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TMI Blog2018 (9) TMI 1881X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 anything short of that relief will damage the fabric of the nation irreparably. 2. The FIR in connection with which the said five persons came to be arrested has been appended and marked as Annexure P-2. It was registered on the basis of the statement given by one Tushar Ramesh Damgule, which reads thus: Translation: FIR COPY I, Tushar Ramesh Damgule [Age 37] Occupation-Reconstruction, Residing at survey No. 70, Santosh Nagar, Kafraj Pune, 411016, Mobile Number-9850065423) personally states that, I am residing at the above mentioned address from last 20 years. I am completed Masters in Arts (History). I am running construction business by the name of Rao enterprises, from last 4 years. Somewhere in last week of December, I read one post of Facebook, that Elgar Parishad organized 31/12/2017 at Shaniwar Wada. Therefore on 31st December 2017, I personally went to Shaniwar Wada, opposite Ground, Pune, on around 2'o clock in this concern progr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 inspection and sources. Therefore, I state that, banned Maoist Organisation (CPI) have organized role is to boast and implicate the strong Maoist thoughts in depressed class and misdirect or misguide them and turn them towards unconstitutional violence activities, carrying the same thoughts, Kabir Kala Manch's Sudhir Dhawale and his other activist had presented different areas in Maharashtra, malice speeches, had spread false History, disputable statements and incite objectionable slogans, sung songs and road-dramas. They distributed some objectionable and provocable pamphlets, books too. So remarkably it reflected at Bheema Koregaon and nearer places by stone throwing, castes clashes and arson incidents. Therefore, an organization-Elgar Parishad, on the day of 31st December, 2017 at 2.00 p.m. to 10.00 p.m. at Shaniwar Wada, Pule, role defines Kabir Kala Manch's Sudhir Dhawale, programme conductor Sagar Gorakhe, and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 registered in the name of the complainant who happens to have close links with the named Accused in FIR No. 2 dated 2nd January, 2018 registered at Pimpri Police Station (Rural). The Pune Police thus embarked upon a motivated process and arrested five human rights activists who had no concern with the incident referred to in the FIR No. 4/2018. 5. It is further stated in the writ petition that the Pune Police investigating the Bhima Koregaon violence was systematically leaking documents to selective media with a view to spread false propaganda against the activists and to prejudice the public opinion against those arrested. The leaked documents allegedly found from the computer recovered during the search of the house of Rona Wilson, were addressed to Comrade Prakash and signed by 'R', which apparently menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Court which had allowed the prayer to grant transit remand, to keep Sudha Bhardwaj at her residence under supervision of the local police. Even the petition filed in the Punjab and Haryana High Court is still pending. Nevertheless, the Petitioners rushed to this Court by way of the present writ petition filed as a public interest litigation, to espouse the cause of the five persons arrested by the Pune Police, praying for an independent and comprehensive enquiry into the stated arrest as follows: PRAYERS It is therefore prayed that this Hon'ble Court be pleased to grant the following prayers: i) Issue an appropriate writ, order or direction, directing an independent and comprehensive enquiry into arrest of these human rights activists in June and Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation, 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 not because they expressed dissenting views or difference in their political or other ideologies but the investigation done so far has unraveled their involvement in a serious offence, including of being active members of Communist Party of India (Maoist), which has been banned as a terrorist organization since 2009, and of their involvement in planning and preparation of large scale violence and destruction of property, resulting into chaos in the society. Each of them is part of a well thought out criminal conspiracy and had supported the event arranged at Pune by the Elgaar Parishad through a frontal organization called Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Comrade M. alias Milind Teltumbade [underground] 6) Comrade Prakash alias Navin alias Rituparn Goswami R/o Assam [underground] 7) Comrade Manglu [underground] 8) Comrade Dipu and other underground members. The affidavit further states that during the on-going investigation, following persons came to be arrested on 6th June, 2018: 1) Surendra Gadling, R/o Nagpur 2) Rona Wilson R/o Delhi 3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tegic 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 take them in police custody in accordance with law. 14. The Petitioners have filed exhaustive rejoinder affidavit. Besides the rejoinder affidavit, formal applications have been filed on behalf of Sudha Bharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalves, who are presently under house arrest, that they be permitted to pursue the writ petition a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearing 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 expose the unjustified incarceration of innocents who happen to be human rights activists. They submit that the liberty and dignity of the Accused persons must be preserved. According to them, the Investigating Agency was not discharging its statutory obligation of fairness in investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submissions to buttress the plea for entrusting the investigation of the case to an independent Investigating Agency. 16. Mr. Tushar Mehta, learned Additional Solicitor General appearing for the State of Maharashtra on the other hand, submitted that the Court should be lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of their involvement with the banned organization, as was noticed from the documents and material recovered during the searches conducted in respect of the premises of co-accused. The named Accused (A16 to A20) cannot be heard to question that part of the investigation rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Harish Salve, learned senior Counsel appearing for the complainant at whose instance FIR No. 4/2018 came to be registered at Vishram Bagh Police Station (Pune City), submits that there is no absolute right, much less a fundamental right, to market id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 friend (writ Petitioners) that he is an innocent and law abiding person? 21. Turning to the first point, we are of the considered opinion that the issue is no more res i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has been exercised by the investigating officer mala fide. 25. Be that as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 they would be produced before the Court for obtainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 is the outcome of such consp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dom 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are described thus: The material gathered from others based upon which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 translation of Bertolt Brecht's play, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 implicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts activists for their 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 ado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) a petition Under Article 32 sought an investigation of 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the offences alleged in the zero FIR lodged at Pimpri police station on 02.01.2018 (now Cr. Case No. 2/2018), and the FIR 4/2018 lodged at Vishrambagh 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 fab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other organs of the state to fulfil their constitutional obligations. In Common Cause v. Union of India, (2017) 3 SCC 501 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al review and supervision to ensure that the rights of the citizens are duly protected. In Centre for Public Interest Litigation v. Union of India, (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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d persons were plotting to attack the Prime Minister. On 4 July 2018 when the arrested persons were to be produced before the Court in Pune, a letter attributed to Sudha Bhardwaj 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 brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no basis to link the five arrested individuals to any such alleged plot against the Prime Minister. Nor does the counter affidavit makes any averment to that effect. All this has certainly a bearing on 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 mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and impartiality of the process which has been followed by the investigating agency is in regard to the importation of two panch witnesses from Pune, when the arrests were carried out. Section 41B of Code of Criminal Procedure emphasises 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast aspersions on those under investigation fortifies the need for an investigation which is fair. When the Joint Commissioner of Police and the Additional Director General of Police cast aspersions in the public media against persons whose conduct is still under investigation, and in disregard of proceedings 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 petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed against him by the Gujarat Police. On the facts of the case, it was held that the nature of the case relating to an allegedly false affidavit and the alleged hacking of an email account were not of such wide amplitude so as to warrant the constitution of a SIT. The Court also observed that the Petitioner had not come to the Court with clean 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in this case was the scope of the inherent power conferred on the High Court Under Section 482 of the Code of Criminal Procedure. It was held that: The High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate a crime on whatsoever basis and more particularly on the basis of anonymous petitions addressed 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 vin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the wrongful arrest is a grim reminder about how tenuous liberty can be and of the difficulty in correcting wrongs occasioned by unlawful arrest. 75. There can be no manner of doubt that the deprivation of human rights seriously impinges upon the dignity of the individual for which even compensation may not constitute an adequate recompense. This theme echoes recurrently in the judgments of this Court in Kiran Bedi v. Committee of Inquiry, (1989) 1 SCC 494 Delhi Judicial Service 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 itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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