1REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTIONWRIT PETITION (CRIMINAL) NO 260 OF 2018 (D NO 32319)

ROMILA THAPAR AND ORS..PETITIONERSVERSUSUNION OF INDIA AND ORS..RESPONDENTSJUDGMENT

Dr Dhananjaya Y Chandrachud, J

1

The intersection between criminal law and constitutional rights has led

to the evolution of judicial precedent which originates in this Court. Our recent
decisions reiterate the value of individual dignity as essential to a democratic
way of life. But lofty edicts in judicial pronouncements can have no meaning toa 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 stateseeks to curb freedom to investigate perceived breaches involving offences
against the state. Custodial interrogation involves the balancing of diverse and2often conflicting values: the effective administration of criminal justice, animpartial 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 thegrievance that a group of five human rights activists is sought to be persecutedfor 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 thebalance between the two lies in a fair, independent and impartial investigationof crime. As a matter of principle, I am unable to agree with the views expressedby the learned Chief Justice and my learned brother Justice AM Khanwilkar.

2

On 29 August 2018, the jurisdiction of this Court under Article 32 was

invoked by five distinguished academics to seek an “independent andcomprehensive inquiry” in the circumstances relating to the arrest of five humanrights activists on 28 August 2018. The arrests by the Pune police took placefollowing 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 theinvestigation but to ensure that an independent and credible investigation ismade 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3silence dissent by targeting human rights activists who have been working toprotect 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 tothreaten human rights defenders, independent journalists,
writers and thinkers in this country, from critiquing thegovernment 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 marginalisedcommunities, 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 violenceby these activists is deeply disconcerting and calls for an
urgent intervention by this Hon’ble Court.”

The grievance is that those five persons are being persecuted for their views
and their voices are sought to be chilled into silence by a criminal prosecution.

3

First, as to the locus of the petitioners:(i) The first petitioner – Romila Thapar is an eminent historian and Professor
Emeritus at Jawaharlal Nehru University. She was selected on two occasions
for the conferment of the Padma Bhushan award by the Union Government,
which she declined. Romila Thapar has been elected to the British Academy
and the American Academy of Arts and Sciences and has been conferred withhonorary doctoral degrees by the Universities of Oxford and Chicago, among
others. Her writings include a book titled, ‘A History of India’;

4

(ii)

The second petitioner, Devaki Jain is a pioneer feminist economist andhas 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 aneminent economist who taught at JNU for over three decades. He was vicechairperson of the Kerala Planning Board and a member of a high-powered UN
Task Force on the global financial system;(iv)

The fourth petitioner Satish Deshpande, is a sociologist at the Universityof Delhi. He is a recipient of the Malcolm Adiseshiah award for distinguishedcontributions 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 asenior advisor to the Commonwealth Human Rights Initiative. In that capacity
she has been associated with significant research on the implementation of5human 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 byleft wing extremists in Chhattisgarh.

ii.

Sudha Bharadwaj (Advocate, Chhattisgarh High Court,
currently residing in Faridabad) Prominent cause lawyerof Bilaspur High Court who has represented workers,
poor and marginal farmers and others in Chhattisgarh.
She is the national green secretary of PUCL and since2017 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 ofcommittees and provided legal aid and is a recognised
human rights defender.

iii.

Varavara Rao (Age 79, based in Hyderabad, politicalworker, commentator and renowned poet). He was aprofessor of English and Telegu literature.

iv.

Arun Ferreira, (Mumbai) Practising as a lawyer since2015 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 toEnglish published in David Davidar’s “A Clutch of Indian
masterpieces”.

6

Three of the above individuals were prosecuted in the past for offences primarily
under the Indian Penal Code, 1860, the Arms Act, 1959 and the UAPA. Arun
Ferreria is stated to have been acquitted in all eleven cases instituted against
him. Vernon Gonsalves was acquitted in seventeen out of the nineteen cases
instituted against him (an appeal is pending in one case where he stands
convicted while an application for discharge is pending before the Gujarat High
Court in one case). Vara Vara Rao was acquitted in all twenty cases where he
was prosecuted1.

5

During the course of the hearing, a preliminary objection was raised by

Mr Tushar Mehta, the learned ASG to the maintainability of these proceedings.
He urged that the petitioners have no locus to question the circumstances
relating to the arrest of the five individuals named above. I would not have been
inclined to accept a technical argument of this nature in view of theconstitutional imperatives for this Court to intervene when human freedoms andliberties 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 notechnicalities which obstruct the cause of justice. When a group of citizens has
moved this Court with an impassioned plea about the violation of human rights
1 Details of these cases have been submitted in charts A, B and C annexed to the written submissions filed by

Dr AM Singhvi, learned senior counsel.

7— in the present case no less than five distinguished citizens with a track recordof 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 adistinct matter which must be determined objectively. The Court will not interferein 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 thefive 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 theirrights. The objection to maintainability lacks substance, in either view of thematter.

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 manyof its genre, the battle has assumed a legendary status primarily because of thevictory 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 anannual 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.

87

In keeping with tradition, a public meeting was scheduled tocommemorate the 200th anniversary of the Bhima-Koregaon victory on 31
December 2017. Among those who were associated with the event were twojudges: 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 wasplanned at Shaniwar wada in Pune. An organisation known as the Kabir Kala
Manch was to supervise a cultural programme. Besides the two judges who
addressed the Elgar Parishad, the speakers included Shri Prakash Ambedkar,
President of the Bharatiya Republican Party. The event was titled: “BhimaKoregaon Shourya Din – Elgar Parishad”. The petitioners claim that ‘Elgar’ is aclarion 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 ofMaharashtra, resulting in a violent agitation in the state.

8

Following these incidents, a First Information Report in regard to theincident 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9vi

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 andoffices of the following persons:
1

Rona Wilson, a resident of Delhi;

2Surendra 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; and6

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 thecomputers, laptops, pen drives and memory cards of the above accused
persons implicated them as active members of the Communist Party of India(Maoist), a banned organisation, and reflected a design of being involved in thecommission of offences having the potential to destabilise the country. Basedon the investigation, the provisions of Sections 13, 16, 17, 18, 18B, 20, 38, 39
and 40 of the UAPA were invoked on 17 May 2018 against the following
individuals:(i)Surendra Gadling;

10

(ii)

Rona Wilson;(iii)

Shoma Sen;(iv)

Mahesh Raut;(v)

Comrade M. alias Milind Teltumbade (underground);(vi)

Comrade Prakash alias Navin alias Rituparn Goswami(underground);(vii)

Comrade Manglu (underground); and(viii) Comrade Dipu and other underground members.

On 6 June 2018 five persons were arrested namely:(i)

Surendra Gadling;(ii)

Rona Wilson;(iii)

Sudhir Dhawale;(iv)

Shoma Sen; and(v)

Mahesh Raut.

The counter affidavit filed by the Assistant Commissioner of Police states that
it is on the basis of the material recovered during the course of the search of
the above persons that the five individuals on whose behalf the present
proceedings have been instituted were found to be a part of the criminal
conspiracy. The averment in the counter reads as follows:“I state and submit that based upon the aforesaid material
recovered from the searches of the aforesaid persons [which
is a part of the case diary and which would be placed forconsideration and perusal of this Hon’ble Court in a sealed
cover], the following persons were also clearly found to be apart of the criminal conspiracy and their role was not merely
peripheral role but they were found to be playing a very vitalrole in the criminal offences committed and/or planned by11others. Based upon the said incriminating material, thefollowing persons came to be arrested on 28.8.2018 andsearches were conducted at their residential/work places in asimilar fashion, under videography in presence of individual
Punchas who were Government officers.
1
2
3
4
5

Vara Vara Rao R/o Hyderabad
Arun Ferreira R/o Thane
Vernon Gonsalves R/o Mumbai
Sudha Bhardwaj R/o Faridabad
Gautam Navlakha R/o Delhi”

The counter alleges that each of the five individuals is found to be working forand to be an active member of a “banned terrorist organisation” – theCommunist Party of India (Maoist). Paragraph 26 of the counter affidavit statesthat 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 fiveaccused persons named hereinabove are arrested, clearlyshow that they were involved in selecting and encouraging
cadres to go underground in ‘struggle area’, mobilizing anddistributing 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 havesuggested training and laying of booby traps and directional
mines. They are also found to be providing strategic inputs infurtherance 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 termsof the request made by their counsel:

12“We have considered the prayer for interim relief. It is submitted
by Dr. Abhishek Manu Singhvi, learned senior counsel
appearing for the petitioners that in pursuance of the order ofthe 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 thisCourt orders that Mr. Varavara Rao, Mr. Arun Ferreira and Mr.
Vernon Gonsalves, if arrested, they are kept under housearrest at their own homes. We order accordingly. The housearrest 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 formallyamend 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 seniorcounsel 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 unleashedagainst Dalits by a mob armed with swords, rods and other weapons. The FIR
specifically names Sambhaji Bhide, head of an organisation known as
Shivajinagar Pratishthan and Milind Ekbote, Chief of Hindu Janjagaran Samiti
as perpetrators and conspirators. Sambhaji Bhide has not been arrested while
Milind Ekbote is stated to have secured bail within a month of his arrest. The
FIR relates to offences under the Penal Code, Arms Act and the SC/ST Act2.

2 The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989

13

No provision of the UAPA has been invoked. Since the police were allegedly
not investigating the FIR, a writ petition has been filed before the Bombay High
Court3. FIR 4/2018 was lodged on 8 January 2018 at PS Vishrambagh by
Tushar Damgude who is alleged to be a self-professed follower of Sambhaji
Bhide. The FIR adverts to a speech delivered by Sudhir Dhawale at the Elgar
Parishad on 31 December 2017 in which allegedly an incendiary speech was
made, with the following lines:“Jab Julm ho to Bagawat Honi Chahiye shahar mein, Jab Julm
Ho to bagawat honi chahiye shaharmein, aur agar bagawat na
ho to behatar he ke,ye raat dhalane se pehle ye shahar jalkar
rakh ho jaye, yesatra hein, ye satra ki title hi, apne aap mein,ladhai k ailan hein, ye nayi peshwai ko hamko shamshan ghatmein, 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 Parishadon 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 ofa pre-planned conspiracy by him and by others. The arrests of the five persons
were affected nearly nine months thereafter.

3 Criminal Writ Petition 1875/2018

14

10

The next limb of the submission of Dr Singhvi is that certain letters which

are alleged to have been authored by the arrested activists are ex-facie
fabricated. These letters are alleged to have been recovered by the police fromthe electronic devices of one of the accused who was raided in the month ofApril 2018 and was arrested in June 2018. Shri Parambir Singh, Additional
Director General of Police (Law and Order), State of Maharashtra appeared ina 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 suchalleged 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, therecovery 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 beenregistered by the police and investigation continues by the Pune police underFIR 4/2018, pertaining to the Bhima-Koregaon violence;

15(ii) The state is not taking the conspiracy theory seriously as is evident from thefact that no fresh FIR has been registered and the investigation continues toremain with the Pune police; and(iii) Seven out of the thirteen alleged letters which were leaked to the media by
the police have been authored by or addressed to one “Comrade Prakash”. The
Sessions Court at Gadchiroli in its judgment dated 7 March 2017 convicting GN
Saibaba in Sessions Case 13/2014 held that he had used the pseudonym‘Prakash’ in letters scribed by him. It is a matter of record that Saibaba has been
lodged in Nagpur Central Jail since 7 March 2017 and hence the alleged letters
attributed to him after that date are ex-facie fabricated.
Dr Singhvi has drawn the attention of the court to the consistent pattern andhistory of the police targeting human rights activists and incarcerating them byfoisting 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 andis 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 casewhile an appeal against conviction in another case is pending before the Nagpur
bench of the High Court, where he has already served his sentence.

16

11

During the course of his submissions, Dr Singhvi urged that there was agross 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 thePune 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 theCode 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 toincitement 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 inthe alleged letters or in the remand application.

12

In summation, Dr Singhvi urged that each of the persons who werearrested on 28 August 2018 is an active defender of human rights. They havetaken a position on human rights violations. The submission is that this targeted
persecution is meant to strike fear amongst human rights’ lawyers, activists andwriters to deter them from speaking against or critiquing governmental policies
and police actions. Persecution of this nature would, it has been urged, shakethe foundation of the rule of law and render the freedoms guaranteed by theConstitution illusory. Learned counsel submitted that the purpose of theseproceedings is not to thwart an investigation but to ensure that the investigation

17

is fair and impartial. It was urged that in a long line of precedent, this Court hasordered 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 thesetting 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 thefollowing submissions:(i) No interference by the Court is permissible in a criminal case in the garb of apublic 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 andSection 482 of the Criminal Procedure Code (Rajiv Ranjan Singh ‘Lalan’ (VIII)
v Union of India,4 Gulzar Ahmed Azmi v Union of India,5 Simranjit Singh
Mann v Union of India6 and Ashok Kumar Pandey v State of West Bengal7;(ii) There is an abuse of process in the present case since three of the arrested
persons – Vara Vara Rao, Sudha Bhardwaj and Gautam Navlakha have filed
petitions before the jurisdictional High Courts which are pending adjudication.

4(2006) 6 SCC 613

5 (2012) 10 SCC 731
6 (1992) 4 SCC 653
7 (2004) 3 SCC 349

18

Hence it would be impermissible to allow their prayer for transposing them or
adopting the averments in the petition (Pratibha Ramesh Patel v Union ofIndia8, Udyami Evam Khadi Garmodyog Welfare Sanstha v State of UP9);(iii) A PIL under Article 32 would not be maintainable for the purpose of seeking
relief under Sections 438 and 439 of the Criminal Procedure Code;(iv) Reliefs in the nature of a writ of Habeas Corpus, which have been sought in
the present proceedings under Article 32 are not maintainable (State ofMaharashtra v Tansen Rizwan Siddiquee10);(v) The accused does not have a vested right to seek an investigation monitoredby the court or to have a particular agency as the investigator; and(vi) The investigation in the present case is being conducted responsibly andimpartially 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 factthat ordinarily, when an investigation into a criminal offence is in progress, rights
and remedies are provided by the Code of Criminal Procedure. Hence, it is but
trite law that in matters pertaining to or arising during the course of investigation

8 (2016) 12 SCC 375
9 (2008) 1 SCC 560
10 (2018) 10 SCALE 711

19such as remand, bail (including anticipatory bail) and quashing of proceedings,
recourse must be taken to the provisions of the Code. These principles havebeen 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 criminalcase 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 toadvance 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 grievanceregarding the removal of a public prosecutor, they should have moved theSpecial 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 toaffect the course of justice and may even prejudice the accused by denying afair 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 releaseof the detenues on bail. In that context, this Court held that sufficient safeguards
were available under the criminal law and it was for the individual against whoma 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 themselvescomplained of a violation. This Court noted that it was not open to “any andevery person” to challenge a conviction and unless the aggrieved individual
suffers from a disability recognised by law, it would be unsafe and hazardous to20

allow a third party or stranger to question the correctness of a conviction andsentence imposed after trial. These principles were also adverted to in theearlier decision in Ashok Kumar Pandey (supra). They are well settled. As acourt which is governed by precedent, we are bound by them and by aconsistent 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 thatrecourse 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 fivearrested 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 betransposed as petitioners under Article 32. The petitioners have not in theirsubmissions 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 specificgrievance 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 defenderof persons subjected to human rights’ violations. When the petition was initially21

filed, the relief which was sought was in regard to the circumstances relating to
the arrest of the human rights activists. By an application for amendment, thereliefs have been sought to be amended to inter alia seek the constitution of aSpecial Investigating Team (to be monitored by this Court). For clarity, theabove reliefs are extracted below:“i) Issue an appropriate writ, order or direction for setting up ofa 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 andinquiry into the offences stated in the zero FIR lodged at Pimpri
police station on 02.01.2018 (now Cr.Case No 2/2018), and theFIR 4/2018 lodged at Vishrambagh police station on
08.01.2018 by Tushar Damgude, and all other related mattersand allegations; orii) Issue an appropriate writ, order or direction for theinvestigation 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 andallegations, to be carried out by an independent agency whichshall be monitored directly by this Hon’ble Court throughregular filing of status reports of the investigation by theinvestigating 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 isnecessary to note that in the petition as it was originally filed, it has been statedthat 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 tostop investigation into allegations but to ensure independent22and credible investigation by such persons as may be deemed
fit under supervision of this Hon’ble Court. Anything short ofthis 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 havealready been made in the petition as it was originally filed.

17This Court, as a constitutional adjudicator, has been entrusted with thejurisdiction under Article 32 to secure the fundamental freedoms guaranteed byPart III of the Constitution. While the discipline of the law of criminal proceduremust 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 guiseof seeking access to its wide jurisdiction under Article 32, the normal remedies
under the criminal law should not be displaced. Again, as the court hasrepeatedly 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 thejurisdiction of this Court in extraordinary circumstances where they claim that a23group 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 observedthat 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 andenquiries into coal block allocations. In Sunita Devi v Union of India,15 an
independent and impartial SIT was constituted where it was found that theinvestigation into the murder of a family was lackadaisical and the real culprits
had not been put to trial. These instances indicate the diversity of settings inwhich this Court has ordered the constitution of SITs. Decisional flexibility in the

11 (2009) 6 SCC 342
12(2009) 6 SCC 767

13 (2011) 8 SCC 1
14 (2017) 3 SCC 501
15 (2018) 3 SCC 664

24

exercise of this jurisdiction meets exigencies which arise in unforeseen
situations, warranting the intervention of this Court under Article 142. While the
Court does not determine the course of the investigation, it acts as a watchdog
to ensure that a fair and impartial investigation takes place. A fair andindependent investigation is crucial to the preservation of the rule of law and, inthe ultimate analysis to liberty itself.

19

Mr Harish Salve, learned senior counsel appearing on behalf of thecomplainant, 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 thepolitical establishment is not a reason to confine the exercise of the jurisdiction
only to such cases. In the rights discourse, violations of law and transgressionsof 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 thefundamental human freedoms relatable to the cardinal values of liberty, dignity
and equality under Part III of the Constitution is in issue.

25

20

Besides the jurisdiction to order the constitution of a SIT, the proceedingsof this Court are replete with instances where an investigation has beenmonitored 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 caseordered a court monitored investigation to ensure that government agencies
discharged their duties and functions bearing in mind the tenets of equality andthe rule of law. In doing so, this Court emphasised the need to retain publicconfidence in the process of investigation. In Babubhai Jamnadas Patel v
State of Gujarat,17 a two judge Bench, while noting that investigation of
offences is normally the function of the investigating agency emphasised that
where extraordinary facts or situations are involved, it is the duty of the High
Courts and of this Court to intervene to ensure that the rights of citizens are duly
protected:“The courts, and in particular the High Courts and the Supreme
Court, are the sentinels of justice and have been vested withextraordinary powers of judicial review and supervision toensure 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 theneed for a thorough and impartial investigation into the 2G Spectrum scam. In
Bharati Tamang v Union of India,19 this Court held that in an appropriate case,or when exceptional circumstances have been made out, the jurisdiction under

16(1996) 2 SCC 199

17 (2009) 9 SCC 610
18 (2011) 1 SCC 560
19 (2013) 15 SCC 578

26

Article 32 can be exercised to constitute a SIT or to transfer the investigation toa 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 Courtor should be entrusted to an independent SIT under the directions of this Courtcannot 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 thecase diary, particularly when the investigation is in progress. The expression ofa 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 thatdecision.

22

I must, at the outset, dwell on the fairness of the manner in which thepolice 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, apress conference was held in Pune by Shivarjirao Bodhke, the Joint
Commissioner of Police proclaiming that the Pune police had more than27

sufficient evidence against the five individuals whose transit remand was stayedby this Court while ordering them to be placed under house arrest. This isdisconcerting 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 seniorpolice officers headed by Shri Parambir Singh, ADG (Law and Order),Maharashtra. During the course of the press conference letters (many of whichshould 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 thepress conference is annexed in the form of a CD at Annexure R-2 of therejoinder

and

has

been

uploadedon

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 letterswhich 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 theJune arrests), alleging that the arrested persons were plotting to attack thePrime Minister. On 4 July 2018 when the arrested persons were to be produced
before the Court in Pune, a letter attributed to Sudha Bhardwaj was

28

sensationally telecast on a television channel linking her with the unlawful
activities of certain groups. A serious grievance has been made about the factthat these letters have neither been placed before the Court of law nor did theyfind 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 thetendency of the police to reveal details of an investigation to the media even
before the completion of the investigation. This Court observed:“21. But the appellant’s grievance in regard to media being
informed about the incident even before completion of
investigation, is justified. There is growing tendency among
investigating officers (either police or other departments)
to inform the media, even before the completion of
investigation, that they have caught a criminal or an
offender. Such crude attempts to claim credit for
imaginary investigational breakthroughs should be
curbed. Even where a suspect surrenders or a person
required for questioning voluntarily appears, it is notuncommon for the Investigation Officers to represent to themedia 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 thoroughchecking. Premature disclosures or ‘leakage’ to the media ina pending investigation will not only jeopardise and impede
further investigation, but many a time, allow the real culprit toescape from law...”(emphasis supplied)

24

This facet of the case of serious concern. The manner in which the Joint

Commissioner of Police and the Additional Director General of Police (Law and

20 (2010) 1 SCC 457

29

Order), Maharashtra have selectively disclosed purported details of theinvestigation to the media and on television channels casts a cloud on theimpartiality of the investigative process. In its 2010 decision in Rajendran(supra) this Court was constrained to take note of this growing tendency on thepart of investigating agencies. The use of the electronic media by theinvestigating 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 bybesmirching the reputations of individuals involved in the process ofinvestigation. 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 courseof 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 inmedia briefings. But during the course of the present hearing, no effort has been
made by the ASG to submit that any such investigation is being conducted inregard to the five individuals. On the contrary, he fairly stated that there was nobasis to link the five arrested individuals to any such alleged plot against thePrime Minister. Nor does the counter affidavit makes any averment to that
effect. All this has certainly a bearing on the basic question as to whether the30

Maharashtra police can now be trusted to carry out an independent andimpartial 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 amatter of prudence, the court must desist from adverting to the details containedin 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 thoseindividuals 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 cadresto 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 andlaying of booby traps and directional mines”; and (ii) “are found to be providing
strategic inputs in furtherance of the objective of armed rebellion” in pursuance31

of a strategic document of a banned terrorist organisation namely, theCommunist Party of India (Maoist). With the assistance of the ASG I havecarefully perused the compilation produced before the Court. Upon perusing thematerial, 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 inparagraph 26 of the counter affidavit (extracted above) is taking liberties withthe 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 adistinct 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 isan obvious fabrication made by a Marathi speaking person because in as manyas 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 aletter 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 afair investigation.

32

27

One of the circumstances which must certainly bear upon the fairness

and impartiality of the process which has been followed by the investigating
agency is in regard to the importation of two panch witnesses from Pune, when
the arrests were carried out. Section 41B of Code of Criminal Procedureemphasises 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 namewhich 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 thefamily of the person arrested or a respectable member ofthe 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 havea 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 aspart of the police team which made the arrest.

28

It was in DK Basu v State of West Bengal,21 that this Court laid down

requirements to be followed in all cases of arrest, which included the following:“(2) That the police officer carrying out the arrest of the arrestee
shall prepare a memo of arrest at the time of arrest and such
21 (1997) 1 SCC 416

33
memo shall be attested by at least one witness, who may either
be a member of the family of the arrestee of a respectableperson of the locality from where the arrest is made. It shall also
be countersigned by the arrestee and shall contain the time anddate 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” failingwhich 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 thecause of persons who have suffered discrimination and human rights violations.
In approaching the present case, the Court must be mindful of the need not tothwart 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 toensure 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 entitledto the freedoms which are guaranteed by the Constitution. Dissent is a symbolof a vibrant democracy. Voices in opposition cannot be muzzled by persecuting
those who take up unpopular causes. Where, however, the expression ofdissent enters upon the prohibited field of an incitement to violence or thesubversion of a democratically elected government by recourse to unlawfulmeans, 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

34submission that the investigation by the police should be allowed to proceedwithout a safeguard for ensuring the impartiality and independence of theinvestigative agency. The conduct of the Pune police in utilising the agency ofthe electronic media to cast aspersions on those under investigation fortifies theneed 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 ofproceedings pending before a judicial forum, it is the duty and obligation of thisCourt to ensure that the administration of criminal justice is not derailed. I makeit 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 andpersonal 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 thatsuch a petition as in the present case is not maintainable and the prayer for theconstitution of SIT at the behest of the five individuals under investigation cannot
be entertained. In Narmada Bai v State of Gujarat,22 the petitioner filed a writ

22 (2011) 5 SCC 79

35

petition under Article 32 for issuance of a writ directing the CBI to register a FIR
in a case pertaining to an alleged fake encounter in which her son was killed.
The key issue was whether after filing of the charge-sheet by the state
investigative agency, this Court was precluded from appointing an independent
specialised agency like the CBI to go into the same issues, if the earlier
investigation was not done in accordance with the established procedure. The
factual determination to be carried out was whether the petitioner had made out
a case for entrusting the investigation to the CBI.

31

While this Court observed that “It is trite law that accused persons do nothave 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 observedthat there were “large and various discrepancies” in the reports and theinvestigation conducted by the police authorities of the State of Gujarat and thatthe charge-sheet filed by the state investigating agency could not be “said tohave run in a proper direction.” A two judge Bench of this Court concluded thateven though the charge-sheet had been filed, in view of the circumstancesbrought to the notice of the Court, the involvement of the police officials of theState 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 ofthe investigation.

36

32

This case supports my view that in the interest of justice, and particularly

when there are serious doubts regarding the investigation being carried out, it
is not only permissible, but our constitutional duty to ensure that theinvestigation 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, toprobe into two FIRs filed against him by the Gujarat Police. On the facts of thecase, 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 thepetitioner 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 theestablished 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 ofpan masala and gutkha containing tobacco and/or nicotine. The petitioner
challenged the decision of the High Court to transfer the investigation of the23 (2016) 1 SCC 1
24 (2018) 7 SCC 365

37

criminal case to the Central Bureau of Investigation. One of us (Khanwilkar J)
who authored the judgment on behalf of this Bench held:“The High Court has cogitated over all the issues exhaustively
and being fully satisfied about the necessity to ensure fair
investigation of the crime in question, justly issued a writ ofmandamus to transfer the investigation to the CBI.”25

The judgment of the High Court was upheld on the following ground:“… the question regarding the necessity to ensure a fair andimpartial investigation of the crime, whose tentacles were notlimited to the State of Tamil Nadu but transcended beyond toother States and may be overseas besides involving highranking 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 atlarge, 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 Courtin the impugned judgment, for having entrusted theinvestigation 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 andtruth means absence of deceit, absence of fraud and in acriminal investigation a real and fair investigation, not an
investigation that reveals itself as a sham one. It is not
acceptable. It has to be kept uppermost in mind that impartial
and truthful investigation is imperative…If a grave suspicion
arises with regard to the investigation, should a constitutional
court close its hands and accept the proposition that as the trial
has commenced, the matter is beyond it?...”27(emphasis supplied).

25 Ibid, at para 5
26 Ibid, at para 927 Ibid, at para 13

38

The above observations are a significant reminder of the function of this Court,
as the protector of the fundamental rights of citizens. These rights must be
safeguarded particularly when there is a possibility that failure to take a position
may lead to a denial of justice.

35

The case of Divine Retreat Centre v State of Kerala28 concerned withthe 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 theinvestigation of the criminal case was directed to be taken away from theinvestigating officer and entrusted to a SIT. The central question in this casewas 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 cannotchange the investigating officer in the midstream andappoint any agency of its own choice to investigate a crimeon whatsoever basis and more particularly on the basis ofanonymous petitions addressed to a named Judge. Suchcommunications cannot be converted into suo motu
proceedings for setting the law in motion. Neither theaccused nor the complainant or informant is entitled tochoose its own investigating agency to investigate a crimein which it may be interested.”(emphasis supplied)

28 (2008) 3 SCC 542

39

The Court in the context of Article 226 commented on the maintainability of
public interest litigation as follows:“It is well settled that a public interest litigation can beentertained by the constitutional courts only at the instance ofa bona fide litigant. The Supreme Court has uniformly andconsistently held that the individual who moves the Court forjudicial redress in cases of public interest litigation must be
acting bona fide with a view to vindicating the cause of justiceand not for any personal gain or private profit or of the politicalmotivation 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 thepresent case. The petitioners in the present case are not anonymous. There
has been no argument that the petitioners have been motivated by personal
gain or political considerations.

37

Recently on 14 September 2018, the learned Chief Justice, speaking forthe present bench of three Judges handed down a verdict31 granting

29 Ibid, at para 59
30 Ibid, at para 50
31 S Nambi Narayanan v Siby Mathews, (2018) 11 SCALE 171

40

compensation of Rs 50 lakhs to a space scientist who was found upon further
investigation by the CBI to have been wrongfully implicated and subjected tocustodial interrogation. This was on an allegation that he had leaked out official
secrets of the Indian Space Research Organisation. The learned Chief Justiceheld:“...there can be no scintilla of doubt that the appellant, a
successful scientist having national reputation, has been
compelled to undergo immense humiliation. The lackadaisicalattitude of the State police to arrest anyone and put him inpolice custody has made the appellant to suffer the ignominy.
The dignity of a person gets shocked when psychopathological treatment is meted out to him. A human being
cries for justice when he feels that the insensible act has
crucified his self-respect. That warrants grant of compensation
under the public law remedy. We are absolutely conscious thata 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 thewrongful imprisonment, malicious prosecution, the humiliationand 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 evencompensation may not constitute an adequate recompense. This theme echoes
recurrently in the judgments of this Court in Kiran Bedi v Committee ofInquiry,32 Delhi Judicial Service Association v State of Gujarat,33 Joginder

32 (1989) 1 SCC 494
33 (1991) 4 SCC 406

41

Kumar v State of UP34 and DK Basu v State of West Bengal35. In DK Basu,
this Court elucidated on the importance of personal liberty in the constitutional
scheme:“17. Fundamental Rights occupy a place of pride in the IndianConstitution. Article 21 provides “no person shall be deprivedof his life or personal liberty except according to procedure
established by law”. Personal liberty, thus, is a sacred andcherished right under the Constitution. The expression “life or
personal liberty” has been held to include the right to live withhuman dignity and thus it would also include within itself aguarantee against torture and assault by the State or its
functionaries.”

The Court also emphasized that no arrest can be made without reasonablesatisfaction after investigation about the genuineness and bona fides of acomplaint:“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 ofpolice 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 reachedafter some investigation as to the genuineness and bona fides
of a complaint and a reasonable belief both as to the person's
complicity and even so as to the need to effect arrest. Denying
a person of his liberty is a serious matter.””

34 (1994) 4 SCC 260
35 (1997) 1 SCC 416

42

39

This Court has a constitutional obligation, where its attention has beendrawn, in a case such as the present, to a real likelihood of the derailment of afair investigative process to issue appropriate directions under Article 142 of theConstitution.

40

Hence, I am of the view that while the investigation should not be

thwarted, this is a proper case for the appointment of a Special Investigating
Team. Circumstances have been drawn to our notice to cast a cloud on whether
the Maharashtra police has in the present case acted as fair and impartial
investigating agency. Sufficient material has been placed before the Court
bearing on the need to have an independent investigation.

41

Hence, following the line of precedent of this Court which has been

discussed earlier, I am firmly of the view that a Special Investigating Team must
be appointed. The investigation shall be monitored by this Court. The Special
Investigating Team shall submit periodical status reports to this Court, initiallyon a monthly basis.36 The interim order passed by this Court on 29 August 2018
shall continue to hold the field for a further period of three weeks within which it
would be open to the said five individuals or any one or more of them to apply
for bail before the Court of competent jurisdiction. I would direct that the petition

36 Speaking as I do for the minority, I have not indicated the names of the personnel who would constitute the SIT.

Should that occasion arise, liberty is granted to seek an appropriate direction from this Court.

43

be listed after three days for orders on the constitution of the Special
Investigating Team. There shall be an order in these terms.

…….........................................................J[Dr Dhananjaya Y Chandrachud]
New Delhi;
September 28, 2018