TaxTMI 
TaxTMI 
2018 (3) TMI 2026
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....rit 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 coe....
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....e 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 Indian Penal Code; Prevention of Destruction of Public Property Act; Arms Act; the Unlawful Activities (Prevention) Act, 1967; Indian Explosives Act; WBMPO Act and National Highways Act. In different FIRs, offences ranged from offences Under Sections 121, 121A, 143, 148, 149, 153A, 186, 189, 323, 324, 325, 326, 307, 332, 333, 353 and 302 Indi....
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...., 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 21 of the Constitution of India. The State Government and the State Police have dealt with absolute highhandedness to quell the democratic and peaceful agitation by illegally executing Gorkhaland members and activists and injuring over 200 supporters. 6. The Petitioner is directly named in 31 FIRs. There is a genuine fear of bias and prejudice against Petitioner and all members of GJM and the investigation being carried out against the members of GJM is clearly politically motivated and directed by the Government of West Bengal. The language in FIR No. 182 of 2017 dated 19.08.2017 and Anr. FIR No. 8 of 2017 dated 24.08.2017 lodged at another police station, which is 44 ....
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.... reference to Sadar P.S. Case No. 213/2017 dated 13.10.2017 Under Sections 121/121A/153A/323/120B/307/302 Indian Penal Code 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 Cabin....
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....r 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 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 t....
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....ner 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 c....
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....nst 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 Petition....
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....eking transfer of all the FIRs en masse 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 Code of Criminal Procedure. The Petitioner cannot be allowed to bypass the provisions of the Code of Criminal Procedure and entire procedure. 19. It is further submitted that the most of the cases where investigation has been transferred by this Court are the cases which were filed at the instance of the victims and not by the Accused. The reason for such indulgence is that the Accused has sufficient opportunity of representation, whereas the victim does not have any, hence, it is to safeguard the victim's cause that courts have to step in to ensure fair investigation and trial. Further, the Petitioner cannot seek transfer of investigation in cases where charge-sheet has already been filed and trial has commenced. The allegations of bias against the entire State machinery are unfounded and unsubstantiated....
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....cising 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. 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 ....
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....ion 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 agency must be exercised in rare and exceptional cases wher....
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.... 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 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 v. State of Kerala and Ors. AIR 1997 Ker. 291 had occasion to consider fundamental rights and bandh given by political parties. The Kerala High Court while describing call for bandh held that call for a bandh is distinct and different from call for a general strike or the call for hartal. The intention of the callers of the bandh is to ensure that no activity either public or private is carried on that day. The full Bench considered different aspects of bandh in referen....
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....ral 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 v. 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 Indian Penal Code 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 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....
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....le 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, vandalism 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 demonstratio....
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....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 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....
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....ode etc. Transfer of investigation of such large number of cases en masse 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 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....
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....ormation 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 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 funct....
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....t 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 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 en masse 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 v. State of Rajasthan (supra). The above case was a case where daughter of the Petitioner died by falling from four storied College Hostel. Petitioner came with the case that investigation conducted by the local police was not fair and the version put up by the police that the girl committed suicide is not correct. In the above context this Court held that a trial based on a partisan, motivated, one-sided, ....
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.... 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 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 v. Om Prakash Chautala (supra) was again a case filed by Sanjiv Kumar who was a whistle-blower alleging large-scale corruption and tampering of records in filling up of about 4000 posts of JBT teachers in State of Haryana. The writ petition filed by Sanjiv Kumar being W.P.(Crl.) No. 93 of 2003 was disposed of by this Court directi....