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2018 (9) TMI 1881
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....ghts 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 rights activists." They claim that anythi....
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....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 Kabir Kala Manch's Activists been interrogated by legal in....
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.... 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 of which the five named activists and others have been arrested. This fabricated FIR against the activists came to be....
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....ve ideas and human rights ideology that they espouse, so as to have a chilling effect in the minds of the activists and dissuade them from criticizing the policies and programmes of the Government. 7. The Petitioners then state that without providing any evidentiary link between the persons arrested and raided inter alia Gautam Navlakha and Sudha Bhardwaj with FIR No. 4 of 2018, they were served with the arrest memos signed by the persons who were brought as part of the entourage of the Pune Police as so-called "independent and respectable persons" to authenticate the arrest memos. The seizure memos were prepared in Marathi and signed by the Panchas who were brought by the Pune Police as part of the entourage. No translated copy of the FIR or the seizure memo was made over to Gautam Navlakha or Sudha Bhardwaj even though they were not conversant with Marathi. In this backdrop, Gautam Navlakha filed habeas corpus petition before the Delhi High Court, being Writ Petition No. 2559 of 2018 challenging the transit remand order passed by the Chief Metropolitan Magistrate on 28th August, 2018. Similar petition was filed in the Punjab and Haryana High Court to direct the jurisdictional Co....
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....Bharadwaj may be extended in terms of our orders. Needless to say, an interim order is an interim order and all contentions are kept open. Let the matter be listed on 6.9.2018. This interim arrangement has been continued from time to time and remains in force until the disposal of this petition. 9. The State of Maharashtra has filed a counter affidavit of Dr. Shivaji Panditrao Pawar, Assistant Commissioner of Police (Investigating Officer), Swargate Division, Pune City, Pune. Besides taking objection regarding the maintainability of the writ petition being filed by third parties who are strangers to the offence under investigation, he has highlighted that in light of the material gathered during the investigation conducted so far, it would be desirable to dismiss the writ petition. He has stated that the entire writ petition is based upon individual perception of the writ Petitioners that the arrested persons are "all outstanding, well-known and well respected human rights activists" and therefore, their arrest requires to be enquired into and they should be released on bail. Having said that, he has asserted that in the instant case, the five named persons have been arrested....
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....nly 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 Sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of the UAPA are added on 17th May, 2018 against the following individuals: 1) Surendra Gadling, R/o Nagpur 2) Rona Wilson, R/o Delhi 3) Shoma Sen R/o Nagpur 4) Mahes Raut R/o Nagpur and Gadchiroli 5) Comra....
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.... 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 restricts physical movement but there is no way of ensuring that these persons would not indulge in destruction of evidence and alert other potential Accused while sitting at home. As a matter of fact, their custodial interrogation may become necessary during further investigation and for which reason the Investigating Agency be granted liberty to tak....
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....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 known to them. Moreover, the offences under the draconian law (UAPA) have been added without due authorization of the competent authority. It is contended that liberty of individual and dignity of the Accused are the facets of core constitutional values. They submit that this case is not about ordinary criminal jurisprudence but of actualization of constitutional values and to expo....
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....ll-known for their track record of human rights activism and have been unjustly put behind bars on the basis of unsubstantiated allegations and without any evidence against them. The entire sub-text of creating a real threat is a figment of imagination of the Investigating Agency and that has been done for reasons best known to them. Obviously, it is politically motivated. The transit remand applications preferred by the Investigating Agency also do not mention the letters indicative of involvement of the persons concerned in planning and execution of Maoist plot nor have those letters been produced before the Court thus far. The letters which were flashed to the media are obviously fabricated. Further, no plausible explanation is forthcoming as to why the Investigating Agency had taken panchas along with them for conducting search outside the State of Maharashtra. The role of the investigating team in FIR No. 4 of 2018 in the manner in which they caused arrest of five persons named in the writ petition, has been seriously questioned and it is earnestly prayed by the learned Counsel that the modified reliefs as claimed ought to be granted. The counsel have filed exhaustive written ....
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....cuments 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 progressed, as of now there are 22 Accused named, including the 5 Accused referred to in this petition who were added as Accused on 22nd August, 2018 for the reasons stated in the Case Diary, and only thereafter the investigating team proceeded to arrest them on 28th August, 2018. He submits that the Investigating Agency had to proceed against the named Accused after the revelation o....
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..... 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 as there is enough material against each of the Accused. He further submits that the argument of the writ Petitioners based on the circumstances pressed into service for a direction to change the Investigating Agency is completely against the cardinal criminal jurisprudence and such a relief is not available to persons already named as Accused in a crime under investigation. 18. Mr. H....
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....n hard facts unraveled during the investigation of the crime in question, pointing towards the sinister ploy to destabilize the State and was not because of difference in ideologies, as is claimed by the so called human rights activists. 20. After having given our anxious consideration to the rival submission and upon perusing the pleadings and documents produced by both the sides, coupled with the fact that now four named Accused have approached this Court and have asked for being transposed as writ Petitioners, the following broad points may arise for our consideration: (i) Should the Investigating Agency be changed at the behest of the named five Accused? (ii) If the answer to point (i) is in the negative, can a prayer of the same nature be entertained at the behest of the next friend of the Accused or in the garb of PIL? (iii) If the answer to question Nos. (i) and/or (ii) above, is in the affirmative, have the Petitioners made out a case for the relief of appointing Special Investigating Team or directing the Court monitored investigation by an independent Investigating Agency? (iv) Can the Accused person be released merely on the basis of the perception of his next f....
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....ed 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 Court made it amply clear that neither the Accused nor the complainant or informant are entitled to choose their own Investigating Agency to investigate the crime in which they are interested. The Court then went on to clarify that the High Court in exercise of its power Under Article 226 of the Constitution can always issue appropriate directions at the instance of the aggrieved person if the High Court is convinced that the power of investigation ha....
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....he Investigating Agency and have commended us to the material already gathered during the ongoing investigation which according to them indicates complicity of the said Accused in the commission of crime. Upon perusal of the said material, we are of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named Accused, but concerning their link with the members of the banned organisation and its activities. This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter any further lest it would cause prejudice to the named Accused and including the co-accused who are not before the Court. Admittedly, the named Accused have already resorted to legal remedies before the jurisdictional Court and the same are pending. If so, they can avail of such remedies as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation. During the investigation, when t....
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....18 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 purportedly carried out by Kabir Kala Manch, Sudhir Dhawale and other activists in different areas in the State of Maharashtra by delivering vituperative speeches and to spread false history, disputable statements and incite objectionable slogans, sing songs and road dramas and distribution of objectionable and provocative pamphlets and books also. And that the incidents such as at Bhima Koregaon and nearby places of stone throwing, castes clashes and arson incidents i....
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.... or apprehension about the same, he is free to make that request before the jurisdictional Court, which can be considered at the appropriate stage in accordance with law. We are not expressing any opinion either way in the present writ petition in that regard. 33. The fourth modified relief is to direct release of the arrested activists from custody as per law. The Accused persons must pursue this relief before the appropriate court, which can be considered by the concerned court on its own merits in accordance with law. As noted earlier, the concerned Accused persons have already taken recourse to remedy before the jurisdictional High Courts. Hence, they are free to pursue all legal remedies available to them as per law. We are not expressing any opinion either on the issue of maintainability thereof or on merits of the reliefs that may be claimed therein. All questions will have to be considered by the concerned Court in accordance with law. Accordingly, even the fourth modified relief cannot be considered in the present writ petition. 34. In view of the above, we have advisedly refrained from dealing with the factual issues raised by the parties and including the named Accused....
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....gation involves the balancing of diverse and often conflicting values: the effective administration of criminal justice, an impartial process of investigation and the liberty and reputation of the individual. The invocation of our jurisdiction Under Article 32 in this case is founded on the grievance that a group of five human rights activists is sought to be persecuted for espousing the cause of the marginalised which is considered to be 'unpopular'. Conscious as the Court is of the public interest in the effective administration of criminal justice, it cannot be oblivious to the overriding constitutional concern to secure the dignity of the individual. The key to the balance between the two lies in a fair, independent and impartial investigation of crime. As a matter of principle, I am unable to agree with the views expressed by the learned Chief Justice and my learned brother Justice AM Khanwilkar. 39. On 29 August 2018, the jurisdiction of this Court Under Article 32 was invoked by five distinguished academics to seek an "independent and comprehensive inquiry" in the circumstances relating to the arrest of five human rights activists on 28 August 2018. The arrests by t....
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....oneer feminist economist and has been associated with national bodies, including the Planning Commission and the National Commission for Women and, international organisations, including UNDP and the South Commission. She is the founding member of two organisations engaged in women's studies. She is a recipient of the Padma Bhushan in 2006, the third highest civilian award from the Government of India, for her contribution to social justice and the empowerment of women; (iii) The third Petitioner, Prabhat Pattnaik, was a Rhodes Scholar and is an eminent economist who taught at JNU for over three decades. He was vice-chairperson of the Kerala Planning Board and a member of a high-powered UN Task Force on the global financial system; (iv) The fourth Petitioner Satish Deshpande, is a sociologist at the University of Delhi. He is a recipient of the Malcolm Adiseshiah award for distinguished contributions to development studies. He was a member of the Union government's expert committee on the proposed Equal Opportunity Commission. He has held visiting appointments at the University of Chicago and in Paris; and (v) The fifth Petitioner, Maja Daruwala, is a member of the Bo....
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.... 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 and liberties are alleged to be imperilled. The jurisdiction Under Article 32 is wide enough to reach out to injustice in any form and originating in any source. Securing human liberty and dignity must occupy an important space in the judicial docket. Liberty and freedom are defining values of our Constitution. The institutional role of this Court as a constitutional adjudicator should brook no technicalities which obstruct the cause of justice. When a group of citizens has moved this Court with an impassioned plea about the violation of human rights--in the present case ....
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....f 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; v Jyoti Jagtap; and vi Ramesh Gaychore. Sudhir Dhawale was arrested on 6 June 2018. As the investigation progressed, Section 120B of the Penal Code was added on 6 March 2018 and two more persons-Surendra Gadling and Rona Wilson-were suspected to be involved. On 17 April 2018, the Pune police conducted searches at the residences and offices of the following persons: 1. Rona Wilson, a resident of Delhi; 2. Surendra Gadling, a resident of Nagpur; 3. Sudhir Dhawale and Harshali Potdar, residents of Mumbai; 4. Sagar Gorakhe, a resident of Pune; 5. Dipak Dhengale, a resident of Pune; and 6. ....
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....am Navlakha R/o Delhi The counter alleges that each of the five individuals is found to be working for and to be an active member of a "banned terrorist organisation"-the Communist Party of India (Maoist). Paragraph 26 of the counter affidavit states that each of them has been found, from the material gathered from others during investigation, to be involved in unlawful activities which are described thus: The material gathered from others based upon which the five Accused persons named hereinabove are arrested, clearly show that they were involved in selecting and encouraging cadres to go underground in 'struggle area', mobilizing and distributing money, facilitating selection and purchase of arms, deciding the rates of such arms into India for its onward distribution amongst the cadres. Some of them have suggested training and laying of booby traps and directional mines. They are also found to be providing strategic inputs in furtherance of the objective of armed rebellion as per the strategic document of the banned terrorist organisation namely Communist Party of India (Maoist). The petition was initially taken up for hearing on 29 August 2018. Interim directions to ....
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.... 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 translation of Bertolt Brecht's play, "The Good Person of Szechwan", (1942). Notably, according to the submission, FIR 4/2018 does not allude to any conspiracy to attack the Prime Minister. It has been submitted that it is undisputed that none of the activists under house arrest were named in the FIR. They are not alleged to be present at the Elgar Parishad on 31 December 2017 or at Bhima-Koregaon on 1 January 2018. Moreover, according to the submission, the State of Maharashtra opposed the anticipatory bail of Milind Ekbote on the ground that the violence was committed as a part of a pre-planned conspiracy by him and by others. The arrests of the five persons were affected nearly nine months thereafter. 47. The next limb of the submission of Dr Singhvi is that certain letters which are alleged to have been authored by the arrest....
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....secutions launched against three of the August 2018 detenues. Vara Vara Rao was implicated in 25 cases out of which 13 ended in acquittal, 3 in discharge and 9 in the withdrawal of the prosecution. He has not been convicted in any case and is 79 years of age. Arun Ferreira has been acquitted in all the 11 cases in which he was implicated. Vernon Gonsalves has been acquitted in 17 out of the 19 cases in which he was Accused; a discharge application is pending in one case while an appeal against conviction in another case is pending before the Nagpur bench of the High Court, where he has already served his sentence. 48. During the course of his submissions, Dr Singhvi urged that there was a gross violation of law rendering the arrest, search and seizure unlawful. The panch witnesses were 'imported' from Pune and are employees of the Pune Municipal Corporation. The two panch witnesses travelled together with the Pune police and are stock witnesses. Hence it has been submitted that there has been a clear violation of the safeguards introduced in Section 41B of the Code of Criminal Procedure, 1973. In the transit remand application of Sudha Bhardwaj, the Pune police submitted b....
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....ss in the present case since three of the arrested persons-Vara Vara Rao, Sudha Bhardwaj and Gautam Navlakha have filed petitions before the jurisdictional High Courts which are pending adjudication. Hence it would be impermissible to allow their prayer for transposing them or adopting the averments in the petition (Pratibha Ramesh Patel v. Union of India (2016) 12 SCC 375, Udyami Evam Khadi Garmodyog Welfare Sanstha v. State of UP (2008) 1 SCC 560); (iii) A PIL Under Article 32 would not be maintainable for the purpose of seeking relief Under Sections 438 and 439 of the Code of Criminal Procedure; (iv) Reliefs in the nature of a writ of Habeas Corpus, which have been sought in the present proceedings Under Article 32 are not maintainable (State of Maharashtra v. Tansen Rizwan Siddiquee (2018) 10 SCALE 711); (v) The Accused does not have a vested right to seek an investigation monitored by the court or to have a particular agency as the investigator; and (vi) The investigation in the present case is being conducted responsibly and impartially by an officer of the rank of an Assistant Commissioner of Police. The investigation is being carried out under the supervision of a D....
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....adverted to in the earlier decision in Ashok Kumar Pandey (supra). They are well settled. As a court which is governed by precedent, we are bound by them and by a consistent line of authority which requires that during the course of investigation, it is to the competent court that an Accused must ordinarily turn for the remedies that are available under substantive or procedural provisions of the criminal law. 52. But in the present case, it is necessary for the Court to bear in mind that recourse to its constitutional jurisdiction Under Article 32 has been invoked not only by the Petitioners but by the five individuals who were arrested on 28 August 2018. The petition was moved before this Court on 29 August 2018 when, as already noted, an interim order was passed directing that the five arrested persons be placed under house arrest. At the earliest possible point in time, these five individuals have moved this Court indicating that they abide by the averments and reliefs sought in the petition and seek that they should be transposed as Petitioners Under Article 32. The Petitioners have not in their submissions sought recourse to the jurisdiction of this Court for espousing a rem....
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....sure 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 a new case but is intended to introduce a formal prayer on the basis of averments which have already been made in the petition as it was originally filed. 54. This Court, as a constitutional adjudicator, has been entrusted with the jurisdiction Under Article 32 to secure the fundamental freedoms guaranteed by Part III of the Constitution. While the discipline of the law of criminal procedure must at all times be kept in view, it cannot be gainsaid that the protection of fundamental liberties is a subject so integral to democratic constitutional values that technicalities should not be allowed to override the cause of substantive justice. The court must undoubtedly tread with circumspection for in the guise of seeking access to its wide jurisdiction Under Article 32, the normal remedies under the criminal law should not be displaced. Again, as the court has repeatedly emphasised, public interest litigation should not become a ....
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....reservation 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 against the political class in power, so that the investigation is not derailed by those who are capable of intercepting it. Such a construction, in my view, would restrict the width and ambit of the jurisdiction which has advisedly been entrusted to this Court by the framers of the Constitution. The fact that in a particular case, a SIT was ordered to be constituted in a situation where there was an allegation of interference with the investigation by the political establishment is not a reason to confine the exercise of the jurisdiction only to such cases. In the rights discourse, violations of law and transgressions of human rights arise in myriad situations which it may be difficult to anticipate exhaustively. Prudently therefore, the jurisdiction Under Article 32 is not hedged in by technicalities nor would it be wise to confine it to stated categories. The ultimate touchstone for the exercise of the jurisdiction is that a vio....
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.... examination of the material produced by the ASG together with the case diary, particularly when the investigation is in progress. The expression of a finding by this Court would affect the administration of criminal justice or perhaps in a given case, even the rights of the Accused. The observations of this Court must, therefore, be confined to assessing whether a case has been made out for the constitution of a SIT and matters having a bearing on that decision. 59. I must, at the outset, dwell on the fairness of the manner in which the police have approached this investigation. On 29 August 2018, this Court issued notices to the State of Maharashtra and to the others impleaded as Respondents to the proceedings. Within a few hours of the conclusion of the court hearing, a press conference was held in Pune by Shivarjirao Bodhke, the Joint Commissioner of Police proclaiming that the Pune police had more than sufficient evidence against the five individuals whose transit remand was stayed by this Court while ordering them to be placed under house arrest. This is disconcerting behaviour-the Joint Commissioner sought in this oblique manner to respond to the interim order of this Court....
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....dit for imaginary investigational breakthroughs should be curbed. Even where a suspect surrenders or a person required for questioning voluntarily appears, it is not uncommon for the Investigation Officers to represent to the media that the person was arrested with much effort after considerable investigation or a case. Similarly, when someone voluntarily declares the money he is carrying, media is informed that huge cash which was not declared was discovered by their vigilant investigations and thorough checking. Premature disclosures or 'leakage' to the media in a pending investigation will not only jeopardise and impede further investigation, but many a time, allow the real culprit to escape from law.... 61. This facet of the case of serious concern. The manner in which the Joint Commissioner of Police and the Additional Director General of Police (Law and Order), Maharashtra have selectively disclosed purported details of the investigation to the media and on television channels casts a cloud on the impartiality of the investigative process. In its 2010 decision in Rajendran (supra) this Court was constrained to take note of this growing tendency on the part of investi....
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....hat this material "clearly shows that they were involved" in (i) selecting and incorporating cadres to go underground in the 'struggle area; (ii) mobilising and distributing money; (iii) facilitating selection and purchase of arms; (iv) deciding the rates of such arms; and (v) suggesting the routes and ways of smuggling such arms into India for its onward distribution amongst the cadres. 63. Next, it is alleged that "some of them" (i) "have suggested training and laying of booby traps and directional mines"; and (ii) "are found to be providing strategic inputs in furtherance of the objective of armed rebellion" in pursuance of a strategic document of a banned terrorist organisation namely, the Communist Party of India (Maoist). With the assistance of the ASG I have carefully perused the compilation produced before the Court. Upon perusing the material, I find that the allegation that each of the five individuals arrested on 28 August 2018 is found to be engaged in activities of the nature set out in paragraph 26 of the counter affidavit (extracted above) is taking liberties with the truth. General allegations against the philosophy of a banned organisation, its policies and th....
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....l, (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 out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee of a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. This Court observed that the requirements it had enunciated emanated from Articles 21 and 22(1) of the Constitution and "need to be strictly followed" failing which action for contempt of court would be initiated. 66. There is a serious allegation that the arrests have been motivated by an attempt to quell dissent and to persecute five individuals who have pursued the cause of persons who have suffered discrimination and human rights violations. In approaching the present case, the Court must be mindful of the need not to thwart a criminal investigation leading to the detection of unlawful acts. Equally, the Court has to be vigilant in the exercise of its juri....
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....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 to register a FIR in a case pertaining to an alleged fake encounter in which her son was killed. The key issue was whether after filing of the charge-sheet by the state investigative agency, this Court was precluded from appointing an independent specialised agency like the CBI to go into the same issues, if the earlier investigation was not done in accordance with the established procedure. The factual determination to be carried out was whether the Petitioner had made out a case for entrusting the investigation to the CBI. 68. While this Court observed that "It is trite law that Accused persons do not have a say in the matter of appointment of an investigation agency" and that "the Accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them", the Court also observed that there were "large and various discrepancies" in the reports and the investigation conducted by the police authorities of the State of Gujarat and that the charge-sheet filed by the state investi....
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....ollowing ground: ...the question regarding the necessity to ensure a fair and impartial investigation of the crime, whose tentacles were not limited to the State of Tamil Nadu but transcended beyond to other States and may be overseas besides involving high ranking officials of the State as well as the Central Government, has now been directly answered. For instilling confidence in the minds of the victims as well as the public at large, the High Court predicated that it was but necessary to entrust the investigation of such a crime to CBI. Viewed thus, there is no infirmity in the conclusion reached by the High Court in the impugned judgment, for having entrusted the investigation to CBI. Drawing attention to the duty of this Court as adjudicator, it was also observed: It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative .... If a grave suspicion arises with regard to the investigatio....
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....rvations indicate that what found disfavour with this Court was the High Court having entertained an anonymous petition to constitute a SIT. The facts of the above case are distinct from the case at hand. The observations made on the maintainability of public interest litigation only lend support to the present case. The Petitioners in the present case are not anonymous. There has been no argument that the Petitioners have been motivated by personal gain or political considerations. 74. Recently on 14 September 2018, the learned Chief Justice, speaking for the present bench of three Judges handed down a verdict Nambi Narayanan v. Siby Mathews, (2018) 11 SCALE 171 granting compensation of Rs. 50 lakhs to a space scientist who was found upon further investigation by the CBI to have been wrongfully implicated and subjected to custodial interrogation. This was on an allegation that he had leaked out official secrets of the Indian Space Research Organisation. The learned Chief Justice held: ...there can be no scintilla of doubt that the Appellant, a successful scientist having national reputation, has been compelled to undergo immense humiliation. The lackadaisical attitude of ....