Transfer of investigation – Large number of FIRs against petitioner and his supporters – Large number of persons including police personnel dying in violent agitations – Police properties being destroyed – Cannot be a case of police implicating petitioner and his supporters out of bias. (Para 41)

       (2014) 2 SCC 1 – Relied upon

       (d) Constitution of India – Article 32 – Transfer of investigation –No fetter even after filing of charge sheet – Instantly large number of FIRs sought to be transferred en masse – Not permissible. (Para 43, 44, 46)

       (2016) 4 SCC 160; (2015) 9 SCC 795; (2005) 5 SCC 510 – Distinguished

       (2010) 3 SCC 571 – Referred

       Facts of the case:

       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, 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 sub division in the district of Darjeeling and for certain matters incidental thereto. 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. This as been stated to be beginning of protest carried on by different associations of Gorkhas and the GJM.

       On 30.05.2017, GJM claimed to convene an indoor meeting of various intellectuals to assess their views. Several persons have been booked under Sections 120-B, 153A, 505 and 34 Indian Penal Code. Around 300 FIRs have been registered against the members and supporters of GJM.

       On 17.06.2017, the West Bengal police opened fire at GJM supporters and members, causing death of GJM supporters. On 27.06.2017, GJM party members withdrew from the GTA Act. 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. 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. against petitioner and other GJM leaders. Petitioner further refers to death of one Dawa Bhutia, GJM supporter on 01.09.2017, who died in a shoot out.

       On the aforesaid facts, the petitioner sought the transfer of investigation of all cases to an independent investigating agency.

       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. Writ petitioner pleads that 11 members and supporters of GJM have been killed. On the aforesaid facts and grounds the petitioner, the President of Gorkha Janmukti Morcha, has filed this Writ Petition praying for transfer of investigation of all First Information Reports lodged against the petitioner and other members of GJM, to any independent investigation agency.

       Finding of the Court:

       No ground has been made out for transfer of investigation.

       Result: Petition dismissed.