BIMAL GURUNG v. UNION OF INDIA & Ors.

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. A B C D E F G H 846 SUPREME COURT REPORTS [2018] 4 S.C.R. A B C D E F G H 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 BIMAL GURUNG v. UNION OF INDIA & ORS. 847 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 A B C D E F G H 848 SUPREME COURT REPORTS [2018] 4 S.C.R. A B C D