Supreme Court Denies Transfer of Gorkhaland Agitation Cases to Independent Agency: Bimal Gurung vs. Union of India (2018)

Date of the Judgment: 16 March 2018

Citation: (2018) INSC 204

Judges: A.K. Sikri, J., Ashok Bhushan, J.

Can a political leader, facing numerous criminal charges for violent protests, demand a transfer of all investigations to an independent agency? The Supreme Court of India recently addressed this question in a case stemming from the Gorkhaland agitation. The core issue revolved around whether the court should intervene and transfer the investigation of multiple FIRs against Bimal Gurung and other members of the Gorkha Janmukti Morcha (GJM) from the West Bengal Police to an independent investigating agency. The judgment was delivered by a two-judge bench comprising Justice A.K. Sikri and Justice Ashok Bhushan, with the opinion authored by Justice Ashok Bhushan.

Case Background

The petitioner, Bimal Gurung, President of the Gorkha Janmukti Morcha (GJM), sought the transfer of investigations of all FIRs lodged against him and other GJM members to an independent agency, alleging bias by the West Bengal Police. The GJM has been at the forefront of the Gorkhaland agitation since 2007, advocating for a separate state. The agitation intensified in May 2017 following the West Bengal government’s announcement that Bengali would be compulsory in all schools, which was viewed by the Gorkhas as an encroachment on their language. This led to widespread protests and violence.

The petitioner claimed that false FIRs were lodged against him and his supporters, and that the police had used excessive force, resulting in the deaths of innocent GJM supporters. He also alleged that the police had planted weapons and fabricated evidence. The petitioner and other GJM members resigned from the Gorkhaland Territorial Administration (GTA) in protest. The petitioner further claimed that the language used in different FIRs was identical, indicating a coordinated effort to implicate him and other members of GJM. The petitioner sought police protection from an independent police force not under the control of the State of West Bengal.

Timeline:

Legal Framework

The judgment refers to several sections of the Indian Penal Code (I.P.C.), including:

• ✓ Section 120-B I.P.C. (Criminal Conspiracy)
• ✓ Section 121 I.P.C. (Waging, or attempting to wage war, or abetting waging of war, against the Government of India)
• ✓ Section 121A I.P.C. (Conspiracy to commit offences punishable by section 121)
• ✓ Section 143 I.P.C. (Punishment for unlawful assembly)
• ✓ Section 148 I.P.C. (Rioting, armed with deadly weapon)
• ✓ Section 149 I.P.C. (Every member of unlawful assembly guilty of offence committed in prosecution of common object)
• ✓ Section 153A I.P.C. (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony)
• ✓ Section 186 I.P.C. (Obstructing public servant in discharge of public functions)
• ✓ Section 189 I.P.C. (Threat of injury to public servant)
• ✓ Section 302 I.P.C. (Punishment for murder)
• ✓ Section 307 I.P.C. (Attempt to murder)
• ✓ Section 323 I.P.C. (Punishment for voluntarily causing hurt)
• ✓ Section 324 I.P.C. (Voluntarily causing hurt by dangerous weapons or means)
• ✓ Section 325 I.P.C. (Punishment for voluntarily causing grievous hurt)
• ✓ Section 326 I.P.C. (Voluntarily causing grievous hurt by dangerous weapons or means)
• ✓ Section 332 I.P.C. (Voluntarily causing hurt to deter public servant from his duty)
• ✓ Section 333 I.P.C. (Voluntarily causing grievous hurt to deter public servant from his duty)
• ✓ Section 353 I.P.C. (Assault or criminal force to deter public servant from discharge of his duty)
• ✓ Section 505 I.P.C. (Statements conducing to public mischief)

Other statutes mentioned include:

• ✓ Prevention of Destruction of Public Property Act
• ✓ Arms Act
• ✓ The Unlawful Activities (Prevention) Act, 1967
• ✓ Indian Explosives Act
• ✓ WBMPO Act
• ✓ National Highways Act.

The judgment also discusses the fundamental rights guaranteed under the Constitution of India, specifically:

• ✓ Article 19(1)(a): Freedom of speech and expression
• ✓ Article 19(1)(b): Right to assemble peaceably and without arms
• ✓ Article 21: Protection of life and personal liberty
• ✓ Article 32: Right to constitutional remedies
• ✓ Article 226: Power of High Courts to issue certain writs

Arguments

Petitioner’s Arguments:

• ✓ The petitioner, Bimal Gurung, argued that he and other members of GJM were carrying out a democratic and peaceful agitation for a separate state of Gorkhaland.
• ✓ He contended that the West Bengal government’s announcement regarding the compulsory use of Bengali was a provocation, leading to the protests.
• ✓ The petitioner claimed that the FIRs lodged against him and other GJM members were false and intended to persecute them.
• ✓ He alleged that the police firing resulted in the deaths of several GJM members, and that the FIRs lodged against the petitioner for these killings were fabricated.
• ✓ The petitioner argued that the identical language in multiple FIRs indicated a mechanical and biased approach by the police.
• ✓ He contended that the alleged recovery of arms and ammunitions was false and planted by the police.
• ✓ The petitioner submitted that a fair investigation by the West Bengal Police was impossible and sought transfer of all investigations to an independent agency like the NIA or CBI.
• ✓ The petitioner relied on judgments such as State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571, Sanjiv Kumar vs. Union of India and others, (2005) 5 SCC 510, Dharam Pal vs. State of Haryana and others, (2016) 4 SCC 160 and Mithilesh Kumar Singh vs. State of Rajasthan and others, (2015) 9 SCC 795, to support his claim for transfer of investigation.

Respondents’ Arguments:

• ✓ The respondents, primarily the State of West Bengal, argued that the present case did not warrant the exercise of jurisdiction under Article 32 of the Constitution.
• ✓ They contended that the petitioner could not seek transfer of investigation for all members of GJM, as the petition was not a representative or PIL.
• ✓ The respondents argued that the petitioner’s prayer for transfer of future FIRs was not maintainable.
• ✓ They submitted that the petitioner had adequate legal remedies under the Criminal Procedure Code to raise his defenses.
• ✓ The respondents argued that the transfer of investigation is usually done in cases where the victim seeks it, not the accused.
• ✓ They contended that the allegations of bias against the entire State machinery were unfounded.
• ✓ The respondents argued that the cases against the petitioner were serious and that the writ petition was filed to scuttle the investigation.
• ✓ The respondents stated that the violent acts of the petitioner and his supporters had caused serious damage to life and property.
• ✓ They argued that the State has a responsibility to maintain law and order and cannot abdicate its obligation to quell violent agitations.

Sub-Submissions by Parties:

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the investigation of all the FIRs lodged against the petitioner and other members of GJM should be transferred from the West Bengal Police to an independent investigation agency like the NIA or CBI?
2. Whether the petitioner is entitled to anticipatory bail and protection against any coercive steps in the FIRs registered by the West Bengal Police?
3. Whether the petitioner is entitled to police protection by an independent police force not under the control of the State of West Bengal?

Treatment of the Issue by the Court:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

✓ The Court relied on State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571* to reiterate that the power to transfer investigation to an independent agency must be exercised sparingly and cautiously.

✓ The Court used K.V. Rajendran vs. Superintendent of Police, CBCID South Zone, Of Police, (2013) 12 SCC 480* to emphasize that transfer of investigation is warranted only in rare and exceptional cases, such as when high officials are involved or the investigation is tainted.

✓ The Court referred to Dharam Pal vs. State of Haryana and others, (2016) 4 SCC 160* to highlight that the power to transfer investigation is meant to ensure a fair and just investigation, but it is not to be exercised routinely.

✓ The Court cited Bharat Kumar Vs. State of Kerala & Ors., AIR 1997 Ker. 291* and The Communist Party of India (M) vs. Bharat Kumar & Ors., (1998) 1 SCC 201* to distinguish between a bandh and a general strike, emphasizing that a bandh cannot infringe upon the fundamental rights of other citizens.

✓ The Court referred to James Martin vs. State of Kerala, (2004) 2 SCC 203* to observe that no person has the right to destroy another’s property in the name of bandh or hartal.

✓ The Court used Anita Thakur and others vs. Government of Jammu and Kashmir and others, (2016) 15 SCC 525* to recognize the right to peaceful protest but also to acknowledge the increasing trend of violent protests that lead to destruction of property.

✓ The Court relied on Lalita Kumari Vs. Government of Uttar Pradesh & Ors., (2014) 2 SCC 1* to emphasize the obligation of police to register an FIR when information of cognizable offence is received.

✓ The Court distinguished the facts of the present case with Mithilesh Kumar Singh vs. State of Rajasthan and others, (2015) 9 SCC 795* and Sanjiv Kumar vs. Union of India and others, (2005) 5 SCC 510* stating that those were cases filed by victims.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• ✓ The Court emphasized the need to exercise caution when transferring investigations to independent agencies.
• ✓ The Court noted that the Gorkhaland agitation had turned violent, with significant damage to life and property.
• ✓ The Court found no specific evidence of bias against individual police officers or state functionaries.
• ✓ The Court recognized the State’s obligation to maintain law and order and to take necessary steps to control violent agitations.
• ✓ The Court observed that the petitioner had alternative legal remedies available under the Criminal Procedure Code.
• ✓ The Court distinguished the facts of the present case with the cases cited by the petitioner, stating that those were cases filed by victims.

Fact:Law Ratio

The Court’s reasoning was influenced more by the factual circumstances of the case, such as the violence and the lack of evidence of bias, than by legal principles alone.

Logical Reasoning:

The Court’s decision was based on a step-by-step analysis of the facts and the legal principles involved. It first considered the issue of bias and exceptional circumstances. Finding no sufficient evidence, it then considered the state’s obligation to maintain law and order and the availability of legal remedies to the petitioner, ultimately leading to the denial of the transfer of investigation.

The Court considered alternative interpretations of the facts and legal principles, but rejected them. For instance, the Court acknowledged the petitioner’s claim that the FIRs were fabricated and that the police were biased, but found no concrete evidence to support these claims. The Court also considered the petitioner’s reliance on previous judgments where investigation was transferred, but distinguished those cases on their facts. The Court emphasized that the power to transfer investigation should be exercised sparingly and only when there is a clear necessity to do so.

The Court’s decision was clear and accessible, stating that the petitioner had not made a sufficient case for the transfer of investigation. The Court also reiterated the State’s responsibility to maintain law and order. The Court’s reasoning was based on a careful analysis of the facts, legal principles, and the need to balance the rights of the petitioner with the interests of the public.

The Court’s reasons for the decision included:

• ✓ The lack of sufficient evidence of bias or exceptional circumstances warranting the transfer of investigation.
• ✓ The violent nature of the Gorkhaland agitation, which necessitated the State’s intervention to maintain law and order.
• ✓ The availability of legal remedies under the Criminal Procedure Code for the petitioner.
• ✓ The need to exercise caution in transferring investigations to independent agencies.

The judgment was delivered by a two-judge bench, with both judges concurring in the decision. There were no dissenting opinions.

The Court’s decision has potential implications for future cases involving similar demands for transfer of investigation. The Court emphasized that such transfers should only be done in exceptional circumstances and that the State has a responsibility to maintain law and order. This may make it more difficult for accused persons to seek a transfer of investigation to an independent agency, especially if they cannot demonstrate clear evidence of bias or lack of a fair investigation.

No new doctrines or legal principles were introduced in this judgment. The Court primarily reiterated existing legal principles relating to the transfer of investigation and the fundamental rights of citizens.

The Court analyzed the arguments for and against the transfer of investigation, ultimately rejecting the petitioner’s arguments and accepting the respondents’ arguments. The Court emphasized that the State has a responsibility to maintain law and order and that the petitioner had not made a sufficient case for the transfer of investigation.

“This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.”

“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.”

“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.”

Key Takeaways

• ✓ The Supreme Court will not routinely transfer investigations to independent agencies.
• ✓ The State has a primary responsibility to maintain law and order.
• ✓ Accused persons seeking transfer of investigation must demonstrate exceptional circumstances and clear evidence of bias.
• ✓ Violent protests and agitations are not protected under the freedom of speech and expression.
• ✓ The Court emphasized the need for a balance between the rights of the accused and the interests of the public.

The judgment may make it more difficult for accused persons to seektransfer of investigation to independent agencies, especially in cases where the state is actively involved in maintaining law and order. The emphasis on the State’s responsibility to maintain law and order may also lead to stricter measures being taken to control violent protests and agitations. The judgment also reinforces the principle that fundamental rights are not absolute and can be restricted in the interests of public order and safety.