TaxTMI 
TaxTMI 
2018 (9) TMI 1881
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....mes and arresting five well known human rights activists, journalists, advocates and political worker, with a view to kill independent voices differing in ideology from the party in power and to stifle the honest voice of dissent. They complain that the five activists, namely, Gautam Navalakha, Sudha Bharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalves were arrested on 28th August, 2018 from their homes at New Delhi, Faridabad, Mumbai, Thane and Hyderabad, respectively, without any credible material and evidence against them justifying their arrest, purportedly in connection with FIR No. 0004/2018 dated 8th January, 2018 registered with Police Station Vishram Bagh, Pune City. This action was to silence the dissent, stop people from helping the poor and downtrodden and to instill fear in the minds of people and was a motivated action to deflect people's attention from real issues. The Petitioners have made it clear in their petition that they were seriously concerned about the erosion of democratic values and were approaching this Court "not to stop investigation into allegations" "but" to ensure independent and credible "investigation into the arrest of stated five human....
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.... Chahiye shahar mein, Jab Julm Ho to bagawat honi chahiye shahar mein aur agar bagawat na ho to, behatar hai kee, rat dhalane se phle ye shahar jalke rakh ho jaye, ye shahar jalke rakh ho jaye...." Then he said some other malice statement that "ye jo satrahai, ye satra hia, tayat hi apane aap mein ladai ka ellanhai, ye nave peswai ko haemin Samshan Ghat mein, kabrastan meindajana hai.." Afterwards, other speakers also expressed themselves in grudge words in the same Programme, some objectionable and provocable books kept for selling. After ending the program, I left from the there. On the date of 1st January, 2018 as usual year, huge crowd gathered to salute and honour the victory stambh/monument at Bheema Koregaon. But because of the Elgar Parishad which was held at Shaniwar Wada on 31st December, 2017, Kabir Kala Manch's Sudhir Dhawale, Sagar Gorakhe, Harshali Potdar, Jyoti Jagtap, Ramesh Gaichor and other six seven persons tried to express malice statement and tried to incite disputable words, sentences between two society groups, raise some provocable slogans, songs and road drama imposed wrong and false History above mentioned Sudhir Dhawale, Harshali Potdar and other Kabi....
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....d on 31st December, 2017 at Pune by "Elgar Parishad" (with which they have no concern) nor any allegation is found against them in the FIR. Nevertheless, the Pune Police swiftly moved against them, for reasons best known on fabricated charges under various provisions of the Unlawful Activities (Prevention) Act, 1967 ("UAPA") and under the Indian Penal Code. 4. According to the Petitioners, since the FIR dated 2nd January, 2018, at Pimpri Police Station (Rural) for offences punishable Under Sections 307, 143, 147, 148, 149, 295(A), 435, 436 of Indian Penal Code, Sections 3(2)(v) & 3(1)(10) of the Scheduled Castes Scheduled Tribes Act and Section 4(25) of the Arms Act of the Maharashtra Police Act, 1989, was registered against the Hindutva right wing leaders Milind Ekbote and Sambhaji Rao Bhide, based on an eye-witness account that they along with fringe groups had incited the violence against the Dalit congregation, instead of taking action against those who were behind the Bhima Koregaon violence, a false and fabricated complaint was engineered in the form of FIR No. 0004/2018 and came to be registered on 8th January, 2018 at Vishram Bagh Police Station (Pune City), in respect o....
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....those who spoke for the poor and marginalized and to malign human rights defenders, lawyers, activists and the progressive ideas and human rights ideology that they espouse, so as to have a chilling effect in the minds of the activists and dissuade them from criticizing the policies and programmes of the Government. 7. The Petitioners then state that without providing any evidentiary link between the persons arrested and raided inter alia Gautam Navlakha and Sudha Bhardwaj with FIR No. 4 of 2018, they were served with the arrest memos signed by the persons who were brought as part of the entourage of the Pune Police as so-called "independent and respectable persons" to authenticate the arrest memos. The seizure memos were prepared in Marathi and signed by the Panchas who were brought by the Pune Police as part of the entourage. No translated copy of the FIR or the seizure memo was made over to Gautam Navlakha or Sudha Bhardwaj even though they were not conversant with Marathi. In this backdrop, Gautam Navlakha filed habeas corpus petition before the Delhi High Court, being Writ Petition No. 2559 of 2018 challenging the transit remand order passed by the Chief Metropolitan Magist....
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....a Rao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, if arrested, they are kept under house arrest at their own homes. We order accordingly. The house arrest of Mr. Gautam Navalakha and Ms. Sudha Bharadwaj may be extended in terms of our orders. Needless to say, an interim order is an interim order and all contentions are kept open. Let the matter be listed on 6.9.2018. This interim arrangement has been continued from time to time and remains in force until the disposal of this petition. 9. The State of Maharashtra has filed a counter affidavit of Dr. Shivaji Panditrao Pawar, Assistant Commissioner of Police (Investigating Officer), Swargate Division, Pune City, Pune. Besides taking objection regarding the maintainability of the writ petition being filed by third parties who are strangers to the offence under investigation, he has highlighted that in light of the material gathered during the investigation conducted so far, it would be desirable to dismiss the writ petition. He has stated that the entire writ petition is based upon individual perception of the writ Petitioners that the arrested persons are "all outstanding, well-known and well respected human r....
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....e "clone copies/mirror images" to the investigating agency so as to ensure that pendency of FSL Report does not hamper the investigation. It is then stated that documents recovered from the seized items unraveled the information implicating the Accused not only as active members of CPI (Maoist) but being involved in an ongoing sinister design of having committed and in the process of committing criminal offences having the potential of destabilizing the society. The documents clearly reflect the preparation, planning and coordination not only amongst the stated Accused persons but with others subsequently arrested, to carry out violence including planned ambush/rebellion against the enemy (which is our country and security forces). 11. He has further stated that all the documents recovered during the search from the custody and possession of the respective Accused will be produced before the Court, perusal of which would reveal that the Accused persons are not merely political dissenters but involved in sinister design, planning, preparation and commission of criminal offences to destabilize the society. After the incriminatory material came to light, further offences Under Sect....
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....involvement in the planning and execution of offences to destabilize the society and their association with the banned organization. Their involvement is noticed in selecting and encouraging cadres in the banned organizations to go underground in 'struggle area', mobilizing and distributing money, facilitating selection and purchase of arms, deciding the rates of such arms and suggesting the routes and ways of smuggling such arms into India for its onward distribution amongst the cadres. Some of them have suggested training and laying booby traps and directional mines. Their involvement is also for providing strategic inputs in furtherance of the objective of armed rebellion, on lines of strategic documents of the banned terrorist organization. It is stated that all the material collected during the investigation will be eventually placed on record of the jurisdictional Court along with the police report to be filed in due course. Further, the question of showing that material to anyone much less Accused, would defeat the investigation in progress and that is not the requirement of law. The affidavit also emphasizes that house arrest of the concerned Accused merely restrict....
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....rashtra to ensure fair play and in the interest of justice; and/or (iv) Issue an appropriate writ, order or direction, directing the release from custody of the arrested activists as per law, upon such terms and conditions as may be deemed necessary and appropriate, to the satisfaction of this Hon'ble Court; and/or (v) Pass any such further order(s) as this Hon'ble Court may deem fit and appropriate in the facts and circumstances of the present case, and in the interest justice. 15. During the arguments, Dr. Abhishek Manu Singhvi, Dr. Rajeev Dhawan, Dr. Ashwani Kumar learned senior Counsel and Mr. Prashant Bhushan, learned Counsel appearing for the writ Petitioners and Mr. Anand Grover, learned senior Counsel appearing for the arrested persons, have argued that the stated five persons have not been named in the FIR nor were they present during the event referred to in the FIR. Registration of two FIRs in respect of the same incident, first on 2nd January, 2018 at Pimpri (Urban) Police Station and the second, at Visharam Bagh Police Station, Pune City, was impermissible and was a ploy to deflect the inaction of the Pune Urban Police for the reasons best ....
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....2018 was their involvement in planning the assassination of the current Prime Minister but there is no allegation to that effect in the FIR nor has any fresh FIR been registered by the Police, although the same is a serious matter warranting investigation by an Investigating Agency no less then National Investigating Agency or at least the CBI. The persons arrested, however, are well-known for their track record of human rights activism and have been unjustly put behind bars on the basis of unsubstantiated allegations and without any evidence against them. The entire sub-text of creating a real threat is a figment of imagination of the Investigating Agency and that has been done for reasons best known to them. Obviously, it is politically motivated. The transit remand applications preferred by the Investigating Agency also do not mention the letters indicative of involvement of the persons concerned in planning and execution of Maoist plot nor have those letters been produced before the Court thus far. The letters which were flashed to the media are obviously fabricated. Further, no plausible explanation is forthcoming as to why the Investigating Agency had taken panchas along with....
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....nd or judicial remand and bail application but also the remedy of discharge and quashing of the prosecution. In other words, the issues raised by the Petitioners may be germane for pursuing relief of bail or discharge/quashing, but not relevant to consider prayer for change of investigating agency, that too at the instance of Accused themselves. He has handed over a compilation of documents or incriminatory material collected during the investigation allegedly showing the involvement of the concerned Accused, for our perusal. He has also handed over the Case Diary and two Registers of documents recovered during the search from the Accused persons. He further states that the subject FIR in respect of which action is being taken against the Accused was registered on 8th January, 2018 for offences punishable Under Section 153-A, 505 (1B), 17, 34 Indian Penal Code. After the investigation progressed, further offences were added including the offences Under Sections 13, 16, 17, 18, 18B, 20, 38, 39 & 40 of UAPA on 16th May, 2018, on the basis of the material collected during the on-going investigation. Initially, the offence was registered only against 6 Accused and as the investigation ....
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....f of investigation of the crime through an independent agency and for the same reason, even strangers to the offence under investigation or next friends of the Accused, cannot be permitted to pursue such a relief in the guise of PIL. He submits that the foundation of the present writ petition is the perception of the writ Petitioners (next friends) that the Accused are innocent persons. He submits that that basis is tenuous. For, there are enough examples of persons having split personality. In a criminal case, the action is based on hard facts collected during the course of investigation and not on individual perception. He contends that the argument of the writ Petitioners that liberty of the five named Accused cannot be compromised on the basis of surmises and conjectures is wholly misplaced and can be repelled on the basis of the material gathered during the ongoing investigation indicating the complicity of each of them. He relies on Section 41 of Code of Criminal Procedure which enables the police to arrest any person against whom a "reasonable suspicion" exists that he has committed a cognizable offence. Therefore, the integrity of the Investigating Agency cannot be doubted ....
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....er there is a third side to the case. The Petitioners have raised the issue of credibility of Pune Police investigating the crime and for attempting to stifle the dissenting voice of the human rights activists. The other side with equal vehemence argued that the action taken by Pune Police was in discharge of their statutory duty and was completely objective and independent. It was based on hard facts unraveled during the investigation of the crime in question, pointing towards the sinister ploy to destabilize the State and was not because of difference in ideologies, as is claimed by the so called human rights activists. 20. After having given our anxious consideration to the rival submission and upon perusing the pleadings and documents produced by both the sides, coupled with the fact that now four named Accused have approached this Court and have asked for being transposed as writ Petitioners, the following broad points may arise for our consideration: (i) Should the Investigating Agency be changed at the behest of the named five Accused? (ii) If the answer to point (i) is in the negative, can a prayer of the same nature be entertained at the behest of the ....
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....nt, reliance has been placed on Dinubhai Boghabhai Solanki v. State of Gujarat1, wherein it has been held that in a writ petition seeking impartial investigation, the Accused was not entitled to opportunity of hearing as a matter of course. Reliance has also been placed in Narender G. Goel v. State of Maharashtra (2009) 6 SCC 65, in particular, paragraph 11 of the reported decision wherein the Court observed that it is well settled that the Accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the Petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity. 24. This Court in the case of Divine Retreat Centre v. State of Kerala and Ors. (2008) 3 SCC 542, has enunciated that the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis. The Cou....
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....nd particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough. Rather, averment in the petition as filed was to buttress the reliefs initially prayed (mentioned in para 7 above)-regarding the manner in which arrest was made. Further, the plea of the Petitioners of lack of evidence against the named Accused (A16 to A20) has been seriously disputed by the Investigating Agency and have commended us to the material already gathered during the ongoing investigation which according to them indicates complicity of the said Accused in the commission of crime. Upon perusal of the said material, we are of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named Accused, but concerning their link with the members of the banned organisation and its activities. This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter any further lest it wo....
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....and (ii) also make reference to FIR No. 2/2018 registered at Pimpri (Urban) Police Station on 2nd January, 2018. However, that is an independent FIR registered at a different police station against the Hindutva right wing leaders Milind Ekbote and Sambhaji Rao Bhide. It is, at best, in the nature of a cross FIR in respect of the same incident against the alleged aggressors filed by an eye-witness. Neither the writ Petitioners nor the named Accused in FIR No. 4/2018 in that sense, can pursue relief in respect of FIR No. 2/2018 registered at Pimpri (Urban) Police Station. Admittedly, Criminal Writ Petition No. 1875 of 2018 has already been filed in the Bombay High Court by Anita R. Sawale (the complainant in FIR No. 2/2018) herself for issuing directions to the Investigating Agency in that crime. As presently advised, we find force in the argument of the State that the crime under investigation in FIR No. 4/2018, inter alia is to investigate the allegations that a banned organization, CPI(M), organises events such as referred to in FIR No. 2/2018 to propagate ill-will in different classes and turn them into unconstitutional and violent activities. Further, such activities were purpor....
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....ot be granted for the reasons noted hereinbefore. 32. That takes us to the third modified relief claimed in the writ petition to issue directions that all electronic devices, records and materials, allegedly seized from the detenue/accused, be examined by Forensic Science Laboratory outside the State of Maharashtra to ensure fair play and in the interest of justice. Even this prayer cannot be taken forward. If any one of the twenty two named Accused have any grievance or apprehension about the same, he is free to make that request before the jurisdictional Court, which can be considered at the appropriate stage in accordance with law. We are not expressing any opinion either way in the present writ petition in that regard. 33. The fourth modified relief is to direct release of the arrested activists from custody as per law. The Accused persons must pursue this relief before the appropriate court, which can be considered by the concerned court on its own merits in accordance with law. As noted earlier, the concerned Accused persons have already taken recourse to remedy before the jurisdictional High Courts. Hence, they are free to pursue all legal remedies available to them as....
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....he value of individual dignity as essential to a democratic way of life. But lofty edicts in judicial pronouncements can have no meaning to a citizen unless the constitutional quest for human liberty translates into securing justice for individuals whose freedom is under threat in specific cases. The role of the Court involves particularly sensitive balances when the state seeks to curb freedom to investigate perceived breaches involving offences against the state. Custodial interrogation involves the balancing of diverse and often conflicting values: the effective administration of criminal justice, an impartial process of investigation and the liberty and reputation of the individual. The invocation of our jurisdiction Under Article 32 in this case is founded on the grievance that a group of five human rights activists is sought to be persecuted for espousing the cause of the marginalised which is considered to be 'unpopular'. Conscious as the Court is of the public interest in the effective administration of criminal justice, it cannot be oblivious to the overriding constitutional concern to secure the dignity of the individual. The key to the balance between the two lie....
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.... and Professor Emeritus at Jawaharlal Nehru University. She was selected on two occasions for the conferment of the Padma Bhushan award by the Union Government, which she declined. Romila Thapar has been elected to the British Academy and the American Academy of Arts and Sciences and has been conferred with honorary doctoral degrees by the Universities of Oxford and Chicago, among others. Her writings include a book titled, 'A History of India'; (ii) The second Petitioner, Devaki Jain is a pioneer feminist economist and has been associated with national bodies, including the Planning Commission and the National Commission for Women and, international organisations, including UNDP and the South Commission. She is the founding member of two organisations engaged in women's studies. She is a recipient of the Padma Bhushan in 2006, the third highest civilian award from the Government of India, for her contribution to social justice and the empowerment of women; (iii) The third Petitioner, Prabhat Pattnaik, was a Rhodes Scholar and is an eminent economist who taught at JNU for over three decades. He was vice-chairperson of the Kerala Planning Board and a me....
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...., writer and columnist. His translation of Annabhau Sathe's "Gold from the Grave" from Marathi to English published in David Davidar's "A Clutch of Indian masterpieces". Three of the above individuals were prosecuted in the past for offences primarily under the Indian Penal Code, 1860, the Arms Act, 1959 and the UAPA. Arun Ferreria is stated to have been acquitted in all eleven cases instituted against him. Vernon Gonsalves was acquitted in seventeen out of the nineteen cases instituted against him (an appeal is pending in one case where he stands convicted while an application for discharge is pending before the Gujarat High Court in one case). Vara Vara Rao was acquitted in all twenty cases where he was prosecuted2. 42. During the course of the hearing, a preliminary objection was raised by Mr. Tushar Mehta, the learned ASG to the maintainability of these proceedings. He urged that the Petitioners have no locus to question the circumstances relating to the arrest of the five individuals named above. I would not have been inclined to accept a technical argument of this nature in view of the constitutional imperatives for this Court to intervene when human freedoms an....
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.... them, Justice PB Sawant is a former judge of this Court. Justice BG Kolse Patil is a former judge of the Bombay High Court. The event was planned at Shaniwar wada in Pune. An organisation known as the Kabir Kala Manch was to supervise a cultural programme. Besides the two judges who addressed the Elgar Parishad, the speakers included Shri Prakash Ambedkar, President of the Bharatiya Republican Party. The event was titled: "Bhima-Koregaon Shourya Din-Elgar Parishad". The Petitioners claim that 'Elgar' is a clarion call. The state reads into it a sinister symbolism of an attack. On 1 January 2018, a communal disturbance took place at Bhima-Koregaon when, as the allegation goes, a group of Dalits was attacked in the process of offering a salutation to the victory pillar. News of the incident spread across the state of Maharashtra, resulting in a violent agitation in the state. 45. Following these incidents, a First Information Report in regard to the incident was lodged on 8 January 2018 by one Tushar Damgude. The FIR specifically names the following individuals: i Sudhir Dhawale; ii Sagar Gorakhe; iii Harshali Potdar; iv Dipak Dhengale;....
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....part of the case diary and which would be placed for consideration and perusal of this Hon'ble Court in a sealed cover], the following persons were also clearly found to be a part of the criminal conspiracy and their role was not merely peripheral role but they were found to be playing a very vital role in the criminal offences committed and/or planned by others. Based upon the said incriminating material, the following persons came to be arrested on 28.8.2018 and searches were conducted at their residential/work places in a similar fashion, under videography in presence of individual Punchas who were Government officers. 1. Vara Vara Rao R/o Hyderabad 2. Arun Ferreira R/o Thane 3. Vernon Gonsalves R/o Mumbai 4. Sudha Bhardwaj R/o Faridabad 5. Gautam Navlakha R/o Delhi The counter alleges that each of the five individuals is found to be working for and to be an active member of a "banned terrorist organisation"-the Communist Party of India (Maoist). Paragraph 26 of the counter affidavit states that each of them has been found, from the material gathered from others during investigation, to be involved in unlawful activities which ....
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.... as Shivajinagar Pratishthan and Milind Ekbote, Chief of Hindu Janjagaran Samiti as perpetrators and conspirators. Sambhaji Bhide has not been arrested while Milind Ekbote is stated to have secured bail within a month of his arrest. The FIR relates to offences under the Penal Code, Arms Act and the SC/ST Act3. No provision of the UAPA has been invoked. Since the police were allegedly not investigating the FIR, a writ petition has been filed before the Bombay High Court4. FIR 4/2018 was lodged on 8 January 2018 at PS Vishrambagh by Tushar Damgude who is alleged to be a self-professed follower of Sambhaji Bhide. The FIR adverts to a speech delivered by Sudhir Dhawale at the Elgar Parishad on 31 December 2017 in which allegedly an incendiary speech was made, with the following lines: Jab Julm ho to Bagawat Honi Chahiye shahar mein, Jab Julm Ho to bagawat honi chahiye shaharmein, aur agar bagawat na ho to behatar he ke, ye raat dhalane se pehle ye shahar jalkar rakh ho jaye, yesatra hein, ye satra ki title hi, apne aap mein, ladhai k ailan hein, ye nayi peshwai ko hamko shamshan ghat mein, Kabrastaan mein dafnana hein. Dr. Singhvi submits that these lines are but a translat....
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....een registered and the investigation continues to remain with the Pune police; and (iii) Seven out of the thirteen alleged letters which were leaked to the media by the police have been authored by or addressed to one "Comrade Prakash". The Sessions Court at Gadchiroli in its judgment dated 7 March 2017 convicting GN Saibaba in Sessions Case 13/2014 held that he had used the pseudonym 'Prakash' in letters scribed by him. It is a matter of record that Saibaba has been lodged in Nagpur Central Jail since 7 March 2017 and hence the alleged letters attributed to him after that date are ex-facie fabricated. Dr. Singhvi has drawn the attention of the court to the consistent pattern and history of the police targeting human rights activists and incarcerating them by foisting false criminal cases. This is buttressed by adverting to the prosecutions launched against three of the August 2018 detenues. Vara Vara Rao was implicated in 25 cases out of which 13 ended in acquittal, 3 in discharge and 9 in the withdrawal of the prosecution. He has not been convicted in any case and is 79 years of age. Arun Ferreira has been acquitted in all the 11 cases in which he was implicat....
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....heir opposition to the governing regime implicates a serious violation of democratic values and necessitates either the setting up of a SIT or the monitoring of the investigation by this Court. 50. On the other hand, Mr. Tushar Mehta, learned ASG has urged the following submissions: (i) No interference by the Court is permissible in a criminal case in the garb of a public interest litigation. A PIL is not maintainable at the behest of a third person for seeking reliefs which can be granted only Under Sections 438 or 439 and Section 482 of the Code of Criminal Procedure (Rajiv Ranjan Singh 'Lalan' (VIII) v. Union of India (2006) 6 SCC 613, Gulzar Ahmed Azmi v. Union of India (2012) 10 SCC 731, Simranjit Singh Mann v. Union of India (1992) 4 SCC 653 and Ashok Kumar Pandey v. State of West Bengal (2004) 3 SCC 349; (ii) There is an abuse of process in the present case since three of the arrested persons-Vara Vara Rao, Sudha Bhardwaj and Gautam Navlakha have filed petitions before the jurisdictional High Courts which are pending adjudication. Hence it would be impermissible to allow their prayer for transposing them or adopting the averments in the petition ....
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.... all bomb blast cases since 2002 with a direction for the release of the detenues on bail. In that context, this Court held that sufficient safeguards were available under the criminal law and it was for the individual against whom a criminal proceeding is lodged to work out his or her remedy. In Simranjit Singh Mann (supra) the Court declined to exercise its jurisdiction Under Article 32 where the Petitioner did not seek to enforce his own fundamental rights but the fundamental rights of two "condemned convicts" who had not themselves complained of a violation. This Court noted that it was not open to "any and every person" to challenge a conviction and unless the aggrieved individual suffers from a disability recognised by law, it would be unsafe and hazardous to allow a third party or stranger to question the correctness of a conviction and sentence imposed after trial. These principles were also adverted to in the earlier decision in Ashok Kumar Pandey (supra). They are well settled. As a court which is governed by precedent, we are bound by them and by a consistent line of authority which requires that during the course of investigation, it is to the competent court that an Ac....
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.....01.2018 (now Cr. Case No. 2/2018), and the FIR 4/2018 lodged at Vishrambagh police station on 08.01.2018, and all other related matters and allegations, to be carried out by an independent agency which shall be monitored directly by this Hon'ble Court through regular filing of status reports of the investigation by the investigating agency; 53. Though the prayer seeking the appointment of a Special Investigating Team is sought to be introduced by way of an application for amendment, it is necessary to note that in the petition as it was originally filed, it has been stated that the object of the petition is not to stop an investigation but to ensure an independent and credible investigation. The relevant averment in that regard reads as follows: Petitioners are seriously concerned about the erosion of democratic values and are moving this Hon'ble Court not to stop investigation into allegations but to ensure independent and credible investigation by such persons as may be deemed fit under supervision of this Hon'ble Court. Anything short of this will damage the fabric of nation irreparably. The application for amendment, does not, in other words, set up ....
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.... the test for the constitution of a SIT was a prima facie abuse of power and authority by the Director of the Central Bureau of Investigation to scuttle an investigation and enquiries into coal block allocations. In Sunita Devi v. Union of India, (2018) 3 SCC 664 an independent and impartial SIT was constituted where it was found that the investigation into the murder of a family was lackadaisical and the real culprits had not been put to trial. These instances indicate the diversity of settings in which this Court has ordered the constitution of SITs. Decisional flexibility in the exercise of this jurisdiction meets exigencies which arise in unforeseen situations, warranting the intervention of this Court Under Article 142. While the Court does not determine the course of the investigation, it acts as a watchdog to ensure that a fair and impartial investigation takes place. A fair and independent investigation is crucial to the preservation of the Rule of law and, in the ultimate analysis to liberty itself. 56. Mr. Harish Salve, learned senior Counsel appearing on behalf of the complainant, has sought to urge that a SIT has been constituted in cases where there is an allegation....
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....a, (2011) 1 SCC 560 a court monitored investigation was ordered in a public interest litigation which focused on the need for a thorough and impartial investigation into the 2G Spectrum scam. In Bharati Tamang v. Union of India, (2013) 15 SCC 578 this Court held that in an appropriate case, or when exceptional circumstances have been made out, the jurisdiction Under Article 32 can be exercised to constitute a SIT or to transfer the investigation to a Central Agency and monitor it, or even to order a de novo investigation into criminal cases. 58. With this body of precedent on the subject, the maintainability of a prayer for relief, seeking that the investigation should be either monitored by this Court or should be entrusted to an independent SIT under the directions of this Court cannot be in doubt. Though wide-ranging submissions have been urged before this Court on merits, it is necessary that the court must eschew a detailed or meticulous examination of the material produced by the ASG together with the case diary, particularly when the investigation is in progress. The expression of a finding by this Court would affect the administration of criminal justice or perhaps in a ....
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.... was sensationally telecast on a television channel linking her with the unlawful activities of certain groups. A serious grievance has been made about the fact that these letters have neither been placed before the Court of law nor did they find mention in the transit remand applications moved before the CJM, Faridabad by the Pune police. 60. In Rajendran Chingaravelu v. RK Mishra, (2010) 1 SCC 457 this Court deprecated the tendency of the police to reveal details of an investigation to the media even before the completion of the investigation. This Court observed: 21. But the Appellant's grievance in regard to media being informed about the incident even before completion of investigation, is justified. There is growing tendency among investigating officers (either police or other departments) to inform the media, even before the completion of investigation, that they have caught a criminal or an offender. Such crude attempts to claim credit for imaginary investigational breakthroughs should be curbed. Even where a suspect surrenders or a person required for questioning voluntarily appears, it is not uncommon for the Investigation Officers to represent to the medi....
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....n the basic question as to whether the Maharashtra police can now be trusted to carry out an independent and impartial investigation. 62. During the course of the hearing, the learned ASG has assisted the Court by tendering the case diary and a compilation of documentary material. As a matter of prudence, the court must desist from adverting to the details contained in the compilation or in the case diary save and except for indicating broad reasons in the course of evaluating the reliefs which have been claimed. The counter affidavit, which has been filed by the State of Maharashtra makes it abundantly clear that the arrest of the five individuals (on 28 August 2018) was based on "material gathered from others". This adverts to the material alleged to have been gathered in the course of the raids conducted against those individuals who were arrested in the months of June and July 2018. Paragraph 26 of the counter (which has been extracted earlier) states that this material "clearly shows that they were involved" in (i) selecting and incorporating cadres to go underground in the 'struggle area; (ii) mobilising and distributing money; (iii) facilitating selection and purchase....
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....asises the importance of an independent witness while making an arrest. Section 41B of the Code provides as follows: Every police officer while making an arrest shall- (a) bear an accurate, visible and clear identification of his name which will facilitate easy identification; (b) prepare a memorandum of arrest which shall be- (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; (ii) countersigned by the person arrested; and (c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. The two panch witnesses in the present case are employees of the Pune Municipal Corporation. It is not disputed before this Court that they travelled as part of the police team which made the arrest. 65. It was in DK Basu v. State of West Bengal, (1997) 1 SCC 416 that this Court laid down requirements to be followed in all cases of arrest, which included the following: (2) That the police officer carrying ou....
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....ings pending before a judicial forum, it is the duty and obligation of this Court to ensure that the administration of criminal justice is not derailed. I make it absolutely clear that nothing in this order shall be construed as any observation on the merits of the investigation which is to take place. The purpose of the direction which I propose to give is to ensure that the basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness Under Article 14 and of the right to life and personal liberty Under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty. 67. The judgment of the majority has relied on certain decisions to hold that such a petition as in the present case is not maintainable and the prayer for the constitution of SIT at the behest of the five individuals under investigation cannot be entertained. In Narmada Bai v. State of Gujarat, (2011) 5 SCC 79 the Petitioner filed a writ petition Under Article 32 for issuance of a writ directing the CBI ....
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....an hands and that no relief could be granted to an individual who came to the Court with "unclean hands." These facts were the distinguishing feature. I have previously discussed the established precedents of this Court which indicate the circumstances in which this Court can constitute a SIT. 71. In E. Sivakumar v. Union of India, (2018) 7 SCC 365 the Petitioner was named in an FIR which was being investigated in regard to the illegal manufacture and sale of pan masala and gutkha containing tobacco and/or nicotine. The Petitioner challenged the decision of the High Court to transfer the investigation of the criminal case to the Central Bureau of Investigation. One of us (Khanwilkar J) who authored the judgment on behalf of this Bench held: The High Court has cogitated over all the issues exhaustively and being fully satisfied about the necessity to ensure fair investigation of the crime in question, justly issued a writ of mandamus to transfer the investigation to the CBI. The judgment of the High Court was upheld on the following ground: ...the question regarding the necessity to ensure a fair and impartial investigation of the crime, whose tentacles were ....
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....ssed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither the Accused nor the complainant or informant is entitled to choose its own investigating agency to investigate a crime in which it may be interested. The Court in the context of Article 226 commented on the maintainability of public interest litigation as follows: It is well settled that a public interest litigation can be entertained by the constitutional courts only at the instance of a bona fide litigant. The Supreme Court has uniformly and consistently held that the individual who moves the Court for judicial redress in cases of public interest litigation must be acting bona fide with a view to vindicating the cause of justice and not for any personal gain or private profit or of the political motivation or other oblique consideration.... It was also observed that: the High Court in exercise of its whatsoever jurisdiction cannot direct investigation by constituting a special investigation team on the strength of anonymous petitions. 73. These observations indicate that what found disfavour with this Court was the Hig....
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.... Association v. State of Gujarat, (1991) 4 SCC 406 Joginder Kumar v. State of UP (1994) 4 SCC 260 and DK Basu v. State of West Bengal (1997) 1 SCC 416. In DK Basu, this Court elucidated on the importance of personal liberty in the constitutional scheme: 17. Fundamental Rights occupy a place of pride in the Indian Constitution. Article 21 provides "no person shall be deprived of his life or personal liberty except according to procedure established by law". Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression "life or personal liberty" has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. The Court also emphasized that no arrest can be made without reasonable satisfaction after investigation about the genuineness and bona fides of a complaint: 20. This Court in Joginder Kumar v. State of U.P. [(1994) 4 SCC 260: 1994 SCC (Cri.) 1172] (to which one of us, namely, Anand, J. was a party) considered the dynamics of misuse of police power of arrest and opined: No arrest can be made because it....