Bimal Gurung and Ors. Vs. Union of India (UOI) and Ors. - (Supreme Court) (16 Mar 2018)

When a cognizable offence takes place before the eyes of police personnel, it is his obligation and duty to register a FIR

MANU/SC/0259/2018

Criminal

The Petitioner, the President of Gorkha Janmukti Morcha ("GJM"), has filed present Writ Petition under Article 32 of the Constitution of India praying for transfer of investigation of all First Information Reports lodged against the Petitioner and other members of GJM, to any independent investigation agency. 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.

The Constitution Bench of present Court in State of West Bengal has authoritatively laid down that, the High Court under Article 226 of Constitution and present Court under Article 32 of Constitution 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 present 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.

The Petitioner's prayer is to transfer the investigation of all the FIRs lodged against the Petitioner and other members of GJM. The offences alleged in the cases are serious offences including offences under Sections 121, 121A and 153A of Indian Penal Code, 1860 (IPC) and offences Unlawful Activities (Prevention) Act, 1967 as well as offences under Sections 307 and 302 of IPC 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 of Constitution for transfer of investigation in all cases.

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.

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 cannot 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.

The authorities and police officers, who are entrusted different obligations and functions under the Code of Criminal Procedure, 1973 has to act as ordained by the CrPC. 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 CrPC.

The Constitution Bench of this Court in Lalita Kumari v. Government of Uttar Pradesh and Ors., 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 personnel.

Most of the cases which were cited s by the parties are the cases where this Court exercised jurisdiction under Article 32 of Constitution 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 instant case, it is not a fit case where this Court may exercise jurisdiction under Article 32 to transfer the cases en masse to an independent agency. The present case cannot be said to be a case of individual's persecution by the State authority. The Petitioner is not entitled for any relief. The writ petition is dismissed.

Relevant : Lalita Kumari v. Government of Uttar Pradesh and Ors., MANU/SC/1166/2013: (2014) 2 SCC 1

Tags : FIR INVESTIGATION TRANSFER