2018 (9) TMI 1881 - SC - Indian Laws

Change of Investigating agency - High-handed action of the Maharashtra Police in raiding the homes and arresting five well known human rights activists, journalists, advocates and political worker, with a view to kill independent voices differing in ideology from the party in power and to stifle the honest voice of dissent. Should the Investigating Agency be changed at the behest of the named five Accused? HELD THAT - In the present case, except pointing out some circumstances to question the manner of arrest of the five named Accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough. Rather, averment in the petition as filed was to buttress the reliefs initially prayed (mentioned in para 7 above)-regarding the manner in which arrest was made. 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. This Court has a constitutional obligation, where its attention has been drawn, in a case such as the present, to a real likelihood of the derailment of a fair investigative process to issue appropriate directions Under Article 142 of the Constitution. While the investigation should not be thwarted, this is a proper case for the appointment of a Special Investigating Team. Circumstances have been drawn to our notice to cast a cloud on whether the Maharashtra police has in the present case acted as fair and impartial investigating agency. Sufficient material has been placed before the Court bearing on the need to have an independent investigation. Thus, a Special Investigating Team must be appointed - the investigation shall be monitored by this Court. The Special Investigating Team shall submit periodical status reports to this Court, initially on a monthly basis.

Issues Involved:
1. High-handed action of Maharashtra Police in arresting human rights activists.
2. Legitimacy and evidence supporting the arrests.
3. Allegations of political motivation and suppression of dissent.
4. Request for independent investigation.
5. Maintainability of the writ petition by third parties.
6. Involvement of the accused in unlawful activities.
7. Conduct of the police and media leaks.
8. Request for Special Investigating Team (SIT) and court-monitored investigation.
9. Legal remedies and rights of the accused.

Detailed Analysis:

1. High-handed action of Maharashtra Police in arresting human rights activists:
The petitioners, five distinguished individuals, filed a petition on 29th August 2018, alleging that the Maharashtra Police raided homes and arrested five human rights activists, journalists, advocates, and political workers on 28th August 2018. The petitioners claimed that the arrests were intended to silence dissenting voices and stifle honest dissent. The activists arrested were Gautam Navalakha, Sudha Bharadwaj, Varavara Rao, Arun Ferreira, and Vernon Gonsalves.

2. Legitimacy and evidence supporting the arrests:
The arrests were made in connection with FIR No. 0004/2018 dated 8th January 2018, registered at Vishram Bagh Police Station, Pune City. The petitioners argued that the activists were arrested without any credible material or evidence justifying their arrest. The FIR was based on a statement by Tushar Ramesh Damgule, alleging that the activists incited violence through speeches and performances at the Elgar Parishad event on 31st December 2017.

3. Allegations of political motivation and suppression of dissent:
The petitioners contended that the arrests were politically motivated to deflect attention from real issues and to suppress voices helping the poor and marginalized. They highlighted that the FIR against the activists was fabricated and engineered to target them instead of addressing the actual perpetrators of the Bhima Koregaon violence.

4. Request for independent investigation:
The petitioners sought an independent and credible investigation into the arrests, emphasizing that anything short of this would irreparably damage the fabric of the nation. They clarified that their intention was not to stop the investigation but to ensure its independence and credibility.

5. Maintainability of the writ petition by third parties:
The State of Maharashtra raised objections regarding the maintainability of the writ petition, arguing that it was filed by third parties who were strangers to the offense under investigation. The petitioners, however, argued that the petition was filed in the public interest to protect democratic values and human rights.

6. Involvement of the accused in unlawful activities:
The State of Maharashtra, in its counter affidavit, asserted that the arrested activists were not targeted for their dissenting views but for their involvement in serious offenses, including being active members of the Communist Party of India (Maoist), a banned terrorist organization. The affidavit detailed the investigation process, including searches, seizures, and the material gathered implicating the activists in planning and executing criminal activities.

7. Conduct of the police and media leaks:
The petitioners accused the Pune Police of leaking documents to the media to spread false propaganda against the activists and prejudice public opinion. They argued that the police's selective leaks and media briefings undermined the fairness of the investigation and cast doubts on the impartiality of the process.

8. Request for Special Investigating Team (SIT) and court-monitored investigation:
The petitioners sought the constitution of a SIT comprising senior police officers with impeccable records, reporting directly to the court, to ensure a fair and independent investigation. They also requested that all electronic devices and materials seized be examined by a Forensic Sciences Laboratory outside Maharashtra.

9. Legal remedies and rights of the accused:
The court noted that the accused had already taken recourse to legal remedies before jurisdictional courts. The court emphasized that the accused could pursue bail, discharge, or quashing of the criminal case if there was no legal evidence indicating their complicity. The court refrained from making observations on the merits of the investigation to avoid prejudicing the accused or the prosecution.

Conclusion:
The court concluded that the consistent view is that the accused cannot ask for changing the investigating agency or for a court-monitored investigation. The petitioners, as next friends of the accused, cannot be heard to ask for reliefs that cannot be granted to the accused themselves. The court dismissed the writ petition, allowing the accused to pursue appropriate remedies as per law. The interim order of house arrest was extended for four weeks to enable the accused to move the concerned court.

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