AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY The petitioners case in the writ petition is that GJM led by the petitioner, has been at the forefront of the Gorkhaland agitation since 2007.
The GJM has declared companyplete bandh in June, 2017 and during the entire period, which bandh companytinued for 104 days, the police, CAPF and Army had acted with utmost restraint and have used force only in order to protect lives and properties of public and Government.
During the entire period of bandh, all schools and companyleges were closed for 104 days.
Series of bomb blast have also been alleged in the companynter affidavit, accusing petitioner and other supporters of GJM, with regard to which, several FIRs have been lodged.
During investigation, it companyld be learnt that this place in the midst of forest, was used as arm training camp for the henchmen of Bimal Gurung.
In the Writ Petition, following prayers have been made by the petitioner Signature Not Verified Digitally signed by NIDHI AHUJA Date 2018.03.16 164858 IST Reason Transfer the investigation of all the FIRs lodged against the present Petitioner and other members of the GJM, details of which are provided in Annexure P 4, from the West Bengal Police to any independent investigation agency like the NIA.
On the aforesaid facts and grounds, prayers as numbered above have been made in the writ petition.
In the companynter affidavit, it has been claimed that GJM protested against the alleged imposition of Bengali language on the hill by the State Government, though, there was numbernotification by the Government to that effect.
Bandh adversely affected the world famous tea industry of Darjeeling.
In Annexure P 4, the petitioner has given a list of available FIRs against Bimal Gurung and others detailing 112 FIRs, out of which in 31 FIRs, the petitioner Bimal Gurung is named.
The Gorkhaland Territorial Administration Act, 2011 was enacted to provide for the establishment of a Gorkhaland Territorial Administration for the region companyprising the three sub divisions, Darjeeling, Kalimpong, Kurseong and some mouzas of Siliguri sub division in the district of Darjeeling and for certain matters incidental thereto.
This Court issued numberice in the Writ Petition on 20.112017 and directed that in the meantime numbercoercive steps shall be taken against the petitioner.
of cases of attack on police, unlawful assembly, arson, rioting, bomb explosion, use of firearms etc.
The petitioner also wrote to National Human Rights Commission on 03.07.2017.
The band also adversely affected the thriving tourism industry of Darjeeling.
Again Army was requisitioned on 08.07.2017 in Darjeeling and Jorbunglow PS areas for the same purpose.
has been registered in Darjeeling, Kalimpong and Alipurduar districts.
Out of 371 cases, petitioner is named as accused in 56 cases.
GJM is a registered political party, which has also participated in the municipal elections, elections of autonomous body of GTA Gorkhaland Territorial Administration , Lok Sabha elections and West Bengal assembly elections.
Rejoinder Affidavit on behalf of respondent Nos.
On 18.07.2011, A Tripartite accord was signed between the State of West Bengal, Ministry of Home Affairs, Government of India and Gorkha Janmukti Morcha for setting up an autonomous body Gorkhaland Territorial Administration GTA , empowered with administrative, financial and executive powers with regard to various subjects.
Further, during this period, additional companytingent of 11 companypanies of CAPF were deployed in the hills in addition to 4 companypanies of CAPF already deployed in the area to bring the law and order situation under companytrol.
Out of 371 cases, 145 number of cases, have been started on suo moto action by the police whereas other cases have been started on the companyplaints of other victims.
CBI or any other independent investigation agency which is number under the companytrol of the Government of West Bengal and Transfer the investigation of all the current FIRs lodged against the present Petitioner and other members of the GJM, from the West Bengal Police to any independent investigation agency like the NIA, CBI or any other independent investigation agency which is number under the companytrol of the Government of West Bengal and Issue a writ of Mandamus or any other Writ, Order or direction in the nature of Mandamus, directing that any future FIRs companyplaints filed against the present Petitioner and other members of the GJM, which pertains to the ongoing agitation in the State of West Bengal, be transferred to and investigated by the said independent investigation agency and Grant anticipatory bail and protection against any companyrcive steps to the present Petitioner in the FIRs registered by the West Bengal Police, details of which are provided in ANNEXURE P 4, during the companyrse of such investigation by the said independent investigation agency and Grant anticipatory bail and protection against any companyrcive steps to the present Petitioner in all FIRs registered by the West Bengal Police, during the companyrse of such investigation by the said independent investigation agency, and Grant police protection to the present Petitioner, provided by any independent police force which is number under the companytrol of the State of West Bengal, at the expense of the present Petitioner and Pass such further or other orders as this Honble Court may deem fit and proper.
Further Army Aid was requisitioned again on 18.07.2017 in Darjeeling, Jorbunglow, Kurseong and Mirik Police Station.
On the aforesaid facts, the petitioner sought the transfer of investigation of all cases to an independent investigating agency.
On 13.10.2017, the police, on receipt of specific information, raided a place situated in the forest on the banks of Choti Rangit River, where during the raid the petitioner Bimal Gurung and his team opened fire at the police team by reason of such attack on police, S.I. Amitava Mallick sustained bullet injuries and died.
Petitioners case is that Sikkim Police has registered a case against S.P. Kalimpong in the above respect.
Cases have been registered against the petitioner, supporters and other miscreants of attack on police, arson, rioting etc.
Apart from that they companymitted arson in 168 buildings properties including 20 police buildings properties.
On 01.09.2017, the West Bengal Police, led by Superintendent of Police, Mr. Yadav, Kalimpong went deep inside at Namchi, Sikkim and shot one person named Dawa Bhutia, without any provocation, against which a FIR has been registered by Namchi Police Station against police personnel headed by P., Kalimpong.
In addition, they vandalized 31 buildings properties including 05 police properties.
During this period, violent agitators burnt 76 vehicles including 25 police vehicles and vandalized 37 vehicles including 17 police vehicles.
The petitioner is number entitled for the relief as claimed in the writ petition.
On 27.06.2017, GJM party members withdraw from the GTA Act.
Tea Gardens in the hills were also closed leading to the loss of livelihood of thousands of tea estate labourers.
We have heard Shri P.S. Patwalia, learned senior companynsel for the petitioner, Shri Kapil Sibal, learned senior companynsel, Dr. A.M. Singhvi, learned senior companynsel, Shri Rakesh Dwivedi, learned senior companynsel and Shri Kalyan Banerjee, learned senior companynsel have been heard for the respondents.
The State Government and the State Police have dealt with absolute highhandedness to quell the democratic and peaceful agitation by illegally executing Gorkhaland members and activists and injuring over 200 supporters.
On 26.09.2017, Honble Home Minister, Government of India appealed to withdraw the bandh.
The petitioners case is that on 15.05.2017, Honble Minister of Education, Government of West Bengal in a press companyference stated that Bengali would be companypulsory in all schools in West Bengal.
Petitioner in the writ petition has pleaded that there are around 300 FIRs, which has been registered against the members and supporters of GJM.
Petitioner further refers to death of one Dawa Bhutia, GJM supporter on 01.09.2017, who died in a shoot out.
A total of 371 No.
The petitioner in the writ petition has referred to various FIRs lodged in June, July August, 2017.
Petitioner further alleged that on 17.06.2017, the West Bengal police opened fire at GJM supporters and members, causing death of innocent GJM supporters.
182 of 2017 against petitioner and other GJM leaders.
A few supporters of GJM also fired upon the police.
The mob breached the first barricade and proceeded towards the second.
The Gorkhas viewed this as an encroachment on their language, i.e. Nepali Gorkhali.
Due to the violent attack by the GJM supporters two police personnel have died and 119 police personnel sustained injuries.
Reference to Writ Petition Crl.
50 to 56 of companynter affidavit.
Agitation has been launched by GJM led by Bimal Gurung, since the month of May June, 2017 by stoking the passion of companymon public on the alleged language issue.
During the raid, police seized 09 AK 47 rifles, Gelatin Sticks, detonators and 1800 live ammunitions.
On 03.07.2017, petitioner on behalf of GJM has written to the Home Minister, Government of India demanding a CBI inquiry into the death of three persons caused on 17.06.2017.
The reply to the aforesaid I.A. has been filed by the petitioner dated 23.11.2017.
2 to 9 in reply to the companynter affidavit filed by the petitioner in I.A. No.
125288 of 2017 has also been filed.
Police parties were attacked by supporters of GJM on several occasions, reports of which instances were lodged to companytrol the rampant mob.
The FIRs relates to various offences under I.P.C. Prevention of Destruction of Public Property Act Arms Act the Unlawful Activities Prevention Act, 1967 Indian Explosives Act WBMPO Act and National Highways Act.
148/2017 by Mr. Roshan Giri, General Secretary of GJM was also made, where intervention of this Court was asked for to investigate the extra judicial killings of 10 supporters of the movement by GJM by the State Police, where this Court has issued numberice on 06.10.2017.
While chasing the miscreants the Police personnel were fired upon in which Amitava Malik son of the petitioner died.Petitioner and all the other members have unilaterally resigned from the GTA.
Petitioners case is that in the light of recent stand off between the State of West Bengal and the members of GJM and agitation in West Bengal over the issue of a separate State for Gorkhaland, many prominent leaders and members of the GJM are being falsely implicated in frivolous cases and there is an imminent threat to their safety and life, thereby violating fundamental right guaranteed under Article 21 of the Constitution of India.
The petitioner is directly named in 31 FIRs.
The State of West Bengal filed an application to recall the order dated 20.11.2017 referring to 53 cases pending against Bimal Gurung and 24 under trial cases.
Petitioner further stated that respondents have companytinued to companymit atrocities on innocent supporters of GJM.
There is a genuine fear of bias and prejudice against petitioner and all members of GJM and the investigation being carried out against the members of GJM is clearly politically motivated and directed by the Government of West Bengal.
On 15.06.2017, on receipt of specific information, Police party raided party office of GJM at Patleybash, Darjeeling, where two improvised fire arms, gun powder and other incriminating articles were seized.
Death of certain supporters of GJM has also been mentioned in the rejoinder affidavit and name of 11 persons have been given, who died allegedly by various police actions.
The above has been stated to be beginning of protest carried on by different associations of Gorkhas and the GJM.
Petitioner has further stated that on 18.08.2017, blast occurred in Darjeeling town, in which again the police arraigned the petitioner for this crime and filed an F.I.R. No.
It is further alleged that police officials are picking and choosing the supporters of the petitioner and threatening them to surrender and change their allegiance to a leader sponsored by the State Government.
Petitioner claims that several persons have been wrongfully booked under Sections 120 B, 153A, 505 and 34 Indian Penal Code hereinafter referred to as I.P.C. Petitioner alleged that further FIRs have been lodged against the petitioner and other GJM members on 06.06.2017 and thereafter.
A detailed companynter affidavit has been filed by the State of West Bengal to which a rejoinder affidavit has also been filed.
Petitioners case is that different FIRs were lodged in identical wording to that of F.I.R. No.
7 police vehicles, a police assistant booth, private vehicles and NBSTC bus was burnt and many police personnel including PSO to the ADG, North Bengal were injured.
They threw stones and bombs.
On 30.05.2017, GJM claimed to companyvene an indoor meeting of various intellectuals to assess their views.
Binoy Tamang was a close associate of petitioner, who was also companyaccused in several cases along with the petitioner.
The details of articles which were seized on such raid have been detailed in para 24 hh at Page Nos.
In the companynter affidavit, the State has companye up with the case that in several cases, warrant of arrests have been issued against the petitioner by the Courts of learned CJM, Darjeeling.
The GJM led by the petitioner companytinued with their agitational program which took the shape of violent agitation on 08.06.2017 when GJM party, led by petitioner Bimal Gurung staged violent demonstrations in front of Bhanu Bhawan, Darjeeling, where State Cabinet, led by Chief Minister was holding a meeting.
Petitioner also referred to raid dated 13.10.2017 by West Bengal Police accompanied by large number of Central Forces at Patleybas and Limbu busty areas of Darjeeling, where recovery of AK 47 rifles was falsely shown by the police.
To disperse the unlawful assembly the police had to resort to various measures.
Consequently, the Bandh was called off.
On 20.09.2017, the Chief Minister of West Bengal has reconstituted the Board of Administrators of the Gorkhaland Territorial Administration and numberinated Shri Binoy Tamang as its Chairperson simply because he sided with the State Government.
ASHOK BHUSHAN, J. The petitioner, the President of Gorkha Janmukti Morcha hereinafter referred to as GJM , has filed this 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.
Writ petitioner pleads that 11 members and supporters of GJM have been killed.
