A.M. Khanwilkar, J
1.Five illustrious persons in their own field have filed this petition on 29thAugust, 2018 complaining about the highhanded action of the Maharashtra
Police inraiding the homes and arresting five well known human rights activists,journalists, advocates and political worker, with a view to kill
independentvoices differing in ideology from the party in power and to stifle the honestvoice of dissent. They complain that the five activists, namely,
GautamNavalakha, Sudha Bharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalveswere arrested on 28th August, 2018 from their homes at
New Delhi, Faridabad,Mumbai, Thane and Hyderabad, respectively, without any credible material andevidence against them justifying their arrest,
purportedly in connection withFIR No.0004/2018 dated 8th January, 2018 registered with Police Station VishramBagh, Pune City. This action was to
silence the dissent, stop people from helpingthe poor and downtrodden and to instill fear in the minds of people and was amotivated action to deflect
peopleâ€s attention from real issues. Thepetitioners have made it clear in their petition that they were seriouslyconcerned about the erosion of
democratic values and were approaching thisCourt “not to stop investigation into allegations†“but†to ensure independentand credible
“investigation into the arrest of stated five human rightsactivists.†They claim that anything short of that relief will damage thefabric of the nation
irreparably.
2.The FIR in connection with which the said five persons came to be arrested hasbeen appended and marked as Annexure P-2. It was registered on
the basis of thestatement given by one Tushar Ramesh Damgule, which reads thus:
“Translation:FIR COPY
I,Tushar Ramesh Damgule [Age 37] Occupation â€" Reconstruction, Residing at surveyno.70, Santosh Nagar, Kafraj Pune, 411016, Mobile Number
â€" 9850065423)personally states that, I am residing at the above mentioned address from last20 years. I am completed Masters in Arts (History). I
am running constructionbusiness by the name of Rao enterprises, from last 4 years. Somewhere in lastweek of December, I read one post of
Facebook, that Elgar Parishad organized31/12/2017 at Shaniwar Wada. Therefore on 31stDecember 2017, I personally wentto Shaniwar Wada,
opposite Ground, Pune, on around 2â€o clock in this concernprogramme conduct by Sagar Gokhale, role describer Sudhir Dhavale, singer andartist
Jyoti Jagtap, Ramesh Gaychor and other speakers like Jignesh Mewani,Umar Kahlid, Vinay Ratansingh, Prasanth Dontha etc. orators were seated on
thestage. The said ground was crowded fully. I had read information and newsrelated Kabir Kala Manch and their representatives by social media
andnewspapers. So, known them. On the programme of following other subjects, hadexpress statement again and again malice statement such as
“Bima Koregaon neDiladhada, Navi Peshawar Mainatgada, Udavathikrya Rai Rai re, Gadun TakaPeshwai Re Garjana Sidnakache, Aalee Nvyane
Peshwai re Garaj Tila Thokyachee,Re Saimka Garaj Tila Thokyacheeâ€. After this, some other orators had theirspeeches, as well as in that, Kabir
Kala Manchâ€s artist such as Jyoti Jagtap,Ramesh Gaichor and other six seven person sing the song again “Bhima Koregaonne diladhada, Navi
Peshwa Navi Peshawar Mainat Gada, Udavathikrya Rai Rai re,Gadum Taka Peshwai Re Garjana Sidnakache, Aalee Nvyane Peshwai re Garaj
TilaThokyachee, Re Saimka Garaj Tila Thokyachee…†as well as, the same hadpresented in the form of Pathnatya (Raadaramaj) and Dance Event
with malice andenmity intentions. After in Second session, said Sudhir Dhawade whileexpressing role, he made the malice and disputable statement
that “Jab Julm Hoto, Bagawat Honi Chahiye shahar mein, Jab Julm Ho to bagawat honi chahiyeshahar mein aur agar bagawat na ho to, behatar
hai kee, rat dhalane se phle yeshahar jalke rakh ho jaye, ye shahar jalke rakh ho jaye….†Then he said someother malice statement that “ye jo
satrahai, ye satra hia, tayat hi apane aapmein ladai ka ellanhai, ye nave peswai ko haemin Samshan Ghat mein, kabrastanmeindajana
hai..â€Afterwards, other speakers also expressed themselves in grudgewords in the same Programme, some objectionable and provocable books kept
forselling. After ending the program, I left from the there. On the date of 1stJanuary, 2018 as usual year, huge crowd gathered to salute and honour
thevictory stambh/monument at Bheema Koregaon. But because of the Elgar Parishadwhich was held at Shaniwar Wada on 31st December, 2017,
Kabir Kala Manchâ€sSudhir Dhawale, Sagar Gorakhe, Harshali Potdar, Jyoti Jagtap, Ramesh Gaichorand other six seven persons tried to express
malice statement and tried toincite disputable words, sentences between two society groups, raise someprovocable slogans, songs and road drama
imposed wrong and false History abovementioned Sudhir Dhawale, Harshali Potdar and other Kabir Kala Manchâ€sActivists been interrogated by
legal inspection and sources. Therefore, I statethat, banned Maoist Organisation (CPI) have organized role is to boast andimplicate the strong Maoist
thoughts in depressed class and misdirect ormisguide them and turn them towards unconstitutional violence activities,carrying the same thoughts, Kabir
Kala Manch’s Sudhir Dhawale and his otheractivist had presented different areas in Maharashtra, malice speeches, hadspread false History,
disputable statements and incite objectionable slogans,sung songs and road-dramas. They distributed some objectionable and provocablepamphlets,
books too. So remarkably it reflected at Bheema Koregaon and nearerplaces by stone throwing, castes clashes and arson incidents. Therefore,
anorganization â€"Elgar Parishad, on the day of 31st December, 2017 at 2.00 p.m. to10.00 p.m. at Shaniwar Wada, Pule, role defines Kabir Kala
Manchâ€s SudhirDhawale, programme conductor Sagar Gorakhe, and other artists HarshaliPotdar,Jyoti Jagtap, Ramesh Gaichor and others had
presented objectionable songs aswell as “Jab Julm ho to, Bagawat Honi Chahiye shahar mein, Jab Julm Ho tobagawat 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 hojaye…â€such type of disputable,
objectionable passing statements, tried toincite disputable words, sentences between two society groups, raised someprovocable slogans, songs and
road drama, imposed wrong and false Historymisguided the society. The same had been disputable and stone-throwing andarson incidents converted
into disputable and cast clashes in societyâ€sspecific groups, with human injuries, violence, severe damages etc.
Therefore,I lodged the complaint against (1) the role definer Kabir Kala Manchâ€s SudhirDhawale, (2) Pragramme conductor Sagar Gokhale (3)
Harshali Potdar (4) RameshGaichor (5) Deepak Denglr (6) Jyoti Jagtap. I read this typed statement andwhatever I stated is same true and correct.
Thisstatement given, Date: 08/01/2018
Infront of:
(M.B.Talware)
Police- Sub-Inspector Vishram Baug, Police Station, Pune.â€
(emphasissupplied)
3.According to the petitioners, none of the five persons arrested in connectionwith the stated FIR was present during the event organized on 31st
December,2017 at Pune by “Elgar Parishad†(with which they have no concern) nor anyallegation is found against them in the FIR. Nevertheless,
the Pune Policeswiftly moved against them, for reasons best known on fabricated charges undervarious provisions of the Unlawful Activities
(Prevention) Act, 1967 (“UAPAâ€)and under the Indian Penal Code.
4.According to the petitioners, since the FIR dated 2nd January, 2018, at PimpriPolice 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 theScheduled Castes Scheduled Tribes Act and Section 4(25) of the Arms Act
of theMaharashtra Police Act,1989, was registered against the Hindutva right wingleaders Milind Ekbote and Sambhaji Rao Bhide, based on an eye-
witness accountthat they along with fringe groups had incited the violence against the Dalitcongregation, instead of taking action against those who
were behind the BhimaKoregaon violence, a false and fabricated complaint was engineered in the formof FIR No.0004/2018 and came to be
registered on 8th January, 2018 at VishramBagh Police Station (Pune City), in respect of which the five named activistsand others have been
arrested. This fabricated FIR against the activists cameto be registered in the name of the complainant who happens to have close linkswith the
named accused in FIR No.2 dated 2nd January, 2018 registered at PimpriPolice Station (Rural). The Pune Police thus embarked upon a motivated
processand arrested five human rights activists who had no concern with the incidentreferred to in the FIR No.4/2018.
5.It is further stated in the writ petition that the Pune Police investigatingthe Bhima Koregaon violence was systematically leaking documents to
selectivemedia with a view to spread false propaganda against the activists and toprejudice the public opinion against those arrested. The leaked
documentsallegedly found from the computer recovered during the search of the house ofRona Wilson, were addressed to Comrade Prakash and
signed by “Râ€, whichapparently mentions about senior comrades proposing concrete steps to end theModi-era by planning a Rajiv Gandhi style
incident to assassinate the PrimeMinister. The police had deployed systematic strategy to put out highlyprovocative but completely unsubstantiated,
unverified and unproven allegationsthrough select media channels to prejudice the public opinion against thosealready arrested. Further, the organizers
of Elgar Parishad had immediatelyrefuted the tall claim of the Pune Police and went on record that the eventreferred to in the FIR under investigation
was organized by them (ElgarParishad) and no other organization was concerned therewith, much less anybanned organization had any role in that
regard. This statement was issued by aformer Judge of this Court and another former Judge of the Bombay High Courtwho are the organizers of
Elgar Parishad, emphatically condemning the lettersleaked to the media by the Police as the same were never produced in evidencebefore the Court
and that it was a ploy of the Government as it had feltthreatened because of the mobilization of people by Elgar Parishad to raisetheir voice against the
establishment and resist communal forces. Theorganization of Elgar Parishad had also denied of having received funds from anyof the accused
persons named in the FIR.
6.According to the petitioners, similar arbitrary arrests by the Pune City Policewere caused across the country, particularly of those who spoke for the
poorand marginalized and to malign human rights defenders, lawyers, activists andthe progressive ideas and human rights ideology that they espouse,
so as tohave a chilling effect in the minds of the activists and dissuade them fromcriticizing the policies and programmes of the Government.
7.The petitioners then state that without providing any evidentiary link betweenthe persons arrested and raided inter alia Gautam Navlakha and Sudha
Bhardwajwith FIR No.4 of 2018, they were served with the arrest memos signed by thepersons who were brought as part of the entourage of the
Pune Police asso-called “independent and respectable persons†to authenticate the arrestmemos. The seizure memos were prepared in Marathi
and signed by the Panchas whowere brought by the Pune Police as part of the entourage. No translated copy ofthe FIR or the seizure memo was
made over to Gautam Navlakha or Sudha Bhardwajeven though they were not conversant with Marathi. In this backdrop, GautamNavlakha filed
habeas corpus petition before the Delhi High Court, being WritPetition No.2559 of 2018 challenging the transit remand order passed by theChief
Metropolitan Magistrate on 28th August, 2018. Similar petition was filedin the Punjab and Haryana High Court to direct the jurisdictional Court
whichhad allowed the prayer to grant transit remand, to keep Sudha Bhardwaj at herresidence under supervision of the local police. Even the petition
filed in thePunjab and Haryana High Court is still pending. Nevertheless, the petitionersrushed to this Court by way of the present writ petition filed as
a publicinterest litigation, to espouse the cause of the five persons arrested by thePune Police, praying for an independent and comprehensive enquiry
into thestated arrest as follows:
“PRAYERS
Itis therefore prayed that this Honâ€ble Court be pleased to grant the followingprayers:
i)Issue an appropriate writ, order or direction, directing an independent andcomprehensive enquiry into arrest of these human rights activists in June
andAugust 2018 in connection with the Bhima Koregaon violence.
ii)Issue an appropriate writ, order or direction, calling for an explanation fromthe State of Maharashtra for this sweeping round of arrests; iii) Issue
anappropriate writ, order or direction, directing the immediate release fromcustody of all activists arrested in connection with the Bhima
Koregaonviolence and staying any arrests until the matter fully investigated anddecided by this court.
iv)Pass any such other order as may be deemed appropriate.â€
8.Asaforesaid, the petition was filed on 29th August, 2018 and mentioned for urgentdirections before the Chief Justice of India on the same day. This
Benchconsidered the urgent mentioning and passed the following order on the sameday:
“Takenon Board.
Issuenotice.
Mr.Tushar Mehta and Mr. Maninder Singh, learned Additional Solicitor Generalsbeing assisted by Mr. R. Balasubramanian, learned counsel shall file
thecounter affidavit by 5.9.2018. Rejoinder thereto, if any, be filed within threedays therefrom.
Wehave considered the prayer for interim relief. It is submitted by Dr. AbhishekManu Singhvi, learned senior counsel appearing for the petitioners
that inpursuance of the order of the High Court, Mr. Gautam Navalakha and Ms. SudhaBharadwaj have been kept under house arrest. It is suggested
by him that as aninterim measure, he has no objection if this Court orders that Mr. VaravaraRao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, if
arrested, they are keptunder house arrest at their own homes. We order accordingly. The house arrestof Mr. Gautam Navalakha and Ms. Sudha
Bharadwaj may be extended in terms of ourorders.
Needlessto say, an interim order is an interim order and all contentions are kept open.
Letthe matter be listed on 6.9.2018.â€
Thisinterim arrangement has been continued from time to time and remains in forceuntil the disposal of this petition.
9.The State of Maharashtra has filed a counter affidavit of Dr. Shivaji PanditraoPawar, Assistant Commissioner of Police (Investigating Officer),
SwargateDivision, Pune City, Pune. Besides taking objection regarding themaintainability of the writ petition being filed by third parties who
arestrangers to the offence under investigation, he has highlighted that in lightof the material gathered during the investigation conducted so far, it
would bedesirable to dismiss the writ petition. He has stated that the entire writpetition is based upon individual perception of the writ petitioners that
thearrested persons are “all outstanding, well-known and well respected humanrights activists†and therefore, their arrest requires to be enquired
into andthey should be released on bail. Having said that, he has asserted that in theinstant case, the five named persons have been arrested not
because theyexpressed dissenting views or difference in their political or other ideologiesbut the investigation done so far has unraveled their
involvement in a seriousoffence, including of being active members of Communist Party of India(Maoist), which has been banned as a terrorist
organization since 2009, and oftheir involvement in planning and preparation of large scale violence anddestruction of property, resulting into chaos in
the society. Each of them ispart of a well thought out criminal conspiracy and had supported the eventarranged at Pune by the Elgaar Parishad
through a frontal organization called“Kabir Kala Manchâ€.
10.It is then stated that one Tushar Ramesh Damgule had lodged an FIR on 8thJanuary, 2018, naming six persons as accused for the offence
registeredthereunder by the Vishram Bagh Police Station. Out of the six named accused,only one person came to be arrested on 6th June, 2018,
namely, Sudhir Dhawalein connection with the registered offence. As the investigation progressed and materialwas gathered during the ongoing
investigation, Section 120-B was added on 6thMarch, 2018 and two more persons were found to be suspected accused namely,Surendra Gadling, R/o
Nagpur and Rona Wilson, R/o Delhi. On 17th April, 2018the 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 theInvestigating Agency knocked at the doors of the respective individuals
tillthe material recovered were seized, sealed, and punchnamas were drawn in the presenceof independent punchas. During the said search,
documents were recovered fromtheir respective computers/ laptops/pen drives/ memory cards. Differentdocuments were found to have been copied
on different dates. The seized itemswere immediately sent for investigation to Forensic Science Laboratory, whichin turn gave “clone copies/mirror
images†to the investigating agency so as toensure that pendency of FSL Report does not hamper the investigation. It isthen stated that documents
recovered from the seized items unraveled theinformation implicating the accused not only as active members of CPI (Maoist)but being involved in an
ongoing sinister design of having committed and in theprocess of committing criminal offences having the potential of destabilizingthe society. The
documents clearly reflect the preparation, planning andcoordination not only amongst the stated accused persons but with otherssubsequently arrested,
to carry out violence including planned ambush/rebellionagainst the enemy (which is our country and security forces).
11.He has further stated that all the documents recovered during the search fromthe custody and possession of the respective accused will be
produced beforethe Court, perusal of which would reveal that the accused persons are notmerely political dissenters but involved in sinister design,
planning,preparation and commission of criminal offences to destabilize the society.After the incriminatory material came to light, further offences
under Sections13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of the UAPA are added on 17th May, 2018against 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.
Theaffidavit further states that during the on-going investigation, followingpersons came to be arrested on 6th June, 2018:
1)Surendra Gadling, R/o Nagpur
2)Rona Wilson R/o Delhi
3)Sudhir Dhanwale
Further,two more persons were arrested and also searched on 6th June, 2018, namely,Shoma Sen, R/o Nagpur and Mahesh Raut, R/o Nagpur and
Gadchiroli. It is thenstated that the searches carried out against these persons were alsovideographed from the beginning to the end as was done on
the earlier occasionin 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,pendrives and memory cards which have been forwarded to Forensic ScienceLaboratory, which in turn provided clone copies to
the Investigating Agency forfacilitating further investigation.
12.It is then stated in the affidavit that the further investigation unraveledthat the five persons who came to be arrested on 28th August, 2018 were
alsoinvolved in the criminal conspiracy and their role was not merely peripheral innature. Based upon the incriminating material, they were arrested
from theresidential or work places under similar fashion in the presence of independentpanchas who were Government Officers. It is also stated that
one of them,namely, Vernon Gonsalves has been convicted by the Special Court, Nagpur foroffences under the UAPA.
13.The sum and substance of the reply affidavit is that sufficient material hasbecome available during the investigation, which is still in progress,
toindicate the complicity of the concerned accused who have been arrestedincluding the five named persons in respect of whom the present writ
petitionhas been filed by third parties. They are arrested not because of theirpolitical activities but for their involvement in the planning and execution
ofoffences to destabilize the society and their association with the bannedorganization. Their involvement is noticed in selecting and encouraging
cadresin the banned organizations to go underground in “struggle areaâ€, mobilizingand distributing money, facilitating selection and purchase of
arms, decidingthe rates of such arms and suggesting the routes and ways of smuggling sucharms into India for its onward distribution amongst the
cadres. Some of themhave suggested training and laying booby traps and directional mines. Theirinvolvement is also for providing strategic inputs in
furtherance of theobjective of armed rebellion, on lines of strategic documents of the bannedterrorist organization. It is stated that all the material
collected during theinvestigation will be eventually placed on record of the jurisdictional Courtalong with the police report to be filed in due course.
Further, the questionof showing that material to anyone muchless accused, would defeat theinvestigation in progress and that is not the requirement of
law. The affidavitalso emphasizes that house arrest of the concerned accused merely restrictsphysical movement but there is no way of ensuring that
these persons would not indulgein destruction of evidence and alert other potential accused while sitting athome. As a matter of fact, their custodial
interrogation may become necessaryduring further investigation and for which reason the Investigating Agency begranted liberty to take them in police
custody in accordance with law.
14.The petitioners have filed exhaustive rejoinder affidavit. Besides therejoinder affidavit, formal applications have been filed on behalf of
SudhaBharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalves, who are presentlyunder house arrest, that they be permitted to pursue the writ
petition as filedby them. This application is in response to the issue of locus of fivepetitioners as being strangers to the offence under investigation.
Besides, anapplication has been filed by the petitioners for permitting them to amend theprayer clause of the writ petition and permit the petitioners to
seek followingmodified prayers:
“(i)Issue an appropriate writ, order or direction for setting up of a SpecialInvestigating Team (SIT) comprising of senior police officers with
impeccablecareer records of professionalism, integrity and independence, reportingdirectly to this Honâ€ble Court, for conducting a fair and
independentinvestigation and inquiry into the offences stated in the zero FIR lodged atPimpri Police Station on 02.01.2018 (now Cr. Case No.2/2018),
and the FIR4/2018 lodged and all other related matters and allegations; or
(ii)Issue an appropriate writ, order or direction for the investigation into theoffences 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 PoliceStation on 08.01.2018, and all other related matters and
allegations, to becarried out by an independent agency which shall be monitored directly by thisHonâ€ble Court through regular filing of status reports
of the investigation bythe investigating agency; and/or
(iii)Issue an appropriate writ, order or direction directing that all electronicdevices, records and materials allegedly seized from the detenues or
evenotherwise, if relied upon/being relied upon for denial of liberty to thedetenues, to be examined by a Forensic Sciences Laboratory outside the State
ofMaharashtra to ensure fair play and in the interest of justice; and/or
(iv)Issue an appropriate writ, order or direction, directing the release fromcustody of the arrested activists as per law, upon such terms and conditions
asmay be deemed necessary and appropriate, to the satisfaction of this Honâ€bleCourt; and/or
(v)Pass any such further order(s) as this Honâ€ble Court may deem fit andappropriate in the facts and circumstances of the present case, and in the
interestjustice.â€
15.During the arguments, Dr. Abhishek Manu Singhvi, Dr. Rajeev Dhawan, Dr. AshwaniKumar learned senior counsel and Mr. Prashant Bhushan,
learned counselappearing for the writ petitioners and Mr. Anand Grover, learned senior counselappearing for the arrested persons, have argued that
the stated five personshave not been named in the FIR nor were they present during the event referredto in the FIR. Registration of two FIRs in
respect of the same incident, firston 2nd January, 2018 at Pimpri (Urban) Police Station and the second, atVisharam Bagh Police Station, Pune City,
was impermissible and was a ploy todeflect the inaction of the Pune Urban Police for the reasons best known tothem. Moreover, the offences under
the draconian law (UAPA) have been addedwithout due authorization of the competent authority. It is contended thatliberty of individual and dignity of
the accused are the facets of coreconstitutional values.
Theysubmit that this case is not about ordinary criminal jurisprudence but ofactualization of constitutional values and to expose the
unjustifiedincarceration of innocents who happen to be human rights activists. They submitthat the liberty and dignity of the accused persons must be
preserved.According to them, the Investigating Agency was not discharging its statutoryobligation of fairness in investigation but was indulging in
selective leaks ofdocuments which contain unsubstantiated insinuations against the accusedpersons solely with a view to malign their reputation and
create public opinionagainst them. The Pune Police had the audacity to rush to the Press fordivulging the documents which they claim to have
recovered during the seizurefrom one of the accused and not the five persons arrested on 28th August, 2018.They submit that the clarificatory
statement issued by the two former Judgescannot be discarded. However, no effort has been made by the InvestigatingAgency to ascertain the
factual position from those two Judges. According tothem, it is a case of persecution of the five persons named in the writpetition as multiple cases
have been registered against them since 2005 andeach of them have been acquitted in the concerned case. 25 criminal cases wereregistered against
Varavara Rao, 11 cases have been registered against ArunFerreira and 18 cases against Varnon Gonsalves. They have been acquitted in allthe cases
except one against Gonsalves, which matter is pending in appeal. Theyhave relied upon the report prepared by the Committee headed by the
DeputyMayor which clearly points towards the complicity of Sambhaji Rao Bhide andMilind Ekbote in particular, for having caused incitement and
violence on 1stJanuary, 2018. However, no action has been taken by the Pune Police against thepersons who were responsible for causing riots and
violence. It is submittedthat it is unfathomable that two FIRs are registered in respect of the sameincident and two different investigating agencies are
going ahead with theinvestigation. More so, the basis of arrest of five persons on 28th August,2018 was their involvement in planning the assassination
of the current PrimeMinister but there is no allegation to that effect in the FIR nor has any freshFIR been registered by the Police, although the same
is a serious matterwarranting investigation by an Investigating Agency no less then NationalInvestigating Agency or at least the CBI. The persons
arrested, however, arewell-known for their track record of human rights activism and have beenunjustly put behind bars on the basis of
unsubstantiated allegations andwithout any evidence against them. The entire sub-text of creating a realthreat is a figment of imagination of the
Investigating Agency and that hasbeen done for reasons best known to them. Obviously, it is politicallymotivated. The transit remand applications
preferred by the InvestigatingAgency also do not mention the letters indicative of involvement of the personsconcerned in planning and execution of
Maoist plot nor have those letters beenproduced before the Court thus far. The letters which were flashed to the mediaare obviously fabricated.
Further, no plausible explanation is forthcoming asto why the Investigating Agency had taken panchas along with them forconducting search outside
the State of Maharashtra. The role of theinvestigating team in FIR No.4 of 2018 in the manner in which they causedarrest of five persons named in
the writ petition, has been seriouslyquestioned and it is earnestly prayed by the learned counsel that the modifiedreliefs as claimed ought to be granted.
The counsel have filed exhaustivewritten submissions to buttress the plea for entrusting the investigation ofthe case to an independent Investigating
Agency.
16.Mr. Tushar Mehta, learned Additional Solicitor General appearing for the Stateof Maharashtra on the other hand, submitted that the Court should
be loath toentertain the writ petition of this nature when the investigation of a seriouscrime is in progress as per the statutory provisions and the
material gatheredduring the investigation justifies the arrest of the concerned accused. Hesubmitted that the investigation is being conducted
responsibly and impartiallyand strictly in accordance with the provisions of Cr.P.C. by an officer of therank of Assistant Commissioner of Police under
the supervision of DeputyCommissioner of Police and further monitored by Joint Commissioner and finallyby the Commissioner of Police who is of the
rank of Additional Director Generalof Police. There is no allegations against the investigating officer of workingunder dictation or that he had any
personal malice against the named accused.Further, there is active involvement and monitoring of senior police officialsand pre-existing safeguards
have been put in place by the State in order toensure a fair investigation and in order to maintain independent andimpartiality of all sorts, coupled with
the fact that the action of theInvestigating Agency would be monitored by the jurisdictional Courts atdifferent stages, the question of appointing Special
Investigation Team or toallow investigation by independent Investigating Agency under the monitoring ofthe Court, should be eschewed. He submitted
that the Court may look at thedocuments already gathered during the investigation to satisfy its conscienceas to whether the arrest of concerned
accused was justified or otherwise. Inany case, there is robust mechanism of overseeing the actions of theInvestigating Agency by the jurisdictional
Courts while considering not onlythe application for police remand or judicial remand and bail application butalso 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 bailor discharge/quashing, but not relevant
to consider prayer for change ofinvestigating agency, that too at the instance of accused themselves. He hashanded over a compilation of documents
or incriminatory material collectedduring the investigation allegedly showing the involvement of the concernedaccused, for our perusal. He has also
handed over the Case Diary and twoRegisters of documents recovered during the search from the accused persons. Hefurther states that the subject
FIR in respect of which action is being takenagainst the accused was registered on 8th January, 2018 for offences punishableunder Section 153-A,
505 (1B), 17, 34 IPC. After the investigation progressed,further offences were added including the offences under Sections 13,16,17,18,18B, 20,38,39
& 40 of UAPA on 16th May, 2018, on the basis of the materialcollected during the on-going investigation. Initially, the offence wasregistered only
against 6 accused and as the investigation progressed, as ofnow there are 22 accused named, including the 5 accused referred to in thispetition who
were added as accused on 22nd August, 2018 for the reasons statedin the Case Diary, and only thereafter the investigating team proceeded toarrest
them on 28th August, 2018. He submits that the Investigating Agency hadto proceed against the named accused after the revelation of their
involvementwith the banned organization, as was noticed from the documents and materialrecovered during the searches conducted in respect of the
premises ofco-accused. The named accused (A16 to A20) cannot be heard to question thatpart of the investigation regarding the manner of search,
which the concernedco-accused alone may do at the appropriate stage before the jurisdictionalcourt.
17.He submits that even though the Court may have jurisdiction to examine allaspects of the matter, considering the fact that the investigation is at
anascent stage and is being done by senior police officials under thesupervision of their superior officers up to the level of Commissioner ofPolice, it is
not a case for grant of reliefs as prayed. The accused personsmust take recourse to the remedy prescribed by law instead of directlyapproaching this
Court under Article 32 of the Constitution and can getcomplete justice from the jurisdictional Court. He submits that in criminalmatters, interference in
the garb of public interest litigation at the instanceof strangers has always been discouraged and rejected by this Court. Further,the present petition is
nothing but abuse of the process and as the namedaccused Varavara Rao, Sudha Bharadwaj and Gautam Navalakha have filed theirrespective
petitions before the jurisdictional High Courts, which proceedingsare pending for adjudication, the same persons have now filed affidavits beforethis
Court for transposing them as petitioners and allowing them to adopt theprayer of the writ petitioners. They ought to elect their remedy to be
pursuedand in particular, before the jurisdictional Courts. Therefore, this petitionmust be discouraged. He submits that the modified relief claimed in
the writpetition to release the accused persons is in the nature of habeas corpus whichis not maintainable in respect of the arrest made during the
ongoinginvestigation. He submits that no right can enure in favour of the accused toseek relief of investigation of the crime through an independent
agency and forthe same reason, even strangers to the offence under investigation or nextfriends of the accused, cannot be permitted to pursue such a
relief in theguise of PIL. He submits that the foundation of the present writ petition isthe perception of the writ petitioners (next friends) that the
accused areinnocent persons. He submits that that basis is tenuous. For, there are enoughexamples of persons having split personality. In a criminal
case, the action isbased on hard facts collected during the course of investigation and not onindividual perception. He contends that the argument of
the writ petitionersthat liberty of the five named accused cannot be compromised on the basis ofsurmises and conjectures is wholly misplaced and can
be repelled on the basisof the material gathered during the ongoing investigation indicating thecomplicity of each of them. He relies on Section 41 of
Cr.P.C. which enablesthe police to arrest any person against whom a “reasonable suspicion†existsthat he has committed a cognizable offence.
Therefore, the integrity of theInvestigating Agency cannot be doubted as there is enough material against eachof the accused. He further submits that
the argument of the writ petitionersbased on the circumstances pressed into service for a direction to change theInvestigating Agency is completely
against the cardinal criminal jurisprudenceand such a relief is not available to persons already named as accused in acrime under investigation.
18.Mr. Harish Salve, learned senior counsel appearing for the complainant at whoseinstance 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 fundamentalright, to market ideas which transcend the line of unlawful
activity. The Courtmust enquire into the fact as to whether the investigation is regarding suchunlawful activity or merely to stifle dissenting political
voice. If it is theformer, the investigation must be allowed to proceed unhindered. In any case,the affected persons, namely, the named accused must
take recourse to remedyprescribed by law before the jurisdictional Court as it is not a case ofunlawful detention or action taken by an unauthorized
Investigating Agency.
Accordingto him, the Court must lean in favour of appointing a SIT or an independentInvestigating Agency or Court monitored investigation only when
the grievancemade is one about the investigation being derailed or being influenced by someauthority. In the present case, the grievance is limited to
improper arrest ofindividuals without any legal evidence to indicate their complicity in thecommission of any crime or the one registered in the form of
FIR No.4/2018. Theallegation of motivated investigation is without any basis. No assertion ismade by the writ petitioners or the named accused that
the investigation by thePune City Police is mala fide in law. If the allegation is about mala fide infact, then the material facts to substantiate such
allegation, including namingof the person at whose instance it is being so done, ought to have beenrevealed. That is conspicuously absent in this case.
According to the learnedcounsel, the reliefs claimed in the writ petition do not warrant any indulgenceof this Court.
19.After the high-pitched and at times emotional arguments concluded, each sidepresenting his case with equal vehemence, we as Judges have had to
sit back andponder 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
Policeinvestigating the crime and for attempting to stifle the dissenting voice ofthe human rights activists. The other side with equal vehemence argued
that theaction taken by Pune Police was in discharge of their statutory duty and wascompletely objective and independent. It was based on hard facts
unraveledduring the investigation of the crime in question, pointing towards thesinister ploy to destabilize the State and was not because of difference
inideologies, as is claimed by the so called human rights activists.
20.After having given our anxious consideration to the rival submission and uponperusing the pleadings and documents produced by both the sides,
coupled withthe fact that now four named accused have approached this Court and have askedfor being transposed as writ petitioners, the following
broad points may arisefor our consideration:-
(i)Should the Investigating Agency be changed at the behest of the named fiveaccused?
(ii)If the answer to point (i) is in the negative, can a prayer of the same naturebe entertained at the behest of the next friend of the accused or in the
garbof 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
SpecialInvestigating Team or directing the Court monitored investigation by anindependent Investigating Agency?
(iv)Can the accused person be released merely on the basis of the perception of hisnext 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 isno more res integra. In Narmada Bai Vs. State of Gujarat and Ors.
(2011) 5 SCC79 , in paragraph 64, this Court restated that it is trite law that the accusedpersons do not have a say in the matter of appointment of
Investigating Agency.Further, the accused persons cannot choose as to which Investigating Agencymust investigate the offence committed by them.
Paragraph 64 of this decisionreads thus:-
“64.….. It is trite law that accused persons do not have a say in the matter ofappointment of an investigation agency. The accused persons cannot
choose as towhich investigation agency must investigate the alleged offence committed bythem.â€
(emphasissupplied)
22.Again in Sanjiv Rajendra Bhatt Vs. Union of India and Ors. (2016) 1 SCC 1 ,theCourt restated that the accused had no right with reference to the
manner ofinvestigation 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 modeof prosecution. Similar is the law laid down by this Court in
Union of India v.W.N. Chadha 1993 Supp.(4) SCC 260 , Mayawati v. Union of India(2012) 8 SCC 106, Dinubhai Boghabhai Solanki v. State of
Gujarat (2014) 4 SCC 626, CBI v.Rajesh Gandhi (1996) 11 SCC 253, Competition Commission of India v. SAIL (2010)10 SCC 344 and Janta Dal v.
H.S. Choudhary (1991) 3 SCC 756. â€
(emphasissupplied)
23.Recently, a three-Judge Bench of this Court in E. Sivakumar Vs. Union of Indiaand Ors. (2018) 7 SCC 365 , while dealing with the appeal
preferred by the“accused†challenging the order of the High Court directing investigation byCBI, in paragraph 10 observed:
“10.As regards the second ground urged by the petitioner, we find that even thisaspect has been duly considered in the impugned judgment. In
paragraph 129 ofthe impugned judgment, reliance has been placed on Dinubhai Boghabhai SolankiVs. State of Gujarat Supra @ Footnote 5, wherein it
has been held that in awrit petition seeking impartial investigation, the accused was not entitled toopportunity of hearing as a matter of course.
Reliance has also been placed inNarender G. Goel Vs. State of Maharashtra (2009) 6 SCC 65, in particular,paragraph 11 of the reported decision
wherein the Court observed that it iswell 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 inthe peculiar facts of the present case, the fact that the petitioner was notimpleaded as a party in the writ
petition or for that matter, was not heard, inour opinion, will be of no avail. That per se cannot be the basis to label theimpugned judgment as a
nullity.â€
24.This Court in the case of Divine Retreat Centre Vs. State of Kerala and Ors.(2008) 3 SCC 542, has enunciated that the High Court in exercise of
itsinherent jurisdiction cannot change the investigating officer in the midstreamand appoint an investigating officer of its own choice to investigate into
acrime on whatsoever basis. The Court made it amply clear that neither theaccused nor the complainant or informant are entitled to choose their
ownInvestigating Agency to investigate the crime in which they are interested. TheCourt then went on to clarify that the High Court in exercise of its
powerunder Article 226 of the Constitution can always issue appropriate directionsat the instance of the aggrieved person if the High Court is
convinced that thepower of investigation has been exercised by the investigating officer malafide.
25.Be that as it may, it will be useful to advert to the exposition in State ofWest Bengal and Ors. Vs. Committee for Protection of Democratic Rights,
WestBengal and Ors (2010) 3 SCC 571. In paragraph 70 of the said decision, theConstitution Bench observed thus:
“70.Before parting with the case, we deem it necessary to emphasise that despitewide powers conferred by Articles 32 and 226 of the
Constitution, while passingany order, the Courts must bear in mind certain self-imposed limitations on theexercise of these Constitutional powers. The
very plenitude of the power underthe said articles requires great caution in its exercise. Insofar as thequestion of issuing a direction to the CBI to
conduct investigation in a caseis concerned, although no inflexible guidelines can be laid down to decidewhether or not such power should be exercised
but time and again it has beenreiterated that such an order is not to be passed as a matter of routine ormerely because a party has levelled some
allegations against the local police.This extraordinary power must be exercised sparingly, cautiously and inexceptional situations where it becomes
necessary to provide credibility andinstil confidence in investigations or where the incident may have national andinternational ramifications or where
such an order may be necessary for doingcomplete justice and enforcing the fundamental rights. Otherwise the CBI wouldbe flooded with a large
number of cases and with limited resources, may find itdifficult to properly investigate even serious cases and in the process loseits credibility and
purpose with unsatisfactory investigations.â€
26.In the present case, except pointing out some circumstances to question themanner of arrest of the five named accused sans any legal evidence to
link themwith the crime under investigation, no specific material facts and particularsare found in the petition about mala fide exercise of power by
theinvestigating officer. A vague and unsubstantiated assertion in that regard isnot enough.
Rather,averment in the petition as filed was to buttress the reliefs initially prayed(mentioned in para 7 above) â€" regarding the manner in which arrest
was made.Further, the plea of the petitioners of lack of evidence against the namedaccused (A16 to A20) has been seriously disputed by the
Investigating Agencyand have commended us to the material already gathered during the ongoinginvestigation which according to them indicates
complicity of the said accusedin the commission of crime. Upon perusal of the said material, we are of theconsidered opinion that it is not a case of
arrest because of mere dissentingviews expressed or difference in the political ideology of the named accused,but concerning their link with the
members of the banned organisation and itsactivities. This is not the stage where the efficacy of the material orsufficiency thereof can be evaluated
nor it is possible to enquire into whetherthe same is genuine or fabricated. We do not wish to dilate on this matter anyfurther lest it would cause
prejudice to the named accused and including theco-accused who are not before the Court. Admittedly, the named accused havealready resorted to
legal remedies before the jurisdictional Court and the sameare pending. If so, they can avail of such remedies as may be permissible inlaw before the
jurisdictional courts at different stages during theinvestigation as well as the trial of the offence under investigation. Duringthe investigation, when they
would be produced before the Court for obtainingremand by the Police or by way of application for grant of bail, and if theyare so advised, they can
also opt for remedy of discharge at the appropriatestage or quashing of criminal case if there is no legal evidence, whatsoever,to indicate their
complicity in the subject crime.
27.In view of the above, it is clear that the consistent view of this Court isthat the accused cannot ask for changing the Investigating Agency or to
doinvestigation in a particular manner including for Court monitored investigation.The first two modified reliefs claimed in the writ petition, if they were
to bemade by the accused themselves, the same would end up in being rejected. In thepresent case, the original writ petition was filed by the persons
claiming tobe the next friends of the concerned accused (A16 to A20). Amongst them, SudhaBhardwaj (A19), Varvara Rao (A16), Arun Ferreira
(A18) and Vernon Gonsalves(A17) have filed signed statements praying that the reliefs claimed in thesubject writ petition be treated as their writ
petition. That applicationdeserves to be allowed as the accused themselves have chosen to approach thisCourt and also in the backdrop of the
preliminary objection raised by the Statethat the writ petitioners were completely strangers to the offence underinvestigation and the writ petition at
their instance was not maintainable. Wewould, therefore, assume that the writ petition is now pursued by the accusedthemselves and once they have
become petitioners themselves, the question ofnext friend pursuing the remedy to espouse their cause cannot be countenanced.The next friend can
continue to espouse the cause of the affected accused aslong as the concerned accused is not in a position or incapacitated to takerecourse 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)
PoliceStation on 2nd January, 2018. However, that is an independent FIR registered ata different police station against the Hindutva right wing leaders
MilindEkbote and Sambhaji Rao Bhide. It is, at best, in the nature of a cross FIR inrespect of the same incident against the alleged aggressors filed by
aneye-witness. Neither the writ petitioners nor the named accused in FIRNo.4/2018 in that sense, can pursue relief in respect of FIR
No.2/2018registered at Pimpri (Urban) Police Station. Admittedly, Criminal Writ PetitionNo.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 theInvestigating Agency in that crime. As presently
advised, we find force in theargument 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 propagateill-will in different classes and turn them into
unconstitutional and violentactivities. Further, such activities were purportedly carried out by Kabir KalaManch, Sudhir Dhawale and other activists in
different areas in the State ofMaharashtra by delivering vituperative speeches and to spread false history,disputable statements and incite
objectionable slogans, sing songs and roaddramas and distribution of objectionable and provocative pamphlets and booksalso. And that the incidents
such as at Bhima Koregaon and nearby places ofstone throwing, castes clashes and arson incidents is the outcome of suchconspiracy. Taking any
view of the matter, the reliefs claimed in the modifiedprayer clauses (i) and (ii) in respect of FIR No.2/2018, cannot be takenforward at the instance of
the named five accused persons in FIR No.4/2018registered at Vishram Bagh Police Station (Pune City) on 8th January, 2018 orfor that matter their
next friends.
29.A fortiori, it must follow that the writ petitioners, who are strangers to theoffence under investigation (in FIR No.4/2018); and since they are
merelyespousing the cause of the arrested five accused as their next friends, cannotbe heard to ask for the reliefs which otherwise cannot be granted
to theaccused themselves. What cannot be done directly, cannot be allowed to be doneindirectly even in the guise of public interest litigation.
30.We find force in the argument of the State that the prayer for changing theInvestigating Agency cannot be dealt with lightly and the Court must
exercisethat power with circumspection. As a result, we have no hesitation in taking aview that the writ petition at the instance of the next friend of
the accusedfor transfer of investigation to independent Investigating Agency or for Courtmonitored investigation cannot be countenanced, much less
as public interestlitigation.
31.As the answer to point Nos. (i) and (ii) are in the negative and against thewrit petitioners and named accused, we do not wish to dilate on
thecircumstances pointed out to us by the accused regarding the manner of theirarrest. For, any observation in that regard by this Court may prejudice
thesaid accused including the co-accused who are not before this Court or theprosecution, which must be eschewed. We are of the considered opinion
that theinvestigation 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.
32.That takes us to the third modified relief claimed in the writ petition toissue directions that all electronic devices, records and materials,
allegedlyseized from the detenue/accused, be examined by Forensic Science Laboratoryoutside the State of Maharashtra to ensure fair play and in the
interest ofjustice. Even this prayer cannot be taken forward. If any one of the twenty twonamed accused have any grievance or apprehension about
the same, he is free tomake that request before the jurisdictional Court, which can be considered atthe appropriate stage in accordance with law. We
are not expressing any opinioneither way in the present writ petition in that regard.
33.The fourth modified relief is to direct release of the arrested activists fromcustody as per law. The accused persons must pursue this relief before
theappropriate court, which can be considered by the concerned court on its ownmerits in accordance with law. As noted earlier, the concerned
accused personshave 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 maintainabilitythereof or on merits of the reliefs that may be
claimed therein. All questionswill have to be considered by the concerned Court in accordance with law.Accordingly, even the fourth modified relief
cannot be considered in thepresent writ petition.
34.In view of the above, we have advisedly refrained from dealing with the factualissues raised by the parties and including the named accused
represented bytheir counsel before us, as any observation made by this Court may causeserious prejudice to them or the co-accused who are not
before this Court or,for that matter, the prosecution case, resulting in serious miscarriage ofjustice. Similarly, we do not wish to burden the judgment
with the otherreported judgments relied upon by the counsel for the parties and dealing withlegal propositions canvassed by them, which are not
necessary to be answered inthe present writ petition.
35.We may hasten to mention that we have perused the Registers containing relevantdocuments and the Case Diary produced by the State of
Maharashtra. But we haveavoided to dilate on the factual position emerging therefrom, lest anyprejudice is caused to any accused or the prosecution,
in any manner.
36.The record/files/documents and the Case Diary handed over to the Court in asealed cover by the State be returned to the counsel for the State in a
sealedcover.
37.Accordingly, this writ petition is disposed of with liberty to the concernedaccused to take recourse to appropriate remedy as may be permissible in
law.The interim order passed by this Court on 29th August, 2018 shall continue fora period of four weeks to enable the accused to move the
concerned court. Thesaid proceedings shall be decided on its own merits uninfluenced by anyobservation made in this judgment, which is limited to the
reliefs claimed inthe writ petition to transfer the investigation to an independent InvestigatingAgency and/or Court monitored investigation. The
Investigating Officer is freeto proceed against the concerned accused as per law. All the accompanyingapplications are also disposed of in terms of
this judgment.
DrDhananjaya Y Chandrachud, J
1The intersection between criminal law and constitutional rights has led to theevolution of judicial precedent which originates in this Court. Our
recentdecisions reiterate the value of individual dignity as essential to ademocratic way of life. But lofty edicts in judicial pronouncements can have
nomeaning to a citizen unless the constitutional quest for human libertytranslates into securing justice for individuals whose freedom is under threatin
specific cases. The role of the Court involves particularly sensitivebalances when the state seeks to curb freedom to investigate perceived
breachesinvolving offences against the state. Custodial interrogation involves thebalancing of diverse and often conflicting values: the effective
administrationof criminal justice, an impartial process of investigation and the liberty andreputation of the individual. The invocation of our jurisdiction
under Article32 in this case is founded on the grievance that a group of five human rightsactivists is sought to be persecuted for espousing the cause
of themarginalised which is considered to be ‘unpopular’. Conscious as the Court isof the public interest in the effective administration of
criminal justice, itcannot be oblivious to the overriding constitutional concern to secure thedignity of the individual. The key to the balance between the
two lies in afair, independent and impartial investigation of crime. As a matter ofprinciple, I am unable to agree with the views expressed by the
learned ChiefJustice and my learned brother Justice AM Khanwilkar.
2On 29 August 2018, the jurisdiction of this Court under Article 32 was invokedby five distinguished academics to seek an “independent and
comprehensiveinquiry†in the circumstances relating to the arrest of five human rightsactivists on 28 August 2018. The arrests by the Pune police
took placefollowing the raids which were conducted at their homes and offices. Thearrests took place simultaneously in Delhi, Faridabad, Mumbai,
Thane andHyderabad. The petitioners assert that our jurisdiction has been invoked not toimpede the investigation but to ensure that an independent
and credibleinvestigation is made by persons nominated by and subject to the supervision ofthis Court. The petitioners urge that the invocation of the
draconianprovisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA) in thepresent case is an attempt to silence dissent by targeting human
rightsactivists who have been working to protect the rights of the poor and themarginalised, particularly Dalits. This is set forth in the prefatory
avermentsof the writ petition, extracted here:
“Thecharges against them on the face of it appear indiscriminate, unwarranted, partof a malicious campaign to threaten human rights defenders,
independentjournalists, writers and thinkers in this country, from critiquing thegovernment and its policies and an attempt to muzzle dissent. The
activists whohave been arrested are pro democracy workers who have been leading peacefulpeoples rights based movements especially among the
poor and marginalisedcommunities, Dalits and adivasis, for several years, in different parts of thecountry. The use of the UAPA meant for exceptional
and violent activity,against such persons, when there has been absolutely no evidence of any acts ofviolence by these activists is deeply disconcerting
and calls for an urgentintervention by this Hon’ble Court.â€
Thegrievance is that those five persons are being persecuted for their views andtheir voices are sought to be chilled into silence by a criminal
prosecution.
3First, as to the locus of the petitioners:
(i)The first petitioner â€" Romila Thapar is an eminent historian and ProfessorEmeritus at Jawaharlal Nehru University. She was selected on two
occasions forthe conferment of the Padma Bhushan award by the Union Government, which shedeclined. Romila Thapar has been elected to the
British Academy and theAmerican Academy of Arts and Sciences and has been conferred with honorarydoctoral degrees by the Universities of
Oxford and Chicago, among others. Herwritings include a book titled, ‘A History of India’;
(ii)The second petitioner, Devaki Jain is a pioneer feminist economist and has beenassociated with national bodies, including the Planning Commission
and theNational Commission for Women and, international organisations, including UNDPand the South Commission. She is the founding member of
two organisationsengaged 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 hercontribution to social justice and the empowerment of women;
(iii)The third petitioner, Prabhat Pattnaik, was a Rhodes Scholar and is an eminenteconomist who taught at JNU for over three decades. He was
vicechairperson ofthe Kerala Planning Board and a member of a high-powered UN Task Force on theglobal financial system;
(iv)The fourth petitioner Satish Deshpande, is a sociologist at the University ofDelhi. He is a recipient of the Malcolm Adiseshiah award for
distinguishedcontributions to development studies. He was a member of the Union government’sexpert committee on the proposed Equal
Opportunity Commission. He has heldvisiting appointments at the University of Chicago and in Paris; and
(v)The fifth petitioner, Maja Daruwala, is a member of the Board and a senioradvisor to the Commonwealth Human Rights Initiative. In that capacity
she hasbeen associated with significant research on the implementation of human rightsnorms in the country. She has been working in the field of
advocacy for rightsand social justice for over fourty years.
4The persons who were arrested on 28 August 2018 and on whose behalf theseproceedings were initiated have been described thus in the petition:
“i.Gautam Navalakha (Human Rights activist and journalist New Delhi). He was thePresident of the People’s Union for Democratic Rights
and has been associatedwith the Economic and Political Weekly. He is a known commentator on currentaffairs. The state relied upon him to negotiate
the safe return of personsabducted by left wing extremists in Chhattisgarh.
ii.Sudha Bharadwaj (Advocate, Chhattisgarh High Court, currently residing inFaridabad) Prominent cause lawyer of Bilaspur High Court who has
representedworkers, poor and marginal farmers and others in Chhattisgarh. She is thenational green secretary of PUCL and since 2017 been teaching
at the NationalLaw University, Delhi. As a member of the Indian Association of People’slawyers, advocated Sudha Bharadwaj was vocal against
the arrest of lawyers likeSurendra Gadling in recent times. Sudha Bharadwaj has been a member ofcommittees and provided legal aid and is a
recognised human rights defender.
iii.Varavara Rao (Age 79, based in Hyderabad, political worker, commentator and renownedpoet). He was a professor of English and Telegu
literature.
iv.Arun Ferreira, (Mumbai) Practising as a lawyer since 2015 and a Human Rightsactivist.
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 Graveâ€from Marathi to English published in
David Davidar’s “A Clutch of Indianmasterpiecesâ€.
Threeof the above individuals were prosecuted in the past for offences primarilyunder the Indian Penal Code, 1860, the Arms Act, 1959 and the
UAPA. ArunFerreria is stated to have been acquitted in all eleven cases institutedagainst him. Vernon Gonsalves was acquitted in seventeen out of
the nineteencases instituted against him (an appeal is pending in one case where he standsconvicted while an application for discharge is pending
before the Gujarat HighCourt in one case). Vara Vara Rao was acquitted in all twenty cases where hewas prosecuted .
5During the course of the hearing, a preliminary objection was raised by MrTushar Mehta, the learned ASG to the maintainability of these
proceedings. Heurged that the petitioners have no locus to question the circumstances relatingto the arrest of the five individuals named above. I
would not have beeninclined to accept a technical argument of this nature in view of theconstitutional imperatives for this Court to intervene when
human freedoms andliberties are alleged to be imperilled. The jurisdiction under Article 32 iswide enough to reach out to injustice in any form and
originating in anysource. Securing human liberty and dignity must occupy an important space inthe judicial docket. Liberty and freedom are defining
values of ourConstitution. The institutional role of this Court as a constitutionaladjudicator should brook no technicalities which obstruct the cause of
justice.When a group of citizens has moved this Court with an impassioned plea aboutthe violation of human rights â€" in the present case no less than
fivedistinguished citizens with a track record of service to the nation have doneso â€" the Court must look beyond locus into the heart of the matter.
Whether thegrievance has any substance is indeed a distinct matter which must bedetermined objectively. The Court will not interfere in every case
merelybecause it has the jurisdiction. But its duty to scrutinise, perceive andremedy violations of human rights is non-negotiable. However, the issue
oflocus, even in a technical sense, has receded into the background. During thecourse of the hearing, the Court has been apprised that each of the
fiveindividuals who were arrested has subscribed to the averments in the petitionand would stand by what is urged before this Court in protection of
theirrights. The objection to maintainability lacks substance, in either view of thematter.
6A brief historical background is necessary. On 1 January 1818, a few hundredsoldiers of the East India Company comprising of Dalits, tribals,
Muslims,Christians and backward communities defeated the Peshwa army led by Bajirao IIat 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 ofthe Dalits. Honouring the then martyrs, the
colonial government raised avictory pillar, the ‘Vijay Stambh’. The pillar is a symbolic rallying groundfor an annual event to mark the victory.
The event represents the aspirationsof those who have been subject to discrimination and prejudice in thecaste-ridden structure of our society.
7In keeping with tradition, a public meeting was scheduled to commemorate the200th anniversary of the Bhima-Koregaon victory on 31 December
2017. Amongthose who were associated with the event were two judges: one of them, JusticePB Sawant is a former judge of this Court. Justice BG
Kolse Patil is a formerjudge of the Bombay High Court. The event was planned at Shaniwar wada in Pune.An organisation known as the Kabir Kala
Manch was to supervise a culturalprogramme. Besides the two judges who addressed the Elgar Parishad, thespeakers included Shri Prakash
Ambedkar, President of the Bharatiya RepublicanParty. The event was titled:
“Bhima-KoregaonShourya Din â€" Elgar Parishadâ€. The petitioners claim that ‘Elgar’ is a clarioncall. The state reads into it a sinister
symbolism of an attack. On 1 January2018, a communal disturbance took place at Bhima-Koregaon when, as theallegation goes, a group of Dalits was
attacked in the process of offering asalutation to the victory pillar. News of the incident spread across the stateof Maharashtra, resulting in a violent
agitation in the state.
8Following these incidents, a First Information Report in regard to the incidentwas lodged on 8 January 2018 by one Tushar Damgude. The FIR
specifically namesthe following individuals:
iSudhir Dhawale; ii Sagar Gorakhe; iii Harshali Potdar; iv Dipak Dhengale; vJyoti Jagtap; and vi Ramesh Gaychore. Sudhir Dhawale was arrested on
6 June2018. As the investigation progressed, Section 120B of the Penal Code was addedon 6 March 2018 and two more persons â€" Surendra
Gadling and Rona Wilson - weresuspected to be involved. On 17 April 2018, the Pune police conducted searchesat the residences and offices of the
following persons:
1Rona Wilson, a resident of Delhi;
2Surendra Gadling, a resident of Nagpur;
3Sudhir Dhawale and Harshali Potdar, residents of Mumbai;
4Sagar Gorakhe, a resident of Pune;
5Dipak Dhengale, a resident of Pune; and
6Ramesh Gaychore and Jyoti Jagtap, residents of Pune
Inthe counter affidavit which has been filed by the Assistant Commissioner ofPolice, Pune city, it has been stated that the material retrieved from
thecomputers, laptops, pen drives and memory cards of the above accused personsimplicated them as active members of the Communist Party of
India (Maoist), abanned organisation, and reflected a design of being involved in the commissionof offences having the potential to destabilise the
country. Based on theinvestigation, the provisions of Sections 13, 16, 17, 18, 18B, 20, 38, 39 and40 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.
On6 June 2018 five persons were arrested namely:
(i)Surendra Gadling;
(ii)Rona Wilson;
(iii)Sudhir Dhawale; (iv) Shoma Sen; and (v) Mahesh Raut.
Thecounter affidavit filed by the Assistant Commissioner of Police states that itis on the basis of the material recovered during the course of the
search ofthe above persons that the five individuals on whose behalf the presentproceedings have been instituted were found to be a part of the
criminalconspiracy. The averment in the counter reads as follows:
“Istate and submit that based upon the aforesaid material recovered from thesearches of the aforesaid persons [which is a part of the case diary
and whichwould be placed for consideration and perusal of this Hon’ble Court in a sealedcover], the following persons were also clearly found to
be a part of thecriminal conspiracy and their role was not merely peripheral role but they werefound to be playing a very vital role in the criminal
offences committed and/orplanned by others. Based upon the said incriminating material, the followingpersons came to be arrested on 28.8.2018 and
searches were conducted at theirresidential/work places in a similar fashion, under videography in presence ofindividual Punchas who were
Government officers.
1Vara Vara Rao R/o Hyderabad
2Arun Ferreira R/o Thane
3Vernon Gonsalves R/o Mumbai
4Sudha Bhardwaj R/o Faridabad
5Gautam Navlakha R/o Delhiâ€
Thecounter alleges that each of the five individuals is found to be working forand to be an active member of a “banned terrorist organisation†â€
the CommunistParty of India (Maoist). Paragraph 26 of the counter affidavit states that eachof them has been found, from the material gathered from
others duringinvestigation, to be involved in unlawful activities which are described thus:
“Thematerial gathered from others based upon which the five accused persons namedhereinabove are arrested, clearly show that they were
involved in selecting andencouraging cadres to go underground in ‘struggle area’, mobilizing anddistributing money, facilitating selection and
purchase of arms, deciding therates of such arms into India for its onward distribution amongst the cadres.Some of them have suggested training and
laying of booby traps and directionalmines. They are also found to be providing strategic inputs in furtherance ofthe objective of armed rebellion as per
the strategic document of the bannedterrorist organisation namely Communist Party of India (Maoist).â€
Thepetition was initially taken up for hearing on 29 August 2018. Interimdirections to place the five individuals under house arrest were issued, interms
of the request made by their counsel:
“Wehave considered the prayer for interim relief. It is submitted by Dr. AbhishekManu Singhvi, learned senior counsel appearing for the petitioners
that inpursuance of the order of the High Court, Mr. Gautam Navalakha and Ms. SudhaBharadwaj have been kept under house arrest. It is suggested
by him that as aninterim measure, he has no objection if this Court orders that Mr. VaravaraRao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, if
arrested, they are keptunder house arrest at their own homes. We order accordingly. The house arrestof Mr. Gautam Navalakha and Ms. Sudha
Bharadwaj may be extended in terms of ourorders.â€
Sincethe case was being heard, the house arrest has since been extended by theinterim directions of this Court of 6 September 2018 and 17
September 2018.During the course of the hearing, permission has been sought to formally amendthe writ petition to seek the constitution of a Special
Investigating Teamunder the directions of this Court, so as to ensure an independentinvestigation.
9Unfolding his submissions, Dr Abhishek Manu Singhvi, learned senior counselstated that a First Information Report in respect of the violence which
tookplace on 1 January 2018 (FIR 2/2018) was lodged by Anita R Sawale at PS Pimprion 2 January 2018. The FIR alleges that violence was
unleashed against Dalitsby a mob armed with swords, rods and other weapons. The FIR specifically namesSambhaji Bhide, head of an organisation
known as Shivajinagar Pratishthan andMilind Ekbote, Chief of Hindu Janjagaran Samiti as perpetrators andconspirators. Sambhaji Bhide has not been
arrested while Milind Ekbote isstated to have secured bail within a month of his arrest. The FIR relates tooffences under the Penal Code, Arms Act
and the SC/ST Act .
Noprovision of the UAPA has been invoked. Since the police were allegedly notinvestigating the FIR, a writ petition has been filed before the Bombay
HighCourt . FIR 4/2018 was lodged on 8 January 2018 at PS Vishrambagh by TusharDamgude who is alleged to be a self-professed follower of
Sambhaji Bhide. TheFIR adverts to a speech delivered by Sudhir Dhawale at the Elgar Parishad on 31December 2017 in which allegedly an
incendiary speech was made, with thefollowing lines:
“JabJulm ho to Bagawat Honi Chahiye shahar mein, Jab Julm Ho to bagawat honichahiye shaharmein, aur agar bagawat na ho to behatar he ke,ye
raat dhalane sepehle ye shahar jalkar rakh ho jaye, yesatra hein, ye satra ki title hi, apneaap mein, ladhai k ailan hein, ye nayi peshwai ko hamko
shamshan ghat mein,Kabrastaan mein dafnana hein.â€
DrSinghvi submits that these lines are but a translation of Bertolt Brecht’splay, “The Good Person of Szechwanâ€, (1942). Notably, according
to thesubmission, FIR 4/2018 does not allude to any conspiracy to attack the PrimeMinister. It has been submitted that it is undisputed that none of
theactivists under house arrest were named in the FIR. They are not alleged to bepresent at the Elgar Parishad on 31 December 2017 or at Bhima-
Koregaon on 1January 2018. Moreover, according to the submission, the State of Maharashtraopposed the anticipatory bail of Milind Ekbote on the
ground that the violencewas committed as a part of a pre-planned conspiracy by him and by others. Thearrests of the five persons were affected
nearly nine months thereafter.
10The next limb of the submission of Dr Singhvi is that certain letters which arealleged to have been authored by the arrested activists are ex-
faciefabricated. These letters are alleged to have been recovered by the police fromthe electronic devices of one of the accused who was raided in
the month ofApril 2018 and was arrested in June 2018. Shri Parambir Singh, AdditionalDirector General of Police (Law and Order), State of
Maharashtra appeared in atelevision programme called “Truth v Hype†on NDTV on 1 September 2018 andstated that the letters which were
placed before the media by senior policefunctionaries were yet to be verified. According to the petitioners, thirteensuch alleged letters were leaked to
the media by the police during the courseof press briefings. They are now available in the public domain. These letters,it has been submitted, do not
find mention even in the transit applicationsfiled by the Pune police before the concerned court. The letters are unsignedand do not bear any
identifiable particulars including e-mail addresses orheaders. Curiously, the recovery is stated to have been made from theelectronic devices of a third
person who is neither the author nor theaddressee of the letters. Hence, it has been urged that:
(i)While it was alleged that a plot against the Prime Minister has been uncoveredin an alleged letter, it is noteworthy that no new FIR has been
registered bythe 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 thefact that no fresh FIR has been registered and the investigation
continues toremain with the Pune police; and
(iii)Seven out of the thirteen alleged letters which were leaked to the media by thepolice have been authored by or addressed to one “Comrade
Prakashâ€. TheSessions Court at Gadchiroli in its judgment dated 7 March 2017 convicting GNSaibaba 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 beenlodged in Nagpur Central Jail since 7
March 2017 and hence the alleged lettersattributed to him after that date are ex-facie fabricated.
DrSinghvi has drawn the attention of the court to the consistent pattern andhistory of the police targeting human rights activists and incarcerating
themby foisting false criminal cases. This is buttressed by adverting to theprosecutions launched against three of the August 2018 detenues. Vara
Vara Raowas implicated in 25 cases out of which 13 ended in acquittal, 3 in dischargeand 9 in the withdrawal of the prosecution. He has not been
convicted in anycase and is 79 years of age. Arun Ferreira has been acquitted in all the 11cases in which he was implicated. Vernon Gonsalves has
been acquitted in 17 outof the 19 cases in which he was accused; a discharge application is pending inone case while an appeal against conviction in
another case is pending beforethe Nagpur bench of the High Court, where he has already served his sentence.
11During the course of his submissions, Dr Singhvi urged that there was a grossviolation of law rendering the arrest, search and seizure unlawful. The
panchwitnesses were ‘imported’ from Pune and are employees of the Pune MunicipalCorporation. The two panch witnesses travelled together
with the Pune policeand are stock witnesses. Hence it has been submitted that there has been aclear violation of the safeguards introduced in Section
41B of the Code ofCriminal Procedure, 1973. In the transit remand application of Sudha Bhardwaj,the Pune police submitted before the Court of the
CJM, Faridabad on 28 August2018 that her remand was necessary since other individuals who were arrested inJune 2018 had made disclosure
statements in regard to incitement of the riotsin Koregaon. Significantly, no such disclosure has been made by the arrestedpersons nor is there a
mention of a Maoist conspiracy in the alleged letters orin the remand application.
12In summation, Dr Singhvi urged that each of the persons who were arrested on 28August 2018 is an active defender of human rights. They have
taken a positionon human rights violations. The submission is that this targeted persecution ismeant to strike fear amongst human rights’ lawyers,
activists and writers to deterthem from speaking against or critiquing governmental policies and policeactions. Persecution of this nature would, it has
been urged, shake thefoundation of the rule of law and render the freedoms guaranteed by theConstitution illusory. Learned counsel submitted that the
purpose of theseproceedings is not to thwart an investigation but to ensure that theinvestigation is fair and impartial. It was urged that in a long line
ofprecedent, this Court has ordered the constitution of Special InvestigationTeams (SIT) or a court monitored investigation under Article 32 of
theConstitution. In the present case, it was urged, that the facts which have beenadverted to before the Court indicate that the investigation has been
anythingbut fair and impartial. The targeting of human rights activists for theiropposition to the governing regime implicates a serious violation of
democraticvalues and necessitates either the setting up of a SIT or the monitoring of theinvestigation by this Court.
13On the other hand, Mr Tushar Mehta, learned ASG has urged the followingsubmissions:
(i)No interference by the Court is permissible in a criminal case in the garb of apublic interest litigation. A PIL is not maintainable at the behest of a
thirdperson for seeking reliefs which can be granted only under Sections 438 or 439and Section 482 of the Criminal Procedure Code (Rajiv Ranjan
Singh ‘Lalan’(VIII) v Union of India (2006) 6 SCC 613, Gulzar Ahmed Azmi v Union of India(2012) 10 SCC 731, Simranjit Singh Mann v
Union of India (1992) 4 SCC 653 andAshok Kumar Pandey v State of West Bengal (2004) 3 SCC 349;
(ii)There is an abuse of process in the present case since three of the arrestedpersons â€" Vara Vara Rao, Sudha Bhardwaj and Gautam Navlakha
have filedpetitions before the jurisdictional High Courts which are pending adjudication.Hence it would be impermissible to allow their prayer for
transposing them oradopting the averments in the petition (Pratibha Ramesh Patel v Union of India(2016) 12 SCC 375, Udyami Evam Khadi
Garmodyog Welfare Sanstha v State ofUP(2008) 1 SCC 560 );
(iii)A PIL under Article 32 would not be maintainable for the purpose of seekingrelief 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 thepresent proceedings under Article 32 are not maintainable (State of
Maharashtrav Tansen Rizwan Siddiquee (2018) 10 SCALE 711);
(v)The accused does not have a vested right to seek an investigation monitored bythe court or to have a particular agency as the investigator; and
(vi)The investigation in the present case is being conducted responsibly andimpartially by an officer of the rank of an Assistant Commissioner of
Police. Theinvestigation is being carried out under the supervision of a DeputyCommissioner of Police and is being monitored by the Joint
Commissioner ofPolice who is of the rank of an Additional Director General.
14While entertaining these proceedings, this Court is conscious of the fact thatordinarily, when an investigation into a criminal offence is in
progress,rights and remedies are provided by the Code of Criminal Procedure. Hence, itis but trite law that in matters pertaining to or arising during
the course ofinvestigation such as remand, bail (including anticipatory bail) and quashingof proceedings, recourse must be taken to the provisions of the
Code. Theseprinciples have been highlighted in the decisions to which a reference has beenmade by the ASG. In Rajiv Ranjan Singh (supra) the trial
had commenced in acriminal case involving a charge of amassing wealth disproportionate to theknown source of income of a public servant. This
Court held that a PIL is notmeant to advance a political agenda and would be alien to pending criminalproceedings. The petitioners were not de facto
complainants and if at all theyhad a grievance regarding the removal of a public prosecutor, they should havemoved the Special Judge or the High
Court at the earliest point of time. TheCourt emphasised that any interference at the behest of a third party wasliable to affect the course of justice
and may even prejudice the accused bydenying a fair trial. In Gulzar Ahmed Azmi (supra) a petition under Article 32sought an investigation of all
bomb blast cases since 2002 with a direction forthe release of the detenues on bail. In that context, this Court held thatsufficient safeguards were
available under the criminal law and it was for theindividual against whom a criminal proceeding is lodged to work out his or herremedy. In Simranjit
Singh Mann (supra) the Court declined to exercise itsjurisdiction under Article 32 where the petitioner did not seek to enforce hisown fundamental
rights but the fundamental rights of two “condemned convictsâ€who had not themselves complained of a violation. This Court noted that it wasnot
open to “any and every person†to challenge a conviction and unless theaggrieved individual suffers from a disability recognised by law, it would
be unsafeand hazardous to allow a third party or stranger to question the correctness ofa conviction and sentence imposed after trial. These principles
were alsoadverted to in the earlier decision in Ashok Kumar Pandey (supra). They arewell settled. As a court which is governed by precedent, we
are bound by themand by a consistent line of authority which requires that during the course ofinvestigation, it is to the competent court that an
accused must ordinarilyturn for the remedies that are available under substantive or proceduralprovisions of the criminal law.
15But in the present case, it is necessary for the Court to bear in mind thatrecourse to its constitutional jurisdiction under Article 32 has been
invokednot only by the petitioners but by the five individuals who were arrested on 28August 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 arrestedpersons be placed under house arrest. At the earliest
possible point in time,these five individuals have moved this Court indicating that they abide by theaverments and reliefs sought in the petition and seek
that they should betransposed as petitioners under Article 32. The petitioners have not in their submissionssought recourse to the jurisdiction of this
Court for espousing a remedy whichis available before the competent court under the Code of Criminal Procedure.These proceedings have been
moved with a specific grievance that the arrest ofthe five individuals is an attempt by the state to muzzle dissent and that eachof them is being
persecuted for being a defender of persons subjected to humanrights’ violations. When the petition was initially filed, the relief which wassought
was in regard to the circumstances relating to the arrest of the humanrig0hts activists. By an application for amendment, the reliefs have beensought
to be amended to inter alia seek the constitution of a SpecialInvestigating Team (to be monitored by this Court). For clarity, the abovereliefs are
extracted below:
“i)Issue an appropriate writ, order or direction for setting up of a SpecialInvestigating Team (SIT) comprising of senior police officers with
impeccablecareer records of professionalism, integrity and independence, reportingdirectly to this Hon’ble Court, for conducting a fair and
independentinvestigation and inquiry into the offences stated in the zero FIR lodged atPimpri police station on 02.01.2018 (now Cr.Case No 2/2018),
and the FIR 4/2018lodged at Vishrambagh police station on 08.01.2018 by Tushar Damgude, and allother related matters and allegations; or
ii)Issue an appropriate writ, order or direction for the investigation into theoffences 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 policestation on 08.01.2018, and all other related matters and
allegations, to becarried out by an independent agency which shall be monitored directly by thisHon’ble Court through regular filing of status
reports of the investigation bythe investigating agency;â€
16Though the prayer seeking the appointment of a Special Investigating Team issought to be introduced by way of an application for amendment, it is
necessaryto note that in the petition as it was originally filed, it has been statedthat the object of the petition is not to stop an investigation but to
ensureanindependent and credible investigation. The relevant averment in that regardreads as follows:
“Petitionersare seriously concerned about the erosion of democratic values and are movingthis Hon’ble Court not to stop investigation into
allegations but to ensureindependentand credible investigation by such persons as may be deemedfit undersupervision of this Hon’ble Court.
Anything short of this will damage thefabric of nation irreparably.†(emphasis supplied)
Theapplication for amendment, does not, in other words, set up a new case but isintended to introduce a formal prayer on the basis of averments
which havealready been made in the petition as it was originally filed.
17This Court, as a constitutional adjudicator, has been entrusted with thejurisdiction under Article 32 to secure the fundamental freedoms guaranteed
byPart III of the Constitution. While the discipline of the law of criminalprocedure must at all times be kept in view, it cannot be gainsaid that
theprotection of fundamental liberties is a subject so integral to democraticconstitutional values that technicalities should not be allowed to override
thecause of substantive justice. The court must undoubtedly tread withcircumspection for in the guise of seeking access to its wide jurisdictionunder
Article 32, the normal remedies under the criminal law should not bedisplaced. Again, as the court has repeatedly emphasised, public interestlitigation
should not become a weapon for settling political scores or ofpursuing extraneous ends. In the present case, we have no manner of doubt thatthe
initiation of the proceedings under Article 32 is not motivated byextraneous reasons. The law is not a respecter of social, economic or politicalstatus
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
inextraordinary circumstances where they claim that a group of human rightsactivists has been targeted by the state police. Each of those five
individualshas joined in these proceedings.
18Over the course of the last decade, the jurisdiction of this Court has evolvedunder Article 32 to order the constitution of a SIT. In National Human
RightsCommission v State of Gujarat, (2009) 6 SCC 342 a SIT was constituted in amatter involving a serious element of communal disharmony.
Further directionswere issued by this Court for regular status reports to be filed by the SIT(NHRC v State of Gujarat (2009) 6 SCC 767).In Ram
Jethmalani v Union of India,(2011) 8 SCC 1 this Court observed that in several instances in the past, whenthe issues were of a complex nature, yet
requiring the intervention of theCourt, SITs were ordered to be constituted to enable the Court, the Uniongovernment and other organs of the state to
fulfil their constitutionalobligations. In Common Cause v Union of India, (2017) 3 SCC 501 the test forthe constitution of a SIT was a prima facie
abuse of power and authority by theDirector of the Central Bureau of Investigation to scuttle an investigation andenquiries into coal block allocations.
In Sunita Devi v Union of India, (2018)3 SCC 664 an independent and impartial SIT was constituted where it was foundthat the investigation into the
murder of a family was lackadaisical and thereal culprits had not been put to trial. These instances indicate the diversityof settings in which this Court
has ordered the constitution of SITs.Decisional flexibility in the exercise of this jurisdiction meets exigencieswhich arise in unforeseen situations,
warranting the intervention of this Courtunder Article 142. While the Court does not determine the course of theinvestigation, it acts as a watchdog to
ensure that a fair and impartialinvestigation takes place. A fair and independent investigation is crucial tothe preservation of the rule of law and, in the
ultimate analysis to libertyitself.
19Mr 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 anallegation against the political class in power, so that the investigation isnot 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 hasadvisedly been entrusted to this Court by the framers of the
Constitution. Thefact that in a particular case, a SIT was ordered to be constituted in asituation where there was an allegation of interference with the
investigationby the political establishment is not a reason to confine the exercise of thejurisdiction only to such cases. In the rights discourse, violations
of law andtransgressions of human rights arise in myriad situations which it may bedifficult to anticipate exhaustively. Prudently therefore, the
jurisdictionunder Article 32 is not hedged in by technicalities nor would it be wise toconfine it to stated categories. The ultimate touchstone for the
exercise ofthe jurisdiction is that a violation of the fundamental human freedomsrelatable to the cardinal values of liberty, dignity and equality under
PartIII of the Constitution is in issue.
20Besides the jurisdiction to order the constitution of a SIT, the proceedings ofthis Court are replete with instances where an investigation has been
monitoredunder the authority of this Court. In Vineet Narain v Union of India, (1996) 2SCC 199 this Court in the context of the widely publicised Jain
Hawalatransactions case ordered a court monitored investigation to ensure thatgovernment agencies discharged their duties and functions bearing in
mind thetenets of equality and the rule of law. In doing so, this Court emphasised theneed to retain public confidence in the process of investigation. In
BabubhaiJamnadas Patel v State of Gujarat, (2009) 9 SCC 610 a two judge Bench, whilenoting that investigation of offences is normally the function
of theinvestigating agency emphasised that where extraordinary facts or situationsare involved, it is the duty of the High Courts and of this Court to
interveneto ensure that the rights of citizens are duly protected:
“Thecourts, and in particular the High Courts and the Supreme Court, are thesentinels of justice and have been vested with extraordinary powers
of judicialreview and supervision to ensure that the rights of the citizens are dulyprotected.â€
InCentre for Public Interest Litigation v Union of India, (2011) 1 SCC 560 acourt monitored investigation was ordered in a public interest litigation
whichfocused on the need for a thorough and impartial investigation into the 2GSpectrum scam. In Bharati Tamang v Union of India, (2013) 15 SCC
578 this Courtheld that in an appropriate case, or when exceptional circumstances have beenmade out, the jurisdiction under Article 32 can be
exercised to constitute aSIT or to transfer the investigation to a Central Agency and monitor it, oreven to order a de novo investigation into criminal
cases.
21With this body of precedent on the subject, the maintainability of a prayer forrelief, seeking that the investigation should be either monitored by this
Courtor should be entrusted to an independent SIT under the directions of this Courtcannot be in doubt. Though wide-ranging submissions have been
urged before thisCourt on merits, it is necessary that the court must eschew a detailed ormeticulous examination of the material produced by the ASG
together with thecase diary, particularly when the investigation is in progress. The expressionof a finding by this Court would affect the administration
of criminal justiceor perhaps in a given case, even the rights of the accused. The observations ofthis Court must, therefore, be confined to assessing
whether a case has beenmade out for the constitution of a SIT and matters having a bearing on thatdecision.
22I must, at the outset, dwell on the fairness of the manner in which the policehave approached this investigation. On 29 August 2018, this Court
issuednotices to the State of Maharashtra and to the others impleaded as respondentsto the proceedings. Within a few hours of the conclusion of the
court hearing,a press conference was held in Pune by Shivarjirao Bodhke, the Joint Commissionerof Police proclaiming that the Pune police had more
than sufficient evidenceagainst the five individuals whose transit remand was stayed by this Courtwhile ordering them to be placed under house arrest.
This is disconcertingbehaviour â€" the Joint Commissioner sought in this oblique manner to respond tothe interim order of this Court by recourse to the
electronic media. On 31August 2018, a press conference was addressed by a team of senior policeofficers headed by Shri Parambir Singh, ADG
(Law and Order), Maharashtra.During the course of the press conference letters (many of which should formpart of the case diary) were selectively
flashed and read out. According to thepetitioners they were also leaked to the media. A video of the press conferenceis annexed in the form of a CD
at Annexure R-2 of the rejoinder and has beenuploaded on
https://www.youtube.com/watch?v=PCVKfstx2Qc.On 1 September 2018 the ADG (Law and Order) appeared on a television programmetitled
“Truth v Hype†on NDTV, during the course of which he is stated to haveagreed that the letters which had been read out by him were still
undergoingforensic analysis together with the electronic devices. The CD of the programmeis annexed as Annexure R-3 to the rejoinder. Besides this,
the attention of theCourt has been drawn to the fact that the first round of arrests in the presentcase took place on 6 June 2018. On 8 June 2018 an
alleged letter was releasedby the police to the media a little before the proceedings for remand beforethe competent court (in the June arrests),
alleging that the arrested personswere plotting to attack the Prime Minister. On 4 July 2018 when the arrestedpersons were to be produced before the
Court in Pune, a letter attributed toSudha Bhardwaj was sensationally telecast on a television channel linking herwith the unlawful activities of certain
groups. A serious grievance has beenmade about the fact that these letters have neither been placed before theCourt of law nor did they find mention
in the transit remand applications movedbefore the CJM, Faridabad by the Pune police.
23In Rajendran Chingaravelu v RK Mishra, (2010) 1 SCC 457 this Court deprecatedthe tendency of the police to reveal details of an investigation to
the mediaeven before the completion of the investigation. This Court observed:
“21.But the appellant’s grievance in regard to media being informed about theincident even before completion of investigation, is justified.
There isgrowing tendency among investigating officers (either police or otherdepartments) to inform the media, even before the completion of
investigation,that they have caught a criminal or an offender. Such crude attempts to claimcredit for imaginary investigational breakthroughs should be
curbed. Even wherea suspect surrenders or a person required for questioning voluntarily appears,it is not uncommon for the Investigation Officers to
represent to the mediathat the person was arrested with much effort after considerable investigationor a case. Similarly, when someone voluntarily
declares the money he iscarrying, media is informed that huge cash which was not declared wasdiscovered by their vigilant investigations and
thorough checking. Prematuredisclosures or ‘leakage’ to the media in a pending investigation will not onlyjeopardise and impede further
investigation, but many a time, allow the realculprit to escape from law...†(emphasis supplied)
24This facet of the case of serious concern. The manner in which the JointCommissioner of Police and the Additional Director General of Police
(Law andOrder), Maharashtra have selectively disclosed purported details of theinvestigation to the media and on television channels casts a cloud on
theimpartiality of the investigative process. In its 2010 decision in Rajendran(supra) this Court was constrained to take note of this growing tendency
on thepart of investigating agencies. The use of the electronic media by theinvestigating arm of the State to influence public opinion during the
pendencyof an investigation subverts the fairness of the investigation. The police arenot adjudicators nor do they pronounce upon guilt. In the present
case, policebriefings to the media have become a source of manipulating public opinion bybesmirching the reputations of individuals involved in the
process ofinvestigation. What follows is unfortunately a trial by the media. That thepolice should lend themselves to this process is a matter of grave
concern. Theinvestigation commenced as an enquiry into the Bhima-Koregaon violence. Thecourse of the investigation was sought to be deflected by
alleging (in thecourse of the press briefings of the police) that there was a plot against thePrime Minister. Such an allegation is indeed of a serious
order. Suchallegations require responsible attention and cannot be bandied about by policeofficers in media briefings. But during the course of the
present hearing, noeffort has been made by the ASG to submit that any such investigation is beingconducted in regard to the five individuals. On the
contrary, he fairly statedthat there was no basis to link the five arrested individuals to any suchalleged plot against the Prime Minister. Nor does the
counter affidavit makesany averment to that effect. All this has certainly a bearing on the basicquestion as to whether the Maharashtra police can
now be trusted to carry outan independent and impartial investigation.
25During the course of the hearing, the learned ASG has assisted the Court bytendering the case diary and a compilation of documentary material. As
a matterof prudence, the court must desist from adverting to the details contained inthe compilation or in the case diary save and except for indicating
broadreasons in the course of evaluating the reliefs which have been claimed. Thecounter affidavit, which has been filed by the State of Maharashtra
makes itabundantly clear that the arrest of the five individuals (on 28 August 2018)was based on “material gathered from othersâ€. This adverts to
the materialalleged to have been gathered in the course of the raids conducted againstthose individuals who were arrested in the months of June and
July 2018.Paragraph 26 of the counter (which has been extracted earlier) states that thismaterial “clearly shows that they were involved†in (i)
selecting andincorporating cadres to go underground in the ‘struggle area; (ii) mobilisingand distributing money; (iii) facilitating selection and
purchase of arms; (iv)deciding the rates of such arms; and (v) suggesting the routes and ways ofsmuggling such arms into India for its onward
distribution amongst the cadres.
26Next, it is alleged that “some of them†(i) “have suggested training and layingof booby traps and directional minesâ€; and (ii) “are found
to be providingstrategic inputs in furtherance of the objective of armed rebellion†inpursuance of a strategic document of a banned terrorist
organisation namely,the Communist Party of India (Maoist). With the assistance of the ASG I havecarefully perused the compilation produced before
the Court. Upon perusing thematerial, I find that the allegation that each of the five individuals arrestedon 28 August 2018 is found to be engaged in
activities of the nature set out inparagraph 26 of the counter affidavit (extracted above) is taking libertieswith the truth. General allegations against the
philosophy of a bannedorganisation, its policies and the modalities followed in the execution of itsunlawful activities constitute one thing. Linking this to
specific activitiesof named individuals is a distinct matter. At this stage, it is necessary tonote the submission which has been urged in regard to an
undated letter ofSudha Bhardwaj to Comrade Prakash which was also allegedly distributed to themedia. There is a serious bone of contention in
regard to the authenticity ofthe letter which, besides being undated, does not contain any details includingthe e-mail header. A statement has been
handed over the court in support of thesubmission that the letter is an obvious fabrication made by a Marathi speakingperson because in as many as 17
places, it contains references to words scribedin Devanagari, using forms peculiar to Marathi. It has been urged that SudhaBhardwaj who does not
belong to Maharashtra and is not Marathi speaking, couldnot possibly have written a letter in Devanagari utilising essentially Marathiforms of grammar
or address. We need not delve into these aspects at thisstage, since they are matters for a fair investigation.
27One of the circumstances which must certainly bear upon the fairness andimpartiality of the process which has been followed by the investigating
agencyis in regard to the importation of two panch witnesses from Pune, when thearrests were carried out. Section 41B of Code of Criminal
Procedure emphasisesthe importance of an independent witness while making an arrest.
Section41B of the Code provides as follows:
“Everypolice officer while making an arrest shall-
(a)bear an accurate, visible and clear identification of his name which willfacilitate 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 personarrested 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 hisfamily, that he has a right to have a relative or a friend named by
him to beinformed of his arrest.â€
(emphasissupplied)
Thetwo panch witnesses in the present case are employees of the Pune MunicipalCorporation. It is not disputed before this Court that they travelled
as partof the police team which made the arrest.
28It was in DK Basu v State of West Bengal, (1997) 1 SCC 416 that this Court laiddown requirements to be followed in all cases of arrest, which
included thefollowing:
“(2)That the police officer carrying out the arrest of the arrestee shall prepare amemo of arrest at the time of arrest and such memo shall be
attested by atleast one witness, who may either be a member of the family of the arrestee ofa respectable person of the locality from where the arrest
is made. It shallalso be countersigned by the arrestee and shall contain the time and date ofarrest.â€
ThisCourt observed that the requirements it had enunciated emanated from Articles21 and 22(1) of the Constitution and “need to be strictly
followed†failingwhich action for contempt of court would be initiated.
29There is a serious allegation that the arrests have been motivated by anattempt to quell dissent and to persecute five individuals who have pursued
thecause of persons who have suffered discrimination and human rights violations.In approaching the present case, the Court must be mindful of the
need not tothwart a criminal investigation leading to the detection of unlawful acts.Equally, the Court has to be vigilant in the exercise of its jurisdiction
underArticle 32 to ensure that liberty is not sacrificed at the altar ofconjectures. Individuals who assert causes which may be unpopular to theechelons
of power are yet entitled to the freedoms which are guaranteed by theConstitution. Dissent is a symbol of a vibrant democracy. Voices in
oppositioncannot be muzzled by persecuting those who take up unpopular causes. Where,however, the expression of dissent enters upon the prohibited
field of anincitement to violence or the subversion of a democratically elected governmentby recourse to unlawful means, the dissent ceases to be a
mere expression ofopinion. Unlawful activities which violate the law have to be dealt with inaccordance with it. In the background which has been
adverted to earlier, itwould be blasé to accept the submission that the investigation by the policeshould be allowed to proceed without a safeguard
for ensuring the impartialityand independence of the investigative agency. The conduct of the Pune police inutilising the agency of the electronic media
to cast aspersions on those underinvestigation fortifies the need for an investigation which is fair. When theJoint Commissioner of Police and the
Additional Director General of Police castaspersions in the public media against persons whose conduct is still underinvestigation, and in disregard of
proceedings pending before a judicial forum,it is the duty and obligation of this Court to ensure that the administrationof criminal justice is not derailed.
I make it absolutely clear that nothing inthis order shall be construed as any observation on the merits of theinvestigation which is to take place. The
purpose of the direction which Ipropose to give is to ensure that the basic entitlement of every citizen who isfaced with allegations of criminal
wrongdoing, is that the investigativeprocess should be fair. This is an integral component of the guarantee againstarbitrariness under Article 14 and of
the right to life and personal liberty underArticle 21. If this Court were not to stand by the principles which we haveformulated, we may witness a
soulful requiem to liberty.
30The judgment of the majority has relied on certain decisions to hold that sucha petition as in the present case is not maintainable and the prayer for
theconstitution of SIT at the behest of the five individuals under investigationcannot be entertained. In Narmada Bai v State of Gujarat, (2011) 5 SCC
79 thepetitioner filed a writ petition under Article 32 for issuance of a writdirecting the CBI to register a FIR in a case pertaining to an alleged
fakeencounter in which her son was killed. The key issue was whether after filingof the charge-sheet by the state investigative agency, this Court was
precludedfrom appointing an independent specialised agency like the CBI to go into thesame issues, if the earlier investigation was not done in
accordance with theestablished procedure. The factual determination to be carried out was whetherthe petitioner had made out a case for entrusting
the investigation to the CBI.
31While this Court observed that “It is trite law that accused persons do nothave a say in the matter of appointment of an investigation agencyâ€
and that“the accused persons cannot choose as to which investigation agency mustinvestigate the alleged offence committed by themâ€, the Court
also observedthat there were “large and various discrepancies†in the reports and theinvestigation conducted by the police authorities of the State
of Gujarat andthat 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 Courtconcluded that even though the charge-sheet had been filed, in view of thecircumstances brought to the notice of the Court, the
involvement of the policeofficials of the State of Gujarat in the investigation was “undesirableâ€. Thus,“to meet the ends of justice and in the
public interestâ€, the CBI was bedirected to take charge of the investigation.
32This case supports my view that in the interest of justice, and particularlywhen there are serious doubts regarding the investigation being carried out,
itis not only permissible, but our constitutional duty to ensure that theinvestigation is carried out by a special investigation team or a specialinvestigative
agency so that justice is not compromised.
33In Sanjiv Rajendra Bhatt v Union of India, (2016) 1 SCC 1 the petitioner, whowas an IPS officer filed a plea before this Court seeking the
appointment of aSIT, to probe into two FIRs filed against him by the Gujarat Police. On thefacts of the case, it was held that the nature of the case
relating to anallegedly false affidavit and the alleged hacking of an email account were notof such wide amplitude so as to warrant the constitution of a
SIT. The Courtalso observed that the petitioner had not come to the Court with clean handsand 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 previouslydiscussed the established precedents of this
Court which indicate thecircumstances in which this Court can constitute a SIT.
34In E Sivakumar v Union of India, (2018) 7 SCC 365 the petitioner was named inan FIR which was being investigated in regard to the illegal
manufacture andsale of pan masala and gutkha containing tobacco and/or nicotine. Thepetitioner challenged the decision of the High Court to transfer
theinvestigation of the criminal case to the Central Bureau of Investigation. Oneof us (Khanwilkar J) who authored the judgment on behalf of this
Bench held:
“TheHigh Court has cogitated over all the issues exhaustively and being fullysatisfied about the necessity to ensure fair investigation of the crime
inquestion, justly issued a writ of mandamus to transfer the investigation to theCBI.â€
Thejudgment of the High Court was upheld on the following ground:
“…the question regarding the necessity to ensure a fair and impartialinvestigation of the crime, whose tentacles were not limited to the State
ofTamil Nadu but transcended beyond to other States and may be overseas besidesinvolving high ranking officials of the State as well as the
CentralGovernment, has now been directly answered. For instilling confidence in theminds of the victims as well as the public at large, the High Court
predicatedthat it was but necessary to entrust the investigation of such a crime to CBI.Viewed thus, there is no infirmity in the conclusion reached by
the High Courtin the impugned judgment, for having entrusted the investigation to CBI.â€
Drawingattention to the duty of this Court as adjudicator, it was also observed:
“Itis the bounden duty of a court of law to uphold the truth and truth meansabsence of deceit, absence of fraud and in a criminal investigation a real
andfair investigation, not an investigation that reveals itself as a sham one. Itis not acceptable.It has to be kept uppermost in mind that
impartialandtruthful investigation is imperative…If a grave suspicion arises with regard tothe investigation, should a constitutional court close its hands
and accept theproposition that as the trial has commenced, the matter is beyond it?...â€
(emphasissupplied).
Theabove observations are a significant reminder of the function of this Court, asthe protector of the fundamental rights of citizens. These rights must
besafeguarded particularly when there is a possibility that failure to take aposition may lead to a denial of justice.
35The case of Divine Retreat Centre v State of Kerala (2008) 3 SCC 542 concernedwith the maintainability of an anonymous petition to a judge of
the High Courtseeking a direction for an investigation. The anonymous petition was taken upsuo motu by the High Court under Section 482 of the
Code of Criminal Procedureand the investigation of the criminal case was directed to be taken away fromthe investigating officer and entrusted to a
SIT. The central question in thiscase was the scope of the inherent power conferred on the High Court under Section482 of the Code of Criminal
Procedure. It was held that:
“TheHigh Court in exercise of its inherent jurisdiction cannot change theinvestigating officer in the midstream and appoint any agency of its own
choiceto investigate a crime on whatsoever basis and more particularly on the basisof anonymous petitions addressed to a named Judge. Such
communications cannotbe converted into suo motu proceedings for setting the law in motion. Neitherthe accused nor the complainant or informant is
entitled to choose its owninvestigating agency to investigate a crime in which it may be interested.â€(emphasis supplied)
TheCourt in the context of Article 226 commented on the maintainability of publicinterest litigation as follows:
“Itis well settled that a public interest litigation can be entertained by theconstitutional courts only at the instance of a bona fide litigant. The
SupremeCourt has uniformly and consistently held that the individual who moves theCourt for judicial redress in cases of public interest litigation must
beacting bona fide with a view to vindicating the cause of justice and not forany personal gain or private profit or of the political motivation or
otheroblique consideration…â€
Itwas also observed that:
“theHigh Court in exercise of its whatsoever jurisdiction cannot directinvestigation by constituting a special investigation team on the strength
ofanonymous petitions.
36These observations indicate that what found disfavour with this Court was theHigh Court having entertained an anonymous petition to constitute a
SIT. Thefacts of the above case are distinct from the case at hand. The observationsmade on the maintainability of public interest litigation only lend
support tothe present case. The petitioners in the present case are not anonymous. Therehas been no argument that the petitioners have been
motivated by personal gainor political considerations.
37Recently on 14 September 2018, the learned Chief Justice, speaking for thepresent bench of three Judges handed down a verdict granting
compensation of Rs50 lakhs to a space scientist who was found upon further investigation by theCBI to have been wrongfully implicated and
subjected to custodialinterrogation. This was on an allegation that he had leaked out official secretsof the Indian Space Research Organisation. The
learned Chief Justice held:
“...therecan be no scintilla of doubt that the appellant, a successful scientist havingnational reputation, has been compelled to undergo immense
humiliation. Thelackadaisical attitude of the State police to arrest anyone and put him inpolice custody has made the appellant to suffer the ignominy.
Thedignity of a person gets shocked when psychopathological treatment is meted outto him. A human being cries for justice when he feels that the
insensible acthas crucified his self-respect. That warrants grant of compensation under thepublic law remedy. We are absolutely conscious that a civil
suit has been filedfor grant of compensation. That will not debar the constitutional court togrant compensation taking recourse to public law. The Court
cannot lose sightof the wrongful imprisonment, malicious prosecution, the humiliation and thedefamation faced by the appellant.â€
Thefact that the payment of compensation was ordered nearly 24 years after thewrongful arrest is a grim reminder about how tenuous liberty can be
and of thedifficulty in correcting wrongs occasioned by unlawful arrest.
38There can be no manner of doubt that the deprivation of human rights seriouslyimpinges upon the dignity of the individual for which even
compensation may notconstitute an adequate recompense. This theme echoes recurrently in thejudgments of this Court in Kiran Bedi v Committee of
Inquiry, (1989) 1 SCC 494Delhi Judicial Service Association v State of Gujarat, (1991) 4 SCC 406Joginder Kumar v State of UP (1994) 4 SCC 260
and DK Basu v State of WestBengal (1997) 1 SCC 416. In DK Basu, this Court elucidated on the importance ofpersonal liberty in the constitutional
scheme:
“17.FundamentalRights occupy a place of pride in the Indian Constitution. Article 21 provides“no person shall be deprived of his life or personal
liberty except accordingto procedure established by lawâ€. Personal liberty, thus, is a sacred andcherished right under the Constitution. The expression
“life or personalliberty†has been held to include the right to live with human dignity and thusit would also include within itself a guarantee against
torture and assault bythe State or its functionaries.â€
TheCourt also emphasized that no arrest can be made without reasonablesatisfaction after investigation about the genuineness and bona fides of
acomplaint:
“20.This Court in Joginder Kumar v. State of U.P. [(1994) 4 SCC 260 : 1994 SCC(Cri) 1172] (to which one of us, namely, Anand, J. was a party)
considered thedynamics of misuse of police power of arrest and opined:
“Noarrest can be made because it is lawful for the police officer to do so. Theexistence of the power to arrest is one thing. The justification for
theexercise of it is quite another. … No arrest should be made without areasonable satisfaction reached after some investigation as to the
genuinenessand bona fides of a complaint and a reasonable belief both as to the person'scomplicity and even so as to the need to effect arrest.
Denying a person of hisliberty is a serious matter.â€
39This 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
fairinvestigative process to issue appropriate directions under Article 142 of theConstitution.
40Hence, 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 theMaharashtra police has in the present case acted as fair and
impartialinvestigating agency. Sufficient material has been placed before the Courtbearing on the need to have an independent investigation.
41Hence, following the line of precedent of this Court which has been discussedearlier, I am firmly of the view that a Special Investigating Team must
beappointed. The investigation shall be monitored by this Court. The SpecialInvestigating Team shall submit periodical status reports to this
Court,initially on a monthly basis. The interim order passed by this Court on 29August 2018 shall continue to hold the field for a further period of
threeweeks within which it would be open to the said five individuals or any one ormore of them to apply for bail before the Court of competent
jurisdiction. Iwould direct that the petition be listed after three days for orders on theconstitution of the Special Investigating Team. There shall be an
order inthese terms.