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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: PerA.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 b e

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 2

nd

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 8

th

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 29

th

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

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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 29

th

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 28

th

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 8

th

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 31

st

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 1

st

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 31

st

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 31

st

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 31

st

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 2

nd

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 8

th

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 2

nd

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.

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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 28

th

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 29

th

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.

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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 8

th

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 6

th

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 6

th

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 17

th

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 17

th

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 6

th

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 6

th

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 28

th

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

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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 2

nd

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 28

th

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 1

st

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 28

th

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 8

th

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 16

th

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 22

nd

August, 2018 for the reasons stated in

the Case Diary, and only thereafter the investigating team proceeded to

arrest them on 28

th

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. Chadha

3

,

Mayawati v. Union of India

4

, Dinubhai Boghabhai Solanki

v. State of Gujarat

5

, CBI v. Rajesh Gandhi

6

, Competition

Commission of India v. SAIL

7

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 Gujarat

10

, 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 Maharashtra

11

,

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 2

nd

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 8

th

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 29

th

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.

ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.

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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 prosecuted

1

.

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

ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.

[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

Act

2

. 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 Court

3

. 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

ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.

[DR. D. Y. CHANDRACHUD, J.]

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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 India

6

and Ashok Kumar Pandey v State of West Bengal

7

;

(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 India

8

, Udyami Evam Khadi Garmodyog

Welfare Sanstha v State of UP

9

);

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 Siddiquee

10

);

(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

ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.

[DR. D. Y. CHANDRACHUD, J.]

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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

ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.

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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 Gujarat

12

). 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

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(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

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(1996) 2 SCC 199

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(2009) 9 SCC 610

ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.

[DR. D. Y. CHANDRACHUD, J.]

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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

ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.

[DR. D. Y. CHANDRACHUD, J.]

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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

ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS.

[DR. D. Y. CHANDRACHUD, J.]

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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

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(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 Kerala

28

concerned with the maintainability of an anonymous petition to a judge

of the High Court seeking a direction for an investigation. The anonymous

petition was taken up suo motu by the High Court under Section 482 of

the Code of Criminal Procedure and the investigation of the criminal

case was directed to be taken away from the investigating officer and

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 verdict

31

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 UP

34

and DK Basu

v State of West Bengal

35

. 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

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(1989) 1 SCC 494

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(1991) 4 SCC 406

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(1994) 4 SCC 260

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(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.