ROMILA THAPAR AND ORS. versus UNION OF INDIA AND ORS.
[2018] 11 S.C.R. 951, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Ratio
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[2018] 11 S.C.R. 951
ROMILA THAPAR AND ORS.
v.
UNION OF INDIA AND ORS.
(Writ Petition (Criminal) No. 260 of 2018)
SEPTEMBER 28, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Constitution of India – Art.32 – Writ petition filed by five
persons, as next best friend of five activists-accused who were
arrested purportedly in connection with FIR No.4/18 – Said FIR
registered in Pune in relation to communal violence that took place
in Bhima Koregaon as outcome of an event organized by organization
called Elgar Parishad – Plea of petitioners that neither of the five
accused persons were present in the said event nor any allegation
against them is found in the FIR and that the said FIR was fabricated
by Pune Police after FIR No.2/18 was filed against some Hindutva
right wing leaders based on an eye-witness account that they incited
violence against Dalit congregation in Bhima Koregaon – Petitioners
inter alia prayed for appointing Special Investigation Team (SIT)
and Court monitored investigation – Held: (Majority view) Per
A.M. Khanwilkar, J. (for himself and Dipak Misra, CJI) Accused
persons cannot choose as to which Investigating Agency must
investigate the offence committed by them – Present 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 organization, Communist Party
of India (Maoist) and its
activities –Crime under investigation in
FIR No.4/2018, inter alia is to investigate the allegations that a banned
organization, Communist Party of India (Maoist), organises events
as referred to in FIR No.2/2018 to propagate ill-will in different
classes and turn them into violent activities – Incidents such as at
Bhima Koregaon is the outcome of such conspiracy – Reliefs claimed
not granted – (Minority view) Per Dr. D.Y. Chandrachud, J.
(Dissenting) In the present case, the initiation of the proceedings u/
Art. 32 is not motivated by extraneous reasons – Conduct of the
Pune police in utilising the agency of the electronic media to cast
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aspersions on persons whose conduct is still under investigation,
fortifies the need for an investigation which is fair – Sufficient
material has been placed before the Court bearing on the need to
have an independent investigation – Dissent is a symbol of vibrant
democracy – Voices in opposition cannot be muzzled by persecuting
those who take up unpopular causes – Present is a proper case for
the appointment of SIT –SIT to be appointed – Investigation shall
be monitored by Supreme Court – Unlawful Activities (Prevention)
Act, 1967 – Constitution of India – Arts.21 and 22(1).
Constitution of India – Art.32 – Public Interest Litigation –
Locus for – Held: Per A.M. Khanwilkar, J. (for himself and Dipak
Misra, CJI) Prayer for changing the Investigating Agency cannot
be dealt with lightly and the Court must exercise that power with
circumspection – 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 – Per Dr. D.Y.
Chandrachud, J. (Dissenting) When a group of citizens has moved
Supreme Court with an impassioned plea about the violation of human
rights the Court must look beyond locus into the heart of the matter.
Constitution of India – Art.32 – Writ petition under –
Maintainability of, in criminal matters – Held: Per Dr. D.Y.
Chandrachud, J.
Ordinarily, when an investigation into a criminal
offence is in progress, recourse must be taken to the provisions of
the Code – However, in the present case the petitioners have not
sought recourse to the jurisdiction of Supreme Court for espousing
a remedy which is available before the competent court under the
Code of Criminal Procedure – Present proceedings have been moved
with a specific grievance that the arrest of the five individuals is an
attempt by the State to muzzle dissent – Supreme Court, as a
constitutional adjudicator, has been entrusted with the jurisdiction
u/Art. 32 to secure the fundamental freedoms guaranteed by the
Constitution – 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.
Constitution of India – Art.32 – Public Interest Litigation –
Constitution of Special Investigation Team (SIT) – Jurisdiction of
Supreme Court – Held: Per Dr. D.Y. Chandrachud, J. Instances
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indicate the diversity of settings in which Supreme Court has ordered
the constitution of SITs – 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.
Criminal Trial – Investigation pending – Use of electronic
media by Police – Practice of – Held: Per Dr. D. Y. Chandrachud,
J. 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 – Police are not
adjudicators nor do they pronounce upon guilt.
Disposing of the Writ petition, the Court
HELD: Per A.M. Khanwilkar, J. (for himself and
Dipak Misra, CJI)
1.1 The accused persons do not have a say in the matter of
appointment of Investigating Agency. Further, the accused
persons cannot choose as to which Investigating Agency must
investigate the offence committed by them. 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. Rather,
averment in the petition as filed was to buttress the reliefs initially
prayed- regarding the manner in which arrest was made. Upon
perusal of the material already gathered during the ongoing
investigation, it is clear that the present 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 Communist Party of India (Maoist), a banned
organization 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. [Paras 14, 21 and 26]  [985-D-F]
1.2 The consistent view of Supreme Court is that the accused
cannot ask for changing the Investigating Agency or to do
investigation in a particular manner including for Court monitored
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investigation. In the present case, the original writ petition was
filed by the persons claiming to be the next friends of the
concerned accused (A16 to A20). Amongst them, (A19), (A16),
(A18) and (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 Supreme 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. It is, therefore, assumed 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. [Para 27]  [986-A-C]
1.3  Prayer clauses (i) and (ii) also make reference to FIR
No.2/2018 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. 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. Admittedly, Criminal Writ Petition has already been
filed in the Bombay High Court by the complainant in FIR No.2/
2018 herself for issuing directions to the Investigating Agency
in that crime. There is 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(Maoist), 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 and others in
different areas in the State of Maharashtra by delivering
vituperative speeches and to spread false history, disputable
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statements and incite objectionable slogans, sing songs and road
dramas and distribution of objectionable and provocative
pamphlets and books also. 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)  for investigation  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. 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, cannot be
allowed to be done indirectly even in the guise of public interest
litigation.  [Paras 28, 29]  [986-E-H; 987-A-D]
1.4  The prayer for changing the Investigating Agency cannot
be dealt with lightly and the Court must exercise that power with
circumspection. As a result, 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. The investigation of the offence in 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. [Paras 30, 31]  [986-E-H; 987-A-D]
1.5  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. [Para 32]  [988-A-B]
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1.6  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 merits in
accordance with law. 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. 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.[Para 33]  [988-C-E]
1.7 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 (directing that the five arrested persons
be placed under house arrest) 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 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. [Para 37]  [989-B-C]
State of
West Bengal and Ors. vs. Committee for
Protection of Democratic Rights, West Bengal and Ors.
(2010) 3 SCC 571: [2010] 2 SCR 979 – followed.
Narmada Bai vs. State of Gujarat and Ors. (2011) 5
SCC 79: [2011] 5 SCR 729; Sanjiv Rajendra Bhatt vs.
Union of India and Ors. (2016) 1 SCC 1: [2015]
12 SCR 498 – relied on.
E. Sivakumar vs. Union of India and Ors. (2018) 7 SCC
365; Divine Retreat Centre vs. State of Kerala and Ors.
(2008) 3 SCC 542: [2008] 4  SCR 701 – referred to.
Per Dr. D.Y. Chandrachud, J.: (Dissenting)
HELD:  1.1  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
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space in the judicial docket. Liberty and freedom are defining
values of the Constitution. The institutional role of Supreme 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- 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. [Para
5]  [993-A-D]
1.2 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 such as remand, bail (including anticipatory bail)
and quashing of proceedings, recourse must be taken to the
provisions of the Code. 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. 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 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
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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. [Paras
14, 15]  [1001-D-E; 1002-C-G]
1.3 Supreme 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, 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 five citizens have invoked the jurisdiction
of this Court in extraordinary circumstances where they claim
that a group of human rights activists has been targeted by the
State police. Each of those five individuals has joined in these
proceedings. Over the course of the last decade, the jurisdiction
of this Court has evolved under Article 32 to order the
constitution of a SIT. Such instances indicate the diversity of
settings in which this Court has ordered the constitution of SITs.
Decisional flexibility in the 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
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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. 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. With the body of precedents 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. [Paras 17, 18, 20 and 21]  [1003-H; 1004-A-E; 1005-
A-B; 1006-D-E]
1.4  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 the Joint
Commissioner of Police proclaiming that the Pune police had more
than 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 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. [Para 22]  [1006-G-H; 1007-A-C]
1.5  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 one
‘SB’ was 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
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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.  [Para 22]  [1007-E-F]
1.6  This facet of the case is of serious concern. The manner
in which the Joint Commissioner of Police and the Additional
Director General of Police (Law and 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. 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 was 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 Maharashtra
police can now be trusted to carry out an independent and impartial
investigation.  [Para 24]  [1008-D-H; 1009-A-B]
1.7  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
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those individuals who were arrested in the months of June and
July 2018. Paragraph 26 of the counter 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. Upon
perusing the material, it is clear 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 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. [Paras 25, 26] [1009-C-
E, G-H; 1010-A]
1.8  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.
The two panch witnesses in the present case are
employees of
the Pune Municipal Corporation. It is not disputed that they
travelled as part of the police team which made the arrest.  [Para
27]  [1010-D, H]
D K Basu v State of West Bengal (1997) 1 SCC 416 :
[1996] 10 Suppl.  SCR  284 – relied on.
1.9  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
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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. 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. However, it is
made clear that nothing in this order shall be construed as any
observation on the merits of the investigation which is to take
place. [Para 29]  [1011-D-H; 1012-A-B]
1.10  Supreme 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.
Hence, while the investigation should not be thwarted, this is a
proper case for the appointment of a Special Investigating Team.
The Special Investigating Team shall submit periodical status
reports to this Court, initially on a monthly basis. 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.
[Paras 39-41]  [1017-F-G; 1018-B]
Sanjiv Rajendra Bhatt v Union of India (2016) 1 SCC
1 : [2015] 12  SCR 498 – distinguished.
National Human Rights Commission v State of Gujarat
(2009) 6 SCC 342; SIT (NHRC v State of Gujarat (2009)
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6 SCC 767 : [2009] 7 SCR 236; Ram Jethmalani v
Union of India (2011) 8 SCC 1: [2011] 8 SCR 725;
Common Cause v Union of India (2017) 3 SCC 501:
[2017] 1 SCR 556; Sunita Devi v Union of India (2018)
3 SCC 664; Vineet Narain v Union of India (1996) 2
SCC 199 : [1996] 1 SCR 1053; Babubhai Jamnadas
Patel v State of Gujarat (2009) 9 SCC 610; Centre for
Public Interest Litigation v Union of India (2011) 1 SCC
560; Bharati Tamang v Union of India (2013) 15 SCC
578 : [2013] 14 SCR 525; Rajendran Chingaravelu v.
RK Mishra (2010) 1 SCC 457 : [2009] 15 SCR 1113;
Narmada Bai v State of Gujarat
(2011) 5 SCC 79 :
[2011] 5 SCR 729; E Sivakumar v Union of India
(2018) 7 SCC 365; S. Nambi Narayanan v Siby Mathews
(2018) 11 SCALE 171 – relied on.
Rajiv Ranjan Singh ‘Lalan’ (VIII) v Union of India,
(2006) 6 SCC 613: [2006] 4 Suppl.  SCR 742; Gulzar
Ahmed Azmi v Union of India, (2012) 10 SCC 731:
[2012] 9 SCR 287; Simranjit Singh Mann v Union of
India (1992) 4 SCC 653; Ashok Kumar Pandey v State
of West Bengal (2004) 3 SCC 349 : [2003] 5 Suppl.
 SCR 716; Pratibha Ramesh Patel v Union of India
(2016) 12 SCC 375: [2016]  SCR 896; Udyami Evam
Khadi Garmodyog Welfare Sanstha v State of UP (2008)
1 SCC 560; State of Maharashtra v Tansen Rizwan
Siddiquee (2018) 10 SCALE 711; Divine Retreat Centre
v State of Kerala (2008) 3 SCC 542 : [2008]
4 SCR 701; Kiran Bedi v Committee of Inquiry (1989)
1 SCC 494: [1989] 1 SCR 20; Delhi Judicial Service
Association v State of Gujarat (1991) 4
SCC 406 :
[1991] 3 SCR  936; Joginder Kumar v State of UP
(1994) 4 SCC 260– referred to.
Case Law Reference
In the judgment of A.M. Khanwilkar, J. (for himself and
Dipak Misra, CJI)
[2011] 5 SCR 729
relied on
Para 21
2015 12 SCR 498
relied on
Para 22
ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.

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(2018) 7 SCC 365
referred to
Para 23
[2008] 4 SCR 701
referred to
Para 24
[2010] 2 SCR 979
followed
Para 25
In the judgment of Dr. D. Y. Chandrachud, J. (Dissenting)
[2006] 4 Suppl. SCR 742
referred to
Para 13
[2012] 9 SCR 287
referred to
Para 13
(1992) 4 SCC 653
referred to
Para 13
[2003] 5 Suppl. SCR 716 
referred to
Para 13
[2016] SCR 896 
referred to
Para 13
(2008) 1 SCC 560
referred to
Para 13
(2018) 10 SCALE 711 
referred to
Para 13
(2009) 6 SCC 342 
relied on
Para 18
[2009] 7  SCR 236
relied on
Para 18
[2011] 8 SCR 725
relied on
Para 18
[2017] 1 SCR 556 
relied on
Para 18
(2018) 3 SCC 664
relied on
Para 18
[1996] 1 SCR 1053
relied on
Para 20
(2009) 9 SCC 610
relied on
Para 20
(2011) 1 SCC 560
relied on
Para 20
[2013] 14 SCR 525
relied on
Para 20
[2009] 15 SCR 1113 
relied on
Para 23
[1996] 10 Suppl. SCR 284
relied on
Para 28
[2011] 5 SCR 729
relied on
Para 30
[2015] 12  SCR 498
distinguished
Para 33
(2018) 7 SCC 365
relied on
Para 34
[2008] 4 SCR 701  
referred to
Para 35
(2018) 11 SCALE 171
relied on
Para 37
[1989] 1 SCR 20
referred to
Para 38
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[1991] 3 SCR 936
referred to
Para 38
(1994) 4 SCC 260
referred to
Para 38
[1996] 10 Suppl. SCR 284
relied on
Para 38
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 260 OF 2018
Under Article 32 of the Constitution of India.
Tushar Mehta and Maninder Singh, ASG, Dr. Abhishek Singhvi,
Dr. Rajeev Dhawan, Amarendra Sharan, Harish N. Salve, Anand Grover,
Sr. Advs., Prashant Bhushan, Ms. Vrinda Grover, Amit Bhandari,
Avishkar Singhvi, Susan Abraham, D. Suresh, Soutik Banerjee, Ms. Ratna
Appnender, Ms. Cheryl  D’ Souza, Ms. Madhur Bhartiya, Ankit Grewal,
Ms. Nidhi Ram, Harinder Neel, Omman Kuttan,  Nishant Ramakantrao
Katneshwarkar, Kanu Agrawal, Manan Popli, Ranvijay Singh, Shantanu
Sharma, Rajeev Ranjan, R. Bala, Rajat Nair, Prabhas Bajaj, Swati
Ghildiyal, Sachin Sharma, Ms. Devanshi Singh,  Ms. Diksha Rai, Ms.
Palak Mahajan, Ms. Diksha Rai, Nihal Sing Rathod, Ms. Tripti Tandon,
Ms. Nehmat Kaur, Jagdish Meshram, Paras Nath Singh,  Ms. Sangita
Madan, Jitendra Ashok, Aakarsh Kamra, Abhishek Kumar, Shiv Sagar
Tiwari, Advs. for the appearing parties.
The Judgments of the Court were delivered by
A. M. KHANWILKAR, J. 1. Five illustrious persons in their
own field have filed this petition on 29th August, 2018 complaining about
the high-handed 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 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
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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 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
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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 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
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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 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
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Unlawful Activities (Prevention) Act, 1967 (“UAPA”) and under the
Indian Penal Code.
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 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 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.
ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.
[A. M. KHANWILKAR, J.]
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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 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 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:
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“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.”
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.
ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.
[A. M. KHANWILKAR, J.]
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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.
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, 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
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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:
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
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,
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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
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 material
seized was in the form of computers, laptops, pen-drives 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
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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 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 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
ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.
[A. M. KHANWILKAR, J.]
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for permitting them to amend the 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
(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
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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 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 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
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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 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 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 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
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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
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 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.
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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 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 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
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against each of the accused. He further submits that 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.
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 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
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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:-
(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 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)
  (2011) 5 SCC 79
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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)
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
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
9  (2018) 7 SCC 365
10  Supra @ Footnote 5
11  (2009) 6 SCC 65
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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 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
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
12  (2008) 3 SCC 542
13  (2010) 3 SCC 571
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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. 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 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.
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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 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 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
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unconstitutional and violent activities. Further, such activities were
purportedly carried out by Kabir Kala Manch, Sudhir Dhawale and other
activists in 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, 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 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.
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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 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 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.
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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 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.
DR. D. 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 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.
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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 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
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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’;
(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 vice-chairperson 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 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.
ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.
[DR. D. Y. CHANDRACHUD, J.]
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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”.
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
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.
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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 - 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.
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
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[DR. D. Y. CHANDRACHUD, J.]
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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: “Bhima-Koregaon 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
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
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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;
(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
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[DR. D. Y. CHANDRACHUD, J.]
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but they were found to be playing a very vital role in the criminal
offences committed and/or planned by 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:
“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
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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.  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,
2 The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989
3 Criminal Writ Petition 1875/2018
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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.
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;
(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
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(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.
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
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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 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. 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);
4 (2006) 6 SCC 613
5 (2012) 10 SCC 731
6 (1992) 4 SCC 653
7 (2004) 3 SCC 349
8 (2016) 12 SCC 375
9 (2008) 1 SCC 560
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(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 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
10 (2018) 10 SCALE 711
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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 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 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:
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“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 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
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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 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.
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
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These instances indicate the diversity of settings in which this Court has
ordered the constitution of SITs. Decisional flexibility in the 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.
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
16 (1996) 2 SCC 199
17 (2009) 9 SCC 610
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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 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
18 (2011) 1 SCC 560
19 (2013) 15 SCC 578
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Shivarjirao Bodhke, the Joint Commissioner of Police proclaiming that
the Pune police had more than 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 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
20 (2010) 1 SCC 457
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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 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
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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 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 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
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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.
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.
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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
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 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
21 (1997) 1 SCC 416
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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 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
22 (2011) 5 SCC 79
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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.
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 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
23 (2016) 1 SCC 1
24 (2018) 7 SCC 365
25 Ibid, at para 5
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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).
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 Kerala28
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
26 Ibid, at para 9
27 Ibid, at para 13
28 (2008) 3 SCC 542
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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)
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.
29  Ibid, at para 59
30  Ibid, at para 50
ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.
[DR. D. Y. CHANDRACHUD, J.]
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37. Recently on 14 September 2018, the learned Chief Justice,
speaking for the present bench of three Judges handed down a verdict31
granting 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 psycho-pathological 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 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:
3 1
S Nambi Narayanan v Siby Mathews, (2018) 11 SCALE 171
3 2
(1989) 1 SCC 494
3 3
(1991) 4 SCC 406
3 4
(1994) 4 SCC 260
3 5
(1997) 1 SCC 416
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“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.””
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
ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.
[DR. D. Y. CHANDRACHUD, J.]
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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 be
listed after three days for orders on the constitution of the Special
Investigating Team. There shall be an order in these terms.
Divya Pandey                                                                                  Petition disposed of.
3 6 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.