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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 260 OF 2018
Romila Thapar and Ors. ….. Petitioner(s)
:Versus:
Union of India and Ors. ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. Five illustrious persons in their own field have filed this
petition on 29th August, 2018 complaining about the highhanded
action of the Maharashtra Police in raiding the homes
and arresting five well known human rights activists,
journalists, advocates and political worker, with a view to kill
independent voices differing in ideology from the party in
power and to stifle the honest voice of dissent. They complain
that the five activists, namely, Gautam Navalakha, Sudha
Bharadwaj, Varavara Rao, Arun Ferreira and Vernon
Gonsalves were arrested on 28th August, 2018 from their
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homes at New Delhi, Faridabad, Mumbai, Thane and
Hyderabad, respectively, without any credible material and
evidence against them justifying their arrest, purportedly in
connection with FIR No.0004/2018 dated 8th January, 2018
registered with Police Station Vishram Bagh, Pune City. This
action was to silence the dissent, stop people from helping the
poor and downtrodden and to instill fear in the minds of
people and was a motivated action to deflect people‟s attention
from real issues. The petitioners have made it clear in their
petition that they were seriously concerned about the erosion
of democratic values and were approaching this Court “not to
stop investigation into allegations” “but” to ensure
independent and credible “investigation into the arrest of
stated five human rights activists.” They claim that anything
short of that relief will damage the fabric of the nation
irreparably.
2. The FIR in connection with which the said five persons
came to be arrested has been appended and marked as
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Annexure P-2. It was registered on the basis of the statement
given by one Tushar Ramesh Damgule, which reads thus:
“Translation: FIR COPY
I, Tushar Ramesh Damgule [Age 37] Occupation –
Reconstruction, Residing at survey no.70, Santosh Nagar,
Kafraj Pune, 411016, Mobile Number – 9850065423)
personally states that, I am residing at the above mentioned
address from last 20 years. I am completed Masters in Arts
(History). I am running construction business by the name of
Rao enterprises, from last 4 years. Somewhere in last week
of December, I read one post of Facebook, that Elgar
Parishad organized 31/12/2017 at Shaniwar Wada.
Therefore on 31st December 2017, I personally went to
Shaniwar Wada, opposite Ground, Pune, on around 2‟o clock
in this concern programme conduct by Sagar Gokhale, role
describer Sudhir Dhavale, singer and artist Jyoti Jagtap,
Ramesh Gaychor and other speakers like Jignesh Mewani,
Umar Kahlid, Vinay Ratansingh, Prasanth Dontha etc.
orators were seated on the stage. The said ground was
crowded fully. I had read information and news related Kabir
Kala Manch and their representatives by social media and
newspapers. So, known them. On the programme of
following other subjects, had express statement again and
again malice statement such as “Bima Koregaon ne
Diladhada, Navi Peshawar Mainatgada, Udavathikrya Rai Rai
re, Gadun Taka Peshwai Re Garjana Sidnakache, Aalee
Nvyane Peshwai re Garaj Tila Thokyachee, Re Saimka Garaj
Tila Thokyachee”. After this, some other orators had their
speeches, as well as in that, Kabir Kala Manch‟s artist such
as Jyoti Jagtap, Ramesh Gaichor and other six seven person
sing the song again “Bhima Koregaon ne diladhada, Navi
Peshwa Navi Peshawar Mainat Gada, Udavathikrya Rai Rai
re, Gadum Taka Peshwai Re Garjana Sidnakache, Aalee
Nvyane Peshwai re Garaj Tila Thokyachee, Re Saimka Garaj
Tila Thokyachee…” as well as, the same had presented in the
form of Pathnatya (Raadaramaj) and Dance Event with
malice and enmity intentions. After in Second session, said
Sudhir Dhawade while expressing role, he made the malice
and disputable statement that “Jab Julm Ho to, Bagawat
Honi Chahiye shahar mein, Jab Julm Ho to bagawat honi
chahiye shahar mein aur agar bagawat na ho to, behatar hai
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kee, rat dhalane se phle ye shahar jalke rakh ho jaye, ye
shahar jalke rakh ho jaye….” Then he said some other
malice statement that “ye jo satrahai, ye satra hia, tayat hi
apane aap mein ladai ka ellanhai, ye nave peswai ko haemin
Samshan Ghat mein, kabrastan meindajana hai..”
Afterwards, other speakers also expressed themselves in
grudge words in the same Programme, some objectionable
and provocable books kept for selling. After ending the
program, I left from the there. On the date of 1st January,
2018 as usual year, huge crowd gathered to salute and
honour the victory stambh/monument at Bheema Koregaon.
But because of the Elgar Parishad which was held at
Shaniwar Wada on 31st December, 2017, Kabir Kala Manch‟s
Sudhir Dhawale, Sagar Gorakhe, Harshali Potdar, Jyoti
Jagtap, Ramesh Gaichor and other six seven persons tried to
express malice statement and tried to incite disputable
words, sentences between two society groups, raise some
provocable slogans, songs and road drama imposed wrong
and false History above mentioned Sudhir Dhawale, Harshali
Potdar and other Kabir Kala Manch‟s Activists been
interrogated by legal inspection and sources. Therefore, I
state that, banned Maoist Organisation (CPI) have
organized role is to boast and implicate the strong
Maoist thoughts in depressed class and misdirect or
misguide them and turn them towards unconstitutional
violence activities, carrying the same thoughts, Kabir
Kala Manch’s Sudhir Dhawale and his other activist had
presented different areas in Maharashtra, malice
speeches, had spread false History, disputable
statements and incite objectionable slogans, sung songs
and road-dramas. They distributed some objectionable
and provocable pamphlets, books too. So remarkably it
reflected at Bheema Koregaon and nearer places by stone
throwing, castes clashes and arson incidents.
Therefore, an organization –Elgar Parishad, on the day of
31st December, 2017 at 2.00 p.m. to 10.00 p.m. at Shaniwar
Wada, Pule, role defines Kabir Kala Manch‟s Sudhir
Dhawale, programme conductor Sagar Gorakhe, and other
artists HarshaliPotdar, Jyoti Jagtap, Ramesh Gaichor and
others had presented objectionable songs as well as “Jab
Julm ho to, Bagawat Honi Chahiye shahar mein, Jab Julm
Ho to bagawat honi chahiye shahar mein aur agar bagawat
na ho to, behatar hai kee, rat dhalane se phle ye shahar
jalke rakh ho jaye, ye shahar jalke rakh ho jaye…” such type
of disputable, objectionable passing statements, tried to
incite disputable words, sentences between two society
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groups, raised some provocable slogans, songs and road
drama, imposed wrong and false History misguided the
society. The same had been disputable and stone-throwing
and arson incidents converted into disputable and cast
clashes in society‟s specific groups, with human injuries,
violence, severe damages etc.
Therefore, I lodged the complaint against (1) the role definer
Kabir Kala Manch‟s Sudhir Dhawale, (2) Pragramme
conductor Sagar Gokhale (3) Harshali Potdar (4) Ramesh
Gaichor (5) Deepak Denglr (6) Jyoti Jagtap. I read this typed
statement and whatever I stated is same true and correct.
This statement given, Date: 08/01/2018
In front of:
(M.B. Talware)
Police - Sub-Inspector
Vishram Baug, Police Station, Pune.”
(emphasis supplied)
3. According to the petitioners, none of the five persons
arrested in connection with the stated FIR was present during
the event organized on 31st December, 2017 at Pune by “Elgar
Parishad” (with which they have no concern) nor any
allegation is found against them in the FIR. Nevertheless, the
Pune Police swiftly moved against them, for reasons best
known on fabricated charges under various provisions of the
Unlawful Activities (Prevention) Act, 1967 (“UAPA”) and under
the Indian Penal Code.
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4. According to the petitioners, since the FIR dated 2nd
January, 2018, at Pimpri Police Station (Rural) for offences
punishable under Sections 307, 143, 147, 148, 149, 295(A),
435, 436 of IPC, Sections 3(2)(v) & 3(1)(10) of the Scheduled
Castes Scheduled Tribes Act and Section 4(25) of the Arms Act
of the Maharashtra Police Act,1989, was registered against the
Hindutva right wing leaders Milind Ekbote and Sambhaji Rao
Bhide, based on an eye-witness account that they along with
fringe groups had incited the violence against the Dalit
congregation, instead of taking action against those who were
behind the Bhima Koregaon violence, a false and fabricated
complaint was engineered in the form of FIR No.0004/2018
and came to be registered on 8th January, 2018 at Vishram
Bagh Police Station (Pune City), in respect of which the five
named activists and others have been arrested. This fabricated
FIR against the activists came to be registered in the name of
the complainant who happens to have close links with the
named accused in FIR No.2 dated 2nd January, 2018
registered at Pimpri Police Station (Rural). The Pune Police
thus embarked upon a motivated process and arrested five
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human rights activists who had no concern with the incident
referred to in the FIR No.4/2018.
5. It is further stated in the writ petition that the Pune
Police investigating the Bhima Koregaon violence was
systematically leaking documents to selective media with a
view to spread false propaganda against the activists and to
prejudice the public opinion against those arrested. The leaked
documents allegedly found from the computer recovered
during the search of the house of Rona Wilson, were
addressed to Comrade Prakash and signed by „R‟, which
apparently mentions about senior comrades proposing
concrete steps to end the Modi-era by planning a Rajiv Gandhi
style incident to assassinate the Prime Minister. The police
had deployed systematic strategy to put out highly provocative
but completely unsubstantiated, unverified and unproven
allegations through select media channels to prejudice the
public opinion against those already arrested. Further, the
organizers of Elgar Parishad had immediately refuted the tall
claim of the Pune Police and went on record that the event
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referred to in the FIR under investigation was organized by
them (Elgar Parishad) and no other organization was
concerned therewith, much less any banned organization had
any role in that regard. This statement was issued by a former
Judge of this Court and another former Judge of the Bombay
High Court who are the organizers of Elgar Parishad,
emphatically condemning the letters leaked to the media by
the Police as the same were never produced in evidence before
the Court and that it was a ploy of the Government as it had
felt threatened because of the mobilization of people by Elgar
Parishad to raise their voice against the establishment and
resist communal forces. The organization of Elgar Parishad
had also denied of having received funds from any of the
accused persons named in the FIR.
6. According to the petitioners, similar arbitrary arrests by
the Pune City Police were caused across the country,
particularly of those who spoke for the poor and marginalized
and to malign human rights defenders, lawyers, activists and
the progressive ideas and human rights ideology that they
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espouse, so as to have a chilling effect in the minds of the
activists and dissuade them from criticizing the policies and
programmes of the Government.
7. The petitioners then state that without providing any
evidentiary link between the persons arrested and raided inter
alia Gautam Navlakha and Sudha Bhardwaj with FIR No.4 of
2018, they were served with the arrest memos signed by the
persons who were brought as part of the entourage of the
Pune Police as so-called “independent and respectable
persons” to authenticate the arrest memos. The seizure
memos were prepared in Marathi and signed by the Panchas
who were brought by the Pune Police as part of the entourage.
No translated copy of the FIR or the seizure memo was made
over to Gautam Navlakha or Sudha Bhardwaj even though
they were not conversant with Marathi. In this backdrop,
Gautam Navlakha filed habeas corpus petition before the Delhi
High Court, being Writ Petition No.2559 of 2018 challenging
the transit remand order passed by the Chief Metropolitan
Magistrate on 28th August, 2018. Similar petition was filed in
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the Punjab and Haryana High Court to direct the jurisdictional
Court which had allowed the prayer to grant transit remand,
to keep Sudha Bhardwaj at her residence under supervision of
the local police. Even the petition filed in the Punjab and
Haryana High Court is still pending. Nevertheless, the
petitioners rushed to this Court by way of the present writ
petition filed as a public interest litigation, to espouse the
cause of the five persons arrested by the Pune Police, praying
for an independent and comprehensive enquiry into the stated
arrest as follows:
“PRAYERS
It is therefore prayed that this Hon‟ble Court be pleased to
grant the following prayers:
i) Issue an appropriate writ, order or direction, directing
an independent and comprehensive enquiry into arrest of
these human rights activists in June and August 2018 in
connection with the Bhima Koregaon violence.
ii) Issue an appropriate writ, order or direction, calling for
an explanation from the State of Maharashtra for this
sweeping round of arrests;
iii) Issue an appropriate writ, order or direction, directing
the immediate release from custody of all activists arrested
in connection with the Bhima Koregaon violence and staying
any arrests until the matter fully investigated and decided by
this court.
iv) Pass any such other order as may be deemed
appropriate.”
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8. As aforesaid, the petition was filed on 29th August, 2018
and mentioned for urgent directions before the Chief Justice of
India on the same day. This Bench considered the urgent
mentioning and passed the following order on the same day:
“Taken on Board.
Issue notice.
Mr. Tushar Mehta and Mr. Maninder Singh, learned
Additional Solicitor Generals being assisted by Mr. R.
Balasubramanian, learned counsel shall file the counter
affidavit by 5.9.2018. Rejoinder thereto, if any, be filed
within three days therefrom.
We have considered the prayer for interim relief. It is
submitted by Dr. Abhishek Manu Singhvi, learned senior
counsel appearing for the petitioners that in pursuance of
the order of the High Court, Mr. Gautam Navalakha and Ms.
Sudha Bharadwaj have been kept under house arrest. It is
suggested by him that as an interim measure, he has no
objection if this Court orders that Mr. Varavara Rao, Mr.
Arun Ferreira and Mr. Vernon Gonsalves, if arrested, they
are kept under house arrest at their own homes. We order
accordingly. The house arrest of Mr. Gautam Navalakha and
Ms. Sudha Bharadwaj may be extended in terms of our
orders.
Needless to say, an interim order is an interim order and all
contentions are kept open.
Let the matter be listed on 6.9.2018.”
This interim arrangement has been continued from time to
time and remains in force until the disposal of this petition.
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9. The State of Maharashtra has filed a counter affidavit of
Dr. Shivaji Panditrao Pawar, Assistant Commissioner of Police
(Investigating Officer), Swargate Division, Pune City, Pune.
Besides taking objection regarding the maintainability of the
writ petition being filed by third parties who are strangers to
the offence under investigation, he has highlighted that in
light of the material gathered during the investigation
conducted so far, it would be desirable to dismiss the writ
petition. He has stated that the entire writ petition is based
upon individual perception of the writ petitioners that the
arrested persons are “all outstanding, well-known and well
respected human rights activists” and therefore, their arrest
requires to be enquired into and they should be released on
bail. Having said that, he has asserted that in the instant
case, the five named persons have been arrested not because
they expressed dissenting views or difference in their political
or other ideologies but the investigation done so far has
unraveled their involvement in a serious offence, including of
being active members of Communist Party of India (Maoist),
which has been banned as a terrorist organization since 2009,
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and of their involvement in planning and preparation of large
scale violence and destruction of property, resulting into chaos
in the society. Each of them is part of a well thought out
criminal conspiracy and had supported the event arranged at
Pune by the Elgaar Parishad through a frontal organization
called “Kabir Kala Manch”.
10. It is then stated that one Tushar Ramesh Damgule had
lodged an FIR on 8th January, 2018, naming six persons as
accused for the offence registered thereunder by the Vishram
Bagh Police Station. Out of the six named accused, only one
person came to be arrested on 6th June, 2018, namely, Sudhir
Dhawale in connection with the registered offence. As the
investigation progressed and material was gathered during the
ongoing investigation, Section 120-B was added on 6th March,
2018 and two more persons were found to be suspected
accused namely, Surendra Gadling, R/o Nagpur and Rona
Wilson, R/o Delhi. On 17th April, 2018 the Investigating
Agency conducted searches at the residence of eight persons,
namely:
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1) Rona Wilson, R/o Delhi
2) Surendra Gadling, R/o Nagpur
3) Sudhir Dhawala and Harshali Potdar, R/o Mumbai
4) Sagar Gorakhe, R/o Pune
5) Dipak Dhengale, R/o Pune
6) Ramesh Gyachore and Jyoti Jagtap, R/o Pune
Further, the entire search procedure was videographed right
from the time the Investigating Agency knocked at the doors of
the respective individuals till the material recovered were
seized, sealed, and punchnamas were drawn in the presence
of independent punchas. During the said search, documents
were recovered from their respective computers/ laptops/pen
drives/ memory cards. Different documents were found to
have been copied on different dates. The seized items were
immediately sent for investigation to Forensic Science
Laboratory, which in turn gave “clone copies/mirror images” to
the investigating agency so as to ensure that pendency of FSL
Report does not hamper the investigation. It is then stated
that documents recovered from the seized items unraveled the
information implicating the accused not only as active
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members of CPI (Maoist) but being involved in an ongoing
sinister design of having committed and in the process of
committing criminal offences having the potential of
destabilizing the society. The documents clearly reflect the
preparation, planning and coordination not only amongst the
stated accused persons but with others subsequently arrested,
to carry out violence including planned ambush/rebellion
against the enemy (which is our country and security forces).
11. He has further stated that all the documents recovered
during the search from the custody and possession of the
respective accused will be produced before the Court, perusal
of which would reveal that the accused persons are not merely
political dissenters but involved in sinister design, planning,
preparation and commission of criminal offences to destabilize
the society. After the incriminatory material came to light,
further offences under Sections 13, 16, 17, 18, 18-B, 20, 38,
39 and 40 of the UAPA are added on 17th May, 2018 against
the following individuals:
1) Surendra Gadling, R/o Nagpur
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2) Rona Wilson, R/o Delhi
3) Shoma Sen R/o Nagpur
4) Mahes Raut R/o Nagpur and Gadchiroli
5) Comrade M. alias Milind Teltumbade [underground]
6) Comrade Prakash alias Navin alias Rituparn Goswami
R/o Assam [underground]
7) Comrade Manglu [underground]
8) Comrade Dipu and other underground members.
The affidavit further states that during the on-going
investigation, following persons came to be arrested on 6th
June, 2018:
1) Surendra Gadling, R/o Nagpur
2) Rona Wilson R/o Delhi
3) Sudhir Dhanwale
Further, two more persons were arrested and also searched on
6th June, 2018, namely, Shoma Sen, R/o Nagpur and Mahesh
Raut, R/o Nagpur and Gadchiroli. It is then stated that the
searches carried out against these persons were also
videographed from the beginning to the end as was done on
the earlier occasion in respect of the searches carried of other
accused. Even during this search, it is alleged that the
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material seized was in the form of computers, laptops, pendrives
and memory cards which have been forwarded to
Forensic Science Laboratory, which in turn provided clone
copies to the Investigating Agency for facilitating further
investigation.
12. It is then stated in the affidavit that the further
investigation unraveled that the five persons who came to be
arrested on 28th August, 2018 were also involved in the
criminal conspiracy and their role was not merely peripheral
in nature. Based upon the incriminating material, they were
arrested from the residential or work places under similar
fashion in the presence of independent panchas who were
Government Officers. It is also stated that one of them,
namely, Vernon Gonsalves has been convicted by the Special
Court, Nagpur for offences under the UAPA.
13. The sum and substance of the reply affidavit is that
sufficient material has become available during the
investigation, which is still in progress, to indicate the
complicity of the concerned accused who have been arrested
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including the five named persons in respect of whom the
present writ petition has been filed by third parties. They are
arrested not because of their political activities but for their
involvement in the planning and execution of offences to
destabilize the society and their association with the banned
organization. Their involvement is noticed in selecting and
encouraging cadres in the banned organizations to go
underground in „struggle area‟, mobilizing and distributing
money, facilitating selection and purchase of arms, deciding
the rates of such arms and suggesting the routes and ways of
smuggling such arms into India for its onward distribution
amongst the cadres. Some of them have suggested training
and laying booby traps and directional mines. Their
involvement is also for providing strategic inputs in
furtherance of the objective of armed rebellion, on lines of
strategic documents of the banned terrorist organization. It is
stated that all the material collected during the investigation
will be eventually placed on record of the jurisdictional Court
along with the police report to be filed in due course. Further,
the question of showing that material to anyone muchless
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accused, would defeat the investigation in progress and that is
not the requirement of law. The affidavit also emphasizes that
house arrest of the concerned accused merely restricts
physical movement but there is no way of ensuring that these
persons would not indulge in destruction of evidence and alert
other potential accused while sitting at home. As a matter of
fact, their custodial interrogation may become necessary
during further investigation and for which reason the
Investigating Agency be granted liberty to take them in police
custody in accordance with law.
14. The petitioners have filed exhaustive rejoinder affidavit.
Besides the rejoinder affidavit, formal applications have been
filed on behalf of Sudha Bharadwaj, Varavara Rao, Arun
Ferreira and Vernon Gonsalves, who are presently under
house arrest, that they be permitted to pursue the writ
petition as filed by them. This application is in response to the
issue of locus of five petitioners as being strangers to the
offence under investigation. Besides, an application has been
filed by the petitioners for permitting them to amend the
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prayer clause of the writ petition and permit the petitioners to
seek following modified prayers:
“(i) Issue an appropriate writ, order or direction for setting up
of a Special Investigating Team (SIT) comprising of senior
police officers with impeccable career records of
professionalism, integrity and independence, reporting
directly to this Hon‟ble Court, for conducting a fair and
independent investigation and inquiry into the offences
stated in the zero FIR lodged at Pimpri Police Station on
02.01.2018 (now Cr. Case No.2/2018), and the FIR 4/2018
lodged and all other related matters and allegations; or
(ii) Issue an appropriate writ, order or direction for the
investigation into the offences alleged in the zero FIR lodged
at Pimpri Police Station on 02.01.2018 (now Cr. Case
No.2/2018), and the FIR 4/2018 lodged at Vishrambagh
Police Station on 08.01.2018, and all other related matters
and allegations, to be carried out by an independent agency
which shall be monitored directly by this Hon‟ble Court
through regular filing of status reports of the investigation by
the investigating agency; and/or
(iii) Issue an appropriate writ, order or direction directing
that all electronic devices, records and materials allegedly
seized from the detenues or even otherwise, if relied
upon/being relied upon for denial of liberty to the detenues,
to be examined by a Forensic Sciences Laboratory outside
the State of Maharashtra to ensure fair play and in the
interest of justice; and/or
(iv) Issue an appropriate writ, order or direction, directing
the release from custody of the arrested activists as per law,
upon such terms and conditions as may be deemed
necessary and appropriate, to the satisfaction of this Hon‟ble
Court; and/or
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(v) Pass any such further order(s) as this Hon‟ble Court may
deem fit and appropriate in the facts and circumstances of
the present case, and in the interest justice.”
15. During the arguments, Dr. Abhishek Manu Singhvi, Dr.
Rajeev Dhawan, Dr. Ashwani Kumar learned senior counsel
and Mr. Prashant Bhushan, learned counsel appearing for the
writ petitioners and Mr. Anand Grover, learned senior counsel
appearing for the arrested persons, have argued that the
stated five persons have not been named in the FIR nor were
they present during the event referred to in the FIR.
Registration of two FIRs in respect of the same incident, first
on 2nd January, 2018 at Pimpri (Urban) Police Station and the
second, at Visharam Bagh Police Station, Pune City, was
impermissible and was a ploy to deflect the inaction of the
Pune Urban Police for the reasons best known to them.
Moreover, the offences under the draconian law (UAPA) have
been added without due authorization of the competent
authority. It is contended that liberty of individual and dignity
of the accused are the facets of core constitutional values.
They submit that this case is not about ordinary criminal
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jurisprudence but of actualization of constitutional values and
to expose the unjustified incarceration of innocents who
happen to be human rights activists. They submit that the
liberty and dignity of the accused persons must be preserved.
According to them, the Investigating Agency was not
discharging its statutory obligation of fairness in investigation
but was indulging in selective leaks of documents which
contain unsubstantiated insinuations against the accused
persons solely with a view to malign their reputation and
create public opinion against them. The Pune Police had the
audacity to rush to the Press for divulging the documents
which they claim to have recovered during the seizure from
one of the accused and not the five persons arrested on 28th
August, 2018. They submit that the clarificatory statement
issued by the two former Judges cannot be discarded.
However, no effort has been made by the Investigating Agency
to ascertain the factual position from those two Judges.
According to them, it is a case of persecution of the five
persons named in the writ petition as multiple cases have
been registered against them since 2005 and each of them
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have been acquitted in the concerned case. 25 criminal cases
were registered against Varavara Rao, 11 cases have been
registered against Arun Ferreira and 18 cases against Varnon
Gonsalves. They have been acquitted in all the cases except
one against Gonsalves, which matter is pending in appeal.
They have relied upon the report prepared by the Committee
headed by the Deputy Mayor which clearly points towards the
complicity of Sambhaji Rao Bhide and Milind Ekbote in
particular, for having caused incitement and violence on 1st
January, 2018. However, no action has been taken by the
Pune Police against the persons who were responsible for
causing riots and violence. It is submitted that it is
unfathomable that two FIRs are registered in respect of the
same incident and two different investigating agencies are
going ahead with the investigation. More so, the basis of arrest
of five persons on 28th August, 2018 was their involvement in
planning the assassination of the current Prime Minister but
there is no allegation to that effect in the FIR nor has any fresh
FIR been registered by the Police, although the same is a
serious matter warranting investigation by an Investigating
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Agency no less then National Investigating Agency or at least
the CBI. The persons arrested, however, are well-known for
their track record of human rights activism and have been
unjustly put behind bars on the basis of unsubstantiated
allegations and without any evidence against them. The entire
sub-text of creating a real threat is a figment of imagination of
the Investigating Agency and that has been done for reasons
best known to them. Obviously, it is politically motivated. The
transit remand applications preferred by the Investigating
Agency also do not mention the letters indicative of
involvement of the persons concerned in planning and
execution of Maoist plot nor have those letters been produced
before the Court thus far. The letters which were flashed to the
media are obviously fabricated. Further, no plausible
explanation is forthcoming as to why the Investigating Agency
had taken panchas along with them for conducting search
outside the State of Maharashtra. The role of the investigating
team in FIR No.4 of 2018 in the manner in which they caused
arrest of five persons named in the writ petition, has been
seriously questioned and it is earnestly prayed by the learned
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counsel that the modified reliefs as claimed ought to be
granted. The counsel have filed exhaustive written
submissions to buttress the plea for entrusting the
investigation of the case to an independent Investigating
Agency.
16. Mr. Tushar Mehta, learned Additional Solicitor General
appearing for the State of Maharashtra on the other hand,
submitted that the Court should be loath to entertain the writ
petition of this nature when the investigation of a serious
crime is in progress as per the statutory provisions and the
material gathered during the investigation justifies the arrest
of the concerned accused. He submitted that the investigation
is being conducted responsibly and impartially and strictly in
accordance with the provisions of Cr.P.C. by an officer of the
rank of Assistant Commissioner of Police under the
supervision of Deputy Commissioner of Police and further
monitored by Joint Commissioner and finally by the
Commissioner of Police who is of the rank of Additional
Director General of Police. There is no allegations against the
26
investigating officer of working under dictation or that he had
any personal malice against the named accused. Further,
there is active involvement and monitoring of senior police
officials and pre-existing safeguards have been put in place by
the State in order to ensure a fair investigation and in order to
maintain independent and impartiality of all sorts, coupled
with the fact that the action of the Investigating Agency would
be monitored by the jurisdictional Courts at different stages,
the question of appointing Special Investigation Team or to
allow investigation by independent Investigating Agency under
the monitoring of the Court, should be eschewed. He
submitted that the Court may look at the documents already
gathered during the investigation to satisfy its conscience as to
whether the arrest of concerned accused was justified or
otherwise. In any case, there is robust mechanism of
overseeing the actions of the Investigating Agency by the
jurisdictional Courts while considering not only the
application for police remand or judicial remand and bail
application but also the remedy of discharge and quashing of
the prosecution. In other words, the issues raised by the
27
petitioners may be germane for pursuing relief of bail or
discharge/quashing, but not relevant to consider prayer for
change of investigating agency, that too at the instance of
accused themselves. He has handed over a compilation of
documents or incriminatory material collected during the
investigation allegedly showing the involvement of the
concerned accused, for our perusal. He has also handed over
the Case Diary and two Registers of documents recovered
during the search from the accused persons. He further states
that the subject FIR in respect of which action is being taken
against the accused was registered on 8th January, 2018 for
offences punishable under Section 153-A, 505 (1B), 17, 34
IPC. After the investigation progressed, further offences were
added including the offences under Sections 13,16,17,18,
18B, 20,38,39 & 40 of UAPA on 16th May, 2018, on the basis
of the material collected during the on-going investigation.
Initially, the offence was registered only against 6 accused and
as the investigation progressed, as of now there are 22
accused named, including the 5 accused referred to in this
petition who were added as accused on 22nd August, 2018
28
for the reasons stated in the Case Diary, and only thereafter
the investigating team proceeded to arrest them on 28th
August, 2018. He submits that the Investigating Agency had to
proceed against the named accused after the revelation of their
involvement with the banned organization, as was noticed
from the documents and material recovered during the
searches conducted in respect of the premises of co-accused.
The named accused (A16 to A20) cannot be heard to question
that part of the investigation regarding the manner of search,
which the concerned co-accused alone may do at the
appropriate stage before the jurisdictional court.
17. He submits that even though the Court may have
jurisdiction to examine all aspects of the matter, considering
the fact that the investigation is at a nascent stage and is
being done by senior police officials under the supervision of
their superior officers up to the level of Commissioner of
Police, it is not a case for grant of reliefs as prayed. The
accused persons must take recourse to the remedy prescribed
by law instead of directly approaching this Court under Article
29
32 of the Constitution and can get complete justice from the
jurisdictional Court. He submits that in criminal matters,
interference in the garb of public interest litigation at the
instance of strangers has always been discouraged and
rejected by this Court. Further, the present petition is nothing
but abuse of the process and as the named accused Varavara
Rao, Sudha Bharadwaj and Gautam Navalakha have filed their
respective petitions before the jurisdictional High Courts,
which proceedings are pending for adjudication, the same
persons have now filed affidavits before this Court for
transposing them as petitioners and allowing them to adopt
the prayer of the writ petitioners. They ought to elect their
remedy to be pursued and in particular, before the
jurisdictional Courts. Therefore, this petition must be
discouraged. He submits that the modified relief claimed in the
writ petition to release the accused persons is in the nature of
habeas corpus which is not maintainable in respect of the
arrest made during the ongoing investigation. He submits that
no right can enure in favour of the accused to seek relief of
investigation of the crime through an independent agency and
30
for the same reason, even strangers to the offence under
investigation or next friends of the accused, cannot be
permitted to pursue such a relief in the guise of PIL. He
submits that the foundation of the present writ petition is the
perception of the writ petitioners (next friends) that the
accused are innocent persons. He submits that that basis is
tenuous. For, there are enough examples of persons having
split personality. In a criminal case, the action is based on
hard facts collected during the course of investigation and not
on individual perception. He contends that the argument of
the writ petitioners that liberty of the five named accused
cannot be compromised on the basis of surmises and
conjectures is wholly misplaced and can be repelled on the
basis of the material gathered during the ongoing investigation
indicating the complicity of each of them. He relies on Section
41 of Cr.P.C. which enables the police to arrest any person
against whom a “reasonable suspicion” exists that he has
committed a cognizable offence. Therefore, the integrity of the
Investigating Agency cannot be doubted as there is enough
material against each of the accused. He further submits that
31
the argument of the writ petitioners based on the
circumstances pressed into service for a direction to change
the Investigating Agency is completely against the cardinal
criminal jurisprudence and such a relief is not available to
persons already named as accused in a crime under
investigation.
18. Mr. Harish Salve, learned senior counsel appearing for
the complainant at whose instance FIR No.4/2018 came to be
registered at Vishram Bagh Police Station (Pune City), submits
that there is no absolute right, much less a fundamental right,
to market ideas which transcend the line of unlawful activity.
The Court must enquire into the fact as to whether the
investigation is regarding such unlawful activity or merely to
stifle dissenting political voice. If it is the former, the
investigation must be allowed to proceed unhindered. In any
case, the affected persons, namely, the named accused must
take recourse to remedy prescribed by law before the
jurisdictional Court as it is not a case of unlawful detention or
action taken by an unauthorized Investigating Agency.
32
According to him, the Court must lean in favour of appointing
a SIT or an independent Investigating Agency or Court
monitored investigation only when the grievance made is one
about the investigation being derailed or being influenced by
some authority. In the present case, the grievance is limited to
improper arrest of individuals without any legal evidence to
indicate their complicity in the commission of any crime or the
one registered in the form of FIR No.4/2018. The allegation of
motivated investigation is without any basis. No assertion is
made by the writ petitioners or the named accused that the
investigation by the Pune City Police is mala fide in law. If the
allegation is about mala fide in fact, then the material facts to
substantiate such allegation, including naming of the person
at whose instance it is being so done, ought to have been
revealed. That is conspicuously absent in this case. According
to the learned counsel, the reliefs claimed in the writ petition
do not warrant any indulgence of this Court.
19. After the high-pitched and at times emotional arguments
concluded, each side presenting his case with equal
33
vehemence, we as Judges have had to sit back and ponder
over as to who is right or whether there is a third side to the
case. The petitioners have raised the issue of credibility of
Pune Police investigating the crime and for attempting to stifle
the dissenting voice of the human rights activists. The other
side with equal vehemence argued that the action taken by
Pune Police was in discharge of their statutory duty and was
completely objective and independent. It was based on hard
facts unraveled during the investigation of the crime in
question, pointing towards the sinister ploy to destabilize the
State and was not because of difference in ideologies, as is
claimed by the so called human rights activists.
20. After having given our anxious consideration to the rival
submission and upon perusing the pleadings and documents
produced by both the sides, coupled with the fact that now
four named accused have approached this Court and have
asked for being transposed as writ petitioners, the following
broad points may arise for our consideration:-
34
(i) Should the Investigating Agency be changed at the behest
of the named five accused?
(ii) If the answer to point (i) is in the negative, can a prayer of
the same nature be entertained at the behest of the next
friend of the accused or in the garb of PIL?
(iii) If the answer to question Nos.(i) and/or (ii) above, is in
the affirmative, have the petitioners made out a case for
the relief of appointing Special Investigating Team or
directing the Court monitored investigation by an
independent Investigating Agency?
(iv) Can the accused person be released merely on the basis
of the perception of his next friend (writ petitioners) that
he is an innocent and law abiding person?
21. Turning to the first point, we are of the considered
opinion that the issue is no more res integra. In Narmada Bai
Vs. State of Gujarat and Ors.1, in paragraph 64, this Court
restated that it is trite law that the accused persons do not
have a say in the matter of appointment of Investigating
1 (2011) 5 SCC 79
35
Agency. Further, the accused persons cannot choose as to
which Investigating Agency must investigate the offence
committed by them. Paragraph 64 of this decision reads thus:-
“64. ….. It is trite law that accused persons do not have a
say in the matter of appointment of an investigation
agency. The accused persons cannot choose as to which
investigation agency must investigate the alleged
offence committed by them.”
(emphasis supplied)
22. Again in Sanjiv Rajendra Bhatt Vs. Union of India
and Ors.2, the Court restated that the accused had no right
with reference to the manner of investigation or mode of
prosecution. Paragraph 68 of this judgment reads thus:
“68. The accused has no right with reference to the
manner of investigation or mode of prosecution. Similar
is the law laid down by this Court in Union of India v. W.N.
Chadha3, Mayawati v. Union of India4, Dinubhai Boghabhai
Solanki v. State of Gujarat5, CBI v. Rajesh Gandhi6,
Competition Commission of India v. SAIL7 and Janta Dal v.
H.S. Choudhary.8”
(emphasis supplied)
2 (2016) 1 SCC 1
3
1993 Supp. (4) SCC 260
4 (2012) 8 SCC 106
5 (2014) 4 SCC 626
6 (1996) 11 SCC 253
7 (2010) 10 SCC 344
8 (1991) 3 SCC 756
36
23. Recently, a three-Judge Bench of this Court in E.
Sivakumar Vs. Union of India and Ors.9, while dealing with
the appeal preferred by the “accused” challenging the order of
the High Court directing investigation by CBI, in paragraph 10
observed:
“10. As regards the second ground urged by the petitioner,
we find that even this aspect has been duly considered in the
impugned judgment. In paragraph 129 of the impugned
judgment, reliance has been placed on Dinubhai Boghabhai
Solanki Vs. State of Gujarat10, wherein it has been held that
in a writ petition seeking impartial investigation, the accused
was not entitled to opportunity of hearing as a matter of
course. Reliance has also been placed in Narender G. Goel
Vs. State of Maharashtra11, in particular, paragraph 11 of the
reported decision wherein the Court observed that it is well
settled that the accused has no right to be heard at the stage
of investigation. By entrusting the investigation to CBI
which, as aforesaid, was imperative in the peculiar facts of
the present case, the fact that the petitioner was not
impleaded as a party in the writ petition or for that matter,
was not heard, in our opinion, will be of no avail. That per se
cannot be the basis to label the impugned judgment as a
nullity.”
24. This Court in the case of Divine Retreat Centre Vs.
State of Kerala and Ors.12
, has enunciated that the High
9 (2018) 7 SCC 365
10 Supra @ Footnote 5
11 (2009) 6 SCC 65
12 (2008) 3 SCC 542
37
Court in exercise of its inherent jurisdiction cannot change the
investigating officer in the midstream and appoint an
investigating officer of its own choice to investigate into a
crime on whatsoever basis. The Court made it amply clear that
neither the accused nor the complainant or informant are
entitled to choose their own Investigating Agency to investigate
the crime in which they are interested. The Court then went
on to clarify that the High Court in exercise of its power under
Article 226 of the Constitution can always issue appropriate
directions at the instance of the aggrieved person if the High
Court is convinced that the power of investigation has been
exercised by the investigating officer mala fide.
25. Be that as it may, it will be useful to advert to the
exposition in State of West Bengal and Ors. Vs. Committee
for Protection of Democratic Rights, West Bengal and
Ors.13 In paragraph 70 of the said decision, the Constitution
Bench observed thus:
“70. Before parting with the case, we deem it necessary to
emphasise that despite wide powers conferred by Articles 32
13 (2010) 3 SCC 571
38
and 226 of the Constitution, while passing any order, the
Courts must bear in mind certain self-imposed limitations
on the exercise of these Constitutional powers. The very
plenitude of the power under the said articles requires great
caution in its exercise. Insofar as the question of issuing a
direction to the CBI to conduct investigation in a case is
concerned, although no inflexible guidelines can be laid
down to decide whether or not such power should be
exercised but time and again it has been reiterated that such
an order is not to be passed as a matter of routine or merely
because a party has levelled some allegations against the
local police. 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. Otherwise the CBI would
be flooded with a large number of cases and with limited
resources, may find it difficult to properly investigate even
serious cases and in the process lose its credibility and
purpose with unsatisfactory investigations.”
26. In the present case, except pointing out some
circumstances to question the manner of arrest of the five
named accused sans any legal evidence to link them with the
crime under investigation, no specific material facts and
particulars are found in the petition about mala fide exercise
of power by the investigating officer. A vague and
unsubstantiated assertion in that regard is not enough.
39
Rather, averment in the petition as filed was to buttress the
reliefs initially prayed (mentioned in para 7 above) – regarding
the manner in which arrest was made. Further, the plea of the
petitioners of lack of evidence against the named accused (A16
to A20) has been seriously disputed by the Investigating
Agency and have commended us to the material already
gathered during the ongoing investigation which according to
them indicates complicity of the said accused in the
commission of crime. Upon perusal of the said material, we
are of the considered opinion that it is not a case of arrest
because of mere dissenting views expressed or difference in
the political ideology of the named accused, but concerning
their link with the members of the banned organisation and its
activities. This is not the stage where the efficacy of the
material or sufficiency thereof can be evaluated nor it is
possible to enquire into whether the same is genuine or
fabricated. We do not wish to dilate on this matter any further
lest it would cause prejudice to the named accused and
including the co-accused who are not before the Court.
Admittedly, the named accused have already resorted to legal
40
remedies before the jurisdictional Court and the same are
pending. If so, they can avail of such remedies as may be
permissible in law before the jurisdictional courts at different
stages during the investigation as well as the trial of the
offence under investigation. During the investigation, when
they would be produced before the Court for obtaining remand
by the Police or by way of application for grant of bail, and if
they are so advised, they can also opt for remedy of discharge
at the appropriate stage or quashing of criminal case if there is
no legal evidence, whatsoever, to indicate their complicity in
the subject crime.
27. In view of the above, it is clear that the consistent view of
this Court is that the accused cannot ask for changing the
Investigating Agency or to do investigation in a particular
manner including for Court monitored investigation. The first
two modified reliefs claimed in the writ petition, if they were to
be made by the accused themselves, the same would end up in
being rejected. In the present case, the original writ petition
was filed by the persons claiming to be the next friends of the
41
concerned accused (A16 to A20). Amongst them, Sudha
Bhardwaj (A19), Varvara Rao (A16), Arun Ferreira (A18) and
Vernon Gonsalves (A17) have filed signed statements praying
that the reliefs claimed in the subject writ petition be treated
as their writ petition. That application deserves to be allowed
as the accused themselves have chosen to approach this Court
and also in the backdrop of the preliminary objection raised by
the State that the writ petitioners were completely strangers to
the offence under investigation and the writ petition at their
instance was not maintainable. We would, therefore, assume
that the writ petition is now pursued by the accused
themselves and once they have become petitioners themselves,
the question of next friend pursuing the remedy to espouse
their cause cannot be countenanced. The next friend can
continue to espouse the cause of the affected accused as long
as the concerned accused is not in a position or incapacitated
to take recourse to legal remedy and not otherwise.
28. Be that as it may, we are conscious of the fact that
prayer clause (i) and (ii) also make reference to FIR No.2/2018
42
registered at Pimpri (Urban) Police Station on 2nd January,
2018. However, that is an independent FIR registered at a
different police station against the Hindutva right wing leaders
Milind Ekbote and Sambhaji Rao Bhide. It is, at best, in the
nature of a cross FIR in respect of the same incident against
the alleged aggressors filed by an eye-witness. Neither the writ
petitioners nor the named accused in FIR No.4/2018 in that
sense, can pursue relief in respect of FIR No.2/2018 registered
at Pimpri (Urban) Police Station. Admittedly, Criminal Writ
Petition No.1875 of 2018 has alrady been filed in the Bombay
High Court by Anita R. Sawale (the complainant in FIR
No.2/2018) herself for issuing directions to the Investigating
Agency in that crime. As presently advised, we find force in the
argument of the State that the crime under investigation in
FIR No.4/2018, inter alia is to investigate the allegations that
a banned organization, CPI(M), organises events such as
referred to in FIR No.2/2018 to propagate ill-will in different
classes and turn them into unconstitutional and violent
activities. Further, such activities were purportedly carried out
by Kabir Kala Manch, Sudhir Dhawale and other activists in
43
different areas in the State of Maharashtra by delivering
vituperative speeches and to spread false history, disputable
statements and incite objectionable slogans, sing songs and
road dramas and distribution of objectionable and provocative
pamphlets and books also. And that the incidents such as at
Bhima Koregaon and nearby places of stone throwing, castes
clashes and arson incidents is the outcome of such
conspiracy. Taking any view of the matter, the reliefs claimed
in the modified prayer clauses (i) and (ii) in respect of FIR
No.2/2018, cannot be taken forward at the instance of the
named five accused persons in FIR No.4/2018 registered at
Vishram Bagh Police Station (Pune City) on 8th January, 2018
or for that matter their next friends.
29. A fortiori, it must follow that the writ petitioners, who are
strangers to the offence under investigation (in FIR
No.4/2018); and since they are merely espousing the cause of
the arrested five accused as their next friends, cannot be
heard to ask for the reliefs which otherwise cannot be granted
to the accused themselves. What cannot be done directly,
44
cannot be allowed to be done indirectly even in the guise of
public interest litigation.
30. We find force in the argument of the State that the prayer
for changing the Investigating Agency cannot be dealt with
lightly and the Court must exercise that power with
circumspection. As a result, we have no hesitation in taking a
view that the writ petition at the instance of the next friend of
the accused for transfer of investigation to independent
Investigating Agency or for Court monitored investigation
cannot be countenanced, much less as public interest
litigation.
31. As the answer to point Nos. (i) and (ii) are in the negative
and against the writ petitioners and named accused, we do not
wish to dilate on the circumstances pointed out to us by the
accused regarding the manner of their arrest. For, any
observation in that regard by this Court may prejudice the
said accused including the co-accused who are not before this
Court or the prosecution, which must be eschewed. We are of
the considered opinion that the investigation of the offence in
45
question is at a nascent stage and, therefore, it is not desirable
to elaborate further as the modified reliefs (i) and (ii) as prayed
cannot be granted for the reasons noted hereinbefore.
32. That takes us to the third modified relief claimed in the
writ petition to issue directions that all electronic devices,
records and materials, allegedly seized from the
detenue/accused, be examined by Forensic Science
Laboratory outside the State of Maharashtra to ensure fair
play and in the interest of justice. Even this prayer cannot be
taken forward. If any one of the twenty two named accused
have any grievance or apprehension about the same, he is free
to make that request before the jurisdictional Court, which
can be considered at the appropriate stage in accordance with
law. We are not expressing any opinion either way in the
present writ petition in that regard.
33. The fourth modified relief is to direct release of the
arrested activists from custody as per law. The accused
persons must pursue this relief before the appropriate court,
which can be considered by the concerned court on its own
46
merits in accordance with law. As noted earlier, the concerned
accused persons have already taken recourse to remedy before
the jurisdictional High Courts. Hence, they are free to pursue
all legal remedies available to them as per law. We are not
expressing any opinion either on the issue of maintainability
thereof or on merits of the reliefs that may be claimed therein.
All questions will have to be considered by the concerned
Court in accordance with law. Accordingly, even the fourth
modified relief cannot be considered in the present writ
petition.
34. In view of the above, we have advisedly refrained from
dealing with the factual issues raised by the parties and
including the named accused represented by their counsel
before us, as any observation made by this Court may cause
serious prejudice to them or the co-accused who are not before
this Court or, for that matter, the prosecution case, resulting
in serious miscarriage of justice. Similarly, we do not wish to
burden the judgment with the other reported judgments relied
upon by the counsel for the parties and dealing with legal
47
propositions canvassed by them, which are not necessary to
be answered in the present writ petition.
35. We may hasten to mention that we have perused the
Registers containing relevant documents and the Case Diary
produced by the State of Maharashtra. But we have avoided to
dilate on the factual position emerging therefrom, lest any
prejudice is caused to any accused or the prosecution, in any
manner.
36. The record/files/documents and the Case Diary handed
over to the Court in a sealed cover by the State be returned to
the counsel for the State in a sealed cover.
37. Accordingly, this writ petition is disposed of with liberty
to the concerned accused to take recourse to appropriate
remedy as may be permissible in law. The interim order
passed by this Court on 29th August, 2018 shall continue for a
period of four weeks to enable the accused to move the
concerned court. The said proceedings shall be decided on
its own merits uninfluenced by any observation made in this
48
judgment, which is limited to the reliefs claimed in the writ
petition to transfer the investigation to an independent
Investigating Agency and/or Court monitored investigation.
The Investigating Officer is free to proceed against the
concerned accused as per law. All the accompanying
applications are also disposed of in terms of this judgment.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
New Delhi;
September 28, 2018.
1
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO 260 OF 2018 (D NO 32319)
ROMILA THAPAR AND ORS ..PETITIONERS
VERSUS
UNION OF INDIA AND ORS ..RESPONDENTS
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1 The intersection between criminal law and constitutional rights has led
to the evolution of judicial precedent which originates in this Court. Our recent
decisions reiterate the value of individual dignity as essential to a democratic
way of life. But lofty edicts in judicial pronouncements can have no meaning to
a citizen unless the constitutional quest for human liberty translates into
securing justice for individuals whose freedom is under threat in specific cases.
The role of the Court involves particularly sensitive balances when the state
seeks to curb freedom to investigate perceived breaches involving offences
against the state. Custodial interrogation involves the balancing of diverse and
REPORTABLE
2
often conflicting values: the effective administration of criminal justice, an
impartial process of investigation and the liberty and reputation of the individual.
The invocation of our jurisdiction under Article 32 in this case is founded on the
grievance that a group of five human rights activists is sought to be persecuted
for espousing the cause of the marginalised which is considered to be
‘unpopular’. Conscious as the Court is of the public interest in the effective
administration of criminal justice, it cannot be oblivious to the overriding
constitutional concern to secure the dignity of the individual. The key to the
balance between the two lies in a fair, independent and impartial investigation
of crime. As a matter of principle, I am unable to agree with the views expressed
by the learned Chief Justice and my learned brother Justice AM Khanwilkar.
2 On 29 August 2018, the jurisdiction of this Court under Article 32 was
invoked by five distinguished academics to seek an “independent and
comprehensive inquiry” in the circumstances relating to the arrest of five human
rights activists on 28 August 2018. The arrests by the Pune police took place
following the raids which were conducted at their homes and offices. The arrests
took place simultaneously in Delhi, Faridabad, Mumbai, Thane and Hyderabad.
The petitioners assert that our jurisdiction has been invoked not to impede the
investigation but to ensure that an independent and credible investigation is
made by persons nominated by and subject to the supervision of this Court. The
petitioners urge that the invocation of the draconian provisions of the Unlawful
Activities (Prevention) Act, 1967 (UAPA) in the present case is an attempt to
3
silence dissent by targeting human rights activists who have been working to
protect the rights of the poor and the marginalised, particularly Dalits. This is set
forth in the prefatory averments of the writ petition, extracted here:
“The charges against them on the face of it appear
indiscriminate, unwarranted, part of a malicious campaign to
threaten human rights defenders, independent journalists,
writers and thinkers in this country, from critiquing the
government and its policies and an attempt to muzzle dissent.
The activists who have been arrested are pro democracy
workers who have been leading peaceful peoples rights based
movements especially among the poor and marginalised
communities, Dalits and adivasis, for several years, in different
parts of the country. The use of the UAPA meant for
exceptional and violent activity, against such persons, when
there has been absolutely no evidence of any acts of violence
by these activists is deeply disconcerting and calls for an
urgent intervention by this Hon’ble Court.”
The grievance is that those five persons are being persecuted for their views
and their voices are sought to be chilled into silence by a criminal prosecution.
3 First, as to the locus of the petitioners:
(i) The first petitioner – Romila Thapar is an eminent historian and Professor
Emeritus at Jawaharlal Nehru University. She was selected on two occasions
for the conferment of the Padma Bhushan award by the Union Government,
which she declined. Romila Thapar has been elected to the British Academy
and the American Academy of Arts and Sciences and has been conferred with
honorary doctoral degrees by the Universities of Oxford and Chicago, among
others. Her writings include a book titled, ‘A History of India’;
4
(ii) The second petitioner, Devaki Jain is a pioneer feminist economist and
has been associated with national bodies, including the Planning Commission
and the National Commission for Women and, international organisations,
including UNDP and the South Commission. She is the founding member of
two organisations engaged in women’s studies. She is a recipient of the Padma
Bhushan in 2006, the third highest civilian award from the Government of India,
for her contribution to social justice and the empowerment of women;
(iii) The third petitioner, Prabhat Pattnaik, was a Rhodes Scholar and is an
eminent economist who taught at JNU for over three decades. He was vicechairperson
of the Kerala Planning Board and a member of a high-powered UN
Task Force on the global financial system;
(iv) The fourth petitioner Satish Deshpande, is a sociologist at the University
of Delhi. He is a recipient of the Malcolm Adiseshiah award for distinguished
contributions to development studies. He was a member of the Union
government’s expert committee on the proposed Equal Opportunity
Commission. He has held visiting appointments at the University of Chicago
and in Paris; and
(v) The fifth petitioner, Maja Daruwala, is a member of the Board and a
senior advisor to the Commonwealth Human Rights Initiative. In that capacity
she has been associated with significant research on the implementation of
5
human rights norms in the country. She has been working in the field of
advocacy for rights and social justice for over fourty years.
4 The persons who were arrested on 28 August 2018 and on whose behalf
these proceedings were initiated have been described thus in the petition:
“i. Gautam Navalakha (Human Rights activist and journalist
New Delhi). He was the President of the People’s Union
for Democratic Rights and has been associated with the
Economic and Political Weekly. He is a known
commentator on current affairs. The state relied upon
him to negotiate the safe return of persons abducted by
left wing extremists in Chhattisgarh.
ii. Sudha Bharadwaj (Advocate, Chhattisgarh High Court,
currently residing in Faridabad) Prominent cause lawyer
of Bilaspur High Court who has represented workers,
poor and marginal farmers and others in Chhattisgarh.
She is the national green secretary of PUCL and since
2017 been teaching at the National Law University, Delhi.
As a member of the Indian Association of People’s
lawyers, advocated Sudha Bharadwaj was vocal against
the arrest of lawyers like Surendra Gadling in recent
times. Sudha Bharadwaj has been a member of
committees and provided legal aid and is a recognised
human rights defender.
iii. Varavara Rao (Age 79, based in Hyderabad, political
worker, commentator and renowned poet). He was a
professor of English and Telegu literature.
iv. Arun Ferreira, (Mumbai) Practising as a lawyer since
2015 and a Human Rights activist.
v. Vernon Gonsalves (Mumbai), Gold medallist from
Bombay University in Commerce, accounts officer at
Siemens, then lecturer of accounts in Maharashtra
College, writer and columnist. His translation of
Annabhau Sathe’s “Gold from the Grave” from Marathi to
English published in David Davidar’s “A Clutch of Indian
masterpieces”.
6
Three of the above individuals were prosecuted in the past for offences primarily
under the Indian Penal Code, 1860, the Arms Act, 1959 and the UAPA. Arun
Ferreria is stated to have been acquitted in all eleven cases instituted against
him. Vernon Gonsalves was acquitted in seventeen out of the nineteen cases
instituted against him (an appeal is pending in one case where he stands
convicted while an application for discharge is pending before the Gujarat High
Court in one case). Vara Vara Rao was acquitted in all twenty cases where he
was prosecuted1
.
5 During the course of the hearing, a preliminary objection was raised by
Mr Tushar Mehta, the learned ASG to the maintainability of these proceedings.
He urged that the petitioners have no locus to question the circumstances
relating to the arrest of the five individuals named above. I would not have been
inclined to accept a technical argument of this nature in view of the
constitutional imperatives for this Court to intervene when human freedoms and
liberties are alleged to be imperilled. The jurisdiction under Article 32 is wide
enough to reach out to injustice in any form and originating in any source.
Securing human liberty and dignity must occupy an important space in the
judicial docket. Liberty and freedom are defining values of our Constitution. The
institutional role of this Court as a constitutional adjudicator should brook no
technicalities which obstruct the cause of justice. When a group of citizens has
moved this Court with an impassioned plea about the violation of human rights
1 Details of these cases have been submitted in charts A, B and C annexed to the written submissions filed by
Dr AM Singhvi, learned senior counsel.
7
— in the present case no less than five distinguished citizens with a track record
of service to the nation have done so — the Court must look beyond locus into
the heart of the matter. Whether the grievance has any substance is indeed a
distinct matter which must be determined objectively. The Court will not interfere
in every case merely because it has the jurisdiction. But its duty to scrutinise,
perceive and remedy violations of human rights is non-negotiable. However,
the issue of locus, even in a technical sense, has receded into the background.
During the course of the hearing, the Court has been apprised that each of the
five individuals who were arrested has subscribed to the averments in the
petition and would stand by what is urged before this Court in protection of their
rights. The objection to maintainability lacks substance, in either view of the
matter.
6 A brief historical background is necessary. On 1 January 1818, a few
hundred soldiers of the East India Company comprising of Dalits, tribals,
Muslims, Christians and backward communities defeated the Peshwa army led
by Bajirao II at Koregaon, on the banks of the Bhima river near Pune. Like many
of its genre, the battle has assumed a legendary status primarily because of the
victory of the Dalits. Honouring the then martyrs, the colonial government raised
a victory pillar, the ‘Vijay Stambh’. The pillar is a symbolic rallying ground for an
annual event to mark the victory. The event represents the aspirations of those
who have been subject to discrimination and prejudice in the caste-ridden
structure of our society.
8
7 In keeping with tradition, a public meeting was scheduled to
commemorate the 200th anniversary of the Bhima-Koregaon victory on 31
December 2017. Among those who were associated with the event were two
judges: one of them, Justice PB Sawant is a former judge of this Court. Justice
BG Kolse Patil is a former judge of the Bombay High Court. The event was
planned at Shaniwar wada in Pune. An organisation known as the Kabir Kala
Manch was to supervise a cultural programme. Besides the two judges who
addressed the Elgar Parishad, the speakers included Shri Prakash Ambedkar,
President of the Bharatiya Republican Party. The event was titled: “BhimaKoregaon
Shourya Din – Elgar Parishad”. The petitioners claim that ‘Elgar’ is a
clarion call. The state reads into it a sinister symbolism of an attack. On 1
January 2018, a communal disturbance took place at Bhima-Koregaon when,
as the allegation goes, a group of Dalits was attacked in the process of offering
a salutation to the victory pillar. News of the incident spread across the state of
Maharashtra, resulting in a violent agitation in the state.
8 Following these incidents, a First Information Report in regard to the
incident was lodged on 8 January 2018 by one Tushar Damgude. The FIR
specifically names the following individuals:
i Sudhir Dhawale;
ii Sagar Gorakhe;
iii Harshali Potdar;
iv Dipak Dhengale;
v Jyoti Jagtap; and
9
vi Ramesh Gaychore.
Sudhir Dhawale was arrested on 6 June 2018. As the investigation progressed,
Section 120B of the Penal Code was added on 6 March 2018 and two more
persons – Surendra Gadling and Rona Wilson - were suspected to be involved.
On 17 April 2018, the Pune police conducted searches at the residences and
offices of the following persons:
1 Rona Wilson, a resident of Delhi;
2 Surendra Gadling, a resident of Nagpur;
3 Sudhir Dhawale and Harshali Potdar, residents of Mumbai;
4 Sagar Gorakhe, a resident of Pune;
5 Dipak Dhengale, a resident of Pune; and
6 Ramesh Gaychore and Jyoti Jagtap, residents of Pune
In the counter affidavit which has been filed by the Assistant Commissioner of
Police, Pune city, it has been stated that the material retrieved from the
computers, laptops, pen drives and memory cards of the above accused
persons implicated them as active members of the Communist Party of India
(Maoist), a banned organisation, and reflected a design of being involved in the
commission of offences having the potential to destabilise the country. Based
on the investigation, the provisions of Sections 13, 16, 17, 18, 18B, 20, 38, 39
and 40 of the UAPA were invoked on 17 May 2018 against the following
individuals:
(i) Surendra Gadling;
10
(ii) Rona Wilson;
(iii) Shoma Sen;
(iv) Mahesh Raut;
(v) Comrade M. alias Milind Teltumbade (underground);
(vi) Comrade Prakash alias Navin alias Rituparn Goswami
(underground);
(vii) Comrade Manglu (underground); and
(viii) Comrade Dipu and other underground members.
On 6 June 2018 five persons were arrested namely:
(i) Surendra Gadling;
(ii) Rona Wilson;
(iii) Sudhir Dhawale;
(iv) Shoma Sen; and
(v) Mahesh Raut.
The counter affidavit filed by the Assistant Commissioner of Police states that
it is on the basis of the material recovered during the course of the search of
the above persons that the five individuals on whose behalf the present
proceedings have been instituted were found to be a part of the criminal
conspiracy. The averment in the counter reads as follows:
“I state and submit that based upon the aforesaid material
recovered from the searches of the aforesaid persons [which
is a part of the case diary and which would be placed for
consideration and perusal of this Hon’ble Court in a sealed
cover], the following persons were also clearly found to be a
part of the criminal conspiracy and their role was not merely
peripheral role but they were found to be playing a very vital
role in the criminal offences committed and/or planned by
11
others. Based upon the said incriminating material, the
following persons came to be arrested on 28.8.2018 and
searches were conducted at their residential/work places in a
similar fashion, under videography in presence of individual
Punchas who were Government officers.
1 Vara Vara Rao R/o Hyderabad
2 Arun Ferreira R/o Thane
3 Vernon Gonsalves R/o Mumbai
4 Sudha Bhardwaj R/o Faridabad
5 Gautam Navlakha R/o Delhi”
The counter alleges that each of the five individuals is found to be working for
and to be an active member of a “banned terrorist organisation” – the
Communist Party of India (Maoist). Paragraph 26 of the counter affidavit states
that each of them has been found, from the material gathered from others
during investigation, to be involved in unlawful activities which are described
thus:
“The material gathered from others based upon which the five
accused persons named hereinabove are arrested, clearly
show that they were involved in selecting and encouraging
cadres to go underground in ‘struggle area’, mobilizing and
distributing money, facilitating selection and purchase of arms,
deciding the rates of such arms into India for its onward
distribution amongst the cadres. Some of them have
suggested training and laying of booby traps and directional
mines. They are also found to be providing strategic inputs in
furtherance of the objective of armed rebellion as per the
strategic document of the banned terrorist organisation namely
Communist Party of India (Maoist).”
The petition was initially taken up for hearing on 29 August 2018. Interim
directions to place the five individuals under house arrest were issued, in terms
of the request made by their counsel:
12
“We have considered the prayer for interim relief. It is submitted
by Dr. Abhishek Manu Singhvi, learned senior counsel
appearing for the petitioners that in pursuance of the order of
the High Court, Mr. Gautam Navalakha and Ms. Sudha
Bharadwaj have been kept under house arrest. It is suggested
by him that as an interim measure, he has no objection if this
Court orders that Mr. Varavara Rao, Mr. Arun Ferreira and Mr.
Vernon Gonsalves, if arrested, they are kept under house
arrest at their own homes. We order accordingly. The house
arrest of Mr. Gautam Navalakha and Ms. Sudha Bharadwaj
may be extended in terms of our orders.”
Since the case was being heard, the house arrest has since been extended by
the interim directions of this Court of 6 September 2018 and 17 September
2018. During the course of the hearing, permission has been sought to formally
amend the writ petition to seek the constitution of a Special Investigating Team
under the directions of this Court, so as to ensure an independent investigation.
9 Unfolding his submissions, Dr Abhishek Manu Singhvi, learned senior
counsel stated that a First Information Report in respect of the violence which
took place on 1 January 2018 (FIR 2/2018) was lodged by Anita R Sawale at
PS Pimpri on 2 January 2018. The FIR alleges that violence was unleashed
against Dalits by a mob armed with swords, rods and other weapons. The FIR
specifically names Sambhaji Bhide, head of an organisation known as
Shivajinagar Pratishthan and Milind Ekbote, Chief of Hindu Janjagaran Samiti
as perpetrators and conspirators. Sambhaji Bhide has not been arrested while
Milind Ekbote is stated to have secured bail within a month of his arrest. The
FIR relates to offences under the Penal Code, Arms Act and the SC/ST Act2
.
2 The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989
13
No provision of the UAPA has been invoked. Since the police were allegedly
not investigating the FIR, a writ petition has been filed before the Bombay High
Court3
. FIR 4/2018 was lodged on 8 January 2018 at PS Vishrambagh by
Tushar Damgude who is alleged to be a self-professed follower of Sambhaji
Bhide. The FIR adverts to a speech delivered by Sudhir Dhawale at the Elgar
Parishad on 31 December 2017 in which allegedly an incendiary speech was
made, with the following lines:
“Jab Julm ho to Bagawat Honi Chahiye shahar mein, Jab Julm
Ho to bagawat honi chahiye shaharmein, aur agar bagawat na
ho to behatar he ke,ye raat dhalane se pehle ye shahar jalkar
rakh ho jaye, yesatra hein, ye satra ki title hi, apne aap mein,
ladhai k ailan hein, ye nayi peshwai ko hamko shamshan ghat
mein, Kabrastaan mein dafnana hein.””
Dr Singhvi submits that these lines are but a translation of Bertolt Brecht’s play,
“The Good Person of Szechwan”, (1942). Notably, according to the submission,
FIR 4/2018 does not allude to any conspiracy to attack the Prime Minister. It has
been submitted that it is undisputed that none of the activists under house arrest
were named in the FIR. They are not alleged to be present at the Elgar Parishad
on 31 December 2017 or at Bhima-Koregaon on 1 January 2018. Moreover,
according to the submission, the State of Maharashtra opposed the anticipatory
bail of Milind Ekbote on the ground that the violence was committed as a part of
a pre-planned conspiracy by him and by others. The arrests of the five persons
were affected nearly nine months thereafter.
3 Criminal Writ Petition 1875/2018
14
10 The next limb of the submission of Dr Singhvi is that certain letters which
are alleged to have been authored by the arrested activists are ex-facie
fabricated. These letters are alleged to have been recovered by the police from
the electronic devices of one of the accused who was raided in the month of
April 2018 and was arrested in June 2018. Shri Parambir Singh, Additional
Director General of Police (Law and Order), State of Maharashtra appeared in
a television programme called “Truth v Hype” on NDTV on 1 September 2018
and stated that the letters which were placed before the media by senior police
functionaries were yet to be verified. According to the petitioners, thirteen such
alleged letters were leaked to the media by the police during the course of press
briefings. They are now available in the public domain. These letters, it has been
submitted, do not find mention even in the transit applications filed by the Pune
police before the concerned court. The letters are unsigned and do not bear any
identifiable particulars including e-mail addresses or headers. Curiously, the
recovery is stated to have been made from the electronic devices of a third
person who is neither the author nor the addressee of the letters. Hence, it has
been urged that:
(i) While it was alleged that a plot against the Prime Minister has been
uncovered in an alleged letter, it is noteworthy that no new FIR has been
registered by the police and investigation continues by the Pune police under
FIR 4/2018, pertaining to the Bhima-Koregaon violence;
15
(ii) The state is not taking the conspiracy theory seriously as is evident from the
fact that no fresh FIR has been registered and the investigation continues to
remain with the Pune police; and
(iii) Seven out of the thirteen alleged letters which were leaked to the media by
the police have been authored by or addressed to one “Comrade Prakash”. The
Sessions Court at Gadchiroli in its judgment dated 7 March 2017 convicting GN
Saibaba in Sessions Case 13/2014 held that he had used the pseudonym
‘Prakash’ in letters scribed by him. It is a matter of record that Saibaba has been
lodged in Nagpur Central Jail since 7 March 2017 and hence the alleged letters
attributed to him after that date are ex-facie fabricated.
Dr Singhvi has drawn the attention of the court to the consistent pattern and
history of the police targeting human rights activists and incarcerating them by
foisting false criminal cases. This is buttressed by adverting to the prosecutions
launched against three of the August 2018 detenues. Vara Vara Rao was
implicated in 25 cases out of which 13 ended in acquittal, 3 in discharge and 9
in the withdrawal of the prosecution. He has not been convicted in any case and
is 79 years of age. Arun Ferreira has been acquitted in all the 11 cases in which
he was implicated. Vernon Gonsalves has been acquitted in 17 out of the 19
cases in which he was accused; a discharge application is pending in one case
while an appeal against conviction in another case is pending before the Nagpur
bench of the High Court, where he has already served his sentence.
16
11 During the course of his submissions, Dr Singhvi urged that there was a
gross violation of law rendering the arrest, search and seizure unlawful. The
panch witnesses were ‘imported’ from Pune and are employees of the Pune
Municipal Corporation. The two panch witnesses travelled together with the
Pune police and are stock witnesses. Hence it has been submitted that there
has been a clear violation of the safeguards introduced in Section 41B of the
Code of Criminal Procedure, 1973. In the transit remand application of Sudha
Bhardwaj, the Pune police submitted before the Court of the CJM, Faridabad on
28 August 2018 that her remand was necessary since other individuals who
were arrested in June 2018 had made disclosure statements in regard to
incitement of the riots in Koregaon. Significantly, no such disclosure has been
made by the arrested persons nor is there a mention of a Maoist conspiracy in
the alleged letters or in the remand application.
12 In summation, Dr Singhvi urged that each of the persons who were
arrested on 28 August 2018 is an active defender of human rights. They have
taken a position on human rights violations. The submission is that this targeted
persecution is meant to strike fear amongst human rights’ lawyers, activists and
writers to deter them from speaking against or critiquing governmental policies
and police actions. Persecution of this nature would, it has been urged, shake
the foundation of the rule of law and render the freedoms guaranteed by the
Constitution illusory. Learned counsel submitted that the purpose of these
proceedings is not to thwart an investigation but to ensure that the investigation
17
is fair and impartial. It was urged that in a long line of precedent, this Court has
ordered the constitution of Special Investigation Teams (SIT) or a court
monitored investigation under Article 32 of the Constitution. In the present case,
it was urged, that the facts which have been adverted to before the Court
indicate that the investigation has been anything but fair and impartial. The
targeting of human rights activists for their opposition to the governing regime
implicates a serious violation of democratic values and necessitates either the
setting up of a SIT or the monitoring of the investigation by this Court.
13 On the other hand, Mr Tushar Mehta, learned ASG has urged the
following submissions:
(i) No interference by the Court is permissible in a criminal case in the garb of a
public interest litigation. A PIL is not maintainable at the behest of a third person
for seeking reliefs which can be granted only under Sections 438 or 439 and
Section 482 of the Criminal Procedure Code (Rajiv Ranjan Singh ‘Lalan’ (VIII)
v Union of India,
4 Gulzar Ahmed Azmi v Union of India,
5 Simranjit Singh
Mann v Union of India6 and Ashok Kumar Pandey v State of West Bengal7
;
(ii) There is an abuse of process in the present case since three of the arrested
persons – Vara Vara Rao, Sudha Bhardwaj and Gautam Navlakha have filed
petitions before the jurisdictional High Courts which are pending adjudication.
4
(2006) 6 SCC 613
5
(2012) 10 SCC 731
6
(1992) 4 SCC 653
7
(2004) 3 SCC 349
18
Hence it would be impermissible to allow their prayer for transposing them or
adopting the averments in the petition (Pratibha Ramesh Patel v Union of
India8
, Udyami Evam Khadi Garmodyog Welfare Sanstha v State of UP9
);
(iii) A PIL under Article 32 would not be maintainable for the purpose of seeking
relief under Sections 438 and 439 of the Criminal Procedure Code;
(iv) Reliefs in the nature of a writ of Habeas Corpus, which have been sought in
the present proceedings under Article 32 are not maintainable (State of
Maharashtra v Tansen Rizwan Siddiquee10);
(v) The accused does not have a vested right to seek an investigation monitored
by the court or to have a particular agency as the investigator; and
(vi) The investigation in the present case is being conducted responsibly and
impartially by an officer of the rank of an Assistant Commissioner of Police. The
investigation is being carried out under the supervision of a Deputy
Commissioner of Police and is being monitored by the Joint Commissioner of
Police who is of the rank of an Additional Director General.
14 While entertaining these proceedings, this Court is conscious of the fact
that ordinarily, when an investigation into a criminal offence is in progress, rights
and remedies are provided by the Code of Criminal Procedure. Hence, it is but
trite law that in matters pertaining to or arising during the course of investigation
8
(2016) 12 SCC 375
9
(2008) 1 SCC 560
10 (2018) 10 SCALE 711
19
such as remand, bail (including anticipatory bail) and quashing of proceedings,
recourse must be taken to the provisions of the Code. These principles have
been highlighted in the decisions to which a reference has been made by the
ASG. In Rajiv Ranjan Singh (supra) the trial had commenced in a criminal
case involving a charge of amassing wealth disproportionate to the known
source of income of a public servant. This Court held that a PIL is not meant to
advance a political agenda and would be alien to pending criminal proceedings.
The petitioners were not de facto complainants and if at all they had a grievance
regarding the removal of a public prosecutor, they should have moved the
Special Judge or the High Court at the earliest point of time. The Court
emphasised that any interference at the behest of a third party was liable to
affect the course of justice and may even prejudice the accused by denying a
fair trial. In Gulzar Ahmed Azmi (supra) a petition under Article 32 sought an
investigation of all bomb blast cases since 2002 with a direction for the release
of the detenues on bail. In that context, this Court held that sufficient safeguards
were available under the criminal law and it was for the individual against whom
a criminal proceeding is lodged to work out his or her remedy. In Simranjit
Singh Mann (supra) the Court declined to exercise its jurisdiction under Article
32 where the petitioner did not seek to enforce his own fundamental rights but
the fundamental rights of two “condemned convicts” who had not themselves
complained of a violation. This Court noted that it was not open to “any and
every person” to challenge a conviction and unless the aggrieved individual
suffers from a disability recognised by law, it would be unsafe and hazardous to
20
allow a third party or stranger to question the correctness of a conviction and
sentence imposed after trial. These principles were also adverted to in the
earlier decision in Ashok Kumar Pandey (supra). They are well settled. As a
court which is governed by precedent, we are bound by them and by a
consistent line of authority which requires that during the course of investigation,
it is to the competent court that an accused must ordinarily turn for the remedies
that are available under substantive or procedural provisions of the criminal law.
15 But in the present case, it is necessary for the Court to bear in mind that
recourse to its constitutional jurisdiction under Article 32 has been invoked not
only by the petitioners but by the five individuals who were arrested on 28
August 2018. The petition was moved before this Court on 29 August 2018
when, as already noted, an interim order was passed directing that the five
arrested persons be placed under house arrest. At the earliest possible point in
time, these five individuals have moved this Court indicating that they abide by
the averments and reliefs sought in the petition and seek that they should be
transposed as petitioners under Article 32. The petitioners have not in their
submissions sought recourse to the jurisdiction of this Court for espousing a
remedy which is available before the competent court under the Code of
Criminal Procedure. These proceedings have been moved with a specific
grievance that the arrest of the five individuals is an attempt by the state to
muzzle dissent and that each of them is being persecuted for being a defender
of persons subjected to human rights’ violations. When the petition was initially
21
filed, the relief which was sought was in regard to the circumstances relating to
the arrest of the human rights activists. By an application for amendment, the
reliefs have been sought to be amended to inter alia seek the constitution of a
Special Investigating Team (to be monitored by this Court). For clarity, the
above reliefs are extracted below:
“i) Issue an appropriate writ, order or direction for setting up of
a Special Investigating Team (SIT) comprising of senior police
officers with impeccable career records of professionalism,
integrity and independence, reporting directly to this Hon’ble
Court, for conducting a fair and independent investigation and
inquiry into the offences stated in the zero FIR lodged at Pimpri
police station on 02.01.2018 (now Cr.Case No 2/2018), and the
FIR 4/2018 lodged at Vishrambagh police station on
08.01.2018 by Tushar Damgude, and all other related matters
and allegations; or
ii) Issue an appropriate writ, order or direction for the
investigation into the offences alleged in the zero FIR lodged
at Pimpri police station on 02.01.2018 (now Cr.Case No
2/2018), and the FIR 4/2018 lodged at Vishrambagh police
station on 08.01.2018, and all other related matters and
allegations, to be carried out by an independent agency which
shall be monitored directly by this Hon’ble Court through
regular filing of status reports of the investigation by the
investigating agency;”
16 Though the prayer seeking the appointment of a Special Investigating
Team is sought to be introduced by way of an application for amendment, it is
necessary to note that in the petition as it was originally filed, it has been stated
that the object of the petition is not to stop an investigation but to ensure an
independent and credible investigation. The relevant averment in that regard
reads as follows:
“Petitioners are seriously concerned about the erosion of
democratic values and are moving this Hon’ble Court not to
stop investigation into allegations but to ensure independent
22
and credible investigation by such persons as may be deemed
fit under supervision of this Hon’ble Court. Anything short of
this will damage the fabric of nation irreparably.”
(emphasis supplied)
The application for amendment, does not, in other words, set up a new case but
is intended to introduce a formal prayer on the basis of averments which have
already been made in the petition as it was originally filed.
17 This Court, as a constitutional adjudicator, has been entrusted with the
jurisdiction under Article 32 to secure the fundamental freedoms guaranteed by
Part III of the Constitution. While the discipline of the law of criminal procedure
must at all times be kept in view, it cannot be gainsaid that the protection of
fundamental liberties is a subject so integral to democratic constitutional values
that technicalities should not be allowed to override the cause of substantive
justice. The court must undoubtedly tread with circumspection for in the guise
of seeking access to its wide jurisdiction under Article 32, the normal remedies
under the criminal law should not be displaced. Again, as the court has
repeatedly emphasised, public interest litigation should not become a weapon
for settling political scores or of pursuing extraneous ends. In the present case,
we have no manner of doubt that the initiation of the proceedings under Article
32 is not motivated by extraneous reasons. The law is not a respecter of social,
economic or political status and every litigant who seeks access to justice has
to be treated evenly. Here we have five citizens who have invoked the
jurisdiction of this Court in extraordinary circumstances where they claim that a
23
group of human rights activists has been targeted by the state police. Each of
those five individuals has joined in these proceedings.
18 Over the course of the last decade, the jurisdiction of this Court has
evolved under Article 32 to order the constitution of a SIT. In National Human
Rights Commission v State of Gujarat,
11 a SIT was constituted in a matter
involving a serious element of communal disharmony. Further directions were
issued by this Court for regular status reports to be filed by the SIT (NHRC v
State of Gujarat12). In Ram Jethmalani v Union of India,
13 this Court observed
that in several instances in the past, when the issues were of a complex nature,
yet requiring the intervention of the Court, SITs were ordered to be constituted
to enable the Court, the Union government and other organs of the state to fulfil
their constitutional obligations. In Common Cause v Union of India,
14 the test
for the constitution of a SIT was a prima facie abuse of power and authority by
the Director of the Central Bureau of Investigation to scuttle an investigation and
enquiries into coal block allocations. In Sunita Devi v Union of India,
15 an
independent and impartial SIT was constituted where it was found that the
investigation into the murder of a family was lackadaisical and the real culprits
had not been put to trial. These instances indicate the diversity of settings in
which this Court has ordered the constitution of SITs. Decisional flexibility in the
11 (2009) 6 SCC 342
12 (2009) 6 SCC 767
13 (2011) 8 SCC 1
14 (2017) 3 SCC 501
15 (2018) 3 SCC 664
24
exercise of this jurisdiction meets exigencies which arise in unforeseen
situations, warranting the intervention of this Court under Article 142. While the
Court does not determine the course of the investigation, it acts as a watchdog
to ensure that a fair and impartial investigation takes place. A fair and
independent investigation is crucial to the preservation of the rule of law and, in
the ultimate analysis to liberty itself.
19 Mr Harish Salve, learned senior counsel appearing on behalf of the
complainant, has sought to urge that a SIT has been constituted in cases where
there is an allegation against the political class in power, so that the investigation
is not derailed by those who are capable of intercepting it. Such a construction,
in my view, would restrict the width and ambit of the jurisdiction which has
advisedly been entrusted to this Court by the framers of the Constitution. The
fact that in a particular case, a SIT was ordered to be constituted in a situation
where there was an allegation of interference with the investigation by the
political establishment is not a reason to confine the exercise of the jurisdiction
only to such cases. In the rights discourse, violations of law and transgressions
of human rights arise in myriad situations which it may be difficult to anticipate
exhaustively. Prudently therefore, the jurisdiction under Article 32 is not hedged
in by technicalities nor would it be wise to confine it to stated categories. The
ultimate touchstone for the exercise of the jurisdiction is that a violation of the
fundamental human freedoms relatable to the cardinal values of liberty, dignity
and equality under Part III of the Constitution is in issue.
25
20 Besides the jurisdiction to order the constitution of a SIT, the proceedings
of this Court are replete with instances where an investigation has been
monitored under the authority of this Court. In Vineet Narain v Union of India,
16
this Court in the context of the widely publicised Jain Hawala transactions case
ordered a court monitored investigation to ensure that government agencies
discharged their duties and functions bearing in mind the tenets of equality and
the rule of law. In doing so, this Court emphasised the need to retain public
confidence in the process of investigation. In Babubhai Jamnadas Patel v
State of Gujarat,
17 a two judge Bench, while noting that investigation of
offences is normally the function of the investigating agency emphasised that
where extraordinary facts or situations are involved, it is the duty of the High
Courts and of this Court to intervene to ensure that the rights of citizens are duly
protected:
“The courts, and in particular the High Courts and the Supreme
Court, are the sentinels of justice and have been vested with
extraordinary powers of judicial review and supervision to
ensure that the rights of the citizens are duly protected.”
In Centre for Public Interest Litigation v Union of India,
18 a court monitored
investigation was ordered in a public interest litigation which focused on the
need for a thorough and impartial investigation into the 2G Spectrum scam. In
Bharati Tamang v Union of India,
19 this Court held that in an appropriate case,
or when exceptional circumstances have been made out, the jurisdiction under
16 (1996) 2 SCC 199
17 (2009) 9 SCC 610
18 (2011) 1 SCC 560
19 (2013) 15 SCC 578
26
Article 32 can be exercised to constitute a SIT or to transfer the investigation to
a Central Agency and monitor it, or even to order a de novo investigation into
criminal cases.
21 With this body of precedent on the subject, the maintainability of a prayer
for relief, seeking that the investigation should be either monitored by this Court
or should be entrusted to an independent SIT under the directions of this Court
cannot be in doubt. Though wide-ranging submissions have been urged before
this Court on merits, it is necessary that the court must eschew a detailed or
meticulous examination of the material produced by the ASG together with the
case diary, particularly when the investigation is in progress. The expression of
a finding by this Court would affect the administration of criminal justice or
perhaps in a given case, even the rights of the accused. The observations of
this Court must, therefore, be confined to assessing whether a case has been
made out for the constitution of a SIT and matters having a bearing on that
decision.
22 I must, at the outset, dwell on the fairness of the manner in which the
police have approached this investigation. On 29 August 2018, this Court issued
notices to the State of Maharashtra and to the others impleaded as respondents
to the proceedings. Within a few hours of the conclusion of the court hearing, a
press conference was held in Pune by Shivarjirao Bodhke, the Joint
Commissioner of Police proclaiming that the Pune police had more than
27
sufficient evidence against the five individuals whose transit remand was stayed
by this Court while ordering them to be placed under house arrest. This is
disconcerting behaviour – the Joint Commissioner sought in this oblique manner
to respond to the interim order of this Court by recourse to the electronic media.
On 31 August 2018, a press conference was addressed by a team of senior
police officers headed by Shri Parambir Singh, ADG (Law and Order),
Maharashtra. During the course of the press conference letters (many of which
should form part of the case diary) were selectively flashed and read out.
According to the petitioners they were also leaked to the media. A video of the
press conference is annexed in the form of a CD at Annexure R-2 of the
rejoinder and has been uploaded on
https://www.youtube.com/watch?v=PCVKfstx2Qc. On 1 September 2018 the
ADG (Law and Order) appeared on a television programme titled “Truth v Hype”
on NDTV, during the course of which he is stated to have agreed that the letters
which had been read out by him were still undergoing forensic analysis together
with the electronic devices. The CD of the programme is annexed as Annexure
R-3 to the rejoinder. Besides this, the attention of the Court has been drawn to
the fact that the first round of arrests in the present case took place on 6 June
2018. On 8 June 2018 an alleged letter was released by the police to the media
a little before the proceedings for remand before the competent court (in the
June arrests), alleging that the arrested persons were plotting to attack the
Prime Minister. On 4 July 2018 when the arrested persons were to be produced
before the Court in Pune, a letter attributed to Sudha Bhardwaj was
28
sensationally telecast on a television channel linking her with the unlawful
activities of certain groups. A serious grievance has been made about the fact
that these letters have neither been placed before the Court of law nor did they
find mention in the transit remand applications moved before the CJM,
Faridabad by the Pune police.
23 In Rajendran Chingaravelu v RK Mishra,
20 this Court deprecated the
tendency of the police to reveal details of an investigation to the media even
before the completion of the investigation. This Court observed:
“21. But the appellant’s grievance in regard to media being
informed about the incident even before completion of
investigation, is justified. There is growing tendency among
investigating officers (either police or other departments)
to inform the media, even before the completion of
investigation, that they have caught a criminal or an
offender. Such crude attempts to claim credit for
imaginary investigational breakthroughs should be
curbed. Even where a suspect surrenders or a person
required for questioning voluntarily appears, it is not
uncommon for the Investigation Officers to represent to the
media that the person was arrested with much effort after
considerable investigation or a case. Similarly, when someone
voluntarily declares the money he is carrying, media is
informed that huge cash which was not declared was
discovered by their vigilant investigations and thorough
checking. Premature disclosures or ‘leakage’ to the media in
a pending investigation will not only jeopardise and impede
further investigation, but many a time, allow the real culprit to
escape from law...” (emphasis supplied)
24 This facet of the case of serious concern. The manner in which the Joint
Commissioner of Police and the Additional Director General of Police (Law and
20 (2010) 1 SCC 457
29
Order), Maharashtra have selectively disclosed purported details of the
investigation to the media and on television channels casts a cloud on the
impartiality of the investigative process. In its 2010 decision in Rajendran
(supra) this Court was constrained to take note of this growing tendency on the
part of investigating agencies. The use of the electronic media by the
investigating arm of the State to influence public opinion during the pendency
of an investigation subverts the fairness of the investigation. The police are not
adjudicators nor do they pronounce upon guilt. In the present case, police
briefings to the media have become a source of manipulating public opinion by
besmirching the reputations of individuals involved in the process of
investigation. What follows is unfortunately a trial by the media. That the police
should lend themselves to this process is a matter of grave concern. The
investigation commenced as an enquiry into the Bhima-Koregaon violence. The
course of the investigation was sought to be deflected by alleging (in the course
of the press briefings of the police) that there was a plot against the Prime
Minister. Such an allegation is indeed of a serious order. Such allegations
require responsible attention and cannot be bandied about by police officers in
media briefings. But during the course of the present hearing, no effort has been
made by the ASG to submit that any such investigation is being conducted in
regard to the five individuals. On the contrary, he fairly stated that there was no
basis to link the five arrested individuals to any such alleged plot against the
Prime Minister. Nor does the counter affidavit makes any averment to that
effect. All this has certainly a bearing on the basic question as to whether the
30
Maharashtra police can now be trusted to carry out an independent and
impartial investigation.
25 During the course of the hearing, the learned ASG has assisted the Court
by tendering the case diary and a compilation of documentary material. As a
matter of prudence, the court must desist from adverting to the details contained
in the compilation or in the case diary save and except for indicating broad
reasons in the course of evaluating the reliefs which have been claimed. The
counter affidavit, which has been filed by the State of Maharashtra makes it
abundantly clear that the arrest of the five individuals (on 28 August 2018) was
based on “material gathered from others”. This adverts to the material alleged
to have been gathered in the course of the raids conducted against those
individuals who were arrested in the months of June and July 2018. Paragraph
26 of the counter (which has been extracted earlier) states that this material
“clearly shows that they were involved” in (i) selecting and incorporating cadres
to go underground in the ‘struggle area; (ii) mobilising and distributing money;
(iii) facilitating selection and purchase of arms; (iv) deciding the rates of such
arms; and (v) suggesting the routes and ways of smuggling such arms into India
for its onward distribution amongst the cadres.
26 Next, it is alleged that “some of them” (i) “have suggested training and
laying of booby traps and directional mines”; and (ii) “are found to be providing
strategic inputs in furtherance of the objective of armed rebellion” in pursuance
31
of a strategic document of a banned terrorist organisation namely, the
Communist Party of India (Maoist). With the assistance of the ASG I have
carefully perused the compilation produced before the Court. Upon perusing the
material, I find that the allegation that each of the five individuals arrested on 28
August 2018 is found to be engaged in activities of the nature set out in
paragraph 26 of the counter affidavit (extracted above) is taking liberties with
the truth. General allegations against the philosophy of a banned organisation,
its policies and the modalities followed in the execution of its unlawful activities
constitute one thing. Linking this to specific activities of named individuals is a
distinct matter. At this stage, it is necessary to note the submission which has
been urged in regard to an undated letter of Sudha Bhardwaj to Comrade
Prakash which was also allegedly distributed to the media. There is a serious
bone of contention in regard to the authenticity of the letter which, besides being
undated, does not contain any details including the e-mail header. A statement
has been handed over the court in support of the submission that the letter is
an obvious fabrication made by a Marathi speaking person because in as many
as 17 places, it contains references to words scribed in Devanagari, using forms
peculiar to Marathi. It has been urged that Sudha Bhardwaj who does not belong
to Maharashtra and is not Marathi speaking, could not possibly have written a
letter in Devanagari utilising essentially Marathi forms of grammar or address.
We need not delve into these aspects at this stage, since they are matters for a
fair investigation.
32
27 One of the circumstances which must certainly bear upon the fairness
and impartiality of the process which has been followed by the investigating
agency is in regard to the importation of two panch witnesses from Pune, when
the arrests were carried out. Section 41B of Code of Criminal Procedure
emphasises the importance of an independent witness while making an arrest.
Section 41B of the Code provides as follows:
“Every police officer while making an arrest shall-
(a) bear an accurate, visible and clear identification of his name
which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be-
(i) attested by at least one witness, who is a member of the
family of the person arrested or a respectable member of
the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is
attested by a member of his family, that he has a right to have
a relative or a friend named by him to be informed of his arrest.”
(emphasis supplied)
The two panch witnesses in the present case are employees of the Pune
Municipal Corporation. It is not disputed before this Court that they travelled as
part of the police team which made the arrest.
28 It was in DK Basu v State of West Bengal,
21 that this Court laid down
requirements to be followed in all cases of arrest, which included the following:
“(2) That the police officer carrying out the arrest of the arrestee
shall prepare a memo of arrest at the time of arrest and such
21 (1997) 1 SCC 416
33
memo shall be attested by at least one witness, who may either
be a member of the family of the arrestee of a respectable
person of the locality from where the arrest is made. It shall also
be countersigned by the arrestee and shall contain the time and
date of arrest.”
This Court observed that the requirements it had enunciated emanated from
Articles 21 and 22(1) of the Constitution and “need to be strictly followed” failing
which action for contempt of court would be initiated.
29 There is a serious allegation that the arrests have been motivated by an
attempt to quell dissent and to persecute five individuals who have pursued the
cause of persons who have suffered discrimination and human rights violations.
In approaching the present case, the Court must be mindful of the need not to
thwart a criminal investigation leading to the detection of unlawful acts. Equally,
the Court has to be vigilant in the exercise of its jurisdiction under Article 32 to
ensure that liberty is not sacrificed at the altar of conjectures. Individuals who
assert causes which may be unpopular to the echelons of power are yet entitled
to the freedoms which are guaranteed by the Constitution. Dissent is a symbol
of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting
those who take up unpopular causes. Where, however, the expression of
dissent enters upon the prohibited field of an incitement to violence or the
subversion of a democratically elected government by recourse to unlawful
means, the dissent ceases to be a mere expression of opinion. Unlawful
activities which violate the law have to be dealt with in accordance with it. In the
background which has been adverted to earlier, it would be blasé to accept the
34
submission that the investigation by the police should be allowed to proceed
without a safeguard for ensuring the impartiality and independence of the
investigative agency. The conduct of the Pune police in utilising the agency of
the electronic media to cast aspersions on those under investigation fortifies the
need for an investigation which is fair. When the Joint Commissioner of Police
and the Additional Director General of Police cast aspersions in the public media
against persons whose conduct is still under investigation, and in disregard of
proceedings pending before a judicial forum, it is the duty and obligation of this
Court to ensure that the administration of criminal justice is not derailed. I make
it absolutely clear that nothing in this order shall be construed as any
observation on the merits of the investigation which is to take place. The
purpose of the direction which I propose to give is to ensure that the basic
entitlement of every citizen who is faced with allegations of criminal wrongdoing,
is that the investigative process should be fair. This is an integral component of
the guarantee against arbitrariness under Article 14 and of the right to life and
personal liberty under Article 21. If this Court were not to stand by the principles
which we have formulated, we may witness a soulful requiem to liberty.
30 The judgment of the majority has relied on certain decisions to hold that
such a petition as in the present case is not maintainable and the prayer for the
constitution of SIT at the behest of the five individuals under investigation cannot
be entertained. In Narmada Bai v State of Gujarat,
22 the petitioner filed a writ
22 (2011) 5 SCC 79
35
petition under Article 32 for issuance of a writ directing the CBI to register a FIR
in a case pertaining to an alleged fake encounter in which her son was killed.
The key issue was whether after filing of the charge-sheet by the state
investigative agency, this Court was precluded from appointing an independent
specialised agency like the CBI to go into the same issues, if the earlier
investigation was not done in accordance with the established procedure. The
factual determination to be carried out was whether the petitioner had made out
a case for entrusting the investigation to the CBI.
31 While this Court observed that “It is trite law that accused persons do not
have a say in the matter of appointment of an investigation agency” and that
“the accused persons cannot choose as to which investigation agency must
investigate the alleged offence committed by them”, the Court also observed
that there were “large and various discrepancies” in the reports and the
investigation conducted by the police authorities of the State of Gujarat and that
the charge-sheet filed by the state investigating agency could not be “said to
have run in a proper direction.” A two judge Bench of this Court concluded that
even though the charge-sheet had been filed, in view of the circumstances
brought to the notice of the Court, the involvement of the police officials of the
State of Gujarat in the investigation was “undesirable”. Thus, “to meet the ends
of justice and in the public interest”, the CBI was be directed to take charge of
the investigation.
36
32 This case supports my view that in the interest of justice, and particularly
when there are serious doubts regarding the investigation being carried out, it
is not only permissible, but our constitutional duty to ensure that the
investigation is carried out by a special investigation team or a special
investigative agency so that justice is not compromised.
33 In Sanjiv Rajendra Bhatt v Union of India,
23 the petitioner, who was an
IPS officer filed a plea before this Court seeking the appointment of a SIT, to
probe into two FIRs filed against him by the Gujarat Police. On the facts of the
case, it was held that the nature of the case relating to an allegedly false affidavit
and the alleged hacking of an email account were not of such wide amplitude
so as to warrant the constitution of a SIT. The Court also observed that the
petitioner had not come to the Court with clean hands and that no relief could
be granted to an individual who came to the Court with “unclean hands.” These
facts were the distinguishing feature. I have previously discussed the
established precedents of this Court which indicate the circumstances in which
this Court can constitute a SIT.
34 In E Sivakumar v Union of India,
24 the petitioner was named in an FIR
which was being investigated in regard to the illegal manufacture and sale of
pan masala and gutkha containing tobacco and/or nicotine. The petitioner
challenged the decision of the High Court to transfer the investigation of the
23 (2016) 1 SCC 1
24 (2018) 7 SCC 365
37
criminal case to the Central Bureau of Investigation. One of us (Khanwilkar J)
who authored the judgment on behalf of this Bench held:
“The High Court has cogitated over all the issues exhaustively
and being fully satisfied about the necessity to ensure fair
investigation of the crime in question, justly issued a writ of
mandamus to transfer the investigation to the CBI.”25
The judgment of the High Court was upheld on the following ground:
“… the question regarding the necessity to ensure a fair and
impartial investigation of the crime, whose tentacles were not
limited to the State of Tamil Nadu but transcended beyond to
other States and may be overseas besides involving high
ranking officials of the State as well as the Central
Government, has now been directly answered. For instilling
confidence in the minds of the victims as well as the public at
large, the High Court predicated that it was but necessary to
entrust the investigation of such a crime to CBI. Viewed thus,
there is no infirmity in the conclusion reached by the High Court
in the impugned judgment, for having entrusted the
investigation to CBI.”26
Drawing attention to the duty of this Court as adjudicator, it was also observed:
“It is the bounden duty of a court of law to uphold the truth and
truth means absence of deceit, absence of fraud and in a
criminal investigation a real and fair investigation, not an
investigation that reveals itself as a sham one. It is not
acceptable. It has to be kept uppermost in mind that impartial
and truthful investigation is imperative…If a grave suspicion
arises with regard to the investigation, should a constitutional
court close its hands and accept the proposition that as the trial
has commenced, the matter is beyond it?...”27
(emphasis supplied).
25 Ibid, at para 5
26 Ibid, at para 9
27 Ibid, at para 13
38
The above observations are a significant reminder of the function of this Court,
as the protector of the fundamental rights of citizens. These rights must be
safeguarded particularly when there is a possibility that failure to take a position
may lead to a denial of justice.
35 The case of Divine Retreat Centre v State of Kerala
28 concerned with
the maintainability of an anonymous petition to a judge of the High Court seeking
a direction for an investigation. The anonymous petition was taken up suo motu
by the High Court under Section 482 of the Code of Criminal Procedure and the
investigation of the criminal case was directed to be taken away from the
investigating officer and entrusted to a SIT. The central question in this case
was the scope of the inherent power conferred on the High Court under Section
482 of the Code of Criminal Procedure. It was held that:
“The High Court in exercise of its inherent jurisdiction cannot
change the investigating officer in the midstream and
appoint any agency of its own choice to investigate a crime
on whatsoever basis and more particularly on the basis of
anonymous petitions addressed to a named Judge. Such
communications cannot be converted into suo motu
proceedings for setting the law in motion. Neither the
accused nor the complainant or informant is entitled to
choose its own investigating agency to investigate a crime
in which it may be interested.” (emphasis supplied)
28 (2008) 3 SCC 542
39
The Court in the context of Article 226 commented on the maintainability of
public interest litigation as follows:
“It is well settled that a public interest litigation can be
entertained by the constitutional courts only at the instance of
a bona fide litigant. The Supreme Court has uniformly and
consistently held that the individual who moves the Court for
judicial redress in cases of public interest litigation must be
acting bona fide with a view to vindicating the cause of justice
and not for any personal gain or private profit or of the political
motivation or other oblique consideration…”29
It was also observed that:
“the High Court in exercise of its whatsoever jurisdiction
cannot direct investigation by constituting a special
investigation team on the strength of anonymous petitions.30
36 These observations indicate that what found disfavour with this Court was
the High Court having entertained an anonymous petition to constitute a SIT.
The facts of the above case are distinct from the case at hand. The observations
made on the maintainability of public interest litigation only lend support to the
present case. The petitioners in the present case are not anonymous. There
has been no argument that the petitioners have been motivated by personal
gain or political considerations.
37 Recently on 14 September 2018, the learned Chief Justice, speaking for
the present bench of three Judges handed down a verdict31 granting
29 Ibid, at para 59
30 Ibid, at para 50
31 S Nambi Narayanan v Siby Mathews, (2018) 11 SCALE 171
40
compensation of Rs 50 lakhs to a space scientist who was found upon further
investigation by the CBI to have been wrongfully implicated and subjected to
custodial interrogation. This was on an allegation that he had leaked out official
secrets of the Indian Space Research Organisation. The learned Chief Justice
held:
“...there can be no scintilla of doubt that the appellant, a
successful scientist having national reputation, has been
compelled to undergo immense humiliation. The lackadaisical
attitude of the State police to arrest anyone and put him in
police custody has made the appellant to suffer the ignominy.
The dignity of a person gets shocked when psychopathological
treatment is meted out to him. A human being
cries for justice when he feels that the insensible act has
crucified his self-respect. That warrants grant of compensation
under the public law remedy. We are absolutely conscious that
a civil suit has been filed for grant of compensation. That will
not debar the constitutional court to grant compensation taking
recourse to public law. The Court cannot lose sight of the
wrongful imprisonment, malicious prosecution, the humiliation
and the defamation faced by the appellant.”
The fact that the payment of compensation was ordered nearly 24 years after
the wrongful arrest is a grim reminder about how tenuous liberty can be and of
the difficulty in correcting wrongs occasioned by unlawful arrest.
38 There can be no manner of doubt that the deprivation of human rights
seriously impinges upon the dignity of the individual for which even
compensation may not constitute an adequate recompense. This theme echoes
recurrently in the judgments of this Court in Kiran Bedi v Committee of
Inquiry,
32 Delhi Judicial Service Association v State of Gujarat,
33 Joginder
32 (1989) 1 SCC 494
33 (1991) 4 SCC 406
41
Kumar v State of UP34 and DK Basu v State of West Bengal35
. In DK Basu,
this Court elucidated on the importance of personal liberty in the constitutional
scheme:
“17. Fundamental Rights occupy a place of pride in the Indian
Constitution. Article 21 provides “no person shall be deprived
of his life or personal liberty except according to procedure
established by law”. Personal liberty, thus, is a sacred and
cherished right under the Constitution. The expression “life or
personal liberty” has been held to include the right to live with
human dignity and thus it would also include within itself a
guarantee against torture and assault by the State or its
functionaries.”
The Court also emphasized that no arrest can be made without reasonable
satisfaction after investigation about the genuineness and bona fides of a
complaint:
“20. This Court in Joginder Kumar v. State of U.P. [(1994) 4
SCC 260 : 1994 SCC (Cri) 1172] (to which one of us, namely,
Anand, J. was a party) considered the dynamics of misuse of
police power of arrest and opined:
“No arrest can be made because it is lawful for the police officer
to do so. The existence of the power to arrest is one thing. The
justification for the exercise of it is quite another. … No arrest
should be made without a reasonable satisfaction reached
after some investigation as to the genuineness and bona fides
of a complaint and a reasonable belief both as to the person's
complicity and even so as to the need to effect arrest. Denying
a person of his liberty is a serious matter.””
34 (1994) 4 SCC 260
35 (1997) 1 SCC 416
42
39 This Court has a constitutional obligation, where its attention has been
drawn, in a case such as the present, to a real likelihood of the derailment of a
fair investigative process to issue appropriate directions under Article 142 of the
Constitution.
40 Hence, I am of the view that while the investigation should not be
thwarted, this is a proper case for the appointment of a Special Investigating
Team. Circumstances have been drawn to our notice to cast a cloud on whether
the Maharashtra police has in the present case acted as fair and impartial
investigating agency. Sufficient material has been placed before the Court
bearing on the need to have an independent investigation.
41 Hence, following the line of precedent of this Court which has been
discussed earlier, I am firmly of the view that a Special Investigating Team must
be appointed. The investigation shall be monitored by this Court. The Special
Investigating Team shall submit periodical status reports to this Court, initially
on a monthly basis.36 The interim order passed by this Court on 29 August 2018
shall continue to hold the field for a further period of three weeks within which it
would be open to the said five individuals or any one or more of them to apply
for bail before the Court of competent jurisdiction. I would direct that the petition
36 Speaking as I do for the minority, I have not indicated the names of the personnel who would constitute the SIT.
Should that occasion arise, liberty is granted to seek an appropriate direction from this Court.
43
be listed after three days for orders on the constitution of the Special
Investigating Team. There shall be an order in these terms.
…….........................................................J
[Dr Dhananjaya Y Chandrachud]
New Delhi;
September 28, 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 260 OF 2018
Romila Thapar and Ors. ….. Petitioner(s)
:Versus:
Union of India and Ors. ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. Five illustrious persons in their own field have filed this
petition on 29th August, 2018 complaining about the highhanded
action of the Maharashtra Police in raiding the homes
and arresting five well known human rights activists,
journalists, advocates and political worker, with a view to kill
independent voices differing in ideology from the party in
power and to stifle the honest voice of dissent. They complain
that the five activists, namely, Gautam Navalakha, Sudha
Bharadwaj, Varavara Rao, Arun Ferreira and Vernon
Gonsalves were arrested on 28th August, 2018 from their
2
homes at New Delhi, Faridabad, Mumbai, Thane and
Hyderabad, respectively, without any credible material and
evidence against them justifying their arrest, purportedly in
connection with FIR No.0004/2018 dated 8th January, 2018
registered with Police Station Vishram Bagh, Pune City. This
action was to silence the dissent, stop people from helping the
poor and downtrodden and to instill fear in the minds of
people and was a motivated action to deflect people‟s attention
from real issues. The petitioners have made it clear in their
petition that they were seriously concerned about the erosion
of democratic values and were approaching this Court “not to
stop investigation into allegations” “but” to ensure
independent and credible “investigation into the arrest of
stated five human rights activists.” They claim that anything
short of that relief will damage the fabric of the nation
irreparably.
2. The FIR in connection with which the said five persons
came to be arrested has been appended and marked as
3
Annexure P-2. It was registered on the basis of the statement
given by one Tushar Ramesh Damgule, which reads thus:
“Translation: FIR COPY
I, Tushar Ramesh Damgule [Age 37] Occupation –
Reconstruction, Residing at survey no.70, Santosh Nagar,
Kafraj Pune, 411016, Mobile Number – 9850065423)
personally states that, I am residing at the above mentioned
address from last 20 years. I am completed Masters in Arts
(History). I am running construction business by the name of
Rao enterprises, from last 4 years. Somewhere in last week
of December, I read one post of Facebook, that Elgar
Parishad organized 31/12/2017 at Shaniwar Wada.
Therefore on 31st December 2017, I personally went to
Shaniwar Wada, opposite Ground, Pune, on around 2‟o clock
in this concern programme conduct by Sagar Gokhale, role
describer Sudhir Dhavale, singer and artist Jyoti Jagtap,
Ramesh Gaychor and other speakers like Jignesh Mewani,
Umar Kahlid, Vinay Ratansingh, Prasanth Dontha etc.
orators were seated on the stage. The said ground was
crowded fully. I had read information and news related Kabir
Kala Manch and their representatives by social media and
newspapers. So, known them. On the programme of
following other subjects, had express statement again and
again malice statement such as “Bima Koregaon ne
Diladhada, Navi Peshawar Mainatgada, Udavathikrya Rai Rai
re, Gadun Taka Peshwai Re Garjana Sidnakache, Aalee
Nvyane Peshwai re Garaj Tila Thokyachee, Re Saimka Garaj
Tila Thokyachee”. After this, some other orators had their
speeches, as well as in that, Kabir Kala Manch‟s artist such
as Jyoti Jagtap, Ramesh Gaichor and other six seven person
sing the song again “Bhima Koregaon ne diladhada, Navi
Peshwa Navi Peshawar Mainat Gada, Udavathikrya Rai Rai
re, Gadum Taka Peshwai Re Garjana Sidnakache, Aalee
Nvyane Peshwai re Garaj Tila Thokyachee, Re Saimka Garaj
Tila Thokyachee…” as well as, the same had presented in the
form of Pathnatya (Raadaramaj) and Dance Event with
malice and enmity intentions. After in Second session, said
Sudhir Dhawade while expressing role, he made the malice
and disputable statement that “Jab Julm Ho to, Bagawat
Honi Chahiye shahar mein, Jab Julm Ho to bagawat honi
chahiye shahar mein aur agar bagawat na ho to, behatar hai
4
kee, rat dhalane se phle ye shahar jalke rakh ho jaye, ye
shahar jalke rakh ho jaye….” Then he said some other
malice statement that “ye jo satrahai, ye satra hia, tayat hi
apane aap mein ladai ka ellanhai, ye nave peswai ko haemin
Samshan Ghat mein, kabrastan meindajana hai..”
Afterwards, other speakers also expressed themselves in
grudge words in the same Programme, some objectionable
and provocable books kept for selling. After ending the
program, I left from the there. On the date of 1st January,
2018 as usual year, huge crowd gathered to salute and
honour the victory stambh/monument at Bheema Koregaon.
But because of the Elgar Parishad which was held at
Shaniwar Wada on 31st December, 2017, Kabir Kala Manch‟s
Sudhir Dhawale, Sagar Gorakhe, Harshali Potdar, Jyoti
Jagtap, Ramesh Gaichor and other six seven persons tried to
express malice statement and tried to incite disputable
words, sentences between two society groups, raise some
provocable slogans, songs and road drama imposed wrong
and false History above mentioned Sudhir Dhawale, Harshali
Potdar and other Kabir Kala Manch‟s Activists been
interrogated by legal inspection and sources. Therefore, I
state that, banned Maoist Organisation (CPI) have
organized role is to boast and implicate the strong
Maoist thoughts in depressed class and misdirect or
misguide them and turn them towards unconstitutional
violence activities, carrying the same thoughts, Kabir
Kala Manch’s Sudhir Dhawale and his other activist had
presented different areas in Maharashtra, malice
speeches, had spread false History, disputable
statements and incite objectionable slogans, sung songs
and road-dramas. They distributed some objectionable
and provocable pamphlets, books too. So remarkably it
reflected at Bheema Koregaon and nearer places by stone
throwing, castes clashes and arson incidents.
Therefore, an organization –Elgar Parishad, on the day of
31st December, 2017 at 2.00 p.m. to 10.00 p.m. at Shaniwar
Wada, Pule, role defines Kabir Kala Manch‟s Sudhir
Dhawale, programme conductor Sagar Gorakhe, and other
artists HarshaliPotdar, Jyoti Jagtap, Ramesh Gaichor and
others had presented objectionable songs as well as “Jab
Julm ho to, Bagawat Honi Chahiye shahar mein, Jab Julm
Ho to bagawat honi chahiye shahar mein aur agar bagawat
na ho to, behatar hai kee, rat dhalane se phle ye shahar
jalke rakh ho jaye, ye shahar jalke rakh ho jaye…” such type
of disputable, objectionable passing statements, tried to
incite disputable words, sentences between two society
5
groups, raised some provocable slogans, songs and road
drama, imposed wrong and false History misguided the
society. The same had been disputable and stone-throwing
and arson incidents converted into disputable and cast
clashes in society‟s specific groups, with human injuries,
violence, severe damages etc.
Therefore, I lodged the complaint against (1) the role definer
Kabir Kala Manch‟s Sudhir Dhawale, (2) Pragramme
conductor Sagar Gokhale (3) Harshali Potdar (4) Ramesh
Gaichor (5) Deepak Denglr (6) Jyoti Jagtap. I read this typed
statement and whatever I stated is same true and correct.
This statement given, Date: 08/01/2018
In front of:
(M.B. Talware)
Police - Sub-Inspector
Vishram Baug, Police Station, Pune.”
(emphasis supplied)
3. According to the petitioners, none of the five persons
arrested in connection with the stated FIR was present during
the event organized on 31st December, 2017 at Pune by “Elgar
Parishad” (with which they have no concern) nor any
allegation is found against them in the FIR. Nevertheless, the
Pune Police swiftly moved against them, for reasons best
known on fabricated charges under various provisions of the
Unlawful Activities (Prevention) Act, 1967 (“UAPA”) and under
the Indian Penal Code.
6
4. According to the petitioners, since the FIR dated 2nd
January, 2018, at Pimpri Police Station (Rural) for offences
punishable under Sections 307, 143, 147, 148, 149, 295(A),
435, 436 of IPC, Sections 3(2)(v) & 3(1)(10) of the Scheduled
Castes Scheduled Tribes Act and Section 4(25) of the Arms Act
of the Maharashtra Police Act,1989, was registered against the
Hindutva right wing leaders Milind Ekbote and Sambhaji Rao
Bhide, based on an eye-witness account that they along with
fringe groups had incited the violence against the Dalit
congregation, instead of taking action against those who were
behind the Bhima Koregaon violence, a false and fabricated
complaint was engineered in the form of FIR No.0004/2018
and came to be registered on 8th January, 2018 at Vishram
Bagh Police Station (Pune City), in respect of which the five
named activists and others have been arrested. This fabricated
FIR against the activists came to be registered in the name of
the complainant who happens to have close links with the
named accused in FIR No.2 dated 2nd January, 2018
registered at Pimpri Police Station (Rural). The Pune Police
thus embarked upon a motivated process and arrested five
7
human rights activists who had no concern with the incident
referred to in the FIR No.4/2018.
5. It is further stated in the writ petition that the Pune
Police investigating the Bhima Koregaon violence was
systematically leaking documents to selective media with a
view to spread false propaganda against the activists and to
prejudice the public opinion against those arrested. The leaked
documents allegedly found from the computer recovered
during the search of the house of Rona Wilson, were
addressed to Comrade Prakash and signed by „R‟, which
apparently mentions about senior comrades proposing
concrete steps to end the Modi-era by planning a Rajiv Gandhi
style incident to assassinate the Prime Minister. The police
had deployed systematic strategy to put out highly provocative
but completely unsubstantiated, unverified and unproven
allegations through select media channels to prejudice the
public opinion against those already arrested. Further, the
organizers of Elgar Parishad had immediately refuted the tall
claim of the Pune Police and went on record that the event
8
referred to in the FIR under investigation was organized by
them (Elgar Parishad) and no other organization was
concerned therewith, much less any banned organization had
any role in that regard. This statement was issued by a former
Judge of this Court and another former Judge of the Bombay
High Court who are the organizers of Elgar Parishad,
emphatically condemning the letters leaked to the media by
the Police as the same were never produced in evidence before
the Court and that it was a ploy of the Government as it had
felt threatened because of the mobilization of people by Elgar
Parishad to raise their voice against the establishment and
resist communal forces. The organization of Elgar Parishad
had also denied of having received funds from any of the
accused persons named in the FIR.
6. According to the petitioners, similar arbitrary arrests by
the Pune City Police were caused across the country,
particularly of those who spoke for the poor and marginalized
and to malign human rights defenders, lawyers, activists and
the progressive ideas and human rights ideology that they
9
espouse, so as to have a chilling effect in the minds of the
activists and dissuade them from criticizing the policies and
programmes of the Government.
7. The petitioners then state that without providing any
evidentiary link between the persons arrested and raided inter
alia Gautam Navlakha and Sudha Bhardwaj with FIR No.4 of
2018, they were served with the arrest memos signed by the
persons who were brought as part of the entourage of the
Pune Police as so-called “independent and respectable
persons” to authenticate the arrest memos. The seizure
memos were prepared in Marathi and signed by the Panchas
who were brought by the Pune Police as part of the entourage.
No translated copy of the FIR or the seizure memo was made
over to Gautam Navlakha or Sudha Bhardwaj even though
they were not conversant with Marathi. In this backdrop,
Gautam Navlakha filed habeas corpus petition before the Delhi
High Court, being Writ Petition No.2559 of 2018 challenging
the transit remand order passed by the Chief Metropolitan
Magistrate on 28th August, 2018. Similar petition was filed in
10
the Punjab and Haryana High Court to direct the jurisdictional
Court which had allowed the prayer to grant transit remand,
to keep Sudha Bhardwaj at her residence under supervision of
the local police. Even the petition filed in the Punjab and
Haryana High Court is still pending. Nevertheless, the
petitioners rushed to this Court by way of the present writ
petition filed as a public interest litigation, to espouse the
cause of the five persons arrested by the Pune Police, praying
for an independent and comprehensive enquiry into the stated
arrest as follows:
“PRAYERS
It is therefore prayed that this Hon‟ble Court be pleased to
grant the following prayers:
i) Issue an appropriate writ, order or direction, directing
an independent and comprehensive enquiry into arrest of
these human rights activists in June and August 2018 in
connection with the Bhima Koregaon violence.
ii) Issue an appropriate writ, order or direction, calling for
an explanation from the State of Maharashtra for this
sweeping round of arrests;
iii) Issue an appropriate writ, order or direction, directing
the immediate release from custody of all activists arrested
in connection with the Bhima Koregaon violence and staying
any arrests until the matter fully investigated and decided by
this court.
iv) Pass any such other order as may be deemed
appropriate.”
11
8. As aforesaid, the petition was filed on 29th August, 2018
and mentioned for urgent directions before the Chief Justice of
India on the same day. This Bench considered the urgent
mentioning and passed the following order on the same day:
“Taken on Board.
Issue notice.
Mr. Tushar Mehta and Mr. Maninder Singh, learned
Additional Solicitor Generals being assisted by Mr. R.
Balasubramanian, learned counsel shall file the counter
affidavit by 5.9.2018. Rejoinder thereto, if any, be filed
within three days therefrom.
We have considered the prayer for interim relief. It is
submitted by Dr. Abhishek Manu Singhvi, learned senior
counsel appearing for the petitioners that in pursuance of
the order of the High Court, Mr. Gautam Navalakha and Ms.
Sudha Bharadwaj have been kept under house arrest. It is
suggested by him that as an interim measure, he has no
objection if this Court orders that Mr. Varavara Rao, Mr.
Arun Ferreira and Mr. Vernon Gonsalves, if arrested, they
are kept under house arrest at their own homes. We order
accordingly. The house arrest of Mr. Gautam Navalakha and
Ms. Sudha Bharadwaj may be extended in terms of our
orders.
Needless to say, an interim order is an interim order and all
contentions are kept open.
Let the matter be listed on 6.9.2018.”
This interim arrangement has been continued from time to
time and remains in force until the disposal of this petition.
12
9. The State of Maharashtra has filed a counter affidavit of
Dr. Shivaji Panditrao Pawar, Assistant Commissioner of Police
(Investigating Officer), Swargate Division, Pune City, Pune.
Besides taking objection regarding the maintainability of the
writ petition being filed by third parties who are strangers to
the offence under investigation, he has highlighted that in
light of the material gathered during the investigation
conducted so far, it would be desirable to dismiss the writ
petition. He has stated that the entire writ petition is based
upon individual perception of the writ petitioners that the
arrested persons are “all outstanding, well-known and well
respected human rights activists” and therefore, their arrest
requires to be enquired into and they should be released on
bail. Having said that, he has asserted that in the instant
case, the five named persons have been arrested not because
they expressed dissenting views or difference in their political
or other ideologies but the investigation done so far has
unraveled their involvement in a serious offence, including of
being active members of Communist Party of India (Maoist),
which has been banned as a terrorist organization since 2009,
13
and of their involvement in planning and preparation of large
scale violence and destruction of property, resulting into chaos
in the society. Each of them is part of a well thought out
criminal conspiracy and had supported the event arranged at
Pune by the Elgaar Parishad through a frontal organization
called “Kabir Kala Manch”.
10. It is then stated that one Tushar Ramesh Damgule had
lodged an FIR on 8th January, 2018, naming six persons as
accused for the offence registered thereunder by the Vishram
Bagh Police Station. Out of the six named accused, only one
person came to be arrested on 6th June, 2018, namely, Sudhir
Dhawale in connection with the registered offence. As the
investigation progressed and material was gathered during the
ongoing investigation, Section 120-B was added on 6th March,
2018 and two more persons were found to be suspected
accused namely, Surendra Gadling, R/o Nagpur and Rona
Wilson, R/o Delhi. On 17th April, 2018 the Investigating
Agency conducted searches at the residence of eight persons,
namely:
14
1) Rona Wilson, R/o Delhi
2) Surendra Gadling, R/o Nagpur
3) Sudhir Dhawala and Harshali Potdar, R/o Mumbai
4) Sagar Gorakhe, R/o Pune
5) Dipak Dhengale, R/o Pune
6) Ramesh Gyachore and Jyoti Jagtap, R/o Pune
Further, the entire search procedure was videographed right
from the time the Investigating Agency knocked at the doors of
the respective individuals till the material recovered were
seized, sealed, and punchnamas were drawn in the presence
of independent punchas. During the said search, documents
were recovered from their respective computers/ laptops/pen
drives/ memory cards. Different documents were found to
have been copied on different dates. The seized items were
immediately sent for investigation to Forensic Science
Laboratory, which in turn gave “clone copies/mirror images” to
the investigating agency so as to ensure that pendency of FSL
Report does not hamper the investigation. It is then stated
that documents recovered from the seized items unraveled the
information implicating the accused not only as active
15
members of CPI (Maoist) but being involved in an ongoing
sinister design of having committed and in the process of
committing criminal offences having the potential of
destabilizing the society. The documents clearly reflect the
preparation, planning and coordination not only amongst the
stated accused persons but with others subsequently arrested,
to carry out violence including planned ambush/rebellion
against the enemy (which is our country and security forces).
11. He has further stated that all the documents recovered
during the search from the custody and possession of the
respective accused will be produced before the Court, perusal
of which would reveal that the accused persons are not merely
political dissenters but involved in sinister design, planning,
preparation and commission of criminal offences to destabilize
the society. After the incriminatory material came to light,
further offences under Sections 13, 16, 17, 18, 18-B, 20, 38,
39 and 40 of the UAPA are added on 17th May, 2018 against
the following individuals:
1) Surendra Gadling, R/o Nagpur
16
2) Rona Wilson, R/o Delhi
3) Shoma Sen R/o Nagpur
4) Mahes Raut R/o Nagpur and Gadchiroli
5) Comrade M. alias Milind Teltumbade [underground]
6) Comrade Prakash alias Navin alias Rituparn Goswami
R/o Assam [underground]
7) Comrade Manglu [underground]
8) Comrade Dipu and other underground members.
The affidavit further states that during the on-going
investigation, following persons came to be arrested on 6th
June, 2018:
1) Surendra Gadling, R/o Nagpur
2) Rona Wilson R/o Delhi
3) Sudhir Dhanwale
Further, two more persons were arrested and also searched on
6th June, 2018, namely, Shoma Sen, R/o Nagpur and Mahesh
Raut, R/o Nagpur and Gadchiroli. It is then stated that the
searches carried out against these persons were also
videographed from the beginning to the end as was done on
the earlier occasion in respect of the searches carried of other
accused. Even during this search, it is alleged that the
17
material seized was in the form of computers, laptops, pendrives
and memory cards which have been forwarded to
Forensic Science Laboratory, which in turn provided clone
copies to the Investigating Agency for facilitating further
investigation.
12. It is then stated in the affidavit that the further
investigation unraveled that the five persons who came to be
arrested on 28th August, 2018 were also involved in the
criminal conspiracy and their role was not merely peripheral
in nature. Based upon the incriminating material, they were
arrested from the residential or work places under similar
fashion in the presence of independent panchas who were
Government Officers. It is also stated that one of them,
namely, Vernon Gonsalves has been convicted by the Special
Court, Nagpur for offences under the UAPA.
13. The sum and substance of the reply affidavit is that
sufficient material has become available during the
investigation, which is still in progress, to indicate the
complicity of the concerned accused who have been arrested
18
including the five named persons in respect of whom the
present writ petition has been filed by third parties. They are
arrested not because of their political activities but for their
involvement in the planning and execution of offences to
destabilize the society and their association with the banned
organization. Their involvement is noticed in selecting and
encouraging cadres in the banned organizations to go
underground in „struggle area‟, mobilizing and distributing
money, facilitating selection and purchase of arms, deciding
the rates of such arms and suggesting the routes and ways of
smuggling such arms into India for its onward distribution
amongst the cadres. Some of them have suggested training
and laying booby traps and directional mines. Their
involvement is also for providing strategic inputs in
furtherance of the objective of armed rebellion, on lines of
strategic documents of the banned terrorist organization. It is
stated that all the material collected during the investigation
will be eventually placed on record of the jurisdictional Court
along with the police report to be filed in due course. Further,
the question of showing that material to anyone muchless
19
accused, would defeat the investigation in progress and that is
not the requirement of law. The affidavit also emphasizes that
house arrest of the concerned accused merely restricts
physical movement but there is no way of ensuring that these
persons would not indulge in destruction of evidence and alert
other potential accused while sitting at home. As a matter of
fact, their custodial interrogation may become necessary
during further investigation and for which reason the
Investigating Agency be granted liberty to take them in police
custody in accordance with law.
14. The petitioners have filed exhaustive rejoinder affidavit.
Besides the rejoinder affidavit, formal applications have been
filed on behalf of Sudha Bharadwaj, Varavara Rao, Arun
Ferreira and Vernon Gonsalves, who are presently under
house arrest, that they be permitted to pursue the writ
petition as filed by them. This application is in response to the
issue of locus of five petitioners as being strangers to the
offence under investigation. Besides, an application has been
filed by the petitioners for permitting them to amend the
20
prayer clause of the writ petition and permit the petitioners to
seek following modified prayers:
“(i) Issue an appropriate writ, order or direction for setting up
of a Special Investigating Team (SIT) comprising of senior
police officers with impeccable career records of
professionalism, integrity and independence, reporting
directly to this Hon‟ble Court, for conducting a fair and
independent investigation and inquiry into the offences
stated in the zero FIR lodged at Pimpri Police Station on
02.01.2018 (now Cr. Case No.2/2018), and the FIR 4/2018
lodged and all other related matters and allegations; or
(ii) Issue an appropriate writ, order or direction for the
investigation into the offences alleged in the zero FIR lodged
at Pimpri Police Station on 02.01.2018 (now Cr. Case
No.2/2018), and the FIR 4/2018 lodged at Vishrambagh
Police Station on 08.01.2018, and all other related matters
and allegations, to be carried out by an independent agency
which shall be monitored directly by this Hon‟ble Court
through regular filing of status reports of the investigation by
the investigating agency; and/or
(iii) Issue an appropriate writ, order or direction directing
that all electronic devices, records and materials allegedly
seized from the detenues or even otherwise, if relied
upon/being relied upon for denial of liberty to the detenues,
to be examined by a Forensic Sciences Laboratory outside
the State of Maharashtra to ensure fair play and in the
interest of justice; and/or
(iv) Issue an appropriate writ, order or direction, directing
the release from custody of the arrested activists as per law,
upon such terms and conditions as may be deemed
necessary and appropriate, to the satisfaction of this Hon‟ble
Court; and/or
21
(v) Pass any such further order(s) as this Hon‟ble Court may
deem fit and appropriate in the facts and circumstances of
the present case, and in the interest justice.”
15. During the arguments, Dr. Abhishek Manu Singhvi, Dr.
Rajeev Dhawan, Dr. Ashwani Kumar learned senior counsel
and Mr. Prashant Bhushan, learned counsel appearing for the
writ petitioners and Mr. Anand Grover, learned senior counsel
appearing for the arrested persons, have argued that the
stated five persons have not been named in the FIR nor were
they present during the event referred to in the FIR.
Registration of two FIRs in respect of the same incident, first
on 2nd January, 2018 at Pimpri (Urban) Police Station and the
second, at Visharam Bagh Police Station, Pune City, was
impermissible and was a ploy to deflect the inaction of the
Pune Urban Police for the reasons best known to them.
Moreover, the offences under the draconian law (UAPA) have
been added without due authorization of the competent
authority. It is contended that liberty of individual and dignity
of the accused are the facets of core constitutional values.
They submit that this case is not about ordinary criminal
22
jurisprudence but of actualization of constitutional values and
to expose the unjustified incarceration of innocents who
happen to be human rights activists. They submit that the
liberty and dignity of the accused persons must be preserved.
According to them, the Investigating Agency was not
discharging its statutory obligation of fairness in investigation
but was indulging in selective leaks of documents which
contain unsubstantiated insinuations against the accused
persons solely with a view to malign their reputation and
create public opinion against them. The Pune Police had the
audacity to rush to the Press for divulging the documents
which they claim to have recovered during the seizure from
one of the accused and not the five persons arrested on 28th
August, 2018. They submit that the clarificatory statement
issued by the two former Judges cannot be discarded.
However, no effort has been made by the Investigating Agency
to ascertain the factual position from those two Judges.
According to them, it is a case of persecution of the five
persons named in the writ petition as multiple cases have
been registered against them since 2005 and each of them
23
have been acquitted in the concerned case. 25 criminal cases
were registered against Varavara Rao, 11 cases have been
registered against Arun Ferreira and 18 cases against Varnon
Gonsalves. They have been acquitted in all the cases except
one against Gonsalves, which matter is pending in appeal.
They have relied upon the report prepared by the Committee
headed by the Deputy Mayor which clearly points towards the
complicity of Sambhaji Rao Bhide and Milind Ekbote in
particular, for having caused incitement and violence on 1st
January, 2018. However, no action has been taken by the
Pune Police against the persons who were responsible for
causing riots and violence. It is submitted that it is
unfathomable that two FIRs are registered in respect of the
same incident and two different investigating agencies are
going ahead with the investigation. More so, the basis of arrest
of five persons on 28th August, 2018 was their involvement in
planning the assassination of the current Prime Minister but
there is no allegation to that effect in the FIR nor has any fresh
FIR been registered by the Police, although the same is a
serious matter warranting investigation by an Investigating
24
Agency no less then National Investigating Agency or at least
the CBI. The persons arrested, however, are well-known for
their track record of human rights activism and have been
unjustly put behind bars on the basis of unsubstantiated
allegations and without any evidence against them. The entire
sub-text of creating a real threat is a figment of imagination of
the Investigating Agency and that has been done for reasons
best known to them. Obviously, it is politically motivated. The
transit remand applications preferred by the Investigating
Agency also do not mention the letters indicative of
involvement of the persons concerned in planning and
execution of Maoist plot nor have those letters been produced
before the Court thus far. The letters which were flashed to the
media are obviously fabricated. Further, no plausible
explanation is forthcoming as to why the Investigating Agency
had taken panchas along with them for conducting search
outside the State of Maharashtra. The role of the investigating
team in FIR No.4 of 2018 in the manner in which they caused
arrest of five persons named in the writ petition, has been
seriously questioned and it is earnestly prayed by the learned
25
counsel that the modified reliefs as claimed ought to be
granted. The counsel have filed exhaustive written
submissions to buttress the plea for entrusting the
investigation of the case to an independent Investigating
Agency.
16. Mr. Tushar Mehta, learned Additional Solicitor General
appearing for the State of Maharashtra on the other hand,
submitted that the Court should be loath to entertain the writ
petition of this nature when the investigation of a serious
crime is in progress as per the statutory provisions and the
material gathered during the investigation justifies the arrest
of the concerned accused. He submitted that the investigation
is being conducted responsibly and impartially and strictly in
accordance with the provisions of Cr.P.C. by an officer of the
rank of Assistant Commissioner of Police under the
supervision of Deputy Commissioner of Police and further
monitored by Joint Commissioner and finally by the
Commissioner of Police who is of the rank of Additional
Director General of Police. There is no allegations against the
26
investigating officer of working under dictation or that he had
any personal malice against the named accused. Further,
there is active involvement and monitoring of senior police
officials and pre-existing safeguards have been put in place by
the State in order to ensure a fair investigation and in order to
maintain independent and impartiality of all sorts, coupled
with the fact that the action of the Investigating Agency would
be monitored by the jurisdictional Courts at different stages,
the question of appointing Special Investigation Team or to
allow investigation by independent Investigating Agency under
the monitoring of the Court, should be eschewed. He
submitted that the Court may look at the documents already
gathered during the investigation to satisfy its conscience as to
whether the arrest of concerned accused was justified or
otherwise. In any case, there is robust mechanism of
overseeing the actions of the Investigating Agency by the
jurisdictional Courts while considering not only the
application for police remand or judicial remand and bail
application but also the remedy of discharge and quashing of
the prosecution. In other words, the issues raised by the
27
petitioners may be germane for pursuing relief of bail or
discharge/quashing, but not relevant to consider prayer for
change of investigating agency, that too at the instance of
accused themselves. He has handed over a compilation of
documents or incriminatory material collected during the
investigation allegedly showing the involvement of the
concerned accused, for our perusal. He has also handed over
the Case Diary and two Registers of documents recovered
during the search from the accused persons. He further states
that the subject FIR in respect of which action is being taken
against the accused was registered on 8th January, 2018 for
offences punishable under Section 153-A, 505 (1B), 17, 34
IPC. After the investigation progressed, further offences were
added including the offences under Sections 13,16,17,18,
18B, 20,38,39 & 40 of UAPA on 16th May, 2018, on the basis
of the material collected during the on-going investigation.
Initially, the offence was registered only against 6 accused and
as the investigation progressed, as of now there are 22
accused named, including the 5 accused referred to in this
petition who were added as accused on 22nd August, 2018
28
for the reasons stated in the Case Diary, and only thereafter
the investigating team proceeded to arrest them on 28th
August, 2018. He submits that the Investigating Agency had to
proceed against the named accused after the revelation of their
involvement with the banned organization, as was noticed
from the documents and material recovered during the
searches conducted in respect of the premises of co-accused.
The named accused (A16 to A20) cannot be heard to question
that part of the investigation regarding the manner of search,
which the concerned co-accused alone may do at the
appropriate stage before the jurisdictional court.
17. He submits that even though the Court may have
jurisdiction to examine all aspects of the matter, considering
the fact that the investigation is at a nascent stage and is
being done by senior police officials under the supervision of
their superior officers up to the level of Commissioner of
Police, it is not a case for grant of reliefs as prayed. The
accused persons must take recourse to the remedy prescribed
by law instead of directly approaching this Court under Article
29
32 of the Constitution and can get complete justice from the
jurisdictional Court. He submits that in criminal matters,
interference in the garb of public interest litigation at the
instance of strangers has always been discouraged and
rejected by this Court. Further, the present petition is nothing
but abuse of the process and as the named accused Varavara
Rao, Sudha Bharadwaj and Gautam Navalakha have filed their
respective petitions before the jurisdictional High Courts,
which proceedings are pending for adjudication, the same
persons have now filed affidavits before this Court for
transposing them as petitioners and allowing them to adopt
the prayer of the writ petitioners. They ought to elect their
remedy to be pursued and in particular, before the
jurisdictional Courts. Therefore, this petition must be
discouraged. He submits that the modified relief claimed in the
writ petition to release the accused persons is in the nature of
habeas corpus which is not maintainable in respect of the
arrest made during the ongoing investigation. He submits that
no right can enure in favour of the accused to seek relief of
investigation of the crime through an independent agency and
30
for the same reason, even strangers to the offence under
investigation or next friends of the accused, cannot be
permitted to pursue such a relief in the guise of PIL. He
submits that the foundation of the present writ petition is the
perception of the writ petitioners (next friends) that the
accused are innocent persons. He submits that that basis is
tenuous. For, there are enough examples of persons having
split personality. In a criminal case, the action is based on
hard facts collected during the course of investigation and not
on individual perception. He contends that the argument of
the writ petitioners that liberty of the five named accused
cannot be compromised on the basis of surmises and
conjectures is wholly misplaced and can be repelled on the
basis of the material gathered during the ongoing investigation
indicating the complicity of each of them. He relies on Section
41 of Cr.P.C. which enables the police to arrest any person
against whom a “reasonable suspicion” exists that he has
committed a cognizable offence. Therefore, the integrity of the
Investigating Agency cannot be doubted as there is enough
material against each of the accused. He further submits that
31
the argument of the writ petitioners based on the
circumstances pressed into service for a direction to change
the Investigating Agency is completely against the cardinal
criminal jurisprudence and such a relief is not available to
persons already named as accused in a crime under
investigation.
18. Mr. Harish Salve, learned senior counsel appearing for
the complainant at whose instance FIR No.4/2018 came to be
registered at Vishram Bagh Police Station (Pune City), submits
that there is no absolute right, much less a fundamental right,
to market ideas which transcend the line of unlawful activity.
The Court must enquire into the fact as to whether the
investigation is regarding such unlawful activity or merely to
stifle dissenting political voice. If it is the former, the
investigation must be allowed to proceed unhindered. In any
case, the affected persons, namely, the named accused must
take recourse to remedy prescribed by law before the
jurisdictional Court as it is not a case of unlawful detention or
action taken by an unauthorized Investigating Agency.
32
According to him, the Court must lean in favour of appointing
a SIT or an independent Investigating Agency or Court
monitored investigation only when the grievance made is one
about the investigation being derailed or being influenced by
some authority. In the present case, the grievance is limited to
improper arrest of individuals without any legal evidence to
indicate their complicity in the commission of any crime or the
one registered in the form of FIR No.4/2018. The allegation of
motivated investigation is without any basis. No assertion is
made by the writ petitioners or the named accused that the
investigation by the Pune City Police is mala fide in law. If the
allegation is about mala fide in fact, then the material facts to
substantiate such allegation, including naming of the person
at whose instance it is being so done, ought to have been
revealed. That is conspicuously absent in this case. According
to the learned counsel, the reliefs claimed in the writ petition
do not warrant any indulgence of this Court.
19. After the high-pitched and at times emotional arguments
concluded, each side presenting his case with equal
33
vehemence, we as Judges have had to sit back and ponder
over as to who is right or whether there is a third side to the
case. The petitioners have raised the issue of credibility of
Pune Police investigating the crime and for attempting to stifle
the dissenting voice of the human rights activists. The other
side with equal vehemence argued that the action taken by
Pune Police was in discharge of their statutory duty and was
completely objective and independent. It was based on hard
facts unraveled during the investigation of the crime in
question, pointing towards the sinister ploy to destabilize the
State and was not because of difference in ideologies, as is
claimed by the so called human rights activists.
20. After having given our anxious consideration to the rival
submission and upon perusing the pleadings and documents
produced by both the sides, coupled with the fact that now
four named accused have approached this Court and have
asked for being transposed as writ petitioners, the following
broad points may arise for our consideration:-
34
(i) Should the Investigating Agency be changed at the behest
of the named five accused?
(ii) If the answer to point (i) is in the negative, can a prayer of
the same nature be entertained at the behest of the next
friend of the accused or in the garb of PIL?
(iii) If the answer to question Nos.(i) and/or (ii) above, is in
the affirmative, have the petitioners made out a case for
the relief of appointing Special Investigating Team or
directing the Court monitored investigation by an
independent Investigating Agency?
(iv) Can the accused person be released merely on the basis
of the perception of his next friend (writ petitioners) that
he is an innocent and law abiding person?
21. Turning to the first point, we are of the considered
opinion that the issue is no more res integra. In Narmada Bai
Vs. State of Gujarat and Ors.1, in paragraph 64, this Court
restated that it is trite law that the accused persons do not
have a say in the matter of appointment of Investigating
1 (2011) 5 SCC 79
35
Agency. Further, the accused persons cannot choose as to
which Investigating Agency must investigate the offence
committed by them. Paragraph 64 of this decision reads thus:-
“64. ….. It is trite law that accused persons do not have a
say in the matter of appointment of an investigation
agency. The accused persons cannot choose as to which
investigation agency must investigate the alleged
offence committed by them.”
(emphasis supplied)
22. Again in Sanjiv Rajendra Bhatt Vs. Union of India
and Ors.2, the Court restated that the accused had no right
with reference to the manner of investigation or mode of
prosecution. Paragraph 68 of this judgment reads thus:
“68. The accused has no right with reference to the
manner of investigation or mode of prosecution. Similar
is the law laid down by this Court in Union of India v. W.N.
Chadha3, Mayawati v. Union of India4, Dinubhai Boghabhai
Solanki v. State of Gujarat5, CBI v. Rajesh Gandhi6,
Competition Commission of India v. SAIL7 and Janta Dal v.
H.S. Choudhary.8”
(emphasis supplied)
2 (2016) 1 SCC 1
3
1993 Supp. (4) SCC 260
4 (2012) 8 SCC 106
5 (2014) 4 SCC 626
6 (1996) 11 SCC 253
7 (2010) 10 SCC 344
8 (1991) 3 SCC 756
36
23. Recently, a three-Judge Bench of this Court in E.
Sivakumar Vs. Union of India and Ors.9, while dealing with
the appeal preferred by the “accused” challenging the order of
the High Court directing investigation by CBI, in paragraph 10
observed:
“10. As regards the second ground urged by the petitioner,
we find that even this aspect has been duly considered in the
impugned judgment. In paragraph 129 of the impugned
judgment, reliance has been placed on Dinubhai Boghabhai
Solanki Vs. State of Gujarat10, wherein it has been held that
in a writ petition seeking impartial investigation, the accused
was not entitled to opportunity of hearing as a matter of
course. Reliance has also been placed in Narender G. Goel
Vs. State of Maharashtra11, in particular, paragraph 11 of the
reported decision wherein the Court observed that it is well
settled that the accused has no right to be heard at the stage
of investigation. By entrusting the investigation to CBI
which, as aforesaid, was imperative in the peculiar facts of
the present case, the fact that the petitioner was not
impleaded as a party in the writ petition or for that matter,
was not heard, in our opinion, will be of no avail. That per se
cannot be the basis to label the impugned judgment as a
nullity.”
24. This Court in the case of Divine Retreat Centre Vs.
State of Kerala and Ors.12
, has enunciated that the High
9 (2018) 7 SCC 365
10 Supra @ Footnote 5
11 (2009) 6 SCC 65
12 (2008) 3 SCC 542
37
Court in exercise of its inherent jurisdiction cannot change the
investigating officer in the midstream and appoint an
investigating officer of its own choice to investigate into a
crime on whatsoever basis. The Court made it amply clear that
neither the accused nor the complainant or informant are
entitled to choose their own Investigating Agency to investigate
the crime in which they are interested. The Court then went
on to clarify that the High Court in exercise of its power under
Article 226 of the Constitution can always issue appropriate
directions at the instance of the aggrieved person if the High
Court is convinced that the power of investigation has been
exercised by the investigating officer mala fide.
25. Be that as it may, it will be useful to advert to the
exposition in State of West Bengal and Ors. Vs. Committee
for Protection of Democratic Rights, West Bengal and
Ors.13 In paragraph 70 of the said decision, the Constitution
Bench observed thus:
“70. Before parting with the case, we deem it necessary to
emphasise that despite wide powers conferred by Articles 32
13 (2010) 3 SCC 571
38
and 226 of the Constitution, while passing any order, the
Courts must bear in mind certain self-imposed limitations
on the exercise of these Constitutional powers. The very
plenitude of the power under the said articles requires great
caution in its exercise. Insofar as the question of issuing a
direction to the CBI to conduct investigation in a case is
concerned, although no inflexible guidelines can be laid
down to decide whether or not such power should be
exercised but time and again it has been reiterated that such
an order is not to be passed as a matter of routine or merely
because a party has levelled some allegations against the
local police. 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. Otherwise the CBI would
be flooded with a large number of cases and with limited
resources, may find it difficult to properly investigate even
serious cases and in the process lose its credibility and
purpose with unsatisfactory investigations.”
26. In the present case, except pointing out some
circumstances to question the manner of arrest of the five
named accused sans any legal evidence to link them with the
crime under investigation, no specific material facts and
particulars are found in the petition about mala fide exercise
of power by the investigating officer. A vague and
unsubstantiated assertion in that regard is not enough.
39
Rather, averment in the petition as filed was to buttress the
reliefs initially prayed (mentioned in para 7 above) – regarding
the manner in which arrest was made. Further, the plea of the
petitioners of lack of evidence against the named accused (A16
to A20) has been seriously disputed by the Investigating
Agency and have commended us to the material already
gathered during the ongoing investigation which according to
them indicates complicity of the said accused in the
commission of crime. Upon perusal of the said material, we
are of the considered opinion that it is not a case of arrest
because of mere dissenting views expressed or difference in
the political ideology of the named accused, but concerning
their link with the members of the banned organisation and its
activities. This is not the stage where the efficacy of the
material or sufficiency thereof can be evaluated nor it is
possible to enquire into whether the same is genuine or
fabricated. We do not wish to dilate on this matter any further
lest it would cause prejudice to the named accused and
including the co-accused who are not before the Court.
Admittedly, the named accused have already resorted to legal
40
remedies before the jurisdictional Court and the same are
pending. If so, they can avail of such remedies as may be
permissible in law before the jurisdictional courts at different
stages during the investigation as well as the trial of the
offence under investigation. During the investigation, when
they would be produced before the Court for obtaining remand
by the Police or by way of application for grant of bail, and if
they are so advised, they can also opt for remedy of discharge
at the appropriate stage or quashing of criminal case if there is
no legal evidence, whatsoever, to indicate their complicity in
the subject crime.
27. In view of the above, it is clear that the consistent view of
this Court is that the accused cannot ask for changing the
Investigating Agency or to do investigation in a particular
manner including for Court monitored investigation. The first
two modified reliefs claimed in the writ petition, if they were to
be made by the accused themselves, the same would end up in
being rejected. In the present case, the original writ petition
was filed by the persons claiming to be the next friends of the
41
concerned accused (A16 to A20). Amongst them, Sudha
Bhardwaj (A19), Varvara Rao (A16), Arun Ferreira (A18) and
Vernon Gonsalves (A17) have filed signed statements praying
that the reliefs claimed in the subject writ petition be treated
as their writ petition. That application deserves to be allowed
as the accused themselves have chosen to approach this Court
and also in the backdrop of the preliminary objection raised by
the State that the writ petitioners were completely strangers to
the offence under investigation and the writ petition at their
instance was not maintainable. We would, therefore, assume
that the writ petition is now pursued by the accused
themselves and once they have become petitioners themselves,
the question of next friend pursuing the remedy to espouse
their cause cannot be countenanced. The next friend can
continue to espouse the cause of the affected accused as long
as the concerned accused is not in a position or incapacitated
to take recourse to legal remedy and not otherwise.
28. Be that as it may, we are conscious of the fact that
prayer clause (i) and (ii) also make reference to FIR No.2/2018
42
registered at Pimpri (Urban) Police Station on 2nd January,
2018. However, that is an independent FIR registered at a
different police station against the Hindutva right wing leaders
Milind Ekbote and Sambhaji Rao Bhide. It is, at best, in the
nature of a cross FIR in respect of the same incident against
the alleged aggressors filed by an eye-witness. Neither the writ
petitioners nor the named accused in FIR No.4/2018 in that
sense, can pursue relief in respect of FIR No.2/2018 registered
at Pimpri (Urban) Police Station. Admittedly, Criminal Writ
Petition No.1875 of 2018 has alrady been filed in the Bombay
High Court by Anita R. Sawale (the complainant in FIR
No.2/2018) herself for issuing directions to the Investigating
Agency in that crime. As presently advised, we find force in the
argument of the State that the crime under investigation in
FIR No.4/2018, inter alia is to investigate the allegations that
a banned organization, CPI(M), organises events such as
referred to in FIR No.2/2018 to propagate ill-will in different
classes and turn them into unconstitutional and violent
activities. Further, such activities were purportedly carried out
by Kabir Kala Manch, Sudhir Dhawale and other activists in
43
different areas in the State of Maharashtra by delivering
vituperative speeches and to spread false history, disputable
statements and incite objectionable slogans, sing songs and
road dramas and distribution of objectionable and provocative
pamphlets and books also. And that the incidents such as at
Bhima Koregaon and nearby places of stone throwing, castes
clashes and arson incidents is the outcome of such
conspiracy. Taking any view of the matter, the reliefs claimed
in the modified prayer clauses (i) and (ii) in respect of FIR
No.2/2018, cannot be taken forward at the instance of the
named five accused persons in FIR No.4/2018 registered at
Vishram Bagh Police Station (Pune City) on 8th January, 2018
or for that matter their next friends.
29. A fortiori, it must follow that the writ petitioners, who are
strangers to the offence under investigation (in FIR
No.4/2018); and since they are merely espousing the cause of
the arrested five accused as their next friends, cannot be
heard to ask for the reliefs which otherwise cannot be granted
to the accused themselves. What cannot be done directly,
44
cannot be allowed to be done indirectly even in the guise of
public interest litigation.
30. We find force in the argument of the State that the prayer
for changing the Investigating Agency cannot be dealt with
lightly and the Court must exercise that power with
circumspection. As a result, we have no hesitation in taking a
view that the writ petition at the instance of the next friend of
the accused for transfer of investigation to independent
Investigating Agency or for Court monitored investigation
cannot be countenanced, much less as public interest
litigation.
31. As the answer to point Nos. (i) and (ii) are in the negative
and against the writ petitioners and named accused, we do not
wish to dilate on the circumstances pointed out to us by the
accused regarding the manner of their arrest. For, any
observation in that regard by this Court may prejudice the
said accused including the co-accused who are not before this
Court or the prosecution, which must be eschewed. We are of
the considered opinion that the investigation of the offence in
45
question is at a nascent stage and, therefore, it is not desirable
to elaborate further as the modified reliefs (i) and (ii) as prayed
cannot be granted for the reasons noted hereinbefore.
32. That takes us to the third modified relief claimed in the
writ petition to issue directions that all electronic devices,
records and materials, allegedly seized from the
detenue/accused, be examined by Forensic Science
Laboratory outside the State of Maharashtra to ensure fair
play and in the interest of justice. Even this prayer cannot be
taken forward. If any one of the twenty two named accused
have any grievance or apprehension about the same, he is free
to make that request before the jurisdictional Court, which
can be considered at the appropriate stage in accordance with
law. We are not expressing any opinion either way in the
present writ petition in that regard.
33. The fourth modified relief is to direct release of the
arrested activists from custody as per law. The accused
persons must pursue this relief before the appropriate court,
which can be considered by the concerned court on its own
46
merits in accordance with law. As noted earlier, the concerned
accused persons have already taken recourse to remedy before
the jurisdictional High Courts. Hence, they are free to pursue
all legal remedies available to them as per law. We are not
expressing any opinion either on the issue of maintainability
thereof or on merits of the reliefs that may be claimed therein.
All questions will have to be considered by the concerned
Court in accordance with law. Accordingly, even the fourth
modified relief cannot be considered in the present writ
petition.
34. In view of the above, we have advisedly refrained from
dealing with the factual issues raised by the parties and
including the named accused represented by their counsel
before us, as any observation made by this Court may cause
serious prejudice to them or the co-accused who are not before
this Court or, for that matter, the prosecution case, resulting
in serious miscarriage of justice. Similarly, we do not wish to
burden the judgment with the other reported judgments relied
upon by the counsel for the parties and dealing with legal
47
propositions canvassed by them, which are not necessary to
be answered in the present writ petition.
35. We may hasten to mention that we have perused the
Registers containing relevant documents and the Case Diary
produced by the State of Maharashtra. But we have avoided to
dilate on the factual position emerging therefrom, lest any
prejudice is caused to any accused or the prosecution, in any
manner.
36. The record/files/documents and the Case Diary handed
over to the Court in a sealed cover by the State be returned to
the counsel for the State in a sealed cover.
37. Accordingly, this writ petition is disposed of with liberty
to the concerned accused to take recourse to appropriate
remedy as may be permissible in law. The interim order
passed by this Court on 29th August, 2018 shall continue for a
period of four weeks to enable the accused to move the
concerned court. The said proceedings shall be decided on
its own merits uninfluenced by any observation made in this
48
judgment, which is limited to the reliefs claimed in the writ
petition to transfer the investigation to an independent
Investigating Agency and/or Court monitored investigation.
The Investigating Officer is free to proceed against the
concerned accused as per law. All the accompanying
applications are also disposed of in terms of this judgment.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
New Delhi;
September 28, 2018.
1
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO 260 OF 2018 (D NO 32319)
ROMILA THAPAR AND ORS ..PETITIONERS
VERSUS
UNION OF INDIA AND ORS ..RESPONDENTS
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1 The intersection between criminal law and constitutional rights has led
to the evolution of judicial precedent which originates in this Court. Our recent
decisions reiterate the value of individual dignity as essential to a democratic
way of life. But lofty edicts in judicial pronouncements can have no meaning to
a citizen unless the constitutional quest for human liberty translates into
securing justice for individuals whose freedom is under threat in specific cases.
The role of the Court involves particularly sensitive balances when the state
seeks to curb freedom to investigate perceived breaches involving offences
against the state. Custodial interrogation involves the balancing of diverse and
REPORTABLE
2
often conflicting values: the effective administration of criminal justice, an
impartial process of investigation and the liberty and reputation of the individual.
The invocation of our jurisdiction under Article 32 in this case is founded on the
grievance that a group of five human rights activists is sought to be persecuted
for espousing the cause of the marginalised which is considered to be
‘unpopular’. Conscious as the Court is of the public interest in the effective
administration of criminal justice, it cannot be oblivious to the overriding
constitutional concern to secure the dignity of the individual. The key to the
balance between the two lies in a fair, independent and impartial investigation
of crime. As a matter of principle, I am unable to agree with the views expressed
by the learned Chief Justice and my learned brother Justice AM Khanwilkar.
2 On 29 August 2018, the jurisdiction of this Court under Article 32 was
invoked by five distinguished academics to seek an “independent and
comprehensive inquiry” in the circumstances relating to the arrest of five human
rights activists on 28 August 2018. The arrests by the Pune police took place
following the raids which were conducted at their homes and offices. The arrests
took place simultaneously in Delhi, Faridabad, Mumbai, Thane and Hyderabad.
The petitioners assert that our jurisdiction has been invoked not to impede the
investigation but to ensure that an independent and credible investigation is
made by persons nominated by and subject to the supervision of this Court. The
petitioners urge that the invocation of the draconian provisions of the Unlawful
Activities (Prevention) Act, 1967 (UAPA) in the present case is an attempt to
3
silence dissent by targeting human rights activists who have been working to
protect the rights of the poor and the marginalised, particularly Dalits. This is set
forth in the prefatory averments of the writ petition, extracted here:
“The charges against them on the face of it appear
indiscriminate, unwarranted, part of a malicious campaign to
threaten human rights defenders, independent journalists,
writers and thinkers in this country, from critiquing the
government and its policies and an attempt to muzzle dissent.
The activists who have been arrested are pro democracy
workers who have been leading peaceful peoples rights based
movements especially among the poor and marginalised
communities, Dalits and adivasis, for several years, in different
parts of the country. The use of the UAPA meant for
exceptional and violent activity, against such persons, when
there has been absolutely no evidence of any acts of violence
by these activists is deeply disconcerting and calls for an
urgent intervention by this Hon’ble Court.”
The grievance is that those five persons are being persecuted for their views
and their voices are sought to be chilled into silence by a criminal prosecution.
3 First, as to the locus of the petitioners:
(i) The first petitioner – Romila Thapar is an eminent historian and Professor
Emeritus at Jawaharlal Nehru University. She was selected on two occasions
for the conferment of the Padma Bhushan award by the Union Government,
which she declined. Romila Thapar has been elected to the British Academy
and the American Academy of Arts and Sciences and has been conferred with
honorary doctoral degrees by the Universities of Oxford and Chicago, among
others. Her writings include a book titled, ‘A History of India’;
4
(ii) The second petitioner, Devaki Jain is a pioneer feminist economist and
has been associated with national bodies, including the Planning Commission
and the National Commission for Women and, international organisations,
including UNDP and the South Commission. She is the founding member of
two organisations engaged in women’s studies. She is a recipient of the Padma
Bhushan in 2006, the third highest civilian award from the Government of India,
for her contribution to social justice and the empowerment of women;
(iii) The third petitioner, Prabhat Pattnaik, was a Rhodes Scholar and is an
eminent economist who taught at JNU for over three decades. He was vicechairperson
of the Kerala Planning Board and a member of a high-powered UN
Task Force on the global financial system;
(iv) The fourth petitioner Satish Deshpande, is a sociologist at the University
of Delhi. He is a recipient of the Malcolm Adiseshiah award for distinguished
contributions to development studies. He was a member of the Union
government’s expert committee on the proposed Equal Opportunity
Commission. He has held visiting appointments at the University of Chicago
and in Paris; and
(v) The fifth petitioner, Maja Daruwala, is a member of the Board and a
senior advisor to the Commonwealth Human Rights Initiative. In that capacity
she has been associated with significant research on the implementation of
5
human rights norms in the country. She has been working in the field of
advocacy for rights and social justice for over fourty years.
4 The persons who were arrested on 28 August 2018 and on whose behalf
these proceedings were initiated have been described thus in the petition:
“i. Gautam Navalakha (Human Rights activist and journalist
New Delhi). He was the President of the People’s Union
for Democratic Rights and has been associated with the
Economic and Political Weekly. He is a known
commentator on current affairs. The state relied upon
him to negotiate the safe return of persons abducted by
left wing extremists in Chhattisgarh.
ii. Sudha Bharadwaj (Advocate, Chhattisgarh High Court,
currently residing in Faridabad) Prominent cause lawyer
of Bilaspur High Court who has represented workers,
poor and marginal farmers and others in Chhattisgarh.
She is the national green secretary of PUCL and since
2017 been teaching at the National Law University, Delhi.
As a member of the Indian Association of People’s
lawyers, advocated Sudha Bharadwaj was vocal against
the arrest of lawyers like Surendra Gadling in recent
times. Sudha Bharadwaj has been a member of
committees and provided legal aid and is a recognised
human rights defender.
iii. Varavara Rao (Age 79, based in Hyderabad, political
worker, commentator and renowned poet). He was a
professor of English and Telegu literature.
iv. Arun Ferreira, (Mumbai) Practising as a lawyer since
2015 and a Human Rights activist.
v. Vernon Gonsalves (Mumbai), Gold medallist from
Bombay University in Commerce, accounts officer at
Siemens, then lecturer of accounts in Maharashtra
College, writer and columnist. His translation of
Annabhau Sathe’s “Gold from the Grave” from Marathi to
English published in David Davidar’s “A Clutch of Indian
masterpieces”.
6
Three of the above individuals were prosecuted in the past for offences primarily
under the Indian Penal Code, 1860, the Arms Act, 1959 and the UAPA. Arun
Ferreria is stated to have been acquitted in all eleven cases instituted against
him. Vernon Gonsalves was acquitted in seventeen out of the nineteen cases
instituted against him (an appeal is pending in one case where he stands
convicted while an application for discharge is pending before the Gujarat High
Court in one case). Vara Vara Rao was acquitted in all twenty cases where he
was prosecuted1
.
5 During the course of the hearing, a preliminary objection was raised by
Mr Tushar Mehta, the learned ASG to the maintainability of these proceedings.
He urged that the petitioners have no locus to question the circumstances
relating to the arrest of the five individuals named above. I would not have been
inclined to accept a technical argument of this nature in view of the
constitutional imperatives for this Court to intervene when human freedoms and
liberties are alleged to be imperilled. The jurisdiction under Article 32 is wide
enough to reach out to injustice in any form and originating in any source.
Securing human liberty and dignity must occupy an important space in the
judicial docket. Liberty and freedom are defining values of our Constitution. The
institutional role of this Court as a constitutional adjudicator should brook no
technicalities which obstruct the cause of justice. When a group of citizens has
moved this Court with an impassioned plea about the violation of human rights
1 Details of these cases have been submitted in charts A, B and C annexed to the written submissions filed by
Dr AM Singhvi, learned senior counsel.
7
— in the present case no less than five distinguished citizens with a track record
of service to the nation have done so — the Court must look beyond locus into
the heart of the matter. Whether the grievance has any substance is indeed a
distinct matter which must be determined objectively. The Court will not interfere
in every case merely because it has the jurisdiction. But its duty to scrutinise,
perceive and remedy violations of human rights is non-negotiable. However,
the issue of locus, even in a technical sense, has receded into the background.
During the course of the hearing, the Court has been apprised that each of the
five individuals who were arrested has subscribed to the averments in the
petition and would stand by what is urged before this Court in protection of their
rights. The objection to maintainability lacks substance, in either view of the
matter.
6 A brief historical background is necessary. On 1 January 1818, a few
hundred soldiers of the East India Company comprising of Dalits, tribals,
Muslims, Christians and backward communities defeated the Peshwa army led
by Bajirao II at Koregaon, on the banks of the Bhima river near Pune. Like many
of its genre, the battle has assumed a legendary status primarily because of the
victory of the Dalits. Honouring the then martyrs, the colonial government raised
a victory pillar, the ‘Vijay Stambh’. The pillar is a symbolic rallying ground for an
annual event to mark the victory. The event represents the aspirations of those
who have been subject to discrimination and prejudice in the caste-ridden
structure of our society.
8
7 In keeping with tradition, a public meeting was scheduled to
commemorate the 200th anniversary of the Bhima-Koregaon victory on 31
December 2017. Among those who were associated with the event were two
judges: one of them, Justice PB Sawant is a former judge of this Court. Justice
BG Kolse Patil is a former judge of the Bombay High Court. The event was
planned at Shaniwar wada in Pune. An organisation known as the Kabir Kala
Manch was to supervise a cultural programme. Besides the two judges who
addressed the Elgar Parishad, the speakers included Shri Prakash Ambedkar,
President of the Bharatiya Republican Party. The event was titled: “BhimaKoregaon
Shourya Din – Elgar Parishad”. The petitioners claim that ‘Elgar’ is a
clarion call. The state reads into it a sinister symbolism of an attack. On 1
January 2018, a communal disturbance took place at Bhima-Koregaon when,
as the allegation goes, a group of Dalits was attacked in the process of offering
a salutation to the victory pillar. News of the incident spread across the state of
Maharashtra, resulting in a violent agitation in the state.
8 Following these incidents, a First Information Report in regard to the
incident was lodged on 8 January 2018 by one Tushar Damgude. The FIR
specifically names the following individuals:
i Sudhir Dhawale;
ii Sagar Gorakhe;
iii Harshali Potdar;
iv Dipak Dhengale;
v Jyoti Jagtap; and
9
vi Ramesh Gaychore.
Sudhir Dhawale was arrested on 6 June 2018. As the investigation progressed,
Section 120B of the Penal Code was added on 6 March 2018 and two more
persons – Surendra Gadling and Rona Wilson - were suspected to be involved.
On 17 April 2018, the Pune police conducted searches at the residences and
offices of the following persons:
1 Rona Wilson, a resident of Delhi;
2 Surendra Gadling, a resident of Nagpur;
3 Sudhir Dhawale and Harshali Potdar, residents of Mumbai;
4 Sagar Gorakhe, a resident of Pune;
5 Dipak Dhengale, a resident of Pune; and
6 Ramesh Gaychore and Jyoti Jagtap, residents of Pune
In the counter affidavit which has been filed by the Assistant Commissioner of
Police, Pune city, it has been stated that the material retrieved from the
computers, laptops, pen drives and memory cards of the above accused
persons implicated them as active members of the Communist Party of India
(Maoist), a banned organisation, and reflected a design of being involved in the
commission of offences having the potential to destabilise the country. Based
on the investigation, the provisions of Sections 13, 16, 17, 18, 18B, 20, 38, 39
and 40 of the UAPA were invoked on 17 May 2018 against the following
individuals:
(i) Surendra Gadling;
10
(ii) Rona Wilson;
(iii) Shoma Sen;
(iv) Mahesh Raut;
(v) Comrade M. alias Milind Teltumbade (underground);
(vi) Comrade Prakash alias Navin alias Rituparn Goswami
(underground);
(vii) Comrade Manglu (underground); and
(viii) Comrade Dipu and other underground members.
On 6 June 2018 five persons were arrested namely:
(i) Surendra Gadling;
(ii) Rona Wilson;
(iii) Sudhir Dhawale;
(iv) Shoma Sen; and
(v) Mahesh Raut.
The counter affidavit filed by the Assistant Commissioner of Police states that
it is on the basis of the material recovered during the course of the search of
the above persons that the five individuals on whose behalf the present
proceedings have been instituted were found to be a part of the criminal
conspiracy. The averment in the counter reads as follows:
“I state and submit that based upon the aforesaid material
recovered from the searches of the aforesaid persons [which
is a part of the case diary and which would be placed for
consideration and perusal of this Hon’ble Court in a sealed
cover], the following persons were also clearly found to be a
part of the criminal conspiracy and their role was not merely
peripheral role but they were found to be playing a very vital
role in the criminal offences committed and/or planned by
11
others. Based upon the said incriminating material, the
following persons came to be arrested on 28.8.2018 and
searches were conducted at their residential/work places in a
similar fashion, under videography in presence of individual
Punchas who were Government officers.
1 Vara Vara Rao R/o Hyderabad
2 Arun Ferreira R/o Thane
3 Vernon Gonsalves R/o Mumbai
4 Sudha Bhardwaj R/o Faridabad
5 Gautam Navlakha R/o Delhi”
The counter alleges that each of the five individuals is found to be working for
and to be an active member of a “banned terrorist organisation” – the
Communist Party of India (Maoist). Paragraph 26 of the counter affidavit states
that each of them has been found, from the material gathered from others
during investigation, to be involved in unlawful activities which are described
thus:
“The material gathered from others based upon which the five
accused persons named hereinabove are arrested, clearly
show that they were involved in selecting and encouraging
cadres to go underground in ‘struggle area’, mobilizing and
distributing money, facilitating selection and purchase of arms,
deciding the rates of such arms into India for its onward
distribution amongst the cadres. Some of them have
suggested training and laying of booby traps and directional
mines. They are also found to be providing strategic inputs in
furtherance of the objective of armed rebellion as per the
strategic document of the banned terrorist organisation namely
Communist Party of India (Maoist).”
The petition was initially taken up for hearing on 29 August 2018. Interim
directions to place the five individuals under house arrest were issued, in terms
of the request made by their counsel:
12
“We have considered the prayer for interim relief. It is submitted
by Dr. Abhishek Manu Singhvi, learned senior counsel
appearing for the petitioners that in pursuance of the order of
the High Court, Mr. Gautam Navalakha and Ms. Sudha
Bharadwaj have been kept under house arrest. It is suggested
by him that as an interim measure, he has no objection if this
Court orders that Mr. Varavara Rao, Mr. Arun Ferreira and Mr.
Vernon Gonsalves, if arrested, they are kept under house
arrest at their own homes. We order accordingly. The house
arrest of Mr. Gautam Navalakha and Ms. Sudha Bharadwaj
may be extended in terms of our orders.”
Since the case was being heard, the house arrest has since been extended by
the interim directions of this Court of 6 September 2018 and 17 September
2018. During the course of the hearing, permission has been sought to formally
amend the writ petition to seek the constitution of a Special Investigating Team
under the directions of this Court, so as to ensure an independent investigation.
9 Unfolding his submissions, Dr Abhishek Manu Singhvi, learned senior
counsel stated that a First Information Report in respect of the violence which
took place on 1 January 2018 (FIR 2/2018) was lodged by Anita R Sawale at
PS Pimpri on 2 January 2018. The FIR alleges that violence was unleashed
against Dalits by a mob armed with swords, rods and other weapons. The FIR
specifically names Sambhaji Bhide, head of an organisation known as
Shivajinagar Pratishthan and Milind Ekbote, Chief of Hindu Janjagaran Samiti
as perpetrators and conspirators. Sambhaji Bhide has not been arrested while
Milind Ekbote is stated to have secured bail within a month of his arrest. The
FIR relates to offences under the Penal Code, Arms Act and the SC/ST Act2
.
2 The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989
13
No provision of the UAPA has been invoked. Since the police were allegedly
not investigating the FIR, a writ petition has been filed before the Bombay High
Court3
. FIR 4/2018 was lodged on 8 January 2018 at PS Vishrambagh by
Tushar Damgude who is alleged to be a self-professed follower of Sambhaji
Bhide. The FIR adverts to a speech delivered by Sudhir Dhawale at the Elgar
Parishad on 31 December 2017 in which allegedly an incendiary speech was
made, with the following lines:
“Jab Julm ho to Bagawat Honi Chahiye shahar mein, Jab Julm
Ho to bagawat honi chahiye shaharmein, aur agar bagawat na
ho to behatar he ke,ye raat dhalane se pehle ye shahar jalkar
rakh ho jaye, yesatra hein, ye satra ki title hi, apne aap mein,
ladhai k ailan hein, ye nayi peshwai ko hamko shamshan ghat
mein, Kabrastaan mein dafnana hein.””
Dr Singhvi submits that these lines are but a translation of Bertolt Brecht’s play,
“The Good Person of Szechwan”, (1942). Notably, according to the submission,
FIR 4/2018 does not allude to any conspiracy to attack the Prime Minister. It has
been submitted that it is undisputed that none of the activists under house arrest
were named in the FIR. They are not alleged to be present at the Elgar Parishad
on 31 December 2017 or at Bhima-Koregaon on 1 January 2018. Moreover,
according to the submission, the State of Maharashtra opposed the anticipatory
bail of Milind Ekbote on the ground that the violence was committed as a part of
a pre-planned conspiracy by him and by others. The arrests of the five persons
were affected nearly nine months thereafter.
3 Criminal Writ Petition 1875/2018
14
10 The next limb of the submission of Dr Singhvi is that certain letters which
are alleged to have been authored by the arrested activists are ex-facie
fabricated. These letters are alleged to have been recovered by the police from
the electronic devices of one of the accused who was raided in the month of
April 2018 and was arrested in June 2018. Shri Parambir Singh, Additional
Director General of Police (Law and Order), State of Maharashtra appeared in
a television programme called “Truth v Hype” on NDTV on 1 September 2018
and stated that the letters which were placed before the media by senior police
functionaries were yet to be verified. According to the petitioners, thirteen such
alleged letters were leaked to the media by the police during the course of press
briefings. They are now available in the public domain. These letters, it has been
submitted, do not find mention even in the transit applications filed by the Pune
police before the concerned court. The letters are unsigned and do not bear any
identifiable particulars including e-mail addresses or headers. Curiously, the
recovery is stated to have been made from the electronic devices of a third
person who is neither the author nor the addressee of the letters. Hence, it has
been urged that:
(i) While it was alleged that a plot against the Prime Minister has been
uncovered in an alleged letter, it is noteworthy that no new FIR has been
registered by the police and investigation continues by the Pune police under
FIR 4/2018, pertaining to the Bhima-Koregaon violence;
15
(ii) The state is not taking the conspiracy theory seriously as is evident from the
fact that no fresh FIR has been registered and the investigation continues to
remain with the Pune police; and
(iii) Seven out of the thirteen alleged letters which were leaked to the media by
the police have been authored by or addressed to one “Comrade Prakash”. The
Sessions Court at Gadchiroli in its judgment dated 7 March 2017 convicting GN
Saibaba in Sessions Case 13/2014 held that he had used the pseudonym
‘Prakash’ in letters scribed by him. It is a matter of record that Saibaba has been
lodged in Nagpur Central Jail since 7 March 2017 and hence the alleged letters
attributed to him after that date are ex-facie fabricated.
Dr Singhvi has drawn the attention of the court to the consistent pattern and
history of the police targeting human rights activists and incarcerating them by
foisting false criminal cases. This is buttressed by adverting to the prosecutions
launched against three of the August 2018 detenues. Vara Vara Rao was
implicated in 25 cases out of which 13 ended in acquittal, 3 in discharge and 9
in the withdrawal of the prosecution. He has not been convicted in any case and
is 79 years of age. Arun Ferreira has been acquitted in all the 11 cases in which
he was implicated. Vernon Gonsalves has been acquitted in 17 out of the 19
cases in which he was accused; a discharge application is pending in one case
while an appeal against conviction in another case is pending before the Nagpur
bench of the High Court, where he has already served his sentence.
16
11 During the course of his submissions, Dr Singhvi urged that there was a
gross violation of law rendering the arrest, search and seizure unlawful. The
panch witnesses were ‘imported’ from Pune and are employees of the Pune
Municipal Corporation. The two panch witnesses travelled together with the
Pune police and are stock witnesses. Hence it has been submitted that there
has been a clear violation of the safeguards introduced in Section 41B of the
Code of Criminal Procedure, 1973. In the transit remand application of Sudha
Bhardwaj, the Pune police submitted before the Court of the CJM, Faridabad on
28 August 2018 that her remand was necessary since other individuals who
were arrested in June 2018 had made disclosure statements in regard to
incitement of the riots in Koregaon. Significantly, no such disclosure has been
made by the arrested persons nor is there a mention of a Maoist conspiracy in
the alleged letters or in the remand application.
12 In summation, Dr Singhvi urged that each of the persons who were
arrested on 28 August 2018 is an active defender of human rights. They have
taken a position on human rights violations. The submission is that this targeted
persecution is meant to strike fear amongst human rights’ lawyers, activists and
writers to deter them from speaking against or critiquing governmental policies
and police actions. Persecution of this nature would, it has been urged, shake
the foundation of the rule of law and render the freedoms guaranteed by the
Constitution illusory. Learned counsel submitted that the purpose of these
proceedings is not to thwart an investigation but to ensure that the investigation
17
is fair and impartial. It was urged that in a long line of precedent, this Court has
ordered the constitution of Special Investigation Teams (SIT) or a court
monitored investigation under Article 32 of the Constitution. In the present case,
it was urged, that the facts which have been adverted to before the Court
indicate that the investigation has been anything but fair and impartial. The
targeting of human rights activists for their opposition to the governing regime
implicates a serious violation of democratic values and necessitates either the
setting up of a SIT or the monitoring of the investigation by this Court.
13 On the other hand, Mr Tushar Mehta, learned ASG has urged the
following submissions:
(i) No interference by the Court is permissible in a criminal case in the garb of a
public interest litigation. A PIL is not maintainable at the behest of a third person
for seeking reliefs which can be granted only under Sections 438 or 439 and
Section 482 of the Criminal Procedure Code (Rajiv Ranjan Singh ‘Lalan’ (VIII)
v Union of India,
4 Gulzar Ahmed Azmi v Union of India,
5 Simranjit Singh
Mann v Union of India6 and Ashok Kumar Pandey v State of West Bengal7
;
(ii) There is an abuse of process in the present case since three of the arrested
persons – Vara Vara Rao, Sudha Bhardwaj and Gautam Navlakha have filed
petitions before the jurisdictional High Courts which are pending adjudication.
4
(2006) 6 SCC 613
5
(2012) 10 SCC 731
6
(1992) 4 SCC 653
7
(2004) 3 SCC 349
18
Hence it would be impermissible to allow their prayer for transposing them or
adopting the averments in the petition (Pratibha Ramesh Patel v Union of
India8
, Udyami Evam Khadi Garmodyog Welfare Sanstha v State of UP9
);
(iii) A PIL under Article 32 would not be maintainable for the purpose of seeking
relief under Sections 438 and 439 of the Criminal Procedure Code;
(iv) Reliefs in the nature of a writ of Habeas Corpus, which have been sought in
the present proceedings under Article 32 are not maintainable (State of
Maharashtra v Tansen Rizwan Siddiquee10);
(v) The accused does not have a vested right to seek an investigation monitored
by the court or to have a particular agency as the investigator; and
(vi) The investigation in the present case is being conducted responsibly and
impartially by an officer of the rank of an Assistant Commissioner of Police. The
investigation is being carried out under the supervision of a Deputy
Commissioner of Police and is being monitored by the Joint Commissioner of
Police who is of the rank of an Additional Director General.
14 While entertaining these proceedings, this Court is conscious of the fact
that ordinarily, when an investigation into a criminal offence is in progress, rights
and remedies are provided by the Code of Criminal Procedure. Hence, it is but
trite law that in matters pertaining to or arising during the course of investigation
8
(2016) 12 SCC 375
9
(2008) 1 SCC 560
10 (2018) 10 SCALE 711
19
such as remand, bail (including anticipatory bail) and quashing of proceedings,
recourse must be taken to the provisions of the Code. These principles have
been highlighted in the decisions to which a reference has been made by the
ASG. In Rajiv Ranjan Singh (supra) the trial had commenced in a criminal
case involving a charge of amassing wealth disproportionate to the known
source of income of a public servant. This Court held that a PIL is not meant to
advance a political agenda and would be alien to pending criminal proceedings.
The petitioners were not de facto complainants and if at all they had a grievance
regarding the removal of a public prosecutor, they should have moved the
Special Judge or the High Court at the earliest point of time. The Court
emphasised that any interference at the behest of a third party was liable to
affect the course of justice and may even prejudice the accused by denying a
fair trial. In Gulzar Ahmed Azmi (supra) a petition under Article 32 sought an
investigation of all bomb blast cases since 2002 with a direction for the release
of the detenues on bail. In that context, this Court held that sufficient safeguards
were available under the criminal law and it was for the individual against whom
a criminal proceeding is lodged to work out his or her remedy. In Simranjit
Singh Mann (supra) the Court declined to exercise its jurisdiction under Article
32 where the petitioner did not seek to enforce his own fundamental rights but
the fundamental rights of two “condemned convicts” who had not themselves
complained of a violation. This Court noted that it was not open to “any and
every person” to challenge a conviction and unless the aggrieved individual
suffers from a disability recognised by law, it would be unsafe and hazardous to
20
allow a third party or stranger to question the correctness of a conviction and
sentence imposed after trial. These principles were also adverted to in the
earlier decision in Ashok Kumar Pandey (supra). They are well settled. As a
court which is governed by precedent, we are bound by them and by a
consistent line of authority which requires that during the course of investigation,
it is to the competent court that an accused must ordinarily turn for the remedies
that are available under substantive or procedural provisions of the criminal law.
15 But in the present case, it is necessary for the Court to bear in mind that
recourse to its constitutional jurisdiction under Article 32 has been invoked not
only by the petitioners but by the five individuals who were arrested on 28
August 2018. The petition was moved before this Court on 29 August 2018
when, as already noted, an interim order was passed directing that the five
arrested persons be placed under house arrest. At the earliest possible point in
time, these five individuals have moved this Court indicating that they abide by
the averments and reliefs sought in the petition and seek that they should be
transposed as petitioners under Article 32. The petitioners have not in their
submissions sought recourse to the jurisdiction of this Court for espousing a
remedy which is available before the competent court under the Code of
Criminal Procedure. These proceedings have been moved with a specific
grievance that the arrest of the five individuals is an attempt by the state to
muzzle dissent and that each of them is being persecuted for being a defender
of persons subjected to human rights’ violations. When the petition was initially
21
filed, the relief which was sought was in regard to the circumstances relating to
the arrest of the human rights activists. By an application for amendment, the
reliefs have been sought to be amended to inter alia seek the constitution of a
Special Investigating Team (to be monitored by this Court). For clarity, the
above reliefs are extracted below:
“i) Issue an appropriate writ, order or direction for setting up of
a Special Investigating Team (SIT) comprising of senior police
officers with impeccable career records of professionalism,
integrity and independence, reporting directly to this Hon’ble
Court, for conducting a fair and independent investigation and
inquiry into the offences stated in the zero FIR lodged at Pimpri
police station on 02.01.2018 (now Cr.Case No 2/2018), and the
FIR 4/2018 lodged at Vishrambagh police station on
08.01.2018 by Tushar Damgude, and all other related matters
and allegations; or
ii) Issue an appropriate writ, order or direction for the
investigation into the offences alleged in the zero FIR lodged
at Pimpri police station on 02.01.2018 (now Cr.Case No
2/2018), and the FIR 4/2018 lodged at Vishrambagh police
station on 08.01.2018, and all other related matters and
allegations, to be carried out by an independent agency which
shall be monitored directly by this Hon’ble Court through
regular filing of status reports of the investigation by the
investigating agency;”
16 Though the prayer seeking the appointment of a Special Investigating
Team is sought to be introduced by way of an application for amendment, it is
necessary to note that in the petition as it was originally filed, it has been stated
that the object of the petition is not to stop an investigation but to ensure an
independent and credible investigation. The relevant averment in that regard
reads as follows:
“Petitioners are seriously concerned about the erosion of
democratic values and are moving this Hon’ble Court not to
stop investigation into allegations but to ensure independent
22
and credible investigation by such persons as may be deemed
fit under supervision of this Hon’ble Court. Anything short of
this will damage the fabric of nation irreparably.”
(emphasis supplied)
The application for amendment, does not, in other words, set up a new case but
is intended to introduce a formal prayer on the basis of averments which have
already been made in the petition as it was originally filed.
17 This Court, as a constitutional adjudicator, has been entrusted with the
jurisdiction under Article 32 to secure the fundamental freedoms guaranteed by
Part III of the Constitution. While the discipline of the law of criminal procedure
must at all times be kept in view, it cannot be gainsaid that the protection of
fundamental liberties is a subject so integral to democratic constitutional values
that technicalities should not be allowed to override the cause of substantive
justice. The court must undoubtedly tread with circumspection for in the guise
of seeking access to its wide jurisdiction under Article 32, the normal remedies
under the criminal law should not be displaced. Again, as the court has
repeatedly emphasised, public interest litigation should not become a weapon
for settling political scores or of pursuing extraneous ends. In the present case,
we have no manner of doubt that the initiation of the proceedings under Article
32 is not motivated by extraneous reasons. The law is not a respecter of social,
economic or political status and every litigant who seeks access to justice has
to be treated evenly. Here we have five citizens who have invoked the
jurisdiction of this Court in extraordinary circumstances where they claim that a
23
group of human rights activists has been targeted by the state police. Each of
those five individuals has joined in these proceedings.
18 Over the course of the last decade, the jurisdiction of this Court has
evolved under Article 32 to order the constitution of a SIT. In National Human
Rights Commission v State of Gujarat,
11 a SIT was constituted in a matter
involving a serious element of communal disharmony. Further directions were
issued by this Court for regular status reports to be filed by the SIT (NHRC v
State of Gujarat12). In Ram Jethmalani v Union of India,
13 this Court observed
that in several instances in the past, when the issues were of a complex nature,
yet requiring the intervention of the Court, SITs were ordered to be constituted
to enable the Court, the Union government and other organs of the state to fulfil
their constitutional obligations. In Common Cause v Union of India,
14 the test
for the constitution of a SIT was a prima facie abuse of power and authority by
the Director of the Central Bureau of Investigation to scuttle an investigation and
enquiries into coal block allocations. In Sunita Devi v Union of India,
15 an
independent and impartial SIT was constituted where it was found that the
investigation into the murder of a family was lackadaisical and the real culprits
had not been put to trial. These instances indicate the diversity of settings in
which this Court has ordered the constitution of SITs. Decisional flexibility in the
11 (2009) 6 SCC 342
12 (2009) 6 SCC 767
13 (2011) 8 SCC 1
14 (2017) 3 SCC 501
15 (2018) 3 SCC 664
24
exercise of this jurisdiction meets exigencies which arise in unforeseen
situations, warranting the intervention of this Court under Article 142. While the
Court does not determine the course of the investigation, it acts as a watchdog
to ensure that a fair and impartial investigation takes place. A fair and
independent investigation is crucial to the preservation of the rule of law and, in
the ultimate analysis to liberty itself.
19 Mr Harish Salve, learned senior counsel appearing on behalf of the
complainant, has sought to urge that a SIT has been constituted in cases where
there is an allegation against the political class in power, so that the investigation
is not derailed by those who are capable of intercepting it. Such a construction,
in my view, would restrict the width and ambit of the jurisdiction which has
advisedly been entrusted to this Court by the framers of the Constitution. The
fact that in a particular case, a SIT was ordered to be constituted in a situation
where there was an allegation of interference with the investigation by the
political establishment is not a reason to confine the exercise of the jurisdiction
only to such cases. In the rights discourse, violations of law and transgressions
of human rights arise in myriad situations which it may be difficult to anticipate
exhaustively. Prudently therefore, the jurisdiction under Article 32 is not hedged
in by technicalities nor would it be wise to confine it to stated categories. The
ultimate touchstone for the exercise of the jurisdiction is that a violation of the
fundamental human freedoms relatable to the cardinal values of liberty, dignity
and equality under Part III of the Constitution is in issue.
25
20 Besides the jurisdiction to order the constitution of a SIT, the proceedings
of this Court are replete with instances where an investigation has been
monitored under the authority of this Court. In Vineet Narain v Union of India,
16
this Court in the context of the widely publicised Jain Hawala transactions case
ordered a court monitored investigation to ensure that government agencies
discharged their duties and functions bearing in mind the tenets of equality and
the rule of law. In doing so, this Court emphasised the need to retain public
confidence in the process of investigation. In Babubhai Jamnadas Patel v
State of Gujarat,
17 a two judge Bench, while noting that investigation of
offences is normally the function of the investigating agency emphasised that
where extraordinary facts or situations are involved, it is the duty of the High
Courts and of this Court to intervene to ensure that the rights of citizens are duly
protected:
“The courts, and in particular the High Courts and the Supreme
Court, are the sentinels of justice and have been vested with
extraordinary powers of judicial review and supervision to
ensure that the rights of the citizens are duly protected.”
In Centre for Public Interest Litigation v Union of India,
18 a court monitored
investigation was ordered in a public interest litigation which focused on the
need for a thorough and impartial investigation into the 2G Spectrum scam. In
Bharati Tamang v Union of India,
19 this Court held that in an appropriate case,
or when exceptional circumstances have been made out, the jurisdiction under
16 (1996) 2 SCC 199
17 (2009) 9 SCC 610
18 (2011) 1 SCC 560
19 (2013) 15 SCC 578
26
Article 32 can be exercised to constitute a SIT or to transfer the investigation to
a Central Agency and monitor it, or even to order a de novo investigation into
criminal cases.
21 With this body of precedent on the subject, the maintainability of a prayer
for relief, seeking that the investigation should be either monitored by this Court
or should be entrusted to an independent SIT under the directions of this Court
cannot be in doubt. Though wide-ranging submissions have been urged before
this Court on merits, it is necessary that the court must eschew a detailed or
meticulous examination of the material produced by the ASG together with the
case diary, particularly when the investigation is in progress. The expression of
a finding by this Court would affect the administration of criminal justice or
perhaps in a given case, even the rights of the accused. The observations of
this Court must, therefore, be confined to assessing whether a case has been
made out for the constitution of a SIT and matters having a bearing on that
decision.
22 I must, at the outset, dwell on the fairness of the manner in which the
police have approached this investigation. On 29 August 2018, this Court issued
notices to the State of Maharashtra and to the others impleaded as respondents
to the proceedings. Within a few hours of the conclusion of the court hearing, a
press conference was held in Pune by Shivarjirao Bodhke, the Joint
Commissioner of Police proclaiming that the Pune police had more than
27
sufficient evidence against the five individuals whose transit remand was stayed
by this Court while ordering them to be placed under house arrest. This is
disconcerting behaviour – the Joint Commissioner sought in this oblique manner
to respond to the interim order of this Court by recourse to the electronic media.
On 31 August 2018, a press conference was addressed by a team of senior
police officers headed by Shri Parambir Singh, ADG (Law and Order),
Maharashtra. During the course of the press conference letters (many of which
should form part of the case diary) were selectively flashed and read out.
According to the petitioners they were also leaked to the media. A video of the
press conference is annexed in the form of a CD at Annexure R-2 of the
rejoinder and has been uploaded on
https://www.youtube.com/watch?v=PCVKfstx2Qc. On 1 September 2018 the
ADG (Law and Order) appeared on a television programme titled “Truth v Hype”
on NDTV, during the course of which he is stated to have agreed that the letters
which had been read out by him were still undergoing forensic analysis together
with the electronic devices. The CD of the programme is annexed as Annexure
R-3 to the rejoinder. Besides this, the attention of the Court has been drawn to
the fact that the first round of arrests in the present case took place on 6 June
2018. On 8 June 2018 an alleged letter was released by the police to the media
a little before the proceedings for remand before the competent court (in the
June arrests), alleging that the arrested persons were plotting to attack the
Prime Minister. On 4 July 2018 when the arrested persons were to be produced
before the Court in Pune, a letter attributed to Sudha Bhardwaj was
28
sensationally telecast on a television channel linking her with the unlawful
activities of certain groups. A serious grievance has been made about the fact
that these letters have neither been placed before the Court of law nor did they
find mention in the transit remand applications moved before the CJM,
Faridabad by the Pune police.
23 In Rajendran Chingaravelu v RK Mishra,
20 this Court deprecated the
tendency of the police to reveal details of an investigation to the media even
before the completion of the investigation. This Court observed:
“21. But the appellant’s grievance in regard to media being
informed about the incident even before completion of
investigation, is justified. There is growing tendency among
investigating officers (either police or other departments)
to inform the media, even before the completion of
investigation, that they have caught a criminal or an
offender. Such crude attempts to claim credit for
imaginary investigational breakthroughs should be
curbed. Even where a suspect surrenders or a person
required for questioning voluntarily appears, it is not
uncommon for the Investigation Officers to represent to the
media that the person was arrested with much effort after
considerable investigation or a case. Similarly, when someone
voluntarily declares the money he is carrying, media is
informed that huge cash which was not declared was
discovered by their vigilant investigations and thorough
checking. Premature disclosures or ‘leakage’ to the media in
a pending investigation will not only jeopardise and impede
further investigation, but many a time, allow the real culprit to
escape from law...” (emphasis supplied)
24 This facet of the case of serious concern. The manner in which the Joint
Commissioner of Police and the Additional Director General of Police (Law and
20 (2010) 1 SCC 457
29
Order), Maharashtra have selectively disclosed purported details of the
investigation to the media and on television channels casts a cloud on the
impartiality of the investigative process. In its 2010 decision in Rajendran
(supra) this Court was constrained to take note of this growing tendency on the
part of investigating agencies. The use of the electronic media by the
investigating arm of the State to influence public opinion during the pendency
of an investigation subverts the fairness of the investigation. The police are not
adjudicators nor do they pronounce upon guilt. In the present case, police
briefings to the media have become a source of manipulating public opinion by
besmirching the reputations of individuals involved in the process of
investigation. What follows is unfortunately a trial by the media. That the police
should lend themselves to this process is a matter of grave concern. The
investigation commenced as an enquiry into the Bhima-Koregaon violence. The
course of the investigation was sought to be deflected by alleging (in the course
of the press briefings of the police) that there was a plot against the Prime
Minister. Such an allegation is indeed of a serious order. Such allegations
require responsible attention and cannot be bandied about by police officers in
media briefings. But during the course of the present hearing, no effort has been
made by the ASG to submit that any such investigation is being conducted in
regard to the five individuals. On the contrary, he fairly stated that there was no
basis to link the five arrested individuals to any such alleged plot against the
Prime Minister. Nor does the counter affidavit makes any averment to that
effect. All this has certainly a bearing on the basic question as to whether the
30
Maharashtra police can now be trusted to carry out an independent and
impartial investigation.
25 During the course of the hearing, the learned ASG has assisted the Court
by tendering the case diary and a compilation of documentary material. As a
matter of prudence, the court must desist from adverting to the details contained
in the compilation or in the case diary save and except for indicating broad
reasons in the course of evaluating the reliefs which have been claimed. The
counter affidavit, which has been filed by the State of Maharashtra makes it
abundantly clear that the arrest of the five individuals (on 28 August 2018) was
based on “material gathered from others”. This adverts to the material alleged
to have been gathered in the course of the raids conducted against those
individuals who were arrested in the months of June and July 2018. Paragraph
26 of the counter (which has been extracted earlier) states that this material
“clearly shows that they were involved” in (i) selecting and incorporating cadres
to go underground in the ‘struggle area; (ii) mobilising and distributing money;
(iii) facilitating selection and purchase of arms; (iv) deciding the rates of such
arms; and (v) suggesting the routes and ways of smuggling such arms into India
for its onward distribution amongst the cadres.
26 Next, it is alleged that “some of them” (i) “have suggested training and
laying of booby traps and directional mines”; and (ii) “are found to be providing
strategic inputs in furtherance of the objective of armed rebellion” in pursuance
31
of a strategic document of a banned terrorist organisation namely, the
Communist Party of India (Maoist). With the assistance of the ASG I have
carefully perused the compilation produced before the Court. Upon perusing the
material, I find that the allegation that each of the five individuals arrested on 28
August 2018 is found to be engaged in activities of the nature set out in
paragraph 26 of the counter affidavit (extracted above) is taking liberties with
the truth. General allegations against the philosophy of a banned organisation,
its policies and the modalities followed in the execution of its unlawful activities
constitute one thing. Linking this to specific activities of named individuals is a
distinct matter. At this stage, it is necessary to note the submission which has
been urged in regard to an undated letter of Sudha Bhardwaj to Comrade
Prakash which was also allegedly distributed to the media. There is a serious
bone of contention in regard to the authenticity of the letter which, besides being
undated, does not contain any details including the e-mail header. A statement
has been handed over the court in support of the submission that the letter is
an obvious fabrication made by a Marathi speaking person because in as many
as 17 places, it contains references to words scribed in Devanagari, using forms
peculiar to Marathi. It has been urged that Sudha Bhardwaj who does not belong
to Maharashtra and is not Marathi speaking, could not possibly have written a
letter in Devanagari utilising essentially Marathi forms of grammar or address.
We need not delve into these aspects at this stage, since they are matters for a
fair investigation.
32
27 One of the circumstances which must certainly bear upon the fairness
and impartiality of the process which has been followed by the investigating
agency is in regard to the importation of two panch witnesses from Pune, when
the arrests were carried out. Section 41B of Code of Criminal Procedure
emphasises the importance of an independent witness while making an arrest.
Section 41B of the Code provides as follows:
“Every police officer while making an arrest shall-
(a) bear an accurate, visible and clear identification of his name
which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be-
(i) attested by at least one witness, who is a member of the
family of the person arrested or a respectable member of
the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is
attested by a member of his family, that he has a right to have
a relative or a friend named by him to be informed of his arrest.”
(emphasis supplied)
The two panch witnesses in the present case are employees of the Pune
Municipal Corporation. It is not disputed before this Court that they travelled as
part of the police team which made the arrest.
28 It was in DK Basu v State of West Bengal,
21 that this Court laid down
requirements to be followed in all cases of arrest, which included the following:
“(2) That the police officer carrying out the arrest of the arrestee
shall prepare a memo of arrest at the time of arrest and such
21 (1997) 1 SCC 416
33
memo shall be attested by at least one witness, who may either
be a member of the family of the arrestee of a respectable
person of the locality from where the arrest is made. It shall also
be countersigned by the arrestee and shall contain the time and
date of arrest.”
This Court observed that the requirements it had enunciated emanated from
Articles 21 and 22(1) of the Constitution and “need to be strictly followed” failing
which action for contempt of court would be initiated.
29 There is a serious allegation that the arrests have been motivated by an
attempt to quell dissent and to persecute five individuals who have pursued the
cause of persons who have suffered discrimination and human rights violations.
In approaching the present case, the Court must be mindful of the need not to
thwart a criminal investigation leading to the detection of unlawful acts. Equally,
the Court has to be vigilant in the exercise of its jurisdiction under Article 32 to
ensure that liberty is not sacrificed at the altar of conjectures. Individuals who
assert causes which may be unpopular to the echelons of power are yet entitled
to the freedoms which are guaranteed by the Constitution. Dissent is a symbol
of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting
those who take up unpopular causes. Where, however, the expression of
dissent enters upon the prohibited field of an incitement to violence or the
subversion of a democratically elected government by recourse to unlawful
means, the dissent ceases to be a mere expression of opinion. Unlawful
activities which violate the law have to be dealt with in accordance with it. In the
background which has been adverted to earlier, it would be blasé to accept the
34
submission that the investigation by the police should be allowed to proceed
without a safeguard for ensuring the impartiality and independence of the
investigative agency. The conduct of the Pune police in utilising the agency of
the electronic media to cast aspersions on those under investigation fortifies the
need for an investigation which is fair. When the Joint Commissioner of Police
and the Additional Director General of Police cast aspersions in the public media
against persons whose conduct is still under investigation, and in disregard of
proceedings pending before a judicial forum, it is the duty and obligation of this
Court to ensure that the administration of criminal justice is not derailed. I make
it absolutely clear that nothing in this order shall be construed as any
observation on the merits of the investigation which is to take place. The
purpose of the direction which I propose to give is to ensure that the basic
entitlement of every citizen who is faced with allegations of criminal wrongdoing,
is that the investigative process should be fair. This is an integral component of
the guarantee against arbitrariness under Article 14 and of the right to life and
personal liberty under Article 21. If this Court were not to stand by the principles
which we have formulated, we may witness a soulful requiem to liberty.
30 The judgment of the majority has relied on certain decisions to hold that
such a petition as in the present case is not maintainable and the prayer for the
constitution of SIT at the behest of the five individuals under investigation cannot
be entertained. In Narmada Bai v State of Gujarat,
22 the petitioner filed a writ
22 (2011) 5 SCC 79
35
petition under Article 32 for issuance of a writ directing the CBI to register a FIR
in a case pertaining to an alleged fake encounter in which her son was killed.
The key issue was whether after filing of the charge-sheet by the state
investigative agency, this Court was precluded from appointing an independent
specialised agency like the CBI to go into the same issues, if the earlier
investigation was not done in accordance with the established procedure. The
factual determination to be carried out was whether the petitioner had made out
a case for entrusting the investigation to the CBI.
31 While this Court observed that “It is trite law that accused persons do not
have a say in the matter of appointment of an investigation agency” and that
“the accused persons cannot choose as to which investigation agency must
investigate the alleged offence committed by them”, the Court also observed
that there were “large and various discrepancies” in the reports and the
investigation conducted by the police authorities of the State of Gujarat and that
the charge-sheet filed by the state investigating agency could not be “said to
have run in a proper direction.” A two judge Bench of this Court concluded that
even though the charge-sheet had been filed, in view of the circumstances
brought to the notice of the Court, the involvement of the police officials of the
State of Gujarat in the investigation was “undesirable”. Thus, “to meet the ends
of justice and in the public interest”, the CBI was be directed to take charge of
the investigation.
36
32 This case supports my view that in the interest of justice, and particularly
when there are serious doubts regarding the investigation being carried out, it
is not only permissible, but our constitutional duty to ensure that the
investigation is carried out by a special investigation team or a special
investigative agency so that justice is not compromised.
33 In Sanjiv Rajendra Bhatt v Union of India,
23 the petitioner, who was an
IPS officer filed a plea before this Court seeking the appointment of a SIT, to
probe into two FIRs filed against him by the Gujarat Police. On the facts of the
case, it was held that the nature of the case relating to an allegedly false affidavit
and the alleged hacking of an email account were not of such wide amplitude
so as to warrant the constitution of a SIT. The Court also observed that the
petitioner had not come to the Court with clean hands and that no relief could
be granted to an individual who came to the Court with “unclean hands.” These
facts were the distinguishing feature. I have previously discussed the
established precedents of this Court which indicate the circumstances in which
this Court can constitute a SIT.
34 In E Sivakumar v Union of India,
24 the petitioner was named in an FIR
which was being investigated in regard to the illegal manufacture and sale of
pan masala and gutkha containing tobacco and/or nicotine. The petitioner
challenged the decision of the High Court to transfer the investigation of the
23 (2016) 1 SCC 1
24 (2018) 7 SCC 365
37
criminal case to the Central Bureau of Investigation. One of us (Khanwilkar J)
who authored the judgment on behalf of this Bench held:
“The High Court has cogitated over all the issues exhaustively
and being fully satisfied about the necessity to ensure fair
investigation of the crime in question, justly issued a writ of
mandamus to transfer the investigation to the CBI.”25
The judgment of the High Court was upheld on the following ground:
“… the question regarding the necessity to ensure a fair and
impartial investigation of the crime, whose tentacles were not
limited to the State of Tamil Nadu but transcended beyond to
other States and may be overseas besides involving high
ranking officials of the State as well as the Central
Government, has now been directly answered. For instilling
confidence in the minds of the victims as well as the public at
large, the High Court predicated that it was but necessary to
entrust the investigation of such a crime to CBI. Viewed thus,
there is no infirmity in the conclusion reached by the High Court
in the impugned judgment, for having entrusted the
investigation to CBI.”26
Drawing attention to the duty of this Court as adjudicator, it was also observed:
“It is the bounden duty of a court of law to uphold the truth and
truth means absence of deceit, absence of fraud and in a
criminal investigation a real and fair investigation, not an
investigation that reveals itself as a sham one. It is not
acceptable. It has to be kept uppermost in mind that impartial
and truthful investigation is imperative…If a grave suspicion
arises with regard to the investigation, should a constitutional
court close its hands and accept the proposition that as the trial
has commenced, the matter is beyond it?...”27
(emphasis supplied).
25 Ibid, at para 5
26 Ibid, at para 9
27 Ibid, at para 13
38
The above observations are a significant reminder of the function of this Court,
as the protector of the fundamental rights of citizens. These rights must be
safeguarded particularly when there is a possibility that failure to take a position
may lead to a denial of justice.
35 The case of Divine Retreat Centre v State of Kerala
28 concerned with
the maintainability of an anonymous petition to a judge of the High Court seeking
a direction for an investigation. The anonymous petition was taken up suo motu
by the High Court under Section 482 of the Code of Criminal Procedure and the
investigation of the criminal case was directed to be taken away from the
investigating officer and entrusted to a SIT. The central question in this case
was the scope of the inherent power conferred on the High Court under Section
482 of the Code of Criminal Procedure. It was held that:
“The High Court in exercise of its inherent jurisdiction cannot
change the investigating officer in the midstream and
appoint any agency of its own choice to investigate a crime
on whatsoever basis and more particularly on the basis of
anonymous petitions addressed to a named Judge. Such
communications cannot be converted into suo motu
proceedings for setting the law in motion. Neither the
accused nor the complainant or informant is entitled to
choose its own investigating agency to investigate a crime
in which it may be interested.” (emphasis supplied)
28 (2008) 3 SCC 542
39
The Court in the context of Article 226 commented on the maintainability of
public interest litigation as follows:
“It is well settled that a public interest litigation can be
entertained by the constitutional courts only at the instance of
a bona fide litigant. The Supreme Court has uniformly and
consistently held that the individual who moves the Court for
judicial redress in cases of public interest litigation must be
acting bona fide with a view to vindicating the cause of justice
and not for any personal gain or private profit or of the political
motivation or other oblique consideration…”29
It was also observed that:
“the High Court in exercise of its whatsoever jurisdiction
cannot direct investigation by constituting a special
investigation team on the strength of anonymous petitions.30
36 These observations indicate that what found disfavour with this Court was
the High Court having entertained an anonymous petition to constitute a SIT.
The facts of the above case are distinct from the case at hand. The observations
made on the maintainability of public interest litigation only lend support to the
present case. The petitioners in the present case are not anonymous. There
has been no argument that the petitioners have been motivated by personal
gain or political considerations.
37 Recently on 14 September 2018, the learned Chief Justice, speaking for
the present bench of three Judges handed down a verdict31 granting
29 Ibid, at para 59
30 Ibid, at para 50
31 S Nambi Narayanan v Siby Mathews, (2018) 11 SCALE 171
40
compensation of Rs 50 lakhs to a space scientist who was found upon further
investigation by the CBI to have been wrongfully implicated and subjected to
custodial interrogation. This was on an allegation that he had leaked out official
secrets of the Indian Space Research Organisation. The learned Chief Justice
held:
“...there can be no scintilla of doubt that the appellant, a
successful scientist having national reputation, has been
compelled to undergo immense humiliation. The lackadaisical
attitude of the State police to arrest anyone and put him in
police custody has made the appellant to suffer the ignominy.
The dignity of a person gets shocked when psychopathological
treatment is meted out to him. A human being
cries for justice when he feels that the insensible act has
crucified his self-respect. That warrants grant of compensation
under the public law remedy. We are absolutely conscious that
a civil suit has been filed for grant of compensation. That will
not debar the constitutional court to grant compensation taking
recourse to public law. The Court cannot lose sight of the
wrongful imprisonment, malicious prosecution, the humiliation
and the defamation faced by the appellant.”
The fact that the payment of compensation was ordered nearly 24 years after
the wrongful arrest is a grim reminder about how tenuous liberty can be and of
the difficulty in correcting wrongs occasioned by unlawful arrest.
38 There can be no manner of doubt that the deprivation of human rights
seriously impinges upon the dignity of the individual for which even
compensation may not constitute an adequate recompense. This theme echoes
recurrently in the judgments of this Court in Kiran Bedi v Committee of
Inquiry,
32 Delhi Judicial Service Association v State of Gujarat,
33 Joginder
32 (1989) 1 SCC 494
33 (1991) 4 SCC 406
41
Kumar v State of UP34 and DK Basu v State of West Bengal35
. In DK Basu,
this Court elucidated on the importance of personal liberty in the constitutional
scheme:
“17. Fundamental Rights occupy a place of pride in the Indian
Constitution. Article 21 provides “no person shall be deprived
of his life or personal liberty except according to procedure
established by law”. Personal liberty, thus, is a sacred and
cherished right under the Constitution. The expression “life or
personal liberty” has been held to include the right to live with
human dignity and thus it would also include within itself a
guarantee against torture and assault by the State or its
functionaries.”
The Court also emphasized that no arrest can be made without reasonable
satisfaction after investigation about the genuineness and bona fides of a
complaint:
“20. This Court in Joginder Kumar v. State of U.P. [(1994) 4
SCC 260 : 1994 SCC (Cri) 1172] (to which one of us, namely,
Anand, J. was a party) considered the dynamics of misuse of
police power of arrest and opined:
“No arrest can be made because it is lawful for the police officer
to do so. The existence of the power to arrest is one thing. The
justification for the exercise of it is quite another. … No arrest
should be made without a reasonable satisfaction reached
after some investigation as to the genuineness and bona fides
of a complaint and a reasonable belief both as to the person's
complicity and even so as to the need to effect arrest. Denying
a person of his liberty is a serious matter.””
34 (1994) 4 SCC 260
35 (1997) 1 SCC 416
42
39 This Court has a constitutional obligation, where its attention has been
drawn, in a case such as the present, to a real likelihood of the derailment of a
fair investigative process to issue appropriate directions under Article 142 of the
Constitution.
40 Hence, I am of the view that while the investigation should not be
thwarted, this is a proper case for the appointment of a Special Investigating
Team. Circumstances have been drawn to our notice to cast a cloud on whether
the Maharashtra police has in the present case acted as fair and impartial
investigating agency. Sufficient material has been placed before the Court
bearing on the need to have an independent investigation.
41 Hence, following the line of precedent of this Court which has been
discussed earlier, I am firmly of the view that a Special Investigating Team must
be appointed. The investigation shall be monitored by this Court. The Special
Investigating Team shall submit periodical status reports to this Court, initially
on a monthly basis.36 The interim order passed by this Court on 29 August 2018
shall continue to hold the field for a further period of three weeks within which it
would be open to the said five individuals or any one or more of them to apply
for bail before the Court of competent jurisdiction. I would direct that the petition
36 Speaking as I do for the minority, I have not indicated the names of the personnel who would constitute the SIT.
Should that occasion arise, liberty is granted to seek an appropriate direction from this Court.
43
be listed after three days for orders on the constitution of the Special
Investigating Team. There shall be an order in these terms.
…….........................................................J
[Dr Dhananjaya Y Chandrachud]
New Delhi;
September 28, 2018
