Paragraph numbers below are the court’s original numbering, recovered from the source text.
26. The law is thus well settled that power of transferring 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. 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 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 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 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 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 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 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 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 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. 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 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 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. 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 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 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 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 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 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 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 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 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 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: “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 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 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 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 the view that the petitioner is not entitled for any relief. The writ petition is dismissed. Devika Gujral Writ Petition dismissed.