Bimal Gurung vs Union of India & Ors.

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 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. 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 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 (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.