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

ROMILA THAPAR AND ORS.

UNION OF INDIA AND ORS.

(Writ Petition (Criminal) No. 260 of 2018)

SEPTEMBER 28, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Constitution of India – Art.32 – Writ petition filed by fivepersons, as next best friend of five activists-accused who werearrested purportedly in connection with FIR No.4/18 – Said FIRregistered in Pune in relation to communal violence that took placein Bhima Koregaon as outcome of an event organized by organizationcalled Elgar Parishad – Plea of petitioners that neither of the fiveaccused persons were present in the said event nor any allegationagainst them is found in the FIR and that the said FIR was fabricatedby Pune Police after FIR No.2/18 was filed against some Hindutvaright wing leaders based on an eye-witness account that they incitedviolence against Dalit congregation in Bhima Koregaon – Petitionersinter alia prayed for appointing Special Investigation Team (SIT)and Court monitored investigation – Held: (Majority view) PerA.M. Khanwilkar, J. (for himself and Dipak Misra, CJI) Accusedpersons cannot choose as to which Investigating Agency mustinvestigate the offence committed by them – Present is not case ofarrest because of mere dissenting views expressed or difference inthe political ideology of the named accused, but concerning theirlink with the members of the banned organization, Communist Partyof India (Maoist) and its activities –Crime under investigation inFIR No.4/2018, inter alia is to investigate the allegations that bannedorganization, Communist Party of India (Maoist), organises eventsas referred to in FIR No.2/2018 to propagate ill-will in differentclasses and turn them into violent activities – Incidents such as atBhima Koregaon is the outcome of such conspiracy – Reliefs claimednot granted – (Minority view) Per Dr. D.Y. Chandrachud, J.(Dissenting) In the present case, the initiation of the proceedings u/Art. 32 is not motivated by extraneous reasons – Conduct of thePune police in utilising the agency of the electronic media to cast

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Aaspersions on persons whose conduct is still under investigation,fortifies the need for an investigation which is fair – Sufficientmaterial has been placed before the Court bearing on the need tohave an independent investigation – Dissent is symbol of vibrantdemocracy – Voices in opposition cannot be muzzled by persecutingthose who take up unpopular causes – Present is proper case forBthe appointment of SIT –SIT to be appointed – Investigation shallbe monitored by Supreme Court – Unlawful Activities (Prevention)Act, 1967 – Constitution of India – Arts.21 and 22(1).

Constitution of India – Art.32 – Public Interest Litigation –Locus for – Held: Per A.M. Khanwilkar, J. (for himself and DipakCMisra, CJI) Prayer for changing the Investigating Agency cannotbe dealt with lightly and the Court must exercise that power withcircumspection – Writ petition at the instance of the next friend ofthe accused for transfer of investigation to independent InvestigatingAgency or for Court monitored investigation cannot beDcountenanced, much less as public interest litigation – Per Dr. D.Y.Chandrachud, J. (Dissenting) When group of citizens has movedSupreme Court with an impassioned plea about the violation of humanrights the Court must look beyond locus into the heart of the matter.Constitution of India – Art.32 – Writ petition under –EMaintainability of, in criminal matters – Held: Per Dr. D.Y.Chandrachud, J. Ordinarily, when an investigation into criminaloffence is in progress, recourse must be taken to the provisions ofthe Code – However, in the present case the petitioners have notsought recourse to the jurisdiction of Supreme Court for espousinga remedy which is available before the competent court under theFCode of Criminal Procedure – Present proceedings have been movedwith specific grievance that the arrest of the five individuals is anattempt by the State to muzzle dissent – Supreme Court, as aconstitutional adjudicator, has been entrusted with the jurisdictionu/Art. 32 to secure the fundamental freedoms guaranteed by theGConstitution – Protection of fundamental liberties is subject sointegral to democratic constitutional values that technicalities shouldnot be allowed to override the cause of substantive justice.

Constitution of India – Art.32 – Public Interest Litigation –Constitution of Special Investigation Team (SIT) – Jurisdiction ofHSupreme Court – Held: Per Dr. D.Y. Chandrachud, J. Instances

indicate the diversity of settings in which Supreme Court has orderedthe constitution of SITs – While the Court does not determine thecourse of the investigation, it acts as watchdog to ensure that afair and impartial investigation takes place.

Criminal Trial – Investigation pending – Use of electronicmedia by Police – Practice of – Held: Per Dr. D. Y. Chandrachud,J. Use of the electronic media by the investigating arm of the Stateto influence public opinion during the pendency of an investigationsubverts the fairness of the investigation – Police are notadjudicators nor do they pronounce upon guilt.

Disposing of the Writ petition, the Court

HELD: PerA.M. Khanwilkar, J. (for himself andDipak Misra, CJI)

1.1 The accused persons do not have say in the matter ofappointment of Investigating Agency. Further, the accusedpersons cannot choose as to which Investigating Agency mustinvestigate the offence committed by them. In the present case,except pointing out some circumstances to question the mannerof arrest of the five named accused sans any legal evidence tolink them with the crime under investigation, no specific materialfacts and particulars are found in the petition about mala fideexercise of power by the investigating officer. vague andunsubstantiated assertion in that regard is not enough. Rather,averment in the petition as filed was to buttress the reliefs initiallyprayed- regarding the manner in which arrest was made. Uponperusal of the material already gathered during the ongoinginvestigation, it is clear that the present is not case of arrestbecause of mere dissenting views expressed or difference in thepolitical ideology of the named accused, but concerning their linkwith the members of Communist Party of India (Maoist), bannedorganization and its activities. This is not the stage where theefficacy of the material or sufficiency thereof can be evaluatednor it is possible to enquire into whether the same is genuine orfabricated. [Paras 14, 21 and 26] [985-D-F]

1.2 The consistent view of Supreme Court is that the accusedcannot ask for changing the Investigating Agency or to doinvestigation in particular manner including for Court monitored

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Ainvestigation. In the present case, the original writ petition wasfiled by the persons claiming to be the next friends of theconcerned accused (A16 to A20). Amongst them, (A19), (A16),(A18) and (A17) have filed signed statements praying that thereliefs claimed in the subject writ petition be treated as their writpetition. That application deserves to be allowed as the accusedBthemselves have chosen to approach Supreme Court and also inthe backdrop of the preliminary objection raised by the State thatthe writ petitioners were completely strangers to the offence underinvestigation and the writ petition at their instance was notmaintainable. It is, therefore, assumed that the writ petition isCnow pursued by the accused themselves and once they havebecome petitioners themselves, the question of next friendpursuing the remedy to espouse their cause cannot becountenanced. The next friend can continue to espouse the causeof the affected accused as long as the concerned accused is not

in position or incapacitated to take recourse to legal remedyDand not otherwise. [Para 27] [986-A-C]

1.3 Prayer clauses (i) and (ii) also make reference to FIRNo.2/2018 registered at Pimpri (Urban) Police Station on 2[nd]January, 2018. However, that is an independent FIR registeredat different police station against the Hindutva right wingEleaders. It is, at best, in the nature of cross FIR in respect ofthe same incident against the alleged aggressors filed by an eye-witness. Neither the writ petitioners nor the named accused inFIR No.4/2018 in that sense, can pursue relief in respect of FIRNo.2/2018. Admittedly, Criminal Writ Petition has already beenFfiled in the Bombay High Court by the complainant in FIR No.2/2018 herself for issuing directions to the Investigating Agencyin that crime. There is force in the argument of the State that thecrime under investigation in FIR No.4/2018, inter alia is toinvestigate the allegations that banned organization,CPI(Maoist), organises events such as referred to in FIR No.2/G2018 to propagate ill-will in different classes and turn them intounconstitutional and violent activities. Further, such activitieswere purportedly carried out by Kabir Kala Manch and others indifferent areas in the State of Maharashtra by deliveringvituperative speeches and to spread false history, disputableH

statements and incite objectionable slogans, sing songs and roaddramas and distribution of objectionable and provocativepamphlets and books also. The incidents such as at BhimaKoregaon and nearby places of stone throwing, castes clashesand arson incidents is the outcome of such conspiracy. Takingany view of the matter, the reliefs claimed in the modified prayerclauses (i) and (ii) for investigation in respect of FIR No.2/2018,cannot be taken forward at the instance of the named five accusedpersons in FIR No.4/2018 registered at Vishram Bagh PoliceStation (Pune City) on 8[th] January, 2018 or for that matter theirnext friends. fortiori, it must follow that the writ petitioners,who are strangers to the offence under investigation (in FIR No.4/2018); and since they are merely espousing the cause of thearrested five accused as their next friends, cannot be heard toask for the reliefs which otherwise cannot be granted to theaccused themselves. What cannot be done directly, cannot beallowed to be done indirectly even in the guise of public interestlitigation. [Paras 28, 29] [986-E-H; 987-A-D]1.4 The prayer for changing the Investigating Agency cannotbe dealt with lightly and the Court must exercise that power withcircumspection. As result, the writ petition at the instance ofthe next friend of the accused for transfer of investigation toindependent Investigating Agency or for Court monitoredinvestigation cannot be countenanced, much less as publicinterest litigation. The investigation of the offence in question isat nascent stage and, therefore, it is not desirable to elaboratefurther as the modified reliefs (i) and (ii) as prayed cannot begranted. [Paras 30, 31] [986-E-H; 987-A-D]

1.5 The third modified relief claimed in the writ petition toissue directions that all electronic devices, records and materials,allegedly seized from the detenue/accused, be examined byForensic Science Laboratory outside the State of Maharashtra toensure fair play and in the interest of justice. Even this prayercannot be taken forward. If any one of the twenty two namedaccused have any grievance or apprehension about the same, heis free to make that request before the jurisdictional Court, whichcan be considered at the appropriate stage in accordance withlaw. [Para 32] [988-A-B]

956SUPREME COURT REPORTS

A1.6 The fourth modified relief is to direct release of thearrested activists from custody as per law. The accused personsmust pursue this relief before the appropriate court, which canbe considered by the concerned court on its own merits inaccordance with law. The concerned accused persons have alreadytaken recourse to remedy before the jurisdictional High Courts.BHence, they are free to pursue all legal remedies available tothem as per law. All questions will have to be considered by theconcerned Court in accordance with law. Accordingly, even thefourth modified relief cannot be considered in the present writpetition.[Para 33] [988-C-E]C

1.7 Accordingly, this writ petition is disposed of with libertyto the concerned accused to take recourse to appropriate remedyas may be permissible in law. The interim order passed by thisCourt on 29[th] August, 2018 (directing that the five arrested personsbe placed under house arrest) shall continue for period of four

Dweeks to enable the accused to move the concerned court. Thesaid proceedings shall be decided on its own merits uninfluencedby any observation made in this judgment, which is limited tothe reliefs claimed in the writ petition to transfer the investigationto an independent Investigating Agency and/or Court monitoredinvestigation. The Investigating Officer is free to proceed againstEthe concerned accused as per law. [Para 37] [989-B-C]

State of West Bengal and Ors. vs. Committee forProtection of Democratic Rights, West Bengal and Ors.(2010) 3 SCC 571: [2010] 2 SCR 979 – followed.

FNarmada Bai vs. State of Gujarat and Ors. (2011) 5SCC 79: [2011] 5 SCR 729; Sanjiv Rajendra Bhatt vs.Union of India and Ors. (2016) 1 SCC 1: [2015]12 SCR 498 – relied on.

E. Sivakumar vs. Union of India and Ors. (2018) 7 SCCG365; Divine Retreat Centre vs. State of Kerala and Ors.(2008) 3 SCC 542: [2008] 4 SCR 701 – referred to.

Per Dr. D.Y. Chandrachud, J.: (Dissenting)

HELD: 1.1 The jurisdiction under Article 32 is wide enoughto reach out to injustice in any form and originating in any source.HSecuring human liberty and dignity must occupy an important

space in the judicial docket. Liberty and freedom are definingvalues of the Constitution. The institutional role of Supreme Courtas constitutional adjudicator should brook no technicalitieswhich obstruct the cause of justice. When group of citizens hasmoved this Court with an impassioned plea about the violation ofhuman rights- in the present case no less than five distinguishedcitizens with track record of service to the nation have doneso- the Court must look beyond locus into the heart of the matter.Whether the grievance has any substance is indeed distinctmatter which must be determined objectively. The Court will notinterfere in every case merely because it has the jurisdiction.But its duty to scrutinise, perceive and remedy violations ofhuman rights is non-negotiable. However, the issue of locus, evenin technical sense, has receded into the background. Duringthe course of the hearing, the Court has been apprised that eachof the five individuals who were arrested has subscribed to theaverments in the petition and would stand by what is urged beforethis Court in protection of their rights. The objection tomaintainability lacks substance, in either view of the matter. [Para5] [993-A-D]

1.2 While entertaining these proceedings, this Court isconscious of the fact that ordinarily, when an investigation into acriminal offence is in progress, rights and remedies are providedby the Code of Criminal Procedure. Hence, it is but trite law thatin matters pertaining to or arising during the course ofinvestigation such as remand, bail (including anticipatory bail)and quashing of proceedings, recourse must be taken to theprovisions of the Code. During the course of investigation, it isto the competent court that an accused must ordinarily turn forthe remedies that are available under substantive or proceduralprovisions of the criminal law. But in the present case, it isnecessary for the Court to bear in mind that recourse to itsconstitutional jurisdiction under Article 32 has been invoked notonly by the petitioners but by the five individuals who werearrested on 28 August 2018. The petition was moved before thisCourt on 29 August 2018 when an interim order was passeddirecting that the five arrested persons be placed under housearrest. At the earliest possible point in time, these five individualshave moved this Court indicating that they abide by the averments

ABCD

Aand reliefs sought in the petition and seek that they should betransposed as petitioners under Article 32. The petitioners havenot in their submissions sought recourse to the jurisdiction ofthis Court for espousing remedy which is available before thecompetent court under the Code of Criminal Procedure. Theseproceedings have been moved with specific grievance that theBarrest of the five individuals is an attempt by the State to muzzledissent and that each of them is being persecuted for being adefender of persons subjected to human rights’ violations. [Paras14, 15] [1001-D-E; 1002-C-G]

1.3 Supreme Court, as constitutional adjudicator, has beenCentrusted with the jurisdiction under Article 32 to secure thefundamental freedoms guaranteed by Part III of the Constitution.While the discipline of the law of criminal procedure must at alltimes be kept in view, it cannot be gainsaid that the protection offundamental liberties is subject so integral to democratic

Dconstitutional values that technicalities should not be allowed tooverride the cause of substantive justice. The court mustundoubtedly tread with circumspection for in the guise of seekingaccess to its wide jurisdiction under Article 32, the normalremedies under the criminal law should not be displaced. Again,as the court has repeatedly emphasised, public interest litigationEshould not become weapon for settling political scores or ofpursuing extraneous ends. In the present case, the initiation ofthe proceedings under Article 32 is not motivated by extraneousreasons. The law is not respecter of social, economic or politicalstatus and every litigant who seeks access to justice has to beFtreated evenly. Here five citizens have invoked the jurisdictionof this Court in extraordinary circumstances where they claimthat group of human rights activists has been targeted by theState police. Each of those five individuals has joined in theseproceedings. Over the course of the last decade, the jurisdiction

of this Court has evolved under Article 32 to order theGconstitution of SIT. Such instances indicate the diversity ofsettings in which this Court has ordered the constitution of SITs.Decisional flexibility in the exercise of this jurisdiction meetsexigencies which arise in unforeseen situations, warranting theintervention of this Court under Article 142. While the CourtHdoes not determine the course of the investigation, it acts as

watchdog to ensure that fair and impartial investigation takesplace. fair and independent investigation is crucial to thepreservation of the rule of law and, in the ultimate analysis toliberty itself. Besides the jurisdiction to order the constitution ofa SIT, the proceedings of this Court are replete with instanceswhere an investigation has been monitored under the authorityof this Court. With the body of precedents on the subject, themaintainability of prayer for relief, seeking that the investigationshould be either monitored by this Court or should be entrustedto an independent SIT under the directions of this Court cannotbe in doubt. [Paras 17, 18, 20 and 21] [1003-H; 1004-A-E; 1005-A-B; 1006-D-E]

1.4 On 29 August 2018, this Court issued notices to theState of Maharashtra and to the others impleaded as respondentsto the proceedings. Within few hours of the conclusion of thecourt hearing, press conference was held in Pune by the JointCommissioner of Police proclaiming that the Pune police had morethan sufficient evidence against the five individuals whose transitremand was stayed by this Court while ordering them to be placedunder house arrest. This is disconcerting behaviour – the JointCommissioner sought in this oblique manner to respond to theinterim order of this Court by recourse to the electronic media.On 31 August 2018, press conference was addressed by teamof senior police officers headed by ADG (Law and Order),Maharashtra. During the course of the press conference letters(many of which should form part of the case diary) were selectivelyflashed and read out. According to the petitioners they were alsoleaked to the media. [Para 22] [1006-G-H; 1007-A-C]1.5 The first round of arrests in the present case took placeon 6 June 2018. On 8 June 2018 an alleged letter was releasedby the police to the media little before the proceedings forremand before the competent court (in the June arrests), allegingthat the arrested persons were plotting to attack the PrimeMinister. On 4 July 2018 when the arrested persons were to beproduced before the Court in Pune, letter attributed to one‘SB’ was sensationally telecast on television channel linkingher with the unlawful activities of certain groups. seriousgrievance has been made about the fact that these letters have

Aneither been placed before the Court of law nor did they findmention in the transit remand applications moved before theCJM, Faridabad by the Pune police. [Para 22] [1007-E-F]

1.6 This facet of the case is of serious concern. The mannerin which the Joint Commissioner of Police and the AdditionalBDirector General of Police (Law and Order), Maharashtra haveselectively disclosed purported details of the investigation to themedia and on television channels casts cloud on the impartialityof the investigative process. The use of the electronic media bythe investigating arm of the State to influence public opinionduring the pendency of an investigation subverts the fairness ofCthe investigation. The police are not adjudicators nor do theypronounce upon guilt. In the present case, police briefings to themedia have become source of manipulating public opinion bybesmirching the reputations of individuals involved in the processof investigation. What follows is unfortunately trial by the media.

DThat the police should lend themselves to this process is matterof grave concern. The investigation commenced as an enquiryinto the Bhima-Koregaon violence. The course of theinvestigation was sought to be deflected by alleging (in the courseof the press briefings of the police) that there was plot againstthe Prime Minister. Such an allegation is indeed of serious order.ESuch allegations require responsible attention and cannot bebandied about by police officers in media briefings. But duringthe course of the present hearing, no effort was made by the ASGto submit that any such investigation is being conducted in regardto the five individuals. On the contrary, he fairly stated that thereFwas no basis to link the five arrested individuals to any suchalleged plot against the Prime Minister. Nor does the counteraffidavit makes any averment to that effect. All this has certainlya bearing on the basic question as to whether the Maharashtrapolice can now be trusted to carry out an independent and impartialinvestigation. [Para 24] [1008-D-H; 1009-A-B]G

1.7 The counter affidavit, which has been filed by the Stateof Maharashtra makes it abundantly clear that the arrest of thefive individuals (on 28 August 2018) was based on “materialgathered from others”. This adverts to the material alleged tohave been gathered in the course of the raids conducted againstH

those individuals who were arrested in the months of June andJuly 2018. Paragraph 26 of the counter states that this material“clearly shows that they were involved” in (i) selecting andincorporating cadres to go underground in the ‘struggle area;(ii) mobilising and distributing money; (iii) facilitating selectionand purchase of arms; (iv) deciding the rates of such arms; and(v) suggesting the routes and ways of smuggling such arms intoIndia for its onward distribution amongst the cadres. Uponperusing the material, it is clear that the allegation that each ofthe five individuals arrested on 28 August 2018 is found to beengaged in activities of the nature set out in paragraph 26 of thecounter affidavit is taking liberties with the truth. Generalallegations against the philosophy of banned organisation, itspolicies and the modalities followed in the execution of its unlawfulactivities constitute one thing. Linking this to specific activitiesof named individuals is distinct matter. [Paras 25, 26] [1009-C-E, G-H; 1010-A]1.8 One of the circumstances which must certainly bearupon the fairness and impartiality of the process which has beenfollowed by the investigating agency is in regard to the importationof two panch witnesses from Pune, when the arrests were carriedout. Section 41B of Code of Criminal Procedure emphasises theimportance of an independent witness while making an arrest.The two panch witnesses in the present case are employees ofthe Pune Municipal Corporation. It is not disputed that theytravelled as part of the police team which made the arrest. [Para27] [1010-D, H]

K Basu v State of West Bengal (1997) 1 SCC 416 :

[1996] 10 Suppl. SCR 284 – relied on.

1.9 There is serious allegation that the arrests have beenmotivated by an attempt to quell dissent and to persecute fiveindividuals who have pursued the cause of persons who havesuffered discrimination and human rights violations. Inapproaching the present case, the Court must be mindful of theneed not to thwart criminal investigation leading to the detectionof unlawful acts. Equally, the Court has to be vigilant in theexercise of its jurisdiction under Article 32 to ensure that libertyis not sacrificed at the altar of conjectures. Individuals who assert

Acauses which may be unpopular to the echelons of power are yetentitled to the freedoms which are guaranteed by the Constitution.Dissent is symbol of vibrant democracy. Voices in oppositioncannot be muzzled by persecuting those who take up unpopularcauses. Where, however, the expression of dissent enters uponthe prohibited field of an incitement to violence or the subversionBof democratically elected government by recourse to unlawfulmeans, the dissent ceases to be mere expression of opinion.Unlawful activities which violate the law have to be dealt with inaccordance with it. The conduct of the Pune police in utilisingthe agency of the electronic media to cast aspersions on thoseCunder investigation fortifies the need for an investigation whichis fair. When the Joint Commissioner of Police and the AdditionalDirector General of Police cast aspersions in the public mediaagainst persons whose conduct is still under investigation, andin disregard of proceedings pending before judicial forum, it is

the duty and obligation of this Court to ensure that theDadministration of criminal justice is not derailed. However, it ismade clear that nothing in this order shall be construed as anyobservation on the merits of the investigation which is to takeplace. [Para 29] [1011-D-H; 1012-A-B]

1.10 Supreme Court has constitutional obligation, whereEits attention has been drawn, in case such as the present, to areal likelihood of the derailment of fair investigative process toissue appropriate directions under Article 142 of the Constitution.Hence, while the investigation should not be thwarted, this is aproper case for the appointment of Special Investigating Team.

FThe Special Investigating Team shall submit periodical statusreports to this Court, initially on monthly basis. The interimorder passed by this Court on 29 August 2018 shall continue tohold the field for further period of three weeks within which itwould be open to the said five individuals or any one or more of

them to apply for bail before the Court of competent jurisdiction.G[Paras 39-41] [1017-F-G; 1018-B]

Sanjiv Rajendra Bhatt v Union of India (2016) 1 SCC1 : [2015] 12 SCR 498 – distinguished.

National Human Rights Commission v State of GujaratH(2009) 6 SCC 342; SIT (NHRC v State of Gujarat (2009)

6 SCC 767 : [2009] 7 SCR 236; Ram Jethmalani vUnion of India (2011) 8 SCC 1: [2011] 8 SCR 725;Common Cause v Union of India (2017) 3 SCC 501:[2017] 1 SCR 556; Sunita Devi v Union of India (2018)3 SCC 664; Vineet Narain v Union of India (1996) 2SCC 199 : [1996] 1 SCR 1053; Babubhai JamnadasPatel v State of Gujarat (2009) 9 SCC 610; Centre forPublic Interest Litigation v Union of India (2011) 1 SCC560; Bharati Tamang v Union of India (2013) 15 SCC578 : [2013] 14 SCR 525; Rajendran Chingaravelu v.RK Mishra (2010) 1 SCC 457 : [2009] 15 SCR 1113;Narmada Bai v State of Gujarat(2011) 5 SCC 79 :[2011] 5 SCR 729; Sivakumar v Union of India(2018) 7 SCC 365; S. Nambi Narayanan v Siby Mathews(2018) 11 SCALE 171 – relied on.

Rajiv Ranjan Singh ‘Lalan’ (VIII) v Union of India,(2006) 6 SCC 613: [2006] 4 Suppl. SCR 742; GulzarAhmed Azmi v Union of India, (2012) 10 SCC 731:[2012] 9 SCR 287; Simranjit Singh Mann v Union ofIndia (1992) 4 SCC 653; Ashok Kumar Pandey v Stateof West Bengal (2004) 3 SCC 349 : [2003] 5 Suppl. SCR 716; Pratibha Ramesh Patel v Union of India(2016) 12 SCC 375: [2016] SCR 896; Udyami EvamKhadi Garmodyog Welfare Sanstha v State of UP (2008)1 SCC 560; State of Maharashtra v Tansen RizwanSiddiquee (2018) 10 SCALE 711; Divine Retreat Centrev State of Kerala (2008) 3 SCC 542 : [2008]4 SCR 701; Kiran Bedi v Committee of Inquiry (1989)1 SCC 494: [1989] 1 SCR 20; Delhi Judicial ServiceAssociation v State of Gujarat (1991) 4 SCC 406 :[1991] 3 SCR 936; Joginder Kumar v State of UP(1994) 4 SCC 260– referred to.

Case Law Reference

In the judgment of A.M. Khanwilkar, J. (for himself and

964SUPREME COURT REPORTS

CRIMINAL ORIGINAL JURISDICTION : Writ Petition(Criminal) No. 260 OF 2018

Under Article 32 of the Constitution of India.

Tushar Mehta and Maninder Singh, ASG, Dr. Abhishek Singhvi,Dr. Rajeev Dhawan, Amarendra Sharan, Harish N. Salve, Anand Grover,Sr. Advs., Prashant Bhushan, Ms. Vrinda Grover, Amit Bhandari,Avishkar Singhvi, Susan Abraham, D. Suresh, Soutik Banerjee, Ms. RatnaAppnender, Ms. Cheryl D’ Souza, Ms. Madhur Bhartiya, Ankit Grewal,Ms. Nidhi Ram, Harinder Neel, Omman Kuttan, Nishant RamakantraoKatneshwarkar, Kanu Agrawal, Manan Popli, Ranvijay Singh, ShantanuSharma, Rajeev Ranjan, R. Bala, Rajat Nair, Prabhas Bajaj, SwatiGhildiyal, Sachin Sharma, Ms. Devanshi Singh, Ms. Diksha Rai, Ms.Palak Mahajan, Ms. Diksha Rai, Nihal Sing Rathod, Ms. Tripti Tandon,Ms. Nehmat Kaur, Jagdish Meshram, Paras Nath Singh, Ms. SangitaMadan, Jitendra Ashok, Aakarsh Kamra, Abhishek Kumar, Shiv SagarTiwari, Advs. for the appearing parties.

The Judgments of the Court were delivered by

A. M. KHANWILKAR, J. 1. Five illustrious persons in theirown field have filed this petition on 29[th] August, 2018 complaining aboutthe high-handed action of the Maharashtra Police in raiding the homesand arresting five well known human rights activists, journalists, advocatesand political worker, with view to kill independent voices differing inideology from the party in power and to stifle the honest voice of dissent.They complain that the five activists, namely, Gautam Navalakha, SudhaBharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalves werearrested on 28[th] August, 2018 from their homes at New Delhi, Faridabad,Mumbai, Thane and Hyderabad, respectively, without any crediblematerial and evidence against them justifying their arrest, purportedly inconnection with FIR No.0004/2018 dated 8[th] January, 2018 registeredwith Police Station Vishram Bagh, Pune City. This action was to silencethe dissent, stop people from helping the poor and downtrodden and toinstill fear in the minds of people and was motivated action to deflectpeople’s attention from real issues. The petitioners have made it clear in

Atheir petition that they were seriously concerned about the erosion ofdemocratic values and were approaching this Court “not to stopinvestigation into allegations” “but” to ensure independent and credible“investigation into the arrest of stated five human rights activists.” Theyclaim that anything short of that relief will damage the fabric of thenation irreparably.B

2. The FIR in connection with which the said five persons cameto be arrested has been appended and marked as Annexure P-2. It wasregistered on the basis of the statement given by one Tushar RameshDamgule, which reads thus:

“Translation: FIR COPY

I, Tushar Ramesh Damgule [Age 37] Occupation –Reconstruction, Residing at survey no.70, Santosh Nagar, KafrajPune, 411016, Mobile Number – [REDACTED]) personally statesthat, I am residing at the above mentioned address from last 20years. I am completed Masters in Arts (History). I am runningconstruction business by the name of Rao enterprises, from last4 years. Somewhere in last week of December, I read one postof Facebook, that Elgar Parishad organized 31/12/2017 atShaniwar Wada. Therefore on 31[st] December 2017, I personallywent to Shaniwar Wada, opposite Ground, Pune, on around 2’oclock in this concern programme conduct by Sagar Gokhale,role describer Sudhir Dhavale, singer and artist Jyoti Jagtap,Ramesh Gaychor and other speakers like Jignesh Mewani, UmarKahlid, Vinay Ratansingh, Prasanth Dontha etc. orators wereseated on the stage. The said ground was crowded fully. I hadread information and news related Kabir Kala Manch and theirrepresentatives by social media and newspapers. So, knownthem. On the programme of following other subjects, had expressstatement again and again malice statement such as “BimaKoregaon ne Diladhada, Navi Peshawar Mainatgada,Udavathikrya Rai Rai re, Gadun Taka Peshwai Re GarjanaSidnakache, Aalee Nvyane Peshwai re Garaj Tila Thokyachee,Re Saimka Garaj Tila Thokyachee”. After this, some other oratorshad their speeches, as well as in that, Kabir Kala Manch’s artistsuch as Jyoti Jagtap, Ramesh Gaichor and other six seven personsing the song again “Bhima Koregaon ne diladhada, Navi PeshwaNavi Peshawar Mainat Gada, Udavathikrya Rai Rai re, Gadum

Taka Peshwai Re Garjana Sidnakache, Aalee Nvyane Peshwaire Garaj Tila Thokyachee, Re Saimka Garaj Tila Thokyachee…”as well as, the same had presented in the form of Pathnatya(Raadaramaj) and Dance Event with malice and enmityintentions. After in Second session, said Sudhir Dhawade whileexpressing role, he made the malice and disputable statementthat “Jab Julm Ho to, Bagawat Honi Chahiye shahar mein, JabJulm Ho to bagawat honi chahiye shahar mein aur agar bagawatna ho to, behatar hai kee, rat dhalane se phle ye shahar jalkerakh ho jaye, ye shahar jalke rakh ho jaye….” Then he saidsome other malice statement that “ye jo satrahai, ye satra hia,tayat hi apane aap mein ladai ka ellanhai, ye nave peswai kohaemin Samshan Ghat mein, kabrastan meindajana hai..”Afterwards, other speakers also expressed themselves in grudgewords in the same Programme, some objectionable andprovocable books kept for selling. After ending the program, Ileft from the there. On the date of 1[st] January, 2018 as usualyear, huge crowd gathered to salute and honour the victorystambh/monument at Bheema Koregaon. But because of theElgar Parishad which was held at Shaniwar Wada on 31[st]December, 2017, Kabir Kala Manch’s Sudhir Dhawale, SagarGorakhe, Harshali Potdar, Jyoti Jagtap, Ramesh Gaichor andother six seven persons tried to express malice statement andtried to incite disputable words, sentences between two societygroups, raise some provocable slogans, songs and road dramaimposed wrong and false History above mentioned SudhirDhawale, Harshali Potdar and other Kabir Kala Manch’s Activistsbeen interrogated by legal inspection and sources. Therefore, Istate that, banned Maoist Organisation (CPI) haveorganized role is to boast and implicate the strong Maoistthoughts in depressed class and misdirect or misguidethem and turn them towards unconstitutional violenceactivities, carrying the same thoughts, Kabir Kala Manch’sSudhir Dhawale and his other activist had presenteddifferent areas in Maharashtra, malice speeches, hadspread false History, disputable statements and inciteobjectionable slogans, sung songs and road-dramas. Theydistributed some objectionable and provocable pamphlets,books too. So remarkably it reflected at Bheema Koregaon

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and nearer places by stone throwing, castes clashes andarson incidents.

Therefore, an organization –Elgar Parishad, on the day of 31[st]December, 2017 at 2.00 p.m. to 10.00 p.m. at Shaniwar Wada,Pule, role defines Kabir Kala Manch’s Sudhir Dhawale,programme conductor Sagar Gorakhe, and other artistsHarshaliPotdar, Jyoti Jagtap, Ramesh Gaichor and others hadpresented objectionable songs as well as “Jab Julm ho to,Bagawat Honi Chahiye shahar mein, Jab Julm Ho to bagawathoni chahiye shahar mein aur agar bagawat na ho to, behatar haikee, rat dhalane se phle ye shahar jalke rakh ho jaye, ye shaharjalke rakh ho jaye…” such type of disputable, objectionablepassing statements, tried to incite disputable words, sentencesbetween two society groups, raised some provocable slogans,songs and road drama, imposed wrong and false Historymisguided the society. The same had been disputable and stone-throwing and arson incidents converted into disputable and castclashes in society’s specific groups, with human injuries, violence,severe damages etc.

Therefore, I lodged the complaint against (1) the role definerKabir Kala Manch’s Sudhir Dhawale, (2) Pragramme conductorESagar Gokhale (3) Harshali Potdar (4) Ramesh Gaichor (5)Deepak Denglr (6) Jyoti Jagtap. I read this typed statement andwhatever I stated is same true and correct.

This statement given,In front of:(M.B. Talware)Police - Sub-InspectorVishram Baug, Police Station, Pune.”

Date: 08/01/2018

(emphasis supplied)

G3. According to the petitioners, none of the five persons arrestedin connection with the stated FIR was present during the event organizedon 31[st] December, 2017 at Pune by “Elgar Parishad” (with which theyhave no concern) nor any allegation is found against them in the FIR.Nevertheless, the Pune Police swiftly moved against them, for reasonsbest known on fabricated charges under various provisions of the

Unlawful Activities (Prevention) Act, 1967 (“UAPA”) and under theIndian Penal Code.

4. According to the petitioners, since the FIR dated 2[nd] January,2018, at Pimpri Police Station (Rural) for offences punishable underSections 307, 143, 147, 148, 149, 295(A), 435, 436 of IPC, Sections3(2)(v) & 3(1)(10) of the Scheduled Castes Scheduled Tribes Act andSection 4(25) of the Arms Act of the Maharashtra Police Act,1989, wasregistered against the Hindutva right wing leaders Milind Ekbote andSambhaji Rao Bhide, based on an eye-witness account that they alongwith fringe groups had incited the violence against the Dalit congregation,instead of taking action against those who were behind the BhimaKoregaon violence, false and fabricated complaint was engineered inthe form of FIR No.0004/2018 and came to be registered on 8[th] January,2018 at Vishram Bagh Police Station (Pune City), in respect of whichthe five named activists and others have been arrested. This fabricatedFIR against the activists came to be registered in the name of thecomplainant who happens to have close links with the named accused inFIR No.2 dated 2[nd] January, 2018 registered at Pimpri Police Station(Rural). The Pune Police thus embarked upon motivated process andarrested 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 Policeinvestigating the Bhima Koregaon violence was systematically leakingdocuments to selective media with view to spread false propagandaagainst the activists and to prejudice the public opinion against thosearrested. The leaked documents allegedly found from the computerrecovered during the search of the house of Rona Wilson, were addressedto Comrade Prakash and signed by ‘R’, which apparently mentions aboutsenior comrades proposing concrete steps to end the Modi-era by planninga Rajiv Gandhi style incident to assassinate the Prime Minister. Thepolice had deployed systematic strategy to put out highly provocativebut completely unsubstantiated, unverified and unproven allegationsthrough select media channels to prejudice the public opinion againstthose already arrested. Further, the organizers of Elgar Parishad hadimmediately refuted the tall claim of the Pune Police and went on recordthat the event referred to in the FIR under investigation was organizedby them (Elgar Parishad) and no other organization was concernedtherewith, much less any banned organization had any role in that regard.

AThis statement was issued by former Judge of this Court and anotherformer Judge of the Bombay High Court who are the organizers ofElgar Parishad, emphatically condemning the letters leaked to the mediaby the Police as the same were never produced in evidence before theCourt and that it was ploy of the Government as it had felt threatenedbecause of the mobilization of people by Elgar Parishad to raise theirBvoice against the establishment and resist communal forces. Theorganization of Elgar Parishad had also denied of having received fundsfrom any of the accused persons named in the FIR.6. According to the petitioners, similar arbitrary arrests by the PuneCity Police were caused across the country, particularly of those whoCspoke for the poor and marginalized and to malign human rights defenders,lawyers, activists and the progressive ideas and human rights ideologythat they espouse, so as to have chilling effect in the minds of theactivists and dissuade them from criticizing the policies and programmesof the Government.D

7. The petitioners then state that without providing any evidentiarylink between the persons arrested and raided inter alia Gautam Navlakhaand Sudha Bhardwaj with FIR No.4 of 2018, they were served with thearrest memos signed by the persons who were brought as part of theentourage of the Pune Police as so-called “independent and respectableEpersons” to authenticate the arrest memos. The seizure memos wereprepared in Marathi and signed by the Panchas who were brought bythe Pune Police as part of the entourage. No translated copy of the FIRor the seizure memo was made over to Gautam Navlakha or SudhaBhardwaj even though they were not conversant with Marathi. In thisbackdrop, Gautam Navlakha filed habeas corpus petition before the DelhiFHigh Court, being Writ Petition No.2559 of 2018 challenging the transitremand order passed by the Chief Metropolitan Magistrate on 28[th]August, 2018. Similar petition was filed in the Punjab and Haryana HighCourt to direct the jurisdictional Court which had allowed the prayer togrant transit remand, to keep Sudha Bhardwaj at her residence underGsupervision of the local police. Even the petition filed in the Punjab andHaryana High Court is still pending. Nevertheless, the petitioners rushedto this Court by way of the present writ petition filed as public interestlitigation, to espouse the cause of the five persons arrested by the PunePolice, praying for an independent and comprehensive enquiry into thestated arrest as follows:H

“PRAYERS

It is therefore prayed that this Hon’ble Court be pleased to grantthe following prayers:

i)Issue an appropriate writ, order or direction, directing anindependent and comprehensive enquiry into arrest of thesehuman rights activists in June and August 2018 in connectionwith the Bhima Koregaon violence.

ii)Issue an appropriate writ, order or direction, calling for anexplanation from the State of Maharashtra for this sweepinground of arrests;

iii)Issue an appropriate writ, order or direction, directing theimmediate release from custody of all activists arrested inconnection with the Bhima Koregaon violence and staying anyarrests until the matter fully investigated and decided by thiscourt.

iv)Pass any such other order as may be deemed appropriate.”

8. As aforesaid, the petition was filed on 29[th] August, 2018 andmentioned for urgent directions before the Chief Justice of India on thesame day. This Bench considered the urgent mentioning and passed thefollowing order on the same day:

“Taken on Board.

Issue notice.

Mr. Tushar Mehta and Mr. Maninder Singh, learned AdditionalSolicitor Generals being assisted by Mr. R. Balasubramanian,learned counsel shall file the counter affidavit by 5.9.2018.Rejoinder thereto, if any, be filed within three days therefrom.

We have considered the prayer for interim relief. It is submittedby Dr. Abhishek Manu Singhvi, learned senior counsel appearingfor the petitioners that in pursuance of the order of the HighCourt, Mr. Gautam Navalakha and Ms. Sudha Bharadwaj havebeen kept under house arrest. It is suggested by him that as aninterim measure, he has no objection if this Court orders that Mr.Varavara Rao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, ifarrested, they are kept under house arrest at their own homes.

972SUPREME COURT REPORTS

AWe order accordingly. The house arrest of Mr. GautamNavalakha and Ms. Sudha Bharadwaj may be extended in termsof our orders.

Needless to say, an interim order is an interim order and allcontentions are kept open.

BLet the matter be listed on 6.9.2018.”

This interim arrangement has been continued from time to time andremains in force until the disposal of this petition.

9. The State of Maharashtra has filed counter affidavit ofCDr. Shivaji Panditrao Pawar, Assistant Commissioner of Police(Investigating Officer), Swargate Division, Pune City, Pune. Besidestaking objection regarding the maintainability of the writ petition beingfiled by third parties who are strangers to the offence under investigation,he has highlighted that in light of the material gathered during theinvestigation conducted so far, it would be desirable to dismiss the writDpetition. He has stated that the entire writ petition is based upon individualperception of the writ petitioners that the arrested persons are “alloutstanding, well-known and well respected human rights activists” andtherefore, their arrest requires to be enquired into and they should bereleased on bail. Having said that, he has asserted that in the instantEcase, the five named persons have been arrested not because theyexpressed dissenting views or difference in their political or otherideologies but the investigation done so far has unraveled their involvementin serious offence, including of being active members of CommunistParty of India (Maoist), which has been banned as terrorist organizationsince 2009, and of their involvement in planning and preparation of largeFscale violence and destruction of property, resulting into chaos in thesociety. Each of them is part of well thought out criminal conspiracyand had supported the event arranged at Pune by the Elgaar Parishadthrough frontal organization called “Kabir Kala Manch”.

10. It is then stated that one Tushar Ramesh Damgule had lodgedGan FIR on 8[th] January, 2018, naming six persons as accused for theoffence registered thereunder by the Vishram Bagh Police Station. Outof the six named accused, only one person came to be arrested on 6[th]June, 2018, namely, Sudhir Dhawale in connection with the registeredoffence. As the investigation progressed and material was gathered duringthe ongoing investigation, Section 120-B was added on 6[th] March, 2018H

and two more persons were found to be suspected accused namely,Surendra Gadling, R/o Nagpur and Rona Wilson, R/o Delhi. On 17[th]April, 2018 the Investigating Agency conducted searches at the residenceof 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 thetime the Investigating Agency knocked at the doors of the respectiveindividuals till the material recovered were seized, sealed, andpunchnamas were drawn in the presence of independent punchas. Duringthe said search, documents were recovered from their respectivecomputers/ laptops/pen drives/ memory cards. Different documents werefound to have been copied on different dates. The seized items wereimmediately sent for investigation to Forensic Science Laboratory, whichin turn gave “clone copies/mirror images” to the investigating agency soas to ensure that pendency of FSL Report does not hamper theinvestigation. It is then stated that documents recovered from the seizeditems unraveled the information implicating the accused not only as activemembers of CPI (Maoist) but being involved in an ongoing sinister designof having committed and in the process of committing criminal offenceshaving the potential of destabilizing the society. The documents clearlyreflect the preparation, planning and coordination not only amongst thestated accused persons but with others subsequently arrested, to carryout violence including planned ambush/rebellion against the enemy (whichis our country and security forces).

11. He has further stated that all the documents recovered duringthe search from the custody and possession of the respective accusedwill be produced before the Court, perusal of which would reveal thatthe accused persons are not merely political dissenters but involved insinister design, planning, preparation and commission of criminal offencesto destabilize the society. After the incriminatory material came to light,

Afurther offences under Sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 ofthe UAPA are added on 17[th] May, 2018 against the following individuals:

1) Surendra Gadling, R/o Nagpur

2) Rona Wilson, R/o Delhi

B3) 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/oAssam [underground]C

7) Comrade Manglu [underground]

8) Comrade Dipu and other underground members.

The affidavit further states that during the on-going investigation, followingpersons came to be arrested on 6[th] June, 2018:D

1) Surendra Gadling, R/o Nagpur

2) Rona Wilson R/o Delhi

3) Sudhir Dhanwale

Further, two more persons were arrested and also searched on 6[th] June,E2018, namely, Shoma Sen, R/o Nagpur and Mahesh Raut, R/o Nagpurand Gadchiroli. It is then stated that the searches carried out againstthese persons were also videographed from the beginning to the end aswas done on the earlier occasion in respect of the searches carried ofother accused. Even during this search, it is alleged that the materialFseized was in the form of computers, laptops, pen-drives and memorycards which have been forwarded to Forensic Science Laboratory, whichin turn provided clone copies to the Investigating Agency for facilitatingfurther investigation.

12. It is then stated in the affidavit that the further investigationGunraveled that the five persons who came to be arrested on 28[th] August,2018 were also involved in the criminal conspiracy and their role wasnot merely peripheral in nature. Based upon the incriminating material,they were arrested from the residential or work places under similarfashion in the presence of independent panchas who were Government

Officers. It is also stated that one of them, namely, Vernon Gonsalveshas been convicted by the Special Court, Nagpur for offences under theUAPA.

13. The sum and substance of the reply affidavit is that sufficientmaterial has become available during the investigation, which is still inprogress, to indicate the complicity of the concerned accused who havebeen arrested including the five named persons in respect of whom thepresent writ petition has been filed by third parties. They are arrestednot because of their political activities but for their involvement in theplanning and execution of offences to destabilize the society and theirassociation with the banned organization. Their involvement is noticed inselecting and encouraging cadres in the banned organizations to gounderground in ‘struggle area’, mobilizing and distributing money,facilitating selection and purchase of arms, deciding the rates of sucharms and suggesting the routes and ways of smuggling such arms intoIndia for its onward distribution amongst the cadres. Some of them havesuggested 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 duringthe investigation will be eventually placed on record of the jurisdictionalCourt along with the police report to be filed in due course. Further, thequestion of showing that material to anyone muchless accused, woulddefeat the investigation in progress and that is not the requirement oflaw. The affidavit also emphasizes that house arrest of the concernedaccused merely restricts physical movement but there is no way ofensuring that these persons would not indulge in destruction of evidenceand alert other potential accused while sitting at home. As matter offact, their custodial interrogation may become necessary during furtherinvestigation and for which reason the Investigating Agency be grantedliberty to take them in police custody in accordance with law.

14. The petitioners have filed exhaustive rejoinder affidavit. Besidesthe rejoinder affidavit, formal applications have been filed on behalf ofSudha Bharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalves,who are presently under house arrest, that they be permitted to pursuethe writ petition as filed by them. This application is in response to theissue of locus of five petitioners as being strangers to the offence underinvestigation. Besides, an application has been filed by the petitioners

Afor permitting them to amend the prayer clause of the writ petition andpermit the petitioners to seek following modified prayers:

“(i) Issue an appropriate writ, order or direction for setting up ofa Special Investigating Team (SIT) comprising of senior policeofficers with impeccable career records of professionalism,integrity and independence, reporting directly to this Hon’bleCourt, for conducting fair and independent investigation andinquiry into the offences stated in the zero FIR lodged at PimpriPolice Station on 02.01.2018 (now Cr. Case No.2/2018), and theFIR 4/2018 lodged and all other related matters and allegations;or

(ii) Issue an appropriate writ, order or direction for theinvestigation into the offences alleged in the zero FIR lodged atPimpri Police Station on 02.01.2018 (now Cr. Case No.2/2018),and the FIR 4/2018 lodged at Vishrambagh Police Station on08.01.2018, and all other related matters and allegations, to beDcarried out by an independent agency which shall be monitoreddirectly by this Hon’ble Court through regular filing of statusreports of the investigation by the investigating agency; and/or

(iii) Issue an appropriate writ, order or direction directing that allelectronic devices, records and materials allegedly seized fromEthe detenues or even otherwise, if relied upon/being relied uponfor denial of liberty to the detenues, to be examined by ForensicSciences Laboratory outside the State of Maharashtra to ensurefair play and in the interest of justice; and/or

(iv) Issue an appropriate writ, order or direction, directing theFrelease from custody of the arrested activists as per law, uponsuch terms and conditions as may be deemed necessary andappropriate, to the satisfaction of this Hon’ble Court; and/or

(v) Pass any such further order(s) as this Hon’ble Court maydeem fit and appropriate in the facts and circumstances of theGpresent case, and in the interest justice.”

15. During the arguments, Dr. Abhishek Manu Singhvi, Dr. RajeevDhawan, Dr. Ashwani Kumar learned senior counsel and Mr. PrashantBhushan, learned counsel appearing for the writ petitioners and Mr. AnandGrover, learned senior counsel appearing for the arrested persons, haveHargued that the stated five persons have not been named in the FIR nor

were they present during the event referred to in the FIR. Registrationof two FIRs in respect of the same incident, first on 2[nd] January, 2018 atPimpri (Urban) Police Station and the second, at Visharam Bagh PoliceStation, Pune City, was impermissible and was ploy to deflect theinaction of the Pune Urban Police for the reasons best known to them.Moreover, the offences under the draconian law (UAPA) have beenadded without due authorization of the competent authority. It is contendedthat liberty of individual and dignity of the accused are the facets of coreconstitutional values. They submit that this case is not about ordinarycriminal jurisprudence but of actualization of constitutional values and toexpose the unjustified incarceration of innocents who happen to be humanrights activists. They submit that the liberty and dignity of the accusedpersons must be preserved. According to them, the Investigating Agencywas not discharging its statutory obligation of fairness in investigationbut was indulging in selective leaks of documents which containunsubstantiated insinuations against the accused persons solely with aview to malign their reputation and create public opinion against them.The Pune Police had the audacity to rush to the Press for divulging thedocuments which they claim to have recovered during the seizure fromone of the accused and not the five persons arrested on 28[th] August,2018. They submit that the clarificatory statement issued by the twoformer Judges cannot be discarded. However, no effort has been madeby the Investigating Agency to ascertain the factual position from thosetwo Judges. According to them, it is case of persecution of the fivepersons named in the writ petition as multiple cases have been registeredagainst them since 2005 and each of them have been acquitted in theconcerned case. 25 criminal cases were registered against VaravaraRao, 11 cases have been registered against Arun Ferreira and 18 casesagainst Varnon Gonsalves. They have been acquitted in all the casesexcept one against Gonsalves, which matter is pending in appeal. Theyhave relied upon the report prepared by the Committee headed by theDeputy Mayor which clearly points towards the complicity of SambhajiRao Bhide and Milind Ekbote in particular, for having caused incitementand violence on 1[st] January, 2018. However, no action has been takenby the Pune Police against the persons who were responsible for causingriots and violence. It is submitted that it is unfathomable that two FIRsare registered in respect of the same incident and two differentinvestigating agencies are going ahead with the investigation. More so,the basis of arrest of five persons on 28[th] August, 2018 was their

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Ainvolvement in planning the assassination of the current Prime Ministerbut there is no allegation to that effect in the FIR nor has any fresh FIRbeen registered by the Police, although the same is serious matterwarranting investigation by an Investigating Agency no less then NationalInvestigating Agency or at least the CBI. The persons arrested, however,are well-known for their track record of human rights activism and haveBbeen unjustly put behind bars on the basis of unsubstantiated allegationsand without any evidence against them. The entire sub-text of creatinga real threat is figment of imagination of the Investigating Agency andthat has been done for reasons best known to them. Obviously, it ispolitically motivated. The transit remand applications preferred by theCInvestigating Agency also do not mention the letters indicative ofinvolvement of the persons concerned in planning and execution of Maoistplot nor have those letters been produced before the Court thus far. Theletters which were flashed to the media are obviously fabricated. Further,no plausible explanation is forthcoming as to why the Investigating

Agency had taken panchas along with them for conducting search outsideDthe State of Maharashtra. The role of the investigating team in FIRNo.4 of 2018 in the manner in which they caused arrest of five personsnamed in the writ petition, has been seriously questioned and it is earnestlyprayed by the learned counsel that the modified reliefs as claimed oughtto be granted. The counsel have filed exhaustive written submissions toEbuttress the plea for entrusting the investigation of the case to anindependent Investigating Agency.

16. Mr. Tushar Mehta, learned Additional Solicitor Generalappearing for the State of Maharashtra on the other hand, submittedthat the Court should be loath to entertain the writ petition of this natureFwhen the investigation of serious crime is in progress as per the statutoryprovisions and the material gathered during the investigation justifies thearrest of the concerned accused. He submitted that the investigation isbeing conducted responsibly and impartially and strictly in accordancewith the provisions of Cr.P.C. by an officer of the rank of Assistant

Commissioner of Police under the supervision of Deputy CommissionerGof Police and further monitored by Joint Commissioner and finally by theCommissioner of Police who is of the rank of Additional Director Generalof Police. There is no allegations against the investigating officer ofworking under dictation or that he had any personal malice against thenamed accused. Further, there is active involvement and monitoring ofHsenior police officials and pre-existing safeguards have been put in place

by the State in order to ensure fair investigation and in order to maintainindependent and impartiality of all sorts, coupled with the fact that theaction of the Investigating Agency would be monitored by the jurisdictionalCourts at different stages, the question of appointing Special InvestigationTeam or to allow investigation by independent Investigating Agency underthe monitoring of the Court, should be eschewed. He submitted that theCourt may look at the documents already gathered during the investigationto satisfy its conscience as to whether the arrest of concerned accusedwas justified or otherwise. In any case, there is robust mechanism ofoverseeing the actions of the Investigating Agency by the jurisdictionalCourts while considering not only the application for police remand orjudicial remand and bail application but also the remedy of discharge andquashing of the prosecution. In other words, the issues raised by thepetitioners may be germane for pursuing relief of bail or discharge/quashing, but not relevant to consider prayer for change of investigatingagency, that too at the instance of accused themselves. He has handedover compilation of documents or incriminatory material collected duringthe investigation allegedly showing the involvement of the concernedaccused, for our perusal. He has also handed over the Case Diary andtwo Registers of documents recovered during the search from the accusedpersons. He further states that the subject FIR in respect of which actionis being taken against the accused was registered on 8[th] January, 2018for offences punishable under Section 153-A, 505 (1B), 17, 34 IPC.After the investigation progressed, further offences were added includingthe offences under Sections 13,16,17,18, 18B, 20,38,39 & 40 of UAPAon 16[th] May, 2018, on the basis of the material collected during the on-going investigation. Initially, the offence was registered only against 6accused and as the investigation progressed, as of now there are 22accused named, including the 5 accused referred to in this petition whowere added as accused on 22[nd] August, 2018 for the reasons stated inthe Case Diary, and only thereafter the investigating team proceeded toarrest them on 28[th] August, 2018. He submits that the InvestigatingAgency had to proceed against the named accused after the revelationof their involvement with the banned organization, as was noticed fromthe documents and material recovered during the searches conducted inrespect of the premises of co-accused. The named accused (A16 toA20) cannot be heard to question that part of the investigation regardingthe manner of search, which the concerned co-accused alone may do atthe appropriate stage before the jurisdictional court.

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A17. He submits that even though the Court may have jurisdictionto examine all aspects of the matter, considering the fact that theinvestigation is at nascent stage and is being done by senior policeofficials under the supervision of their superior officers up to the level ofCommissioner of Police, it is not case for grant of reliefs as prayed.The accused persons must take recourse to the remedy prescribed byBlaw instead of directly approaching this Court under Article 32 of theConstitution and can get complete justice from the jurisdictional Court.He submits that in criminal matters, interference in the garb of publicinterest litigation at the instance of strangers has always been discouragedand rejected by this Court. Further, the present petition is nothing butCabuse of the process and as the named accused Varavara Rao, SudhaBharadwaj and Gautam Navalakha have filed their respective petitionsbefore the jurisdictional High Courts, which proceedings are pending foradjudication, the same persons have now filed affidavits before this Courtfor transposing them as petitioners and allowing them to adopt the prayerof the writ petitioners. They ought to elect their remedy to be pursuedDand in particular, before the jurisdictional Courts. Therefore, this petitionmust be discouraged. He submits that the modified relief claimed in thewrit petition to release the accused persons is in the nature of habeascorpus which is not maintainable in respect of the arrest made duringthe ongoing investigation. He submits that no right can enure in favourEof the accused to seek relief of investigation of the crime through anindependent agency and for the same reason, even strangers to the offenceunder investigation or next friends of the accused, cannot be permittedto pursue such relief in the guise of PIL. He submits that the foundationof the present writ petition is the perception of the writ petitioners (nextfriends) that the accused are innocent persons. He submits that thatFbasis is tenuous. For, there are enough examples of persons having splitpersonality. In criminal case, the action is based on hard facts collectedduring the course of investigation and not on individual perception. Hecontends that the argument of the writ petitioners that liberty of the fivenamed accused cannot be compromised on the basis of surmises andGconjectures is wholly misplaced and can be repelled on the basis of thematerial gathered during the ongoing investigation indicating the complicityof each of them. He relies on Section 41 of Cr.P.C. which enables thepolice to arrest any person against whom “reasonable suspicion” existsthat he has committed cognizable offence. Therefore, the integrity ofthe Investigating Agency cannot be doubted as there is enough materialH

against each of the accused. He further submits that the argument ofthe writ petitioners based on the circumstances pressed into service fora direction to change the Investigating Agency is completely against thecardinal criminal jurisprudence and such relief is not available to personsalready named as accused in crime under investigation.

18. Mr. Harish Salve, learned senior counsel appearing for thecomplainant at whose instance FIR No.4/2018 came to be registered atVishram Bagh Police Station (Pune City), submits that there is no absoluteright, much less fundamental right, to market ideas which transcendthe line of unlawful activity. The Court must enquire into the fact as towhether the investigation is regarding such unlawful activity or merelyto stifle dissenting political voice. If it is the former, the investigationmust be allowed to proceed unhindered. In any case, the affected persons,namely, the named accused must take recourse to remedy prescribedby law before the jurisdictional Court as it is not case of unlawfuldetention or action taken by an unauthorized Investigating Agency.According to him, the Court must lean in favour of appointing SIT oran independent Investigating Agency or Court monitored investigationonly when the grievance made is one about the investigation being derailedor being influenced by some authority. In the present case, the grievanceis limited to improper arrest of individuals without any legal evidence toindicate their complicity in the commission of any crime or the oneregistered in the form of FIR No.4/2018. The allegation of motivatedinvestigation is without any basis. No assertion is made by the writpetitioners or the named accused that the investigation by the Pune CityPolice is mala fide in law. If the allegation is about mala fide in fact, thenthe material facts to substantiate such allegation, including naming of theperson at whose instance it is being so done, ought to have been revealed.That is conspicuously absent in this case. According to the learnedcounsel, the reliefs claimed in the writ petition do not warrant anyindulgence of this Court.

19. After the high-pitched and at times emotional argumentsconcluded, each side presenting his case with equal vehemence, we asJudges have had to sit back and ponder over as to who is right or whetherthere is third side to the case. The petitioners have raised the issue ofcredibility of Pune Police investigating the crime and for attempting tostifle the dissenting voice of the human rights activists. The other sidewith equal vehemence argued that the action taken by Pune Police was

Ain discharge of their statutory duty and was completely objective andindependent. It was based on hard facts unraveled during the investigationof the crime in question, pointing towards the sinister ploy to destabilizethe State and was not because of difference in ideologies, as is claimedby the so called human rights activists.

B20. After having given our anxious consideration to the rivalsubmission and upon perusing the pleadings and documents produced byboth the sides, coupled with the fact that now four named accused haveapproached this Court and have asked for being transposed as writpetitioners, the following broad points may arise for our consideration:-

C(i)Should the Investigating Agency be changed at the behest of thenamed five accused?

(ii)If the answer to point (i) is in the negative, can prayer of thesame nature be entertained at the behest of the next friend ofthe accused or in the garb of PIL?

D(iii) If the answer to question Nos.(i) and/or (ii) above, is in theaffirmative, have the petitioners made out case for the relief ofappointing Special Investigating Team or directing the Courtmonitored investigation by an independent Investigating Agency?

(iv) Can the accused person be released merely on the basis of theEperception of his next friend (writ petitioners) that he is aninnocent and law abiding person?

21. Turning to the first point, we are of the considered opinion thatthe issue is no more res integra. In Narmada Bai Vs. State of Gujaratand Ors.[1], in paragraph 64, this Court restated that it is trite law that theFaccused persons do not have say in the matter of appointment ofInvestigating Agency. Further, the accused persons cannot choose as towhich Investigating Agency must investigate the offence committed bythem. Paragraph 64 of this decision reads thus:-

“64. ….. It is trite law that accused persons do not have aGsay in the matter of appointment of an investigation agency.The accused persons cannot choose as to whichinvestigation agency must investigate the alleged offencecommitted by them.”

(emphasis supplied)

(2011) 5 SCC 79

22. Again in Sanjiv Rajendra Bhatt Vs. Union of India andOrs.[2], the Court restated that the accused had no right with reference tothe manner of investigation or mode of prosecution. Paragraph 68 ofthis judgment reads thus:

“68. The accused has no right with reference to the mannerof investigation or mode of prosecution. Similar is the lawlaid down by this Court in Union of India v. W.N. Chadha[3],Mayawati v. Union of India[4], Dinubhai Boghabhai Solankiv. State of Gujarat[5], CBI v. Rajesh Gandhi[6], CompetitionCommission of India v. SAIL[7] and Janta Dal v. H.S.Choudhary.[8]”

(emphasis supplied)

23. Recently, three-Judge Bench of this Court in E. SivakumarVs. Union of India and Ors.[9], while dealing with the appeal preferredby the “accused” challenging the order of the High Court directinginvestigation by CBI, in paragraph 10 observed:

“10. As regards the second ground urged by the petitioner, wefind that even this aspect has been duly considered in theimpugned judgment. In paragraph 129 of the impugned judgment,reliance has been placed on Dinubhai Boghabhai Solanki Vs.State of Gujarat[10], wherein it has been held that in writ petitionseeking impartial investigation, the accused was not entitled toopportunity of hearing as matter of course. Reliance has alsobeen placed in Narender G. Goel Vs. State of Maharashtra[11],in particular, paragraph 11 of the reported decision wherein theCourt observed that it is well settled that the accused has noright to be heard at the stage of investigation. By entrusting theinvestigation to CBI which, as aforesaid, was imperative in the

2 (2016) 1 SCC 1

3 1993 Supp. (4) SCC 260

4 (2012) 8 SCC 106

5 (2014) 4 SCC 626

6 (1996) 11 SCC 253

7 (2010) 10 SCC 344

8 (1991) 3 SCC 756

9 (2018) 7 SCC 365

10 Supra @ Footnote 5

11 (2009) 6 SCC 65

Apeculiar facts of the present case, the fact that the petitionerwas not impleaded as party in the writ petition or for that matter,was not heard, in our opinion, will be of no avail. That per secannot be the basis to label the impugned judgment as nullity.”

24. This Court in the case of Divine Retreat Centre Vs. State ofBKerala and Ors.[12], has enunciated that the High Court in exercise of itsinherent jurisdiction cannot change the investigating officer in themidstream and appoint an investigating officer of its own choice toinvestigate into crime on whatsoever basis. The Court made it amplyclear that neither the accused nor the complainant or informant are entitledto choose their own Investigating Agency to investigate the crime inCwhich they are interested. The Court then went on to clarify that theHigh Court in exercise of its power under Article 226 of the Constitutioncan always issue appropriate directions at the instance of the aggrievedperson if the High Court is convinced that the power of investigation hasbeen exercised by the investigating officer mala fide.

D25. Be that as it may, it will be useful to advert to the exposition inState of West Bengal and Ors. Vs. Committee for Protection ofDemocratic Rights, West Bengal and Ors.[13] In paragraph 70 of thesaid decision, the Constitution Bench observed thus:

“70. Before parting with the case, we deem it necessary toEemphasise that despite wide powers conferred by Articles 32and 226 of the Constitution, while passing any order, the Courtsmust bear in mind certain self-imposed limitations on the exerciseof these Constitutional powers. The very plenitude of the powerunder the said articles requires great caution in its exercise. InsofarFas the question of issuing direction to the CBI to conductinvestigation in case is concerned, although no inflexibleguidelines can be laid down to decide whether or not such powershould be exercised but time and again it has been reiteratedthat such an order is not to be passed as matter of routine ormerely because party has levelled some allegations against theGlocal police. This extraordinary power must be exercised sparingly,cautiously and in exceptional situations where it becomesnecessary to provide credibility and instil confidence ininvestigations or where the incident may have national and12 (2008) 3 SCC 542H13 (2010) 3 SCC 571

international ramifications or where such an order may benecessary for doing complete justice and enforcing thefundamental rights. Otherwise the CBI would be flooded with alarge number of cases and with limited resources, may find itdifficult to properly investigate even serious cases and in theprocess lose its credibility and purpose with unsatisfactoryinvestigations.”

26. In the present case, except pointing out some circumstancesto question the manner of arrest of the five named accused sans anylegal evidence to link them with the crime under investigation, no specificmaterial facts and particulars are found in the petition about mala fideexercise of power by the investigating officer. vague andunsubstantiated assertion in that regard is not enough. Rather, avermentin the petition as filed was to buttress the reliefs initially prayed (mentionedin para 7 above) – 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 InvestigatingAgency and have commended us to the material already gathered duringthe ongoing investigation which according to them indicates complicityof the said accused in the commission of crime. Upon perusal of the saidmaterial, we are of the considered opinion that it is not case of arrestbecause of mere dissenting views expressed or difference in the politicalideology of the named accused, but concerning their link with the membersof the banned organisation and its activities. This is not the stage wherethe efficacy of the material or sufficiency thereof can be evaluated norit is possible to enquire into whether the same is genuine or fabricated.We do not wish to dilate on this matter any further lest it would causeprejudice to the named accused and including the co-accused who arenot before the Court. Admittedly, the named accused have alreadyresorted to legal remedies before the jurisdictional Court and the sameare pending. If so, they can avail of such remedies as may be permissiblein law 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 forobtaining remand by the Police or by way of application for grant of bail,and if they are so advised, they can also opt for remedy of discharge atthe appropriate stage or quashing of criminal case if there is no legalevidence, whatsoever, to indicate their complicity in the subject crime.

A27. In view of the above, it is clear that the consistent view of thisCourt is that the accused cannot ask for changing the InvestigatingAgency or to do investigation in particular manner including for Courtmonitored investigation. The first two modified reliefs claimed in thewrit petition, if they were to be made by the accused themselves, thesame would end up in being rejected. In the present case, the originalBwrit petition was filed by the persons claiming to be the next friends ofthe concerned accused (A16 to A20). Amongst them, Sudha Bhardwaj(A19), Varvara Rao (A16), Arun Ferreira (A18) and Vernon Gonsalves(A17) have filed signed statements praying that the reliefs claimed inthe subject writ petition be treated as their writ petition. That applicationCdeserves to be allowed as the accused themselves have chosen toapproach this Court and also in the backdrop of the preliminary objectionraised by the State that the writ petitioners were completely strangers tothe offence under investigation and the writ petition at their instancewas not maintainable. We would, therefore, assume that the writ petitionis now pursued by the accused themselves and once they have becomeDpetitioners themselves, the question of next friend pursuing the remedyto espouse their cause cannot be countenanced. The next friend cancontinue to espouse the cause of the affected accused as long as theconcerned accused is not in position or incapacitated to take recourseto legal remedy and not otherwise.E

28. Be that as it may, we are conscious of the fact that prayerclause (i) and (ii) also make reference to FIR No.2/2018 registered atPimpri (Urban) Police Station on 2[nd] January, 2018. However, that is anindependent FIR registered at different police station against theHindutva right wing leaders Milind Ekbote and Sambhaji Rao Bhide. It

Fis, at best, in the nature of cross FIR in respect of the same incidentagainst the alleged aggressors filed by an eye-witness. Neither the writpetitioners nor the named accused in FIR No.4/2018 in that sense, canpursue relief in respect of FIR No.2/2018 registered at Pimpri (Urban)Police Station. Admittedly, Criminal Writ Petition No.1875 of 2018 hasalrady been filed in the Bombay High Court by Anita R. Sawale (theGcomplainant in FIR No.2/2018) herself for issuing directions to theInvestigating Agency in that crime. As presently advised, we find forcein the argument of the State that the crime under investigation in FIRNo.4/2018, inter alia is to investigate the allegations that bannedorganization, CPI(M), organises events such as referred to in FIR No.2/H2018 to propagate ill-will in different classes and turn them into

unconstitutional and violent activities. Further, such activities werepurportedly carried out by Kabir Kala Manch, Sudhir Dhawale and otheractivists in different areas in the State of Maharashtra by deliveringvituperative speeches and to spread false history, disputable statementsand incite objectionable slogans, sing songs and road dramas anddistribution of objectionable and provocative pamphlets and books also.And that the incidents such as at Bhima Koregaon and nearby places ofstone throwing, castes clashes and arson incidents is the outcome ofsuch conspiracy. Taking any view of the matter, the reliefs claimed inthe modified prayer clauses (i) and (ii) in respect of FIR No.2/2018,cannot be taken forward at the instance of the named five accusedpersons in FIR No.4/2018 registered at Vishram Bagh Police Station(Pune City) on 8[th] January, 2018 or for that matter their next friends.

29. fortiori, it must follow that the writ petitioners, who arestrangers to the offence under investigation (in FIR No.4/2018); andsince they are merely espousing the cause of the arrested five accusedas their next friends, cannot be heard to ask for the reliefs which otherwisecannot be granted to the accused themselves. What cannot be donedirectly, cannot be allowed to be done indirectly even in the guise ofpublic interest litigation.

30. We find force in the argument of the State that the prayer forchanging the Investigating Agency cannot be dealt with lightly and theCourt must exercise that power with circumspection. As result, wehave no hesitation in taking view that the writ petition at the instanceof the next friend of the accused for transfer of investigation toindependent Investigating Agency or for Court monitored investigationcannot be countenanced, much less as public interest litigation.

31. As the answer to point Nos. (i) and (ii) are in the negative andagainst the writ petitioners and named accused, we do not wish to dilateon the circumstances pointed out to us by the accused regarding themanner of their arrest. For, any observation in that regard by this Courtmay prejudice the said accused including the co-accused who are notbefore this Court or the prosecution, which must be eschewed. We areof the considered opinion that the investigation of the offence in questionis at nascent stage and, therefore, it is not desirable to elaborate furtheras the modified reliefs (i) and (ii) as prayed cannot be granted for thereasons noted hereinbefore.

ABC

A32. That takes us to the third modified relief claimed in the writpetition to issue directions that all electronic devices, records and materials,allegedly seized from the detenue/accused, be examined by ForensicScience Laboratory outside the State of Maharashtra to ensure fair playand in the interest of justice. Even this prayer cannot be taken forward.If any one of the twenty two named accused have any grievance orBapprehension about the same, he is free to make that request before thejurisdictional Court, which can be considered at the appropriate stage inaccordance with law. We are not expressing any opinion either way inthe present writ petition in that regard.

33. The fourth modified relief is to direct release of the arrestedCactivists from custody as per law. The accused persons must pursue thisrelief before the appropriate court, which can be considered by theconcerned court on its own merits in accordance with law. As notedearlier, the concerned accused persons have already taken recourse toremedy before the jurisdictional High Courts. Hence, they are free toDpursue all legal remedies available to them as per law. We are notexpressing any opinion either on the issue of maintainability thereof oron merits of the reliefs that may be claimed therein. All questions willhave to be considered by the concerned Court in accordance with law.Accordingly, even the fourth modified relief cannot be considered in thepresent writ petition.E

34. In view of the above, we have advisedly refrained from dealingwith the factual issues raised by the parties and including the namedaccused represented by their counsel before us, as any observation madeby this Court may cause serious prejudice to them or the co-accusedwho are not before this Court or, for that matter, the prosecution case,Fresulting in serious miscarriage of justice. Similarly, we do not wish toburden the judgment with the other reported judgments relied upon bythe counsel for the parties and dealing with legal propositions canvassedby them, which are not necessary to be answered in the present writpetition.G

35. We may hasten to mention that we have perused the Registerscontaining relevant documents and the Case Diary produced by the Stateof Maharashtra. But we have avoided to dilate on the factual positionemerging therefrom, lest any prejudice is caused to any accused or theprosecution, in any manner.

36. The record/files/documents and the Case Diary handed overto the Court in sealed cover by the State be returned to the counsel forthe State in sealed cover.

37. Accordingly, this writ petition is disposed of with liberty to theconcerned accused to take recourse to appropriate remedy as may bepermissible in law. The interim order passed by this Court on 29[th] August,2018 shall continue for period of four weeks to enable the accused tomove the concerned court. The said proceedings shall be decided onits own merits uninfluenced by any observation made in this judgment,which is limited to the reliefs claimed in the writ petition to transfer theinvestigation to an independent Investigating Agency and/or Courtmonitored investigation. The Investigating Officer is free to proceedagainst the concerned accused as per law. All the accompanyingapplications are also disposed of in terms of this judgment.

DR. D. Y. CHANDRACHUD, J. 1. The intersection betweencriminal law and constitutional rights has led to the evolution of judicialprecedent which originates in this Court. Our recent decisions reiteratethe value of individual dignity as essential to democratic way of life.But lofty edicts in judicial pronouncements can have no meaning to acitizen unless the constitutional quest for human liberty translates intosecuring justice for individuals whose freedom is under threat in specificcases. The role of the Court involves particularly sensitive balances whenthe state seeks to curb freedom to investigate perceived breaches involvingoffences against the state. Custodial interrogation involves the balancingof diverse and often conflicting values: the effective administration ofcriminal 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 group of five humanrights activists is sought to be persecuted for espousing the cause of themarginalised which is considered to be ‘unpopular’. Conscious as theCourt is of the public interest in the effective administration of criminaljustice, it cannot be oblivious to the overriding constitutional concern tosecure the dignity of the individual. The key to the balance between thetwo lies in fair, independent and impartial investigation of crime. As amatter of principle, I am unable to agree with the views expressed bythe learned Chief Justice and my learned brother Justice AM Khanwilkar.

A2. On 29 August 2018, the jurisdiction of this Court under Article32 was invoked by five distinguished academics to seek an “independentand comprehensive inquiry” in the circumstances relating to the arrestof five human rights activists on 28 August 2018. The arrests by thePune police took place following the raids which were conducted attheir homes and offices. The arrests took place simultaneously in Delhi,BFaridabad, Mumbai, Thane and Hyderabad. The petitioners assert thatour jurisdiction has been invoked not to impede the investigation but toensure that an independent and credible investigation is made by personsnominated by and subject to the supervision of this Court. The petitionersurge that the invocation of the draconian provisions of the UnlawfulCActivities (Prevention) Act, 1967 (UAPA) in the present case is an attemptto silence dissent by targeting human rights activists who have beenworking to protect the rights of the poor and the marginalised, particularlyDalits. This is set forth in the prefatory averments of the writ petition,extracted here:D“The charges against them on the face of it appear indiscriminate,unwarranted, part of malicious campaign to threaten humanrights defenders, independent journalists, writers and thinkers inthis country, from critiquing the government and its policies andan attempt to muzzle dissent. The activists who have beenarrested are pro democracy workers who have been leadingEpeaceful peoples rights based movements especially among thepoor and marginalised communities, Dalits and adivasis, forseveral years, in different parts of the country. The use of theUAPA meant for exceptional and violent activity, against suchpersons, when there has been absolutely no evidence of anyFacts of violence by these activists is deeply disconcerting andcalls for an urgent intervention by this Hon’ble Court.”

The grievance is that those five persons are being persecuted for theirviews and their voices are sought to be chilled into silence by criminalprosecution.G3. First, as to the locus of the petitioners:

(i) The first petitioner - Romila Thapar is an eminent historian andProfessor Emeritus at Jawaharlal Nehru University. She was selectedon two occasions for the conferment of the Padma Bhushan award bythe Union Government, which she declined. Romila Thapar has beenHelected to the British Academy and the American Academy of Arts and

Sciences and has been conferred with honorary doctoral degrees by theUniversities of Oxford and Chicago, among others. Her writings includea book titled, ‘A History of India’;

(ii) The second petitioner, Devaki Jain is pioneer feminist economistand has been associated with national bodies, including the PlanningCommission and the National Commission for Women and, internationalorganisations, including UNDP and the South Commission. She is thefounding member of two organisations engaged in women’s studies. Sheis recipient of the Padma Bhushan in 2006, the third highest civilianaward from the Government of India, for her contribution to social justiceand the empowerment of women;

(iii) The third petitioner, Prabhat Pattnaik, was Rhodes Scholar and isan eminent economist who taught at JNU for over three decades. Hewas vice-chairperson of the Kerala Planning Board and member of ahigh-powered UN Task Force on the global financial system;

(iv) The fourth petitioner Satish Deshpande, is sociologist at theUniversity of Delhi. He is recipient of the Malcolm Adiseshiah awardfor distinguished contributions to development studies. He was memberof the Union government’s expert committee on the proposed EqualOpportunity Commission. He has held visiting appointments at theUniversity of Chicago and in Paris; and

(v) The fifth petitioner, Maja Daruwala, is member of the Board and asenior advisor to the Commonwealth Human Rights Initiative. In thatcapacity she has been associated with significant research on theimplementation of human rights norms in the country. She has beenworking in the field of advocacy for rights and social justice for overfourty years.

4. The persons who were arrested on 28 August 2018 and onwhose behalf these proceedings were initiated have been described thusin the petition:

“i.Gautam Navalakha (Human Rights activist and journalist NewDelhi). He was the President of the People’s Union forDemocratic Rights and has been associated with the Economicand Political Weekly. He is known commentator on currentaffairs. The state relied upon him to negotiate the safe return ofpersons abducted by left wing extremists in Chhattisgarh.

Aii.Sudha Bharadwaj (Advocate, Chhattisgarh High Court, currentlyresiding in Faridabad) Prominent cause lawyer of Bilaspur HighCourt who has represented workers, poor and marginal farmersand others in Chhattisgarh. She is the national green secretaryof PUCL and since 2017 been teaching at the National LawUniversity, Delhi. As member of the Indian Association ofBPeople’s lawyers, advocated Sudha Bharadwaj was vocal againstthe arrest of lawyers like Surendra Gadling in recent times. SudhaBharadwaj has been member of committees and provided legalaid and is recognised human rights defender.

iii.Varavara Rao (Age 79, based in Hyderabad, political worker,Ccommentator and renowned poet). He was professor of Englishand Telegu literature.

iv.Arun Ferreira, (Mumbai) Practising as lawyer since 2015 anda Human Rights activist.

Dv.Vernon Gonsalves (Mumbai), Gold medallist from BombayUniversity in Commerce, accounts officer at Siemens, thenlecturer of accounts in Maharashtra College, writer and columnist.His translation of Annabhau Sathe’s “Gold from the Grave” fromMarathi to English published in David Davidar’s “A Clutch ofIndian masterpieces”.EThree of the above individuals were prosecuted in the past for offencesprimarily under the Indian Penal Code, 1860, the Arms Act, 1959 andthe UAPA. Arun Ferreria is stated to have been acquitted in all elevencases instituted against him. Vernon Gonsalves was acquitted in seventeenout of the nineteen cases instituted against him (an appeal is pending inFone case where he stands convicted while an application for dischargeis pending before the Gujarat High Court in one case). Vara Vara Raowas acquitted in all twenty cases where he was prosecuted[1].

5. During the course of the hearing, preliminary objection wasraised by Mr. Tushar Mehta, the learned ASG to the maintainability ofGthese proceedings. He urged that the petitioners have no locus to questionthe circumstances relating to the arrest of the five individuals namedabove. I would not have been inclined to accept technical argument ofthis nature in view of the constitutional imperatives for this Court to

1 Details of these cases have been submitted in charts A, and annexed to the writtenHsubmissions filed by Dr AM Singhvi, learned senior counsel.

intervene when human freedoms and liberties are alleged to be imperilled.The jurisdiction under Article 32 is wide enough to reach out to injusticein any form and originating in any source. Securing human liberty anddignity must occupy an important space in the judicial docket. Libertyand freedom are defining values of our Constitution. The institutionalrole of this Court as constitutional adjudicator should brook notechnicalities which obstruct the cause of justice. When group of citizenshas moved this Court with an impassioned plea about the violation ofhuman rights - in the present case no less than five distinguished citizenswith track record of service to the nation have done so - the Courtmust look beyond locus into the heart of the matter. Whether thegrievance has any substance is indeed 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 issueof locus, even in technical sense, has receded into the background.During the course of the hearing, the Court has been apprised that eachof the five individuals who were arrested has subscribed to the avermentsin the petition and would stand by what is urged before this Court inprotection of their rights. The objection to maintainability lacks substance,in either view of the matter.

6. brief historical background is necessary. On 1 January 1818,a few hundred soldiers of the East India Company comprising of Dalits,tribals, Muslims, Christians and backward communities defeated thePeshwa army led by Bajirao II at Koregaon, on the banks of the Bhimariver near Pune. Like many of its genre, the battle has assumed alegendary status primarily because of the victory of the Dalits. Honouringthe then martyrs, the colonial government raised victory pillar, the ‘VijayStambh’. The pillar is symbolic rallying ground for an annual event tomark the victory. The event represents the aspirations of those whohave been subject to discrimination and prejudice in the caste-riddenstructure of our society.

7. In keeping with tradition, public meeting was scheduled tocommemorate the 200th anniversary of the Bhima-Koregaon victory on31 December 2017. Among those who were associated with the eventwere two judges: one of them, Justice PB Sawant is former judge ofthis Court. Justice BG Kolse Patil is former judge of the Bombay HighCourt. The event was planned at Shaniwar wada in Pune. An organisation

Aknown as the Kabir Kala Manch was to supervise cultural programme.Besides the two judges who addressed the Elgar Parishad, the speakersincluded Shri Prakash Ambedkar, President of the Bharatiya RepublicanParty. The event was titled: “Bhima-Koregaon Shourya Din - ElgarParishad”. The petitioners claim that ‘Elgar’ is clarion call. The statereads into it sinister symbolism of an attack. On 1 January 2018, aBcommunal disturbance took place at Bhima-Koregaon when, as theallegation goes, group of Dalits was attacked in the process of offeringa salutation to the victory pillar. News of the incident spread across thestate of Maharashtra, resulting in violent agitation in the state.

8. Following these incidents, First Information Report in regardCto the incident was lodged on 8 January 2018 by one Tushar Damgude.The FIR specifically names the following individuals:

iSudhir Dhawale;

iiSagar Gorakhe;

DiiiHarshali Potdar;

ivDipak Dhengale;

vJyoti Jagtap; and

viRamesh Gaychore.

ESudhir Dhawale was arrested on 6 June 2018. As the investigationprogressed, Section 120B of the Penal Code was added on 6 March2018 and two more persons - Surendra Gadling and Rona Wilson - weresuspected to be involved. On 17 April 2018, the Pune police conductedsearches at the residences and offices of the following persons:

F1Rona Wilson, resident of Delhi;

2Surendra Gadling, resident of Nagpur;

3Sudhir Dhawale and Harshali Potdar, residents of Mumbai;

4Sagar Gorakhe, resident of Pune;

5Dipak Dhengale, resident of Pune; and

6Ramesh Gaychore and Jyoti Jagtap, residents of Pune

In the counter affidavit which has been filed by the AssistantCommissioner of Police, Pune city, it has been stated that the materialHretrieved from the computers, laptops, pen drives and memory cards of

the above accused persons implicated them as active members of theCommunist Party of India (Maoist), banned organisation, and reflecteda design of being involved in the commission of offences having thepotential to destabilise the country. Based on the investigation, theprovisions of Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the UAPAwere invoked on 17 May 2018 against the following individuals:

(i)Surendra Gadling;

(ii)Rona Wilson;

(iii) Shoma Sen;

(iv) Mahesh Raut;

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

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

(vii) Comrade Manglu (underground); and

(viii) Comrade Dipu and other underground members.

On 6 June 2018 five persons were arrested namely:

(i)Surendra Gadling;

(ii)Rona Wilson;

(iii) Sudhir Dhawale;

(iv) Shoma Sen; and

(v)Mahesh Raut.

The counter affidavit filed by the Assistant Commissioner of Police statesthat it is on the basis of the material recovered during the course of thesearch of the above persons that the five individuals on whose behalfthe present proceedings have been instituted were found to be part ofthe criminal conspiracy. The averment in the counter reads as follows:

“I state and submit that based upon the aforesaid materialrecovered from the searches of the aforesaid persons [which isa part of the case diary and which would be placed forconsideration and perusal of this Hon’ble Court in sealed cover],the following persons were also clearly found to be part of thecriminal conspiracy and their role was not merely peripheral role

but they were found to be playing very vital role in the criminaloffences committed and/or planned by others. Based upon thesaid incriminating material, the following persons came to bearrested on 28.8.2018 and searches were conducted at theirresidential/work places in similar fashion, under videographyin presence of individual 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 Delhi”

The counter alleges that each of the five individuals is found to be workingfor and to be an active member of “banned terrorist organisation” - theCommunist Party of India (Maoist). Paragraph 26 of the counter affidavitDstates that each of them has been found, from the material gatheredfrom others during investigation, to be involved in unlawful activitieswhich are described thus:

“The material gathered from others based upon which the fiveaccused persons named hereinabove are arrested, clearly showEthat they were involved in selecting and encouraging cadres togo underground in ‘struggle area’, mobilizing and distributingmoney, facilitating selection and purchase of arms, deciding therates of such arms into India for its onward distribution amongstthe cadres. Some of them have suggested training and laying ofbooby traps and directional mines. They are also found to beFproviding strategic inputs in furtherance of the objective of armedrebellion as per the strategic document of the banned terroristorganisation namely Communist Party of India (Maoist).”

The petition was initially taken up for hearing on 29 August 2018. Interimdirections to place the five individuals under house arrest were issued, inGterms of the request made by their counsel:

“We have considered the prayer for interim relief. It is submittedby Dr. Abhishek Manu Singhvi, learned senior counsel appearingfor the petitioners that in pursuance of the order of the HighCourt, Mr. Gautam Navalakha and Ms. Sudha Bharadwaj 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.Varavara Rao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, ifarrested, they are kept under house arrest at their own homes.We order accordingly. The house arrest of Mr. GautamNavalakha and Ms. Sudha Bharadwaj may be extended in termsof our orders.”

Since the case was being heard, the house arrest has since been extendedby the interim directions of this Court of 6 September 2018 and 17September 2018. During the course of the hearing, permission has beensought to formally amend the writ petition to seek the constitution of aSpecial Investigating Team under the directions of this Court, so as toensure an independent investigation.

9. Unfolding his submissions, Dr Abhishek Manu Singhvi, learnedsenior counsel stated that First Information Report in respect of theviolence which took place on 1 January 2018 (FIR 2/2018) was lodgedby Anita R Sawale at PS Pimpri on 2 January 2018. The FIR allegesthat violence was unleashed against Dalits by mob armed with swords,rods and other weapons. The FIR specifically names Sambhaji Bhide,head of an organisation known as Shivajinagar Pratishthan and MilindEkbote, Chief of Hindu Janjagaran Samiti as perpetrators andconspirators. Sambhaji Bhide has not been arrested while Milind Ekboteis stated to have secured bail within month of his arrest. The FIRrelates to offences under the Penal Code, Arms Act and the SC/STAct[2]. No provision of the UAPA has been invoked. Since the policewere allegedly not investigating the FIR, writ petition has been filedbefore the Bombay High Court[3]. FIR 4/2018 was lodged on 8 January2018 at PS Vishrambagh by Tushar Damgude who is alleged to be aself-professed follower of Sambhaji Bhide. The FIR adverts to speechdelivered by Sudhir Dhawale at the Elgar Parishad on 31 December2017 in which allegedly an incendiary speech was made, with the followinglines:

“Jab Julm ho to Bagawat Honi Chahiye shahar mein, Jab JulmHo to bagawat honi chahiye shaharmein, aur agar bagawat naho to behatar he ke, ye raat dhalane se pehle ye shahar jalkarrakh ho jaye, yesatra hein, ye satra ki title hi, apne aap mein,

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

3 Criminal Writ Petition 1875/2018

ABC

[2018] 11 S.C.R.

Aladhai k ailan hein, ye nayi peshwai ko hamko shamshan ghatmein, Kabrastaan mein dafnana hein.””

Dr. Singhvi submits that these lines are but translation of Bertolt Brecht’splay, “The Good Person of Szechwan”, (1942). Notably, according tothe submission, FIR 4/2018 does not allude to any conspiracy to attackBthe Prime Minister. It has been submitted that it is undisputed that noneof the activists under house arrest were named in the FIR. They are notalleged to be present at the Elgar Parishad on 31 December 2017 or atBhima-Koregaon on 1 January 2018. Moreover, according to thesubmission, the State of Maharashtra opposed the anticipatory bail ofMilind Ekbote on the ground that the violence was committed as partCof pre-planned conspiracy by him and by others. The arrests of thefive persons were affected nearly nine months thereafter.

10. The next limb of the submission of Dr Singhvi is that certainletters which are alleged to have been authored by the arrested activistsare ex-facie fabricated. These letters are alleged to have been recoveredDby the police from the electronic devices of one of the accused who wasraided in the month of April 2018 and was arrested in June 2018. ShriParambir Singh, Additional Director General of Police (Law and Order),State of Maharashtra appeared in television programme called “Truthv Hype” on NDTV on 1 September 2018 and stated that the lettersEwhich were placed before the media by senior police functionaries wereyet to be verified. According to the petitioners, thirteen such allegedletters were leaked to the media by the police during the course of pressbriefings. They are now available in the public domain. These letters, ithas been submitted, do not find mention even in the transit applicationsfiled by the Pune police before the concerned court. The letters areFunsigned and do not bear any identifiable particulars including e-mailaddresses or headers. Curiously, the recovery is stated to have beenmade from the electronic devices of third person who is neither theauthor nor the addressee of the letters. Hence, it has been urged that:

(i) While it was alleged that plot against the Prime Minister has beenGuncovered in an alleged letter, it is noteworthy that no new FIR has beenregistered by the police and investigation continues by the Pune policeunder FIR 4/2018, pertaining to the Bhima-Koregaon violence;

(ii) The state is not taking the conspiracy theory seriously as is evidentfrom the fact that no fresh FIR has been registered and the investigationHcontinues to remain with the Pune police; and

(iii) Seven out of the thirteen alleged letters which were leaked to themedia by the police have been authored by or addressed to one “ComradePrakash”. The Sessions Court at Gadchiroli in its judgment dated 7 March2017 convicting GN Saibaba in Sessions Case 13/2014 held that he hadused the pseudonym ‘Prakash’ in letters scribed by him. It is matter ofrecord that Saibaba has been lodged in Nagpur Central Jail since 7 March2017 and hence the alleged letters attributed to him after that date areex-facie fabricated.Dr. Singhvi has drawn the attention of the court to the consistent patternand history of the police targeting human rights activists and incarceratingthem by foisting false criminal cases. This is buttressed by adverting tothe prosecutions launched against three of the August 2018 detenues.Vara Vara Rao was implicated in 25 cases out of which 13 ended inacquittal, 3 in discharge and 9 in the withdrawal of the prosecution. Hehas not been convicted in any case and is 79 years of age. Arun Ferreirahas been acquitted in all the 11 cases in which he was implicated. VernonGonsalves has been acquitted in 17 out of the 19 cases in which he wasaccused; discharge application is pending in one case while an appealagainst conviction in another case is pending before the Nagpur benchof the High Court, where he has already served his sentence.

11. During the course of his submissions, Dr. Singhvi urged thatthere was gross violation of law rendering the arrest, search and seizureunlawful. The panch witnesses were ‘imported’ from Pune and areemployees of the Pune Municipal Corporation. The two panch witnessestravelled together with the Pune police and are stock witnesses. Henceit has been submitted that there has been clear violation of thesafeguards introduced in Section 41B of the Code of Criminal Procedure,1973. In the transit remand application of Sudha Bhardwaj, the Punepolice submitted before the Court of the CJM, Faridabad on 28 August2018 that her remand was necessary since other individuals who werearrested in June 2018 had made disclosure statements in regard toincitement of the riots in Koregaon. Significantly, no such disclosure hasbeen made by the arrested persons nor is there mention of Maoistconspiracy in the alleged letters or in the remand application.

12. In summation, Dr. Singhvi urged that each of the persons whowere arrested on 28 August 2018 is an active defender of human rights.They have taken position on human rights violations. The submission isthat this targeted persecution is meant to strike fear amongst human

Arights’ lawyers, activists and writers to deter them from speaking againstor critiquing governmental policies and police actions. Persecution ofthis nature would, it has been urged, shake the foundation of the rule oflaw and render the freedoms guaranteed by the Constitution illusory.Learned counsel submitted that the purpose of these proceedings is notto thwart an investigation but to ensure that the investigation is fair andBimpartial. It was urged that in long line of precedent, this Court hasordered the constitution of Special Investigation Teams (SIT) or courtmonitored investigation under Article 32 of the Constitution. In the presentcase, it was urged, that the facts which have been adverted to beforethe Court indicate that the investigation has been anything but fair andCimpartial. The targeting of human rights activists for their opposition tothe governing regime implicates serious violation of democratic valuesand necessitates either the setting up of SIT or the monitoring of theinvestigation by this Court.

13. On the other hand, Mr Tushar Mehta, learned ASG has urgedDthe following submissions:(i) No interference by the Court is permissible in criminal case in thegarb of public interest litigation. PIL is not maintainable at the behestof third person for seeking reliefs which can be granted only underSections 438 or 439 and Section 482 of the Criminal Procedure CodeE(Rajiv Ranjan Singh ‘Lalan’ (VIII) v Union of India,[4] Gulzar AhmedAzmi v Union of India,[5] Simranjit Singh Mann v Union of India[6]and Ashok Kumar Pandey v State of West Bengal[7];(ii) There is an abuse of process in the present case since three of thearrested persons - Vara Vara Rao, Sudha Bhardwaj and Gautam NavlakhaFhave filed petitions before the jurisdictional High Courts which are pendingadjudication. Hence it would be impermissible to allow their prayer fortransposing them or adopting the averments in the petition (PratibhaRamesh Patel v Union of India[8], Udyami Evam Khadi GarmodyogWelfare Sanstha v State of UP[9]);

4 (2006) 6 SCC 613

5 (2012) 10 SCC 731

6 (1992) 4 SCC 653

7 (2004) 3 SCC 349

8 (2016) 12 SCC 375

H9 (2008) 1 SCC 560

(iii) PIL under Article 32 would not be maintainable for the purpose ofseeking relief under Sections 438 and 439 of the Criminal ProcedureCode;

(iv) Reliefs in the nature of writ of Habeas Corpus, which have beensought in the present proceedings under Article 32 are not maintainable(State of Maharashtra v Tansen Rizwan Siddiquee[10]);

(v) The accused does not have vested right to seek an investigationmonitored by the court or to have particular agency as the investigator;and

(vi) The investigation in the present case is being conducted responsiblyand impartially by an officer of the rank of an Assistant Commissionerof Police. The investigation is being carried out under the supervision ofa Deputy Commissioner of Police and is being monitored by the JointCommissioner of Police who is of the rank of an Additional DirectorGeneral.

14. While entertaining these proceedings, this Court is consciousof the fact that ordinarily, when an investigation into criminal offenceis in progress, rights and remedies are provided by the Code of CriminalProcedure. Hence, it is but trite law that in matters pertaining to orarising during the course of investigation such as remand, bail (includinganticipatory bail) and quashing of proceedings, recourse must be takento the provisions of the Code. These principles have been highlighted inthe decisions to which reference has been made by the ASG. In RajivRanjan Singh (supra) the trial had commenced in criminal case involvinga charge of amassing wealth disproportionate to the known source ofincome of public servant. This Court held that PIL is not meant toadvance political agenda and would be alien to pending criminalproceedings. The petitioners were not de facto complainants and if at allthey had grievance regarding the removal of public prosecutor, theyshould have moved the Special Judge or the High Court at the earliestpoint of time. The Court emphasised that any interference at the behestof third party was liable to affect the course of justice and may evenprejudice the accused by denying fair trial. In Gulzar Ahmed Azmi(supra) petition under Article 32 sought an investigation of all bombblast cases since 2002 with direction for the release of the detenues onbail. In that context, this Court held that sufficient safeguards were

DEF

Aavailable under the criminal law and it was for the individual againstwhom criminal proceeding is lodged to work out his or her remedy. InSimranjit Singh Mann (supra) the Court declined to exercise its jurisdictionunder Article 32 where the petitioner did not seek to enforce his ownfundamental rights but the fundamental rights of two “condemnedconvicts” who had not themselves complained of violation. This CourtBnoted that it was not open to “any and every person” to challenge aconviction and unless the aggrieved individual suffers from disabilityrecognised by law, it would be unsafe and hazardous to allow thirdparty or stranger to question the correctness of conviction and sentenceimposed after trial. These principles were also adverted to in the earlierCdecision in Ashok Kumar Pandey (supra). They are well settled. As acourt which is governed by precedent, we are bound by them and by aconsistent line of authority which requires that during the course 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.D

15. But in the present case, it is necessary for the Court to bear inmind that recourse to its constitutional jurisdiction under Article 32 hasbeen invoked not only by the petitioners but by the five individuals whowere arrested on 28 August 2018. The petition was moved before thisCourt on 29 August 2018 when, as already noted, an interim order wasEpassed directing that the five arrested persons be placed under housearrest. At the earliest possible point in time, these five individuals havemoved this Court indicating that they abide by the averments and reliefssought in the petition and seek that they should be transposed as petitionersunder Article 32. The petitioners have not in their submissions soughtFrecourse to the jurisdiction of this Court for espousing remedy which isavailable before the competent court under the Code of CriminalProcedure. These proceedings have been moved with specific grievancethat the arrest of the five individuals is an attempt by the state to muzzledissent and that each of them is being persecuted for being defender

of persons subjected to human rights’ violations. When the petition wasGinitially filed, the relief which was sought was in regard to thecircumstances relating to the arrest of the human rights activists. By anapplication for amendment, the reliefs have been sought to be amendedto inter alia seek the constitution of Special Investigating Team (to bemonitored by this Court). For clarity, the above reliefs are extractedHbelow:

“i) Issue an appropriate writ, order or direction for setting up ofa Special Investigating Team (SIT) comprising of senior policeofficers with impeccable career records of professionalism,integrity and independence, reporting directly to this Hon’bleCourt, for conducting fair and independent investigation andinquiry into the offences stated in the zero FIR lodged at Pimpripolice station on 02.01.2018 (now Cr.Case No 2/2018), and theFIR 4/2018 lodged at Vishrambagh police station on 08.01.2018by Tushar Damgude, and all other related matters and allegations;or

ii) Issue an appropriate writ, order or direction for the investigationinto the offences alleged in the zero FIR lodged at Pimpri policestation on 02.01.2018 (now Cr.Case No 2/2018), and the FIR 4/2018 lodged at Vishrambagh police station on 08.01.2018, andall other related matters and allegations, to be carried out by anindependent agency which shall be monitored directly by thisHon’ble Court through regular filing of status reports of theinvestigation by the investigating agency;”

16. Though the prayer seeking the appointment of SpecialInvestigating Team is sought to be introduced by way of an applicationfor amendment, it is necessary to note that in the petition as it wasoriginally filed, it has been stated that the object of the petition is not tostop an investigation but to ensure an independent and credibleinvestigation. The relevant averment in that regard reads as follows:

“Petitioners are seriously concerned about the erosion ofdemocratic values and are moving this Hon’ble Court not to stopinvestigation into allegations but to ensure independent andcredible investigation by such persons as may be deemed fitunder supervision of this Hon’ble Court. Anything short of thiswill damage the fabric of nation irreparably.”(emphasis supplied)

The application for amendment, does not, in other words, set up newcase but is intended to introduce formal prayer on the basis of avermentswhich have already been made in the petition as it was originally filed.

17. This Court, as constitutional adjudicator, has been entrustedwith the jurisdiction under Article 32 to secure the fundamental freedomsguaranteed by Part III of the Constitution. While the discipline of the

Alaw of criminal procedure must at all times be kept in view, it cannot begainsaid that the protection of fundamental liberties is subject so integralto democratic constitutional values that technicalities should not be allowedto override the cause of substantive justice. The court must undoubtedlytread with circumspection for in the guise of seeking access to its widejurisdiction under Article 32, the normal remedies under the criminal lawBshould not be displaced. Again, as the court has repeatedly emphasised,public interest litigation should not become weapon for settling politicalscores or of pursuing extraneous ends. In the present case, we have nomanner of doubt that the initiation of the proceedings under Article 32 isnot motivated by extraneous reasons. The law is not respecter ofCsocial, economic or political status and every litigant who seeks accessto justice has to be treated evenly. Here we have five citizens who haveinvoked the jurisdiction of this Court in extraordinary circumstanceswhere they claim that group of human rights activists has been targetedby the state police. Each of those five individuals has joined in theseproceedings.D

18. Over the course of the last decade, the jurisdiction of thisCourt has evolved under Article 32 to order the constitution of SIT. InNational Human Rights Commission v State of Gujarat,[11]a SITwas constituted in matter involving serious element of communaldisharmony. Further directions were issued by this Court for regularEstatus reports to be filed by the SIT (NHRC v State of Gujarat[12]). InRam Jethmalani v Union of India,[13] this Court observed that in severalinstances in the past, when the issues were of complex nature, yetrequiring the intervention of the Court, SITs were ordered to be constitutedto enable the Court, the Union government and other organs of the stateFto fulfil their constitutional obligations. In Common Cause v Union ofIndia,[14] the test for the constitution of SIT was prima facie abuse ofpower and authority by the Director of the Central Bureau of Investigationto scuttle an investigation and enquiries into coal block allocations. InSunita Devi v Union of India,[15] an independent and impartial SIT wasconstituted where it was found that the investigation into the murder ofGa family was lackadaisical and the real culprits had not been put to trial.

11 (2009) 6 SCC 34212 (2009) 6 SCC 76713 (2011) 8 SCC 114 (2017) 3 SCC 501H15 (2018) 3 SCC 664

These instances indicate the diversity of settings in which this Court hasordered the constitution of SITs. Decisional flexibility in the exercise ofthis jurisdiction meets exigencies which arise in unforeseen situations,warranting the intervention of this Court under Article 142. While theCourt does not determine the course of the investigation, it acts as awatchdog to ensure that fair and impartial investigation takes place. Afair and independent investigation is crucial to the preservation of therule of law and, in the ultimate analysis to liberty itself.

19. Mr Harish Salve, learned senior counsel appearing on behalfof the complainant, has sought to urge that SIT has been constituted incases where there is an allegation against the political class in power, sothat the investigation is not derailed by those who are capable ofintercepting it. Such construction, in my view, would restrict the widthand ambit of the jurisdiction which has advisedly been entrusted to thisCourt by the framers of the Constitution. The fact that in particularcase, SIT was ordered to be constituted in situation where there wasan allegation of interference with the investigation by the politicalestablishment is not reason to confine the exercise of the jurisdictiononly 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 exerciseof the jurisdiction is that violation of the fundamental human freedomsrelatable to the cardinal values of liberty, dignity and equality under PartIII of the Constitution is in issue.

20. Besides the jurisdiction to order the constitution of SIT, theproceedings of this Court are replete with instances where aninvestigation has been monitored under the authority of this Court. InVineet Narain v Union of India,[16] this Court in the context of thewidely publicised Jain Hawala transactions case ordered courtmonitored investigation to ensure that government agencies dischargedtheir duties and functions bearing in mind the tenets of equality and therule of law. In doing so, this Court emphasised the need to retain publicconfidence in the process of investigation. In Babubhai Jamnadas Patelv State of Gujarat,[17] two judge Bench, while noting that investigation

16 (1996) 2 SCC 199

17 (2009) 9 SCC 610

Aof offences is normally the function of the investigating agencyemphasised that where extraordinary facts or situations are involved, itis the duty of the High Courts and of this Court to intervene to ensurethat the rights of citizens are duly protected:

“The courts, and in particular the High Courts and the SupremeBCourt, are the sentinels of justice and have been vested withextraordinary powers of judicial review and supervision to ensurethat the rights of the citizens are duly protected.”

In Centre for Public Interest Litigation v Union of India,[18] courtmonitored investigation was ordered in public interest litigation whichCfocused on the need for thorough and impartial investigation into the2G Spectrum scam. In Bharati Tamang v Union of India,[19] this Courtheld that in an appropriate case, or when exceptional circumstanceshave been made out, the jurisdiction under Article 32 can be exercisedto constitute SIT or to transfer the investigation to Central Agencyand monitor it, or even to order de novo investigation into criminalDcases.

21. With this body of precedent on the subject, the maintainabilityof prayer for relief, seeking that the investigation should be eithermonitored by this Court or should be entrusted to an independent SITunder the directions of this Court cannot be in doubt. Though wide-Eranging submissions have been urged before this Court on merits, it isnecessary that the court must eschew detailed or meticulous examinationof the material produced by the ASG together with the case diary,particularly when the investigation is in progress. The expression of afinding by this Court would affect the administration of criminal justiceFor perhaps in given case, even the rights of the accused. Theobservations of this Court must, therefore, be confined to assessingwhether case has been made out for the constitution of SIT andmatters having bearing on that decision.

22. I must, at the outset, dwell on the fairness of the manner inGwhich the police have approached this investigation. On 29 August 2018,this Court issued notices to the State of Maharashtra and to the othersimpleaded as respondents to the proceedings. Within few hours of theconclusion of the court hearing, press conference was held in Pune by

18 (2011) 1 SCC 560H19 (2013) 15 SCC 578

Shivarjirao Bodhke, the Joint Commissioner of Police proclaiming thatthe Pune police had more than sufficient evidence against the fiveindividuals whose transit remand was stayed by this Court while orderingthem to be placed under house arrest. This is disconcerting behaviour -the Joint Commissioner sought in this oblique manner to respond to theinterim order of this Court by recourse to the electronic media. On 31August 2018, press conference was addressed by team of seniorpolice officers headed by Shri Parambir Singh, ADG (Law and Order),Maharashtra. During the course of the press conference letters (manyof which should form part of the case diary) were selectively flashedand read out. According to the petitioners they were also leaked to themedia. video of the press conference is annexed in the form of CDat Annexure R-2 of the rejoinder and has been uploaded on https://www.youtube.com/watch?v=PCVKfstx2Qc. On 1 September 2018 theADG (Law and Order) appeared on television programme titled “Truthv Hype” on NDTV, during the course of which he is stated to haveagreed that the letters which had been read out by him were stillundergoing forensic analysis together with the electronic devices. TheCD of the programme is annexed as Annexure R-3 to the rejoinder.Besides this, the attention of the Court has been drawn to the fact thatthe first round of arrests in the present case took place on 6 June 2018.On 8 June 2018 an alleged letter was released by the police to the mediaa little before the proceedings for remand before the competent court(in the June arrests), alleging that the arrested persons were plotting toattack the Prime Minister. On 4 July 2018 when the arrested personswere to be produced before the Court in Pune, letter attributed toSudha Bhardwaj was sensationally telecast on television channel linkingher with the unlawful activities of certain groups. serious grievancehas been made about the fact that these letters have neither been placedbefore the Court of law nor did they find mention in the transit remandapplications moved before the CJM, Faridabad by the Pune police.

23. In Rajendran Chingaravelu v RK Mishra,[20] this Courtdeprecated the tendency of the police to reveal details of an investigationto the media even before the completion of the investigation. This Courtobserved:

“21. But the appellant’s grievance in regard to media beinginformed about the incident even before completion of

Ainvestigation, is justified. There is growing tendency amonginvestigating officers (either police or other departments) toinform the media, even before the completion of investigation,that they have caught criminal or an offender. Such crudeattempts to claim credit for imaginary investigationalbreakthroughs should be curbed. Even where suspectBsurrenders or person required for questioning voluntarilyappears, it is not uncommon for the Investigation Officers torepresent to the media that the person was arrested with mucheffort after considerable investigation or case. Similarly, whensomeone voluntarily declares the money he is carrying, media isCinformed that huge cash which was not declared was discoveredby their vigilant investigations and thorough checking. Prematuredisclosures or ‘leakage’ to the media in pending investigationwill not only jeopardise and impede further investigation, but manya time, allow the real culprit to escape from law...”(emphasis supplied)D24. This facet of the case of serious concern. The manner inwhich the Joint Commissioner of Police and the Additional DirectorGeneral of Police (Law and Order), Maharashtra have selectivelydisclosed purported details of the investigation to the media and ontelevision channels casts cloud on the impartiality of the investigativeEprocess. In its 2010 decision in Rajendran (supra) this Court wasconstrained to take note of this growing tendency on the part ofinvestigating agencies. The use of the electronic media by the investigatingarm of the State to influence public opinion during the pendency of aninvestigation subverts the fairness of the investigation. The police areFnot adjudicators nor do they pronounce upon guilt. In the present case,police briefings to the media have become source of manipulatingpublic opinion by besmirching the reputations of individuals involved inthe process of investigation. What follows is unfortunately trial by themedia. That the police should lend themselves to this process is matter

of grave concern. The investigation commenced as an enquiry into theGBhima-Koregaon violence. The course of the investigation was soughtto be deflected by alleging (in the course of the press briefings of thepolice) that there was plot against the Prime Minister. Such anallegation is indeed of serious order. Such allegations require responsibleattention and cannot be bandied about by police officers in media briefings.HBut during the course of the present hearing, no effort has been made

by the ASG to submit that any such investigation is being conducted inregard to the five individuals. On the contrary, he fairly stated that therewas no basis to link the five arrested individuals to any such alleged plotagainst the Prime Minister. Nor does the counter affidavit makes anyaverment to that effect. All this has certainly bearing on the basicquestion as to whether the Maharashtra police can now be trusted tocarry out an independent and impartial investigation.

25. During the course of the hearing, the learned ASG has assistedthe Court by tendering the case diary and compilation of documentarymaterial. As matter of prudence, the court must desist from advertingto the details contained in the compilation or in the case diary save andexcept for indicating broad reasons in the course of evaluating the reliefswhich have been claimed. The counter affidavit, which has been filedby the State of Maharashtra makes it abundantly clear that the arrest ofthe five individuals (on 28 August 2018) was based on “materialgathered from others”. This adverts to the material alleged to havebeen gathered in the course of the raids conducted against thoseindividuals who were arrested in the months of June and July 2018.Paragraph 26 of the counter (which has been extracted earlier) statesthat this material “clearly shows that they were involved” in (i)selecting and incorporating cadres to go underground in the ‘strugglearea; (ii) mobilising and distributing money; (iii) facilitating selection andpurchase of arms; (iv) deciding the rates of such arms; and (v) suggestingthe routes and ways of smuggling such arms into India for its onwarddistribution amongst the cadres.26. Next, it is alleged that “some of them” (i) “have suggestedtraining and laying of booby traps and directional mines”; and (ii) “arefound to be providing strategic inputs in furtherance of the objective ofarmed rebellion” in pursuance of strategic document of bannedterrorist organisation namely, the Communist Party of India (Maoist).With the assistance of the ASG I have carefully perused the compilationproduced before the Court. Upon perusing the material, I find that theallegation that each of the five individuals arrested on 28 August 2018 isfound to be engaged in activities of the nature set out in paragraph 26 ofthe counter affidavit (extracted above) is taking liberties with the truth.General allegations against the philosophy of banned organisation, itspolicies and the modalities followed in the execution of its unlawfulactivities constitute one thing. Linking this to specific activities of named

Aindividuals is distinct matter. At this stage, it is necessary to note thesubmission which has been urged in regard to an undated letter of SudhaBhardwaj to Comrade Prakash which was also allegedly distributed tothe media. There is serious bone of contention in regard to theauthenticity of the letter which, besides being undated, does not containany details including the e-mail header. statement has been handedBover the court in support of the submission that the letter is an obviousfabrication made by Marathi speaking person because in as many as17 places, it contains references to words scribed in Devanagari, usingforms peculiar to Marathi. It has been urged that Sudha Bhardwaj whodoes not belong to Maharashtra and is not Marathi speaking, could notCpossibly have written letter in Devanagari utilising essentially Marathiforms of grammar or address. We need not delve into these aspects atthis stage, since they are matters for fair investigation.

27. One of the circumstances which must certainly bear upon thefairness and impartiality of the process which has been followed by theDinvestigating agency is in regard to the importation of two panch witnessesfrom Pune, when the arrests were carried out. Section 41B of Code ofCriminal Procedure emphasises the importance of an independent witnesswhile making an arrest. Section 41B of the Code provides as follows:

“Every police officer while making an arrest shall-E(a) bear an accurate, visible and clear identification of his namewhich will facilitate easy identification;

(b) prepare memorandum of arrest which shall be-

(i) attested by at least one witness, who is member ofthe family of the person arrested or respectable memberFof the locality where the arrest is made;

(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attestedby member of his family, that he has right to have relativeGor friend named by him to be informed of his arrest.”

(emphasis supplied)

The two panch witnesses in the present case are employees of the PuneMunicipal Corporation. It is not disputed before this Court that theytravelled as part of the police team which made the arrest.H

28. It was in DK Basu v State of West Bengal,[21]that this Courtlaid down requirements to be followed in all cases of arrest, whichincluded the following:

“(2) That the police officer carrying out the arrest of the arresteeshall prepare memo of arrest at the time of arrest and suchmemo shall be attested by at least one witness, who may eitherbe member of the family of the arrestee of respectable personof the locality from where the arrest is made. It shall also becountersigned by the arrestee and shall contain the time anddate of arrest.”

This Court observed that the requirements it had enunciated emanatedfrom Articles 21 and 22(1) of the Constitution and “need to be strictlyfollowed” failing which action for contempt of court would be initiated.

29. There is serious allegation that the arrests have beenmotivated by an attempt to quell dissent and to persecute five individualswho have pursued the cause of persons who have suffered discriminationand human rights violations. In approaching the present case, the Courtmust be mindful of the need not to thwart criminal investigation leadingto the detection of unlawful acts. Equally, the Court has to be vigilant inthe exercise of its jurisdiction under Article 32 to ensure that liberty isnot sacrificed at the altar of conjectures. Individuals who assert causeswhich may be unpopular to the echelons of power are yet entitled to thefreedoms which are guaranteed by the Constitution. Dissent is symbolof vibrant democracy. Voices in opposition cannot be muzzled bypersecuting those who take up unpopular causes. Where, however, theexpression of dissent enters upon the prohibited field of an incitement toviolence or the subversion of democratically elected government byrecourse to unlawful means, the dissent ceases to be mere expressionof opinion. Unlawful activities which violate the law have to be dealtwith in accordance with it. In the background which has been advertedto earlier, it would be blasé to accept the submission that the investigationby the police should be allowed to proceed without safeguard forensuring the impartiality and independence of the investigative agency.The conduct of the Pune police in utilising the agency of the electronicmedia to cast aspersions on those under investigation fortifies the needfor an investigation which is fair. When the Joint Commissioner of Police

Aand the Additional Director General of Police cast aspersions in thepublic media against persons whose conduct is still under investigation,and in disregard of proceedings pending before judicial forum, it is theduty and obligation of this Court to ensure that the administration ofcriminal justice is not derailed. I make it absolutely clear that nothing inthis order shall be construed as any observation on the merits of theBinvestigation which is to take place. The purpose of the direction whichI propose to give is to ensure that the basic entitlement of every citizenwho is faced with allegations of criminal wrongdoing, is that theinvestigative process should be fair. This is an integral component of theguarantee against arbitrariness under Article 14 and of the right to lifeCand personal liberty under Article 21. If this Court were not to stand bythe principles which we have formulated, we may witness soulfulrequiem to liberty.

30. The judgment of the majority has relied on certain decisions tohold that such petition as in the present case is not maintainable andDthe prayer for the constitution of SIT at the behest of the five individualsunder investigation cannot be entertained. In Narmada Bai v State ofGujarat,[22] the petitioner filed writ petition under Article 32 for issuanceof writ directing the CBI to register FIR in case pertaining to analleged fake encounter in which her son was killed. The key issue waswhether after filing of the charge-sheet by the state investigative agency,Ethis Court was precluded from appointing an independent specialisedagency like the CBI to go into the same issues, if the earlier investigationwas not done in accordance with the established procedure. The factualdetermination to be carried out was whether the petitioner had made outa case for entrusting the investigation to the CBI.F31. While this Court observed that “It is trite law that accusedpersons do not have say in the matter of appointment of an investigationagency” and that “the accused persons cannot choose as to whichinvestigation agency must investigate the alleged offence committed bythem”, the Court also observed that there were “large and variousGdiscrepancies” in the reports and the investigation conducted by the policeauthorities of the State of Gujarat and that the charge-sheet filed by thestate investigating agency could not be “said to have run in properdirection.” two judge Bench of this Court concluded that even though

the charge-sheet had been filed, in view of the circumstances brought tothe notice of the Court, the involvement of the police officials of theState of Gujarat in the investigation was “undesirable”. Thus, “to meetthe ends of justice and in the public interest”, the CBI was be directed totake charge of the investigation.

32. This case supports my view that in the interest of justice, andparticularly when there are serious doubts regarding the investigationbeing carried out, it is not only permissible, but our constitutional duty toensure that the investigation is carried out by special investigation teamor special investigative agency so that justice is not compromised.

33. In Sanjiv Rajendra Bhatt v Union of India,[23] the petitioner,who was an IPS officer filed plea before this Court seeking theappointment of SIT, to probe into two FIRs filed against him by theGujarat Police. On the facts of the case, it was held that the nature ofthe case relating to an allegedly false affidavit and the alleged hackingof an email account were not of such wide amplitude so as to warrantthe constitution of SIT. The Court also observed that the petitioner hadnot come to the Court with clean hands and that no relief could be grantedto an individual who came to the Court with “unclean hands.” Thesefacts were the distinguishing feature. I have previously discussed theestablished precedents of this Court which indicate the circumstances inwhich this Court can constitute SIT.

34. In Sivakumar v Union of India,[24] the petitioner was namedin an FIR which was being investigated in regard to the illegal manufactureand sale of pan masala and gutkha containing tobacco and/or nicotine.The petitioner challenged the decision of the High Court to transfer theinvestigation of the criminal case to the Central Bureau of Investigation.One of us (Khanwilkar, J,) who authored the judgment on behalf of thisBench held:

“The High Court has cogitated over all the issues exhaustivelyand being fully satisfied about the necessity to ensure fairinvestigation of the crime in question, justly issued writ ofmandamus to transfer the investigation to the CBI.”[25]

23 (2016) 1 SCC 1

24 (2018) 7 SCC 365

25 Ibid, at para 5

AThe judgment of the High Court was upheld on the following ground:

“… the question regarding the necessity to ensure fair andimpartial investigation of the crime, whose tentacles were notlimited to the State of Tamil Nadu but transcended beyond toother States and may be overseas besides involving high rankingBofficials of the State as well as the Central Government, hasnow been directly answered. For instilling confidence in the mindsof the victims as well as the public at large, the High Courtpredicated that it was but necessary to entrust the investigationof such crime to CBI. Viewed thus, there is no infirmity in theconclusion reached by the High Court in the impugned judgment,Cfor having entrusted the investigation to CBI.”[26]

Drawing attention to the duty of this Court as adjudicator, it was alsoobserved:

“It is the bounden duty of court of law to uphold the truth andDtruth means absence of deceit, absence of fraud and in criminalinvestigation real and fair investigation, not an investigationthat reveals itself as sham one. It is not acceptable. It has to bekept uppermost in mind that impartial and truthful investigation isimperative…If grave suspicion arises with regard to theinvestigation, should constitutional court close its hands andEaccept the proposition that as the trial has commenced, the matteris beyond it?...”[27]

(emphasis supplied).

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

35. The case of Divine Retreat Centre v State of Kerala[28]concerned with the maintainability of an anonymous petition to judgeof the High Court seeking direction for an investigation. The anonymousGpetition was taken up suo motu by the High Court under Section 482 ofthe Code of Criminal Procedure and the investigation of the criminalcase was directed to be taken away from the investigating officer and

26 Ibid, at para 927 Ibid, at para 13H28 (2008) 3 SCC 542

entrusted to SIT. The central question in this case was the scope ofthe inherent power conferred on the High Court under Section 482 ofthe Code of Criminal Procedure. It was held that:

“The High Court in exercise of its inherent jurisdiction cannotchange the investigating officer in the midstream and appointany agency of its own choice to investigate crime on whatsoeverbasis and more particularly on the basis of anonymous petitionsaddressed to named Judge. Such communications cannot beconverted into suo motu proceedings for setting the law in motion.Neither the accused nor the complainant or informant is entitledto choose its own investigating agency to investigate crime inwhich it may be interested.” (emphasis supplied)

The Court in the context of Article 226 commented on the maintainabilityof public interest litigation as follows:

“It is well settled that public interest litigation can be entertainedby the constitutional courts only at the instance of bona fidelitigant. The Supreme Court has uniformly and consistently heldthat the individual who moves the Court for judicial redress incases of public interest litigation must be acting bona fide with aview to vindicating the cause of justice and not for any personalgain or private profit or of the political motivation or other obliqueconsideration…”[29]

It was also observed that:

“the High Court in exercise of its whatsoever jurisdiction cannotdirect investigation by constituting special investigation teamon the strength of anonymous petitions.[30]

36. These observations indicate that what found disfavour withthis Court was the High Court having entertained an anonymous petitionto constitute SIT. The facts of the above case are distinct from thecase at hand. The observations made on the maintainability of publicinterest litigation only lend support to the present case. The petitioners inthe present case are not anonymous. There has been no argument thatthe petitioners have been motivated by personal gain or politicalconsiderations.

29 Ibid, at para 59

30 Ibid, at para 50

A37. Recently on 14 September 2018, the learned Chief Justice,speaking for the present bench of three Judges handed down verdict[31]granting compensation of Rs 50 lakhs to space scientist who wasfound upon further investigation by the CBI to have been wrongfullyimplicated and subjected to custodial interrogation. This was on anallegation that he had leaked out official secrets of the Indian SpaceBResearch Organisation. The learned Chief Justice held:

“...there can be no scintilla of doubt that the appellant, successfulscientist having national reputation, has been compelled toundergo immense humiliation. The lackadaisical attitude of theState police to arrest anyone and put him in police custody hasCmade the appellant to suffer the ignominy. The dignity of persongets shocked when psycho-pathological treatment is meted outto him. human being cries for justice when he feels that theinsensible act has crucified his self-respect. That warrants grantof compensation under the public law remedy. We are absolutelyDconscious that civil suit has been filed for grant ofcompensation. That will not debar the constitutional court to grantcompensation taking recourse to public law. The Court cannotlose sight of the wrongful imprisonment, malicious prosecution,the humiliation and the defamation faced by the appellant.”

EThe fact that the payment of compensation was ordered nearly 24 yearsafter the wrongful arrest is grim reminder about how tenuous libertycan be and of the difficulty in correcting wrongs occasioned by unlawfularrest.

38. There can be no manner of doubt that the deprivation of humanFrights seriously impinges upon the dignity of the individual for whicheven compensation may not constitute an adequate recompense. Thistheme echoes recurrently in the judgments of this Court in Kiran Bediv Committee of Inquiry,[32] Delhi Judicial Service Association vState of Gujarat,[33] Joginder Kumar v State of UP[34] and DK Basuv State of West Bengal[35]. In DK Basu, this Court elucidated on theGimportance of personal liberty in the constitutional scheme:

3 1S Nambi Narayanan v Siby Mathews, (2018) 11 SCALE 171

3 2(1989) 1 SCC 494

3 3(1991) 4 SCC 406

3 4(1994) 4 SCC 260

H3 5(1997) 1 SCC 416

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

“17. Fundamental Rights occupy place of pride in the IndianConstitution. Article 21 provides “no person shall be deprived ofhis life or personal liberty except according to procedureestablished by law”. Personal liberty, thus, is sacred andcherished right under the Constitution. The expression “life orpersonal liberty” has been held to include the right to live withhuman dignity and thus it would also include within itself aguarantee against torture and assault by the State or itsfunctionaries.”

The Court also emphasized that no arrest can be made without reasonablesatisfaction after investigation about the genuineness and bona fides ofa complaint:

“20. This Court in Joginder Kumar v. State of U.P. [(1994) 4SCC 260 : 1994 SCC (Cri) 1172] (to which one of us, namely,Anand, J. was party) considered the dynamics of misuse ofpolice power of arrest and opined:

“No arrest can be made because it is lawful for the police officerto do so. The existence of the power to arrest is one thing. Thejustification for the exercise of it is quite another. … No arrestshould be made without reasonable satisfaction reached aftersome investigation as to the genuineness and bona fides of acomplaint and reasonable belief both as to the person’s complicityand even so as to the need to effect arrest. Denying person ofhis liberty is serious matter.””

39. This Court has constitutional obligation, where its attentionhas been drawn, in case such as the present, to real likelihood of thederailment of fair investigative process to issue appropriate directionsunder Article 142 of the Constitution.

40. Hence, I am of the view that while the investigation should notbe thwarted, this is proper case for the appointment of SpecialInvestigating Team. Circumstances have been drawn to our notice tocast cloud on whether the Maharashtra police has in the present caseacted as fair and impartial investigating agency. Sufficient material hasbeen placed before the Court bearing on the need to have an independentinvestigation.

41. Hence, following the line of precedent of this Court which hasbeen discussed earlier, I am firmly of the view that Special Investigating

ATeam must be appointed. The investigation shall be monitored by thisCourt. The Special Investigating Team shall submit periodical statusreports to this Court, initially on monthly basis.[36] The interim orderpassed by this Court on 29 August 2018 shall continue to hold the fieldfor further period of three weeks within which it would be open to thesaid five individuals or any one or more of them to apply for bail beforeBthe Court of competent jurisdiction. I would direct that the petition belisted after three days for orders on the constitution of the SpecialInvestigating Team. There shall be an order in these terms.

Divya Pandey Petition disposed of.

3 6 Speaking as I do for the minority, I have not indicated the names of the personnelwho would constitute the SIT. Should that occasion arise, liberty is granted to seekan appropriate direction from this Court.