# ROMILA THAPAR AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [2018] 11 S.C.R. 951
- **Court:** Supreme Court of India
- **Decided:** 2018-09-28
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D. Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/romila-thapar-and-ors-v-union-of-india-and-ors-32420
- **Pages:** 68

## Headnote

Constitution of India - Art.32 - Writ petition filed by five
persons, as next best friend of five activists-accused who were
arrested purportedly in connection with FIR No.4/18 - Said FIR
registered in Pune in relation to communal violence that took place
in Bhima Koregaon as outcome of an event organized by organization
called Elgar Parishad - Plea of petitioners that neither of the five
accused persons were present in the said event nor any allegation
against them is found in the FIR and that the said FIR was fabricated
by Pune Police after FIR No.2/18 was filed against some Hindutva
right wing leaders based on an eye-witness account that they incited
violence against Dalit congregation in Bhima Koregaon - Petitioners
inter alia prayed for appointing Special Investigation Team (SIT)
and Court monitored investigation - Held: (Majority view) Per
A.M. Khanwilkar, J. (for himself and Dipak Misra, CJI) Accused
persons cannot choose as to which Investigating Agency must
investigate the offence committed by them - Present 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 organization, Communist Party
of India (Maoist) and its activities -Crime under investigation in
FIR No.4/2018, inter alia is to investigate the allegations that a banned
organization, Communist Party of India (Maoist), organises events
as referred to in FIR No.2/2018 to propagate ill-will in different
classes and turn them into violent activities - Incidents such as at
Bhima Koregaon is the outcome of such conspiracy - Reliefs claimed
not granted - (Minority view) Per Dr. D.Y. Chandrachud, J.
(Dissenting) In the present case, the initiation of the proceedings u/
Art. 32 is not motivated by extraneous reasons - Conduct of the
Pune police in utilising the agency of the electronic media to cast
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aspersions on persons whose conduct is still under investigation,
fortifies the need for an investigation which is fair - Sufficient
material has been placed before the Court bearing on the need to
have an independent investigation - Dissent is a symbol of vibrant
democracy - Voices in opposition cannot be muzzled by persecuting
those who take up unpopular causes - Present is a proper case for
the appointment of SIT -SIT to be appointed - Investigation shall
be monitored by Supreme Court - Unlawful Activities (Prevention)
Act, 1967 - Constitution of India - Arts.21 and 22(1).
Constitution of India - Art.32 - Public Interest Litigation -
Locus for - Held: Per A.M. Khanwilkar, J. (for himself and Dipak
Misra, CJI) Prayer for changing the Investigating Agency cannot
be dealt with lightly and the Court must exercise that power with
circumspection - Writ petition at the instance of the next friend of
the accused for transfer of investigation to independent Investigating
Agency or for Court monitored investigation cannot be
countenanced, much less as public interest litigation - Per Dr. D.Y.
Chandrachud, J. (Dissenting) When a group of citizens has moved
Supreme Court with an impassioned plea about the violation of human
rights the Court must look beyond locus into the heart of the matter.
Constitution of India - Art.32 - Writ petition under -
Maintainability of, in criminal matters - Held: Per Dr. D.Y.
Chandrachud, J. Ordinarily, when an investigation into a criminal
offence is in progress, recourse must be taken to the provisions of
the Code - However, in the present case the petitioners have not
sought recourse to the jurisdiction of Supreme Court for espousing
a remedy which is available before the competent court under the
Code of Criminal Procedure - Present proceedings have been moved
with a specific grievance that the arrest of the five individuals is an
attempt by the State to muzzle dissent - Supreme Court, as a
constitutional adjudicator, has been entrusted with the jurisdiction

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[2018] 11 S.C.R. 951
ROMILA THAPAR AND ORS.
v.
UNION OF INDIA AND ORS.
(Writ Petition (Criminal) No. 260 of 2018)
SEPTEMBER 28, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Constitution of India - Art.32 - Writ petition filed by five
persons, as next best friend of five activists-accused who were
arrested purportedly in connection with FIR No.4/18 - Said FIR
registered in Pune in relation to communal violence that took place
in Bhima Koregaon as outcome of an event organized by organization
called Elgar Parishad - Plea of petitioners that neither of the five
accused persons were present in the said event nor any allegation
against them is found in the FIR and that the said FIR was fabricated
by Pune Police after FIR No.2/18 was filed against some Hindutva
right wing leaders based on an eye-witness account that they incited
violence against Dalit congregation in Bhima Koregaon - Petitioners
inter alia prayed for appointing Special Investigation Team (SIT)
and Court monitored investigation - Held: (Majority view) Per
A.M. Khanwilkar, J. (for himself and Dipak Misra, CJI) Accused
persons cannot choose as to which Investigating Agency must
investigate the offence committed by them - Present 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 organization, Communist Party
of India (Maoist) and its activities -Crime under investigation in
FIR No.4/2018, inter alia is to investigate the allegations that a banned
organization, Communist Party of India (Maoist), organises events
as referred to in FIR No.2/2018 to propagate ill-will in different
classes and turn them into violent activities - Incidents such as at
Bhima Koregaon is the outcome of such conspiracy - Reliefs claimed
not granted - (Minority view) Per Dr. D.Y. Chandrachud, J.
(Dissenting) In the present case, the initiation of the proceedings u/
Art. 32 is not motivated by extraneous reasons - Conduct of the
Pune police in utilising the agency of the electronic media to cast
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aspersions on persons whose conduct is still under investigation,
fortifies the need for an investigation which is fair - Sufficient
material has been placed before the Court bearing on the need to
have an independent investigation - Dissent is a symbol of vibrant
democracy - Voices in opposition cannot be muzzled by persecuting
those who take up unpopular causes - Present is a proper case for
the appointment of SIT -SIT to be appointed - Investigation shall
be monitored by Supreme Court - Unlawful Activities (Prevention)
Act, 1967 - Constitution of India - Arts.21 and 22(1).
Constitution of India - Art.32 - Public Interest Litigation -
Locus for - Held: Per A.M. Khanwilkar, J. (for himself and Dipak
Misra, CJI) Prayer for changing the Investigating Agency cannot
be dealt with lightly and the Court must exercise that power with
circumspection - Writ petition at the instance of the next friend of
the accused for transfer of investigation to independent Investigating
Agency or for Court monitored investigation cannot be
countenanced, much less as public interest litigation - Per Dr. D.Y.
Chandrachud, J. (Dissenting) When a group of citizens has moved
Supreme Court with an impassioned plea about the violation of human
rights the Court must look beyond locus into the heart of the matter.
Constitution of India - Art.32 - Writ petition under -
Maintainability of, in criminal matters - Held: Per Dr. D.Y.
Chandrachud, J. Ordinarily, when an investigation into a criminal
offence is in progress, recourse must be taken to the provisions of
the Code - However, in the present case the petitioners have not
sought recourse to the jurisdiction of Supreme Court for espousing
a remedy which is available before the competent court under the
Code of Criminal Procedure - Present proceedings have been moved
with a specific grievance that the arrest of the five individuals is an
attempt by the State to muzzle dissent - Supreme Court, as a
constitutional adjudicator, has been entrusted with the jurisdiction
u/Art. 32 to secure the fundamental freedoms guaranteed by the
Constitution - 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.
Constitution of India - Art.32 - Public Interest Litigation -
Constitution of Special Investigation Team (SIT) - Jurisdiction of
Supreme Court - Held: Per Dr. D.Y. Chandrachud, J. Instances
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indicate the diversity of settings in which Supreme Court has ordered
the constitution of SITs - 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.
Criminal Trial - Investigation pending - Use of electronic
media by Police - Practice of - Held: Per Dr. D. Y. Chandrachud,
J. Use of the electronic media by the investigating arm of the State
to influence public opinion during the pendency of an investigation
subverts the fairness of the investigation - Police are not
adjudicators nor do they pronounce upon guilt.
Disposing of the Writ petition, the Court
HELD: Per A.M. Khanwilkar, J. (for himself and
Dipak Misra, CJI)
1.1 The accused persons do not have a say in the matter of
appointment of Investigating Agency. Further, the accused
persons cannot choose as to which Investigating Agency must
investigate the offence committed by them. 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- regarding the manner in which arrest was made. Upon
perusal of the material already gathered during the ongoing
investigation, it is clear that the present 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 Communist Party of India (Maoist), a banned
organization 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. [Paras 14, 21 and 26] [985-D-F]
1.2 The consistent view of Supreme Court is that the accused
cannot ask for changing the Investigating Agency or to do
investigation in a particular manner including for Court monitored
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investigation. In the present case, the original writ petition was
filed by the persons claiming to be the next friends of the
concerned accused (A16 to A20). Amongst them, (A19), (A16),
(A18) and (A17) have filed signed statements praying that the
reliefs claimed in the subject writ petition be treated as their writ
petition. That application deserves to be allowed as the accused
themselves have chosen to approach Supreme Court and also in
the backdrop of the preliminary objection raised by the State that
the writ petitioners were completely strangers to the offence under
investigation and the writ petition at their instance was not
maintainable. It is, therefore, assumed that the writ petition is
now pursued by the accused themselves and once they have
become petitioners themselves, the question of next friend
pursuing the remedy to espouse their cause cannot be
countenanced. The next friend can continue to espouse the cause
of the affected accused as long as the concerned accused is not
in a position or incapacitated to take recourse to legal remedy
and not otherwise. [Para 27] [986-A-C]
1.3 Prayer clauses (i) and (ii) also make reference to FIR
No.2/2018 registered at Pimpri (Urban) Police Station on 2nd
January, 2018. However, that is an independent FIR registered
at a different police station against the Hindutva right wing
leaders. It is, at best, in the nature of a cross FIR in respect of
the same incident against the alleged aggressors filed by an eyewitness. Neither the writ petitioners nor the named accused in
FIR No.4/2018 in that sense, can pursue relief in respect of FIR
No.2/2018. Admittedly, Criminal Writ Petition has already been
filed in the Bombay High Court by the complainant in FIR No.2/
2018 herself for issuing directions to the Investigating Agency
in that crime. There is 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(Maoist), 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 and others in
different areas in the State of Maharashtra by delivering
vituperative speeches and to spread false history, disputable
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statements and incite objectionable slogans, sing songs and road
dramas and distribution of objectionable and provocative
pamphlets and books also. The incidents such as at Bhima
Koregaon and nearby places of stone throwing, castes clashes
and arson incidents is the outcome of such conspiracy. Taking
any view of the matter, the reliefs claimed in the modified prayer
clauses (i) and (ii) for investigation in respect of FIR No.2/2018,
cannot be taken forward at the instance of the named five accused
persons in FIR No.4/2018 registered at Vishram Bagh Police
Station (Pune City) on 8th January, 2018 or for that matter their
next friends. A fortiori, it must follow that the writ petitioners,
who are strangers to the offence under investigation (in FIR No.4/
2018); and since they are merely espousing the cause of the
arrested five accused as their next friends, cannot be heard to
ask for the reliefs which otherwise cannot be granted to the
accused themselves. What cannot be done directly, cannot be
allowed to be done indirectly even in the guise of public interest
litigation. [Paras 28, 29] [986-E-H; 987-A-D]
1.4 The prayer for changing the Investigating Agency cannot
be dealt with lightly and the Court must exercise that power with
circumspection. As a result, the writ petition at the instance of
the next friend of the accused for transfer of investigation to
independent Investigating Agency or for Court monitored
investigation cannot be countenanced, much less as public
interest litigation. The investigation of the offence in question is
at a nascent stage and, therefore, it is not desirable to elaborate
further as the modified reliefs (i) and (ii) as prayed cannot be
granted. [Paras 30, 31] [986-E-H; 987-A-D]
1.5 The third modified relief claimed in the writ petition to
issue directions that all electronic devices, records and materials,
allegedly seized from the detenue/accused, be examined by
Forensic Science Laboratory outside the State of Maharashtra to
ensure fair play and in the interest of justice. Even this prayer
cannot be taken forward. If any one of the twenty two named
accused have any grievance or apprehension about the same, he
is free to make that request before the jurisdictional Court, which
can be considered at the appropriate stage in accordance with
law. [Para 32] [988-A-B]
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1.6 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. 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. 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.[Para 33] [988-C-E]
1.7 Accordingly, this writ petition is disposed of with liberty
to the concerned accused to take recourse to appropriate remedy
as may be permissible in law. The interim order passed by this
Court on 29th August, 2018 (directing that the five arrested persons
be placed under house arrest) shall continue for a period of four
weeks to enable the accused to move the concerned court. The
said proceedings shall be decided on its own merits uninfluenced
by any observation made in this judgment, which is limited to
the reliefs claimed in the writ petition to transfer the investigation
to an independent Investigating Agency and/or Court monitored
investigation. The Investigating Officer is free to proceed against
the concerned accused as per law. [Para 37] [989-B-C]
State of West Bengal and Ors. vs. Committee for
Protection of Democratic Rights, West Bengal and Ors.
(2010) 3 SCC 571: [2010] 2 SCR 979 - followed.
Narmada Bai vs. State of Gujarat and Ors. (2011) 5
SCC 79: [2011] 5 SCR 729; Sanjiv Rajendra Bhatt vs.
Union of India and Ors. (2016) 1 SCC 1: [2015]
12 SCR 498 - relied on.
E. Sivakumar vs. Union of India and Ors. (2018) 7 SCC
365; Divine Retreat Centre vs. State of Kerala and Ors.
(2008) 3 SCC 542: [2008] 4 SCR 701 - referred to.
Per Dr. D.Y. Chandrachud, J.: (Dissenting)
HELD: 1.1 The jurisdiction under Article 32 is wide enough
to reach out to injustice in any form and originating in any source.
Securing human liberty and dignity must occupy an important
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space in the judicial docket. Liberty and freedom are defining
values of the Constitution. The institutional role of Supreme 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 no less than five distinguished
citizens with a track record of service to the nation have done
so- the Court must look beyond locus into the heart of the matter.
Whether the grievance has any substance is indeed a distinct
matter which must be determined objectively. The Court will not
interfere in every case merely because it has the jurisdiction.
But its duty to scrutinise, perceive and remedy violations of
human rights is non-negotiable. However, the issue of locus, even
in a technical sense, has receded into the background. During
the course of the hearing, the Court has been apprised that each
of the five individuals who were arrested has subscribed to the
averments in the petition and would stand by what is urged before
this Court in protection of their rights. The objection to
maintainability lacks substance, in either view of the matter. [Para
5] [993-A-D]
1.2 While entertaining these proceedings, this Court is
conscious of the fact that ordinarily, when an investigation into a
criminal offence is in progress, rights and remedies are provided
by the Code of Criminal Procedure. Hence, it is but trite law that
in matters pertaining to or arising during the course of
investigation such as remand, bail (including anticipatory bail)
and quashing of proceedings, recourse must be taken to the
provisions of the Code. 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. 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 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
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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 remedy which is available before the
competent court under the Code of Criminal Procedure. These
proceedings have been moved with a specific grievance that the
arrest of the five individuals is an attempt by the State to muzzle
dissent and that each of them is being persecuted for being a
defender of persons subjected to human rights' violations. [Paras
14, 15] [1001-D-E; 1002-C-G]
1.3 Supreme 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 weapon for settling political scores or of
pursuing extraneous ends. In the present case, the initiation of
the proceedings under Article 32 is not motivated by extraneous
reasons. The law is not a respecter of social, economic or political
status and every litigant who seeks access to justice has to be
treated evenly. Here five citizens have invoked the jurisdiction
of this Court in extraordinary circumstances where they claim
that a group of human rights activists has been targeted by the
State police. Each of those five individuals has joined in these
proceedings. Over the course of the last decade, the jurisdiction
of this Court has evolved under Article 32 to order the
constitution of a SIT. Such 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
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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. Besides the jurisdiction to order the constitution of
a SIT, the proceedings of this Court are replete with instances
where an investigation has been monitored under the authority
of this Court. With the body of precedents 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. [Paras 17, 18, 20 and 21] [1003-H; 1004-A-E; 1005A-B; 1006-D-E]
1.4 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 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 by recourse to the electronic media.
On 31 August 2018, a press conference was addressed by a team
of senior police officers headed by ADG (Law and Order),
Maharashtra. During the course of the press conference letters
(many of which should form part of the case diary) were selectively
flashed and read out. According to the petitioners they were also
leaked to the media. [Para 22] [1006-G-H; 1007-A-C]
1.5 The first round of arrests in the present case took place
on 6 June 2018. On 8 June 2018 an alleged letter was released
by the police to the media a little before the proceedings for
remand before the competent court (in the June arrests), alleging
that the arrested 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 one
'SB' 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
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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. [Para 22] [1007-E-F]
1.6 This facet of the case is 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. The use of the electronic media by
the investigating arm of the State to influence public opinion
during the pendency of an investigation subverts the fairness of
the investigation. The police are not adjudicators nor do they
pronounce upon guilt. In the present case, police briefings to the
media have become a source of manipulating public opinion by
besmirching the reputations of individuals involved in the process
of investigation. What follows is unfortunately a trial by the media.
That the police should lend themselves to this process is a matter
of grave concern. The investigation commenced as an enquiry
into the Bhima-Koregaon violence. The course of the
investigation was sought to be deflected by alleging (in the course
of the press briefings of the police) that there was a plot against
the Prime Minister. Such an allegation is indeed of a serious order.
Such allegations require responsible attention and cannot be
bandied about by police officers in media briefings. But during
the course of the present hearing, no effort was made by the ASG
to submit that any such investigation is being conducted in regard
to the five individuals. On the contrary, he fairly stated that there
was 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. [Para 24] [1008-D-H; 1009-A-B]
1.7 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
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those individuals who were arrested in the months of June and
July 2018. Paragraph 26 of the counter states that this material
"clearly shows that they were involved" in (i) selecting and
incorporating cadres to go underground in the 'struggle area;
(ii) mobilising and distributing money; (iii) facilitating selection
and purchase 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. Upon
perusing the material, it is clear 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 is taking liberties with the truth. General
allegations against the philosophy of a banned organisation, its
policies and the modalities followed in the execution of its unlawful
activities constitute one thing. Linking this to specific activities
of named individuals is a distinct matter. [Paras 25, 26] [1009-CE, G-H; 1010-A]
1.8 One of the circumstances which must certainly bear
upon the fairness 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.
The two panch witnesses in the present case are employees of
the Pune Municipal Corporation. It is not disputed that they
travelled as part of the police team which made the arrest. [Para
27] [1010-D, H]
D K Basu v State of West Bengal (1997) 1 SCC 416 :
[1996] 10 Suppl. SCR 284 - relied on.
1.9 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 jurisdiction under Article 32 to ensure that liberty
is not sacrificed at the altar of conjectures. Individuals who assert
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causes which may be unpopular to the echelons of power are yet
entitled to the freedoms which are guaranteed by the Constitution.
Dissent is a symbol of a vibrant democracy. Voices in opposition
cannot be muzzled by persecuting those who take up unpopular
causes. Where, however, the expression of dissent enters upon
the prohibited field of an incitement to violence or the subversion
of a democratically elected government by recourse to unlawful
means, the dissent ceases to be a mere expression of opinion.
Unlawful activities which violate the law have to be dealt with in
accordance with it. The conduct of the Pune police in utilising
the agency of the electronic media to cast 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. However, it is
made clear that nothing in this order shall be construed as any
observation on the merits of the investigation which is to take
place. [Para 29] [1011-D-H; 1012-A-B]
1.10 Supreme 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.
Hence, while the investigation should not be thwarted, this is a
proper case for the appointment of a Special Investigating Team.
The Special Investigating Team shall submit periodical status
reports to this Court, initially on a monthly basis. The interim
order passed by this Court on 29 August 2018 shall continue to
hold the field for a further period of three weeks within which it
would be open to the said five individuals or any one or more of
them to apply for bail before the Court of competent jurisdiction.
[Paras 39-41] [1017-F-G; 1018-B]
Sanjiv Rajendra Bhatt v Union of India (2016) 1 SCC
1 : [2015] 12 SCR 498 - distinguished.
National Human Rights Commission v State of Gujarat
(2009) 6 SCC 342; SIT (NHRC v State of Gujarat (2009)
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B
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D
E
F
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6 SCC 767 : [2009] 7 SCR 236; Ram Jethmalani v
Union of India (2011) 8 SCC 1: [2011] 8 SCR 725;
Common Cause v Union of India (2017) 3 SCC 501:
[2017] 1 SCR 556; Sunita Devi v Union of India (2018)
3 SCC 664; Vineet Narain v Union of India (1996) 2
SCC 199 : [1996] 1 SCR 1053; Babubhai Jamnadas
Patel v State of Gujarat (2009) 9 SCC 610; Centre for
Public Interest Litigation v Union of India (2011) 1 SCC
560; Bharati Tamang v Union of India (2013) 15 SCC
578 : [2013] 14 SCR 525; Rajendran Chingaravelu v.
RK Mishra (2010) 1 SCC 457 : [2009] 15 SCR 1113;
Narmada Bai v State of Gujarat
(2011) 5 SCC 79 :
[2011] 5 SCR 729; E Sivakumar v Union of India
(2018) 7 SCC 365; S. Nambi Narayanan v Siby Mathews
(2018) 11 SCALE 171 - relied on.
Rajiv Ranjan Singh 'Lalan' (VIII) v Union of India,
(2006) 6 SCC 613: [2006] 4 Suppl. SCR 742; Gulzar
Ahmed Azmi v Union of India, (2012) 10 SCC 731:
[2012] 9 SCR 287; Simranjit Singh Mann v Union of
India (1992) 4 SCC 653; Ashok Kumar Pandey v State
of West Bengal (2004) 3 SCC 349 : [2003] 5 Suppl.
 SCR 716; Pratibha Ramesh Patel v Union of India
(2016) 12 SCC 375: [2016] SCR 896; Udyami Evam
Khadi Garmodyog Welfare Sanstha v State of UP (2008)
1 SCC 560; State of Maharashtra v Tansen Rizwan
Siddiquee (2018) 10 SCALE 711; Divine Retreat Centre
v State of Kerala (2008) 3 SCC 542 : [2008]
4 SCR 701; Kiran Bedi v Committee of Inquiry (1989)
1 SCC 494: [1989] 1 SCR 20; Delhi Judicial Service
Association v State of Gujarat (1991) 4 SCC 406 :
[1991] 3 SCR 936; Joginder Kumar v State of UP
(1994) 4 SCC 260- referred to.
Case Law Reference
In the judgment of A.M. Khanwilkar, J. (for himself and
Dipak Misra, CJI)
[2011] 5 SCR 729
relied on
Para 21
2015 12 SCR 498
relied on
Para 22
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(2018) 7 SCC 365
referred to
Para 23
[2008] 4 SCR 701
referred to
Para 24
[2010] 2 SCR 979
followed
Para 25
In the judgment of Dr. D. Y. Chandrachud, J. (Dissenting)
[2006] 4 Suppl. SCR 742
referred to
Para 13
[2012] 9 SCR 287
referred to
Para 13
(1992) 4 SCC 653
referred to
Para 13
[2003] 5 Suppl. SCR 716
referred to
Para 13
[2016] SCR 896
referred to
Para 13
(2008) 1 SCC 560
referred to
Para 13
(2018) 10 SCALE 711
referred to
Para 13
(2009) 6 SCC 342
relied on
Para 18
[2009] 7 SCR 236
relied on
Para 18
[2011] 8 SCR 725
relied on
Para 18
[2017] 1 SCR 556
relied on
Para 18
(2018) 3 SCC 664
relied on
Para 18
[1996] 1 SCR 1053
relied on
Para 20
(2009) 9 SCC 610
relied on
Para 20
(2011) 1 SCC 560
relied on
Para 20
[2013] 14 SCR 525
relied on
Para 20
[2009] 15 SCR 1113
relied on
Para 23
[1996] 10 Suppl. SCR 284
relied on
Para 28
[2011] 5 SCR 729
relied on
Para 30
[2015] 12 SCR 498
distinguished
Para 33
(2018) 7 SCC 365
relied on
Para 34
[2008] 4 SCR 701
referred to
Para 35
(2018) 11 SCALE 171
relied on
Para 37
[1989] 1 SCR 20
referred to
Para 38
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B
C
D
E
F
G
H
965
[1991] 3 SCR 936
referred to
Para 38
(1994) 4 SCC 260
referred to
Para 38
[1996] 10 Suppl. SCR 284
relied on
Para 38
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 260 OF 2018
Under Article 32 of the Constitution of India.
Tushar Mehta and Maninder Singh, ASG, Dr. Abhishek Singhvi,
Dr. Rajeev Dhawan, Amarendra Sharan, Harish N. Salve, Anand Grover,
Sr. Advs., Prashant Bhushan, Ms. Vrinda Grover, Amit Bhandari,
Avishkar Singhvi, Susan Abraham, D. Suresh, Soutik Banerjee, Ms. Ratna
Appnender, Ms. Cheryl D' Souza, Ms. Madhur Bhartiya, Ankit Grewal,
Ms. Nidhi Ram, Harinder Neel, Omman Kuttan, Nishant Ramakantrao
Katneshwarkar, Kanu Agrawal, Manan Popli, Ranvijay Singh, Shantanu
Sharma, Rajeev Ranjan, R. Bala, Rajat Nair, Prabhas Bajaj, Swati
Ghildiyal, Sachin Sharma, Ms. Devanshi Singh, Ms. Diksha Rai, Ms.
Palak Mahajan, Ms. Diksha Rai, Nihal Sing Rathod, Ms. Tripti Tandon,
Ms. Nehmat Kaur, Jagdish Meshram, Paras Nath Singh, Ms. Sangita
Madan, Jitendra Ashok, Aakarsh Kamra, Abhishek Kumar, Shiv Sagar
Tiwari, Advs. for the appearing parties.
The Judgments of the Court were delivered by
A. M. KHANWILKAR, J. 1. Five illustrious persons in their
own field have filed this petition on 29th August, 2018 complaining about
the 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.
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
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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 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 programme conduct by Sagar Gokhale,
role describer Sudhir Dhavale, singer and artist Jyoti Jagtap,
Ramesh Gaychor and other speakers like Jignesh Mewani, Umar
Kahlid, Vinay Ratansingh, Prasanth Dontha etc. orators were
seated on the stage. The said ground was crowded fully. I had
read information and news related Kabir Kala Manch and their
representatives by social media and newspapers. So, known
them. On the programme of following other subjects, had express
statement again and again malice statement such as "Bima
Koregaon ne Diladhada, Navi Peshawar Mainatgada,
Udavathikrya Rai Rai re, Gadun Taka Peshwai Re Garjana
Sidnakache, Aalee Nvyane Peshwai re Garaj Tila Thokyachee,
Re Saimka Garaj Tila Thokyachee". After this, some other orators
had their speeches, as well as in that, Kabir Kala Manch's artist
such as Jyoti Jagtap, Ramesh Gaichor and other six seven person
sing the song again "Bhima Koregaon ne diladhada, Navi Peshwa
Navi Peshawar Mainat Gada, Udavathikrya Rai Rai re, Gadum
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Taka Peshwai Re Garjana Sidnakache, Aalee Nvyane Peshwai
re Garaj Tila Thokyachee, Re Saimka Garaj Tila Thokyachee..."
as well as, the same had presented in the form of Pathnatya
(Raadaramaj) and Dance Event with malice and enmity
intentions. After in Second session, said Sudhir Dhawade while
expressing role, he made the malice and disputable statement
that "Jab Julm Ho to, Bagawat Honi Chahiye shahar mein, Jab
Julm Ho to bagawat honi chahiye shahar mein aur agar bagawat
na ho to, behatar hai kee, rat dhalane se phle ye shahar jalke
rakh ho jaye, ye shahar jalke rakh ho jaye...." Then he said
some other malice statement that "ye jo satrahai, ye satra hia,
tayat hi apane aap mein ladai ka ellanhai, ye nave peswai ko
haemin Samshan Ghat mein, kabrastan meindajana hai.."
Afterwards, other speakers also expressed themselves in grudge
words in the same Programme, some objectionable and
provocable books kept for selling. After ending the program, I
left from the there. On the date of 1st January, 2018 as usual
year, huge crowd gathered to salute and honour the victory
stambh/monument at Bheema Koregaon. But because of the
Elgar Parishad which was held at Shaniwar Wada on 31st
December, 2017, Kabir Kala Manch's Sudhir Dhawale, Sagar
Gorakhe, Harshali Potdar, Jyoti Jagtap, Ramesh Gaichor and
other six seven persons tried to express malice statement and
tried to incite disputable words, sentences between two society
groups, raise some provocable slogans, songs and road drama
imposed wrong and false History above mentioned Sudhir
Dhawale, Harshali Potdar and other 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
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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 other artists
HarshaliPotdar, Jyoti Jagtap, Ramesh Gaichor and others had
presented objectionable songs as well as "Jab Julm ho to,
Bagawat Honi Chahiye shahar mein, Jab Julm Ho to bagawat
honi chahiye shahar mein aur agar bagawat na ho to, behatar hai
kee, rat dhalane se phle ye shahar jalke rakh ho jaye, ye shahar
jalke rakh ho jaye..." such type of disputable, objectionable
passing statements, tried to incite disputable words, sentences
between two society groups, raised some provocable slogans,
songs and road drama, imposed wrong and false History
misguided the society. The same had been disputable and stonethrowing and arson incidents converted into disputable and cast
clashes in society's specific groups, with human injuries, violence,
severe damages etc.
Therefore, I lodged the complaint against (1) the role definer
Kabir Kala Manch's Sudhir Dhawale, (2) Pragramme conductor
Sagar Gokhale (3) Harshali Potdar (4) Ramesh Gaichor (5)
Deepak Denglr (6) Jyoti Jagtap.