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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL ORIGINAL JURISDICTION  

 WRIT PETITION (CRIMINAL) NO. 260  OF  2018   

 Romila Thapar and Ors.         ….. Petitioner(s)  

:Versus:    

Union of India and Ors.         ....Respondent(s)    

J U D G M E N T  

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

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homes at New Delhi, Faridabad, Mumbai, Thane and  

Hyderabad, respectively, without any credible material and  

evidence against them justifying their arrest, purportedly in  

connection with FIR No.0004/2018 dated 8th January, 2018  

registered with Police Station Vishram Bagh, Pune City. This  

action was to silence the dissent, stop people from helping the  

poor and downtrodden and to instill fear in the minds of  

people and was a motivated action to deflect people‟s attention  

from real issues. The petitioners have made it clear in their  

petition that they were seriously concerned about the erosion  

of democratic values and were approaching this Court “not to  

stop investigation into allegations” “but” to ensure  

independent and credible “investigation into the arrest of  

stated five human rights activists.” They claim that 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

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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 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

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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 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

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groups, raised some provocable slogans, songs and road  drama, imposed wrong and false History misguided the  

society. The same had been disputable and stone-throwing  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. I read this typed  

statement and whatever I stated is same true and correct.     

This statement given,    Date: 08/01/2018  In front of:  (M.B. Talware)  

Police - Sub-Inspector  Vishram Baug, Police Station, Pune.”   

(emphasis supplied)    

 3. According to the petitioners, none of the five persons  

arrested in connection with the stated FIR was present during  

the event organized on 31st December, 2017 at Pune  by “Elgar  

Parishad” (with which they have no concern) nor any  

allegation is found against them in the FIR. Nevertheless, the  

Pune Police swiftly moved against them, for reasons best  

known on fabricated charges under various provisions of the  

Unlawful Activities (Prevention) Act, 1967 (“UAPA”) and under  

the Indian Penal Code.   

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4. According to the petitioners, since the FIR dated 2nd  

January, 2018, at Pimpri Police Station (Rural) for offences   

punishable under Sections 307, 143, 147, 148, 149, 295(A),  

435, 436 of IPC, Sections 3(2)(v) & 3(1)(10) of the Scheduled  

Castes Scheduled Tribes Act and Section 4(25) of the Arms Act  

of the Maharashtra Police Act,1989, was registered against the  

Hindutva right wing leaders Milind Ekbote and Sambhaji Rao  

Bhide, based on an eye-witness account that they along with  

fringe groups had incited the violence against the Dalit  

congregation, instead of taking action against those who were  

behind the Bhima Koregaon violence, a false and fabricated  

complaint was engineered in the form of FIR No.0004/2018  

and came to be registered on 8th January, 2018 at Vishram  

Bagh Police Station (Pune City), in respect of which the five  

named activists and others have been arrested. This fabricated  

FIR against the activists came to be 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

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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 mentions about senior comrades proposing  

concrete steps to end the Modi-era by planning a Rajiv Gandhi  

style incident to assassinate the Prime Minister. The police  

had deployed systematic strategy to put out highly provocative  

but completely unsubstantiated, unverified and unproven  

allegations through select media channels to prejudice the  

public opinion against those already arrested. Further, the  

organizers of Elgar Parishad had immediately refuted the tall  

claim of the Pune Police and went on record that the event

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referred to in the FIR under investigation was organized by  

them (Elgar Parishad) and no other organization was  

concerned therewith, much less any banned organization had  

any role in that regard. This statement was issued by a former  

Judge of this Court and another former Judge of the Bombay  

High Court who are the organizers of Elgar Parishad,  

emphatically condemning the letters leaked to the media by  

the Police as the same were never produced in evidence before  

the Court and that it was a ploy of the Government as it had  

felt threatened because of the mobilization of people by Elgar  

Parishad to raise their voice against the establishment and  

resist communal forces. The organization of Elgar Parishad  

had also denied of having received funds from any of the  

accused persons named in the FIR.   

 6. According to the petitioners, similar arbitrary arrests by  

the Pune City Police were caused across the country,  

particularly of those who spoke for the poor and marginalized  

and to malign human rights defenders, lawyers, activists and  

the progressive ideas and human rights ideology that they

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espouse, so as to have a chilling effect in the minds of the  

activists and dissuade them from criticizing the policies and  

programmes  of the Government.   

7. The petitioners then state that without providing any  

evidentiary link between the persons arrested and raided inter  

alia Gautam Navlakha and Sudha Bhardwaj with FIR No.4 of  

2018, they were served with the arrest memos signed by the  

persons who were brought as part of the entourage of the  

Pune Police as so-called “independent and respectable  

persons” to authenticate the arrest memos. The seizure  

memos were prepared in Marathi and signed by the Panchas  

who were brought by the Pune Police as part of the entourage.  

No translated copy of the FIR or the seizure memo was made  

over to Gautam Navlakha or Sudha Bhardwaj even though  

they were not conversant with Marathi. In this backdrop,  

Gautam Navlakha filed habeas corpus petition before the Delhi  

High Court, being Writ Petition No.2559 of 2018 challenging  

the transit remand order passed by the Chief Metropolitan  

Magistrate on 28th August, 2018. Similar petition was filed in

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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 August 2018 in  

connection with the Bhima Koregaon violence.   ii) Issue an appropriate writ, order or direction, calling for  an explanation from the State of Maharashtra for this  

sweeping round of arrests;  iii) Issue an appropriate writ, order or direction, directing  

the immediate release from custody of all activists arrested  in connection with the Bhima Koregaon violence and staying  any arrests until the matter fully investigated and decided by  

this court.   

iv) Pass any such other order as may be deemed  appropriate.”    

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8. As aforesaid, the petition was filed on 29th August, 2018  

and mentioned for urgent directions before the Chief Justice of  

India on the same day. This Bench considered the urgent  

mentioning and passed the following order on the same day:   

“Taken on Board.   Issue notice.   Mr. Tushar Mehta and Mr. Maninder Singh, learned  

Additional Solicitor Generals being assisted by Mr. R.  

Balasubramanian, learned counsel shall file the counter  

affidavit by 5.9.2018. Rejoinder thereto, if any, be filed  

within three days therefrom.   

We have considered the prayer for interim relief. It is  

submitted by Dr. Abhishek Manu Singhvi, learned senior  

counsel appearing for the petitioners that in pursuance of  

the order of the High Court, Mr. Gautam Navalakha and Ms.  

Sudha Bharadwaj have been kept under house arrest. It is  

suggested by him that as an interim measure, he has no  

objection if this Court orders that Mr. Varavara Rao, Mr.  

Arun Ferreira and Mr. Vernon Gonsalves, if arrested, they  

are kept under house arrest at their own homes. We order  

accordingly. The house arrest of Mr. Gautam Navalakha and  

Ms. Sudha Bharadwaj may be extended in terms of our  

orders.   

Needless to say, an interim order is an interim order and all  

contentions are kept open.   

Let the matter be listed on 6.9.2018.”  

This interim arrangement has been continued from time to  

time and remains in force until the disposal of this petition.  

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9. The State of Maharashtra has filed a counter affidavit of  

Dr. Shivaji Panditrao Pawar, Assistant Commissioner of Police  

(Investigating Officer), Swargate Division, Pune City, Pune.  

Besides taking objection regarding the maintainability of the  

writ petition being filed by third parties who are strangers to  

the offence under investigation, he has highlighted that in  

light of the material gathered during the investigation  

conducted so far, it would be desirable to dismiss the writ  

petition.  He has stated that the entire writ petition is based  

upon individual perception of the writ petitioners that the  

arrested persons are “all outstanding, well-known and well  

respected human rights activists” and therefore, their arrest  

requires to be enquired into and they should be released on  

bail.  Having said that, he has asserted that in the instant  

case, the five named persons have been arrested 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,

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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 “Kabir Kala Manch”.   

  10. It is then stated that one Tushar Ramesh Damgule had  

lodged an FIR on 8th January, 2018, naming six persons as  

accused for the offence registered thereunder by the Vishram  

Bagh Police Station. Out of the six named accused, only one  

person came to be arrested on 6th June, 2018, namely, Sudhir  

Dhawale in connection with the registered offence. As the  

investigation progressed and material was gathered during the  

ongoing investigation, Section 120-B was added on 6th March,  

2018 and two more persons were found to be suspected  

accused namely, Surendra Gadling, R/o Nagpur and Rona  

Wilson, R/o Delhi.  On 17th April, 2018 the Investigating  

Agency conducted searches at the residence of eight persons,  

namely:

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1) Rona Wilson, R/o Delhi  

2) Surendra Gadling, R/o Nagpur  

3) Sudhir Dhawala and Harshali Potdar, R/o Mumbai  

4) Sagar Gorakhe, R/o Pune  

5) Dipak Dhengale, R/o Pune  

6) Ramesh Gyachore and Jyoti Jagtap, R/o Pune  

Further, the entire search procedure was videographed right  

from the time the Investigating Agency knocked at the doors of  

the respective individuals till the material recovered were  

seized, sealed, and punchnamas were drawn in the presence  

of independent punchas. During the said search, documents  

were recovered from their respective computers/ laptops/pen  

drives/ memory cards. Different documents were found to  

have been copied on different dates. The seized items were  

immediately sent for investigation to Forensic Science  

Laboratory, which in turn gave “clone copies/mirror images” to  

the investigating agency so as to ensure that pendency of FSL  

Report does not hamper the investigation. It is then stated  

that documents  recovered from the seized items unraveled the  

information implicating the accused not only as active

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members of CPI (Maoist) but being involved in an ongoing  

sinister design of having committed and in the process of  

committing criminal offences having the potential of  

destabilizing the society. The documents clearly reflect the  

preparation, planning and coordination not only amongst the  

stated accused persons but with others subsequently arrested,  

to carry out violence including planned ambush/rebellion  

against the enemy (which is our country and security forces).   

 11. He has further stated that all the documents recovered  

during the search from the custody and possession of the  

respective accused will be produced before the Court, perusal  

of which would reveal that the accused persons are not merely  

political dissenters but involved in sinister design, planning,  

preparation and commission of criminal offences to destabilize  

the society. After the incriminatory material came to light,  

further offences under Sections 13, 16, 17, 18, 18-B, 20, 38,  

39 and 40 of the UAPA are added on 17th May, 2018 against  

the following individuals:  

1) Surendra Gadling, R/o Nagpur

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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) Sudhir Dhanwale  

Further, two more persons were arrested and also searched on  

6th June, 2018, namely,  Shoma Sen, R/o Nagpur and Mahesh  

Raut, R/o Nagpur and Gadchiroli. It is then stated that the  

searches carried out against these persons were also  

videographed from the beginning to the end as was done on  

the earlier occasion in respect of the searches carried of other  

accused. Even during this search, it is alleged that the

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material seized was in the form of computers, laptops, pen-

drives and memory cards which have been forwarded to  

Forensic Science Laboratory, which in turn provided clone  

copies to the Investigating Agency for facilitating further  

investigation.   

 12. It is then stated in the affidavit that the further  

investigation unraveled that the five persons who came to be  

arrested on 28th August, 2018 were also involved in the  

criminal conspiracy and their role was not merely peripheral  

in nature. Based upon the incriminating material, they were  

arrested from the residential or work places under similar  

fashion in the presence of independent panchas who were  

Government Officers. It is also stated that one of them,  

namely, Vernon Gonsalves has been convicted by the Special  

Court, Nagpur for offences under the UAPA.  

  13. The sum and substance of the reply affidavit is that  

sufficient material has become available during the  

investigation, which is still in progress, to indicate the  

complicity of the concerned accused who have been arrested

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including the five named persons in respect of whom the  

present writ petition has been filed by third parties. They are  

arrested not because of their political activities but for their  

involvement in the planning and execution of offences to  

destabilize the society and their association with the banned  

organization. Their involvement is noticed in selecting and  

encouraging cadres in the banned organizations to go  

underground in „struggle area‟, mobilizing and distributing  

money, facilitating selection and purchase of arms, deciding  

the rates of such arms and suggesting the routes and ways of  

smuggling such arms into India for its onward distribution  

amongst the cadres. Some of them have suggested training  

and laying booby traps and directional mines. Their  

involvement is also for providing strategic inputs in  

furtherance of the objective of armed rebellion, on lines of  

strategic documents of the banned terrorist organization. It is  

stated that all the material collected during the investigation  

will be eventually placed on record of the jurisdictional Court  

along with the police report to be filed in due course. Further,  

the question of showing that material to anyone muchless

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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 as filed by them. This application is in response to the  

issue of locus of five petitioners as being strangers to the  

offence under investigation. Besides, an application has been  

filed by the petitioners for permitting them to amend the

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prayer clause of the writ petition and permit the petitioners to  

seek following modified prayers:   

“(i) Issue an appropriate writ, order or direction for setting up  

of a Special Investigating Team (SIT) comprising of senior  

police officers with impeccable career records of  

professionalism, integrity and independence, reporting  

directly to this Hon‟ble Court, for conducting a fair and  

independent investigation and inquiry into the offences  

stated 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 and all other related matters and allegations; or   

(ii) Issue an appropriate writ, order or direction for the  

investigation 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; and/or   

(iii) Issue an appropriate writ, order or direction directing  

that all electronic devices, records and materials allegedly  

seized from the detenues or even otherwise, if relied  

upon/being relied upon for denial of liberty to the detenues,  

to be examined by a Forensic Sciences Laboratory outside  

the State of Maharashtra to ensure fair play and in the  

interest of justice; and/or   

(iv) Issue an appropriate writ, order or direction, directing  

the release from custody of the arrested activists as per law,  

upon such terms and conditions as may be deemed  

necessary and appropriate, to the satisfaction of this Hon‟ble  

Court; and/or   

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(v) Pass any such further order(s) as this Hon‟ble Court may  

deem fit and appropriate in the facts and circumstances of  

the present case, and in the interest justice.”  

 15. During the arguments, Dr. Abhishek Manu Singhvi, Dr.  

Rajeev Dhawan, Dr. Ashwani Kumar learned senior counsel   

and Mr. Prashant Bhushan, learned counsel appearing for the  

writ petitioners and Mr. Anand Grover, learned senior counsel  

appearing for the arrested persons, have argued that the  

stated five persons have not been named in the FIR nor were  

they present during the event referred to in the FIR.   

Registration of two FIRs in respect of the same incident, first  

on 2nd January, 2018 at Pimpri (Urban) Police Station and the  

second, at Visharam Bagh Police Station, Pune City, was  

impermissible and was a ploy to deflect the inaction of the  

Pune Urban Police for the reasons best 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

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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 investigation  

but was indulging in selective leaks of documents which  

contain unsubstantiated insinuations against the accused  

persons solely with a view to malign their reputation and  

create public opinion against them. The Pune Police had the  

audacity to rush to the Press for divulging the documents  

which they claim to have recovered during the seizure from  

one of the accused and not the five persons arrested on 28th  

August, 2018. They submit that the clarificatory statement  

issued by the two former Judges cannot be discarded.  

However, no effort has been made by the Investigating Agency  

to ascertain the factual position from those two Judges.  

According to them, it is a case of persecution of the five  

persons named in the writ petition as multiple cases have  

been registered against them since 2005 and each of them

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have been acquitted in the concerned case. 25 criminal cases  

were registered against Varavara Rao, 11 cases have been  

registered against Arun Ferreira and 18 cases against Varnon  

Gonsalves. They have been acquitted in all the cases except  

one against Gonsalves, which matter is pending in appeal.   

They have relied upon the report prepared by the Committee  

headed by the Deputy Mayor which clearly points towards the  

complicity of Sambhaji Rao Bhide and Milind Ekbote in  

particular, for having caused incitement and violence on 1st  

January, 2018. However, no action has been taken by the  

Pune Police against the persons who were responsible for  

causing riots and violence. It is submitted that it is  

unfathomable that two FIRs are registered in respect of the  

same incident and two different investigating agencies are  

going ahead with the investigation. More so, the basis of arrest  

of five persons on 28th August, 2018 was their involvement in  

planning the assassination of the current Prime Minister but  

there is no allegation to that effect in the FIR nor has any fresh  

FIR been registered by the Police, although the same is a  

serious matter warranting investigation by an Investigating

24    

Agency no less then National Investigating Agency or at least  

the CBI. The persons arrested, however, are well-known for  

their track record of human rights activism and have been  

unjustly put behind bars on the basis of unsubstantiated  

allegations and without any evidence against them. The entire  

sub-text of creating a real threat is a figment of imagination of  

the Investigating Agency and that has been done for reasons  

best known to them. Obviously, it is politically motivated. The  

transit remand applications preferred by the Investigating  

Agency also do not mention the letters indicative of  

involvement of the persons concerned in planning and  

execution of Maoist plot nor have those letters been produced  

before the Court thus far. The letters which were flashed to the  

media are obviously fabricated. Further, no plausible  

explanation is forthcoming as to why the Investigating Agency  

had taken panchas along with 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

25    

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 loath to entertain the writ  

petition of this nature when the investigation of a serious  

crime is in progress as per the statutory provisions and the  

material gathered during the investigation justifies the arrest  

of the concerned accused. He submitted that the investigation  

is being conducted responsibly and impartially and strictly in  

accordance with the provisions of Cr.P.C. by an officer of the  

rank of Assistant Commissioner of Police under the  

supervision of Deputy Commissioner of Police and further  

monitored by Joint Commissioner and finally by the  

Commissioner of Police who is of the rank of Additional  

Director General of Police. There is no allegations against the

26    

investigating officer of working under dictation or that he had  

any personal malice against the named accused. Further,  

there is active involvement and monitoring of senior police  

officials and pre-existing safeguards have been put in place by  

the State in order to ensure a fair investigation and in order to  

maintain independent and impartiality of all sorts, coupled  

with the fact that the action of the Investigating Agency would  

be monitored by the jurisdictional Courts at different stages,  

the question of appointing Special Investigation Team or to  

allow investigation by independent Investigating Agency under  

the monitoring of the Court, should be eschewed. He  

submitted that the Court may look at the documents already  

gathered during the investigation to satisfy its conscience as to  

whether the arrest of concerned accused was justified or  

otherwise. In any case, there is robust mechanism of  

overseeing the actions of the Investigating Agency by the  

jurisdictional Courts while considering not only the  

application for police remand or judicial remand and bail  

application but also the remedy of discharge and quashing of  

the prosecution. In other words, the issues raised by the

27    

petitioners may be germane for pursuing relief of bail or  

discharge/quashing, but not relevant to consider prayer for  

change of investigating agency, that too at the instance of  

accused themselves. He has handed over a compilation of  

documents or incriminatory material collected during the  

investigation allegedly showing the involvement of the  

concerned accused, for our perusal. He has also handed over  

the Case Diary and two Registers of documents recovered  

during the search from the accused persons. He further states  

that the subject FIR in respect of which action is being taken  

against the accused was registered on 8th January, 2018 for  

offences punishable under Section 153-A, 505 (1B), 17, 34  

IPC. 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

28    

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 regarding the manner of search,  

which the concerned co-accused alone may do at the  

appropriate stage before the jurisdictional court.   

 17. He submits that even though the Court may have  

jurisdiction to examine all aspects of the matter, considering  

the fact that the investigation is at a nascent stage and is  

being done by senior police officials under the supervision of  

their superior officers up to the level of Commissioner of  

Police, it is not a case for grant of reliefs as prayed. The  

accused persons must take recourse to the remedy prescribed  

by law instead of directly approaching this Court under Article

29    

32 of the Constitution and can get complete justice from the  

jurisdictional Court. He submits that in criminal matters,  

interference in the garb of public interest litigation at the  

instance of strangers has always been discouraged and  

rejected by this Court. Further, the present petition is nothing  

but abuse of the process and as the named accused Varavara  

Rao, Sudha Bharadwaj and Gautam Navalakha have filed their  

respective petitions before the jurisdictional High Courts,  

which proceedings are pending for adjudication, the same  

persons have now filed affidavits before this Court for  

transposing them as petitioners and allowing them to adopt  

the prayer of the writ petitioners. They ought to elect their  

remedy to be pursued and in particular, before the  

jurisdictional Courts. Therefore, this petition must be  

discouraged. He submits that the modified relief claimed in the  

writ petition to release the accused persons is in the nature of  

habeas corpus which is not maintainable in respect of the  

arrest made during the ongoing investigation. He submits that  

no right can enure in favour of the accused to seek relief of  

investigation of the crime through an independent agency and

30    

for the same reason, even strangers to the offence under  

investigation or next friends of the accused, cannot be  

permitted to pursue such a relief in the guise of PIL. He  

submits that the foundation of the present writ petition is the  

perception of the writ petitioners (next friends) that the  

accused are innocent persons. He submits that that basis is  

tenuous. For, there are enough examples of persons having  

split personality. In a criminal case, the action is based on  

hard facts collected during the course of investigation and not  

on individual perception. He contends that the argument of  

the writ petitioners that liberty of the five named accused  

cannot be compromised on the basis of surmises and  

conjectures is wholly misplaced and can be repelled on the  

basis of the material gathered during the ongoing investigation  

indicating the complicity of each of them. He relies on Section  

41 of Cr.P.C. 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

31    

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 ideas which transcend the line of unlawful activity.  

The Court must enquire into the fact as to whether the  

investigation is regarding such unlawful activity or merely to  

stifle dissenting political voice. If it is the former, the  

investigation must be allowed to proceed unhindered. In any  

case, the affected persons, namely, the named accused must   

take recourse to remedy prescribed by law before the  

jurisdictional Court as it is not a case of unlawful detention or  

action taken by an unauthorized Investigating Agency.

32    

According to him, the Court must lean in favour of appointing  

a SIT or an independent Investigating Agency or Court  

monitored investigation only when the grievance made is one  

about the investigation being derailed or being influenced by  

some authority. In the present case, the grievance is limited to  

improper arrest of individuals without any legal evidence to  

indicate their complicity in the commission of any crime or the  

one registered in the form of FIR No.4/2018. The allegation of  

motivated investigation is without any basis. No assertion is  

made by the writ petitioners or the named accused that the  

investigation by the Pune City Police is mala fide in law. If the  

allegation is about mala fide in fact, then the material facts to  

substantiate such allegation, including naming of the person  

at whose instance it is being so done, ought to have been  

revealed. That is conspicuously absent in this case. According  

to the learned counsel, the reliefs claimed in the writ petition  

do not warrant any indulgence of this Court.   

 19. After the high-pitched and at times emotional arguments  

concluded, each side presenting his case with equal

33    

vehemence, we as Judges have had to sit back and ponder  

over as to who is right or whether there is a third side to the  

case. The petitioners have raised the issue of credibility of  

Pune Police investigating the crime and for attempting to stifle  

the dissenting voice of the human rights activists. The other  

side with equal vehemence argued that the action taken by  

Pune Police was in discharge of their statutory duty and was  

completely objective and independent. It was based on hard  

facts unraveled during the investigation of the crime in  

question, pointing towards the sinister ploy to destabilize the  

State and was not because of difference in ideologies, as is  

claimed by the so called human rights activists.   

 20. After having given our anxious consideration to the rival  

submission and upon perusing the pleadings and documents  

produced by both the sides, coupled with the fact that now  

four named accused have approached this Court and have  

asked for being transposed as writ petitioners, the following  

broad points may arise for our consideration:-

34    

(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 integra. In Narmada Bai  

Vs. State of Gujarat and Ors.1, in paragraph 64, this Court  

restated that it is trite law that the accused persons do not  

have a say in the matter of appointment of Investigating  

                                                           1  (2011) 5 SCC 79

35    

Agency. Further, the accused persons cannot choose as to  

which Investigating Agency must investigate the offence  

committed by them. Paragraph 64 of this decision reads thus:-  

 “64. ….. It is trite law that accused persons do not have a  say in the matter of appointment of an investigation  

agency. The accused persons cannot choose as to which  investigation agency must investigate the alleged  

offence committed by them.”    

      (emphasis supplied)  

 22. Again in Sanjiv Rajendra Bhatt Vs. Union of India  

and Ors.2, the Court restated that the accused had no right  

with reference to the manner of investigation or mode of  

prosecution. Paragraph 68 of this judgment reads thus:  

 “68. The accused has no right with reference to the  

manner of investigation or mode of prosecution. Similar  is the law laid down by this Court in Union of India v. W.N.  Chadha3, Mayawati v. Union of India4, Dinubhai Boghabhai  Solanki v. State of Gujarat5, CBI v. Rajesh Gandhi6,  Competition Commission of India v. SAIL7 and Janta Dal v.  H.S. Choudhary.8”    

(emphasis supplied)    

                                                             2  (2016) 1 SCC 1  3   1993 Supp. (4) SCC 260  

4  (2012) 8 SCC 106   5  (2014) 4 SCC 626  6  (1996) 11 SCC 253  7  (2010) 10 SCC 344   8  (1991) 3 SCC 756

36    

23. Recently, a three-Judge Bench of this Court in E.  

Sivakumar Vs. Union of India and Ors.9, while dealing with  

the appeal preferred by the “accused” challenging the order of  

the High Court directing investigation by CBI, in paragraph 10  

observed:   

“10. As regards the second ground urged by the petitioner,  

we find that even this aspect has been duly considered in the  

impugned judgment. In paragraph 129 of the impugned  

judgment, reliance has been placed on Dinubhai Boghabhai  

Solanki Vs. State of Gujarat10, wherein it has been held that  

in a writ petition seeking impartial investigation, the accused  

was not entitled to opportunity of hearing as a matter of  

course. Reliance has also been placed in Narender G. Goel  

Vs. State of Maharashtra11, in particular, paragraph 11 of the  

reported decision wherein the Court observed that it is well  

settled that the accused has no right to be heard at the stage  

of investigation. By entrusting the investigation to CBI  

which, as aforesaid, was imperative in the peculiar facts of  

the present case, the fact that the petitioner was not  

impleaded as a party in the writ petition or for that matter,  

was not heard, in our opinion, will be of no avail. That per se  

cannot be the basis to label the impugned judgment as a  

nullity.”  

   24. This Court in the case of Divine Retreat Centre Vs.  

State of Kerala and Ors.12, has enunciated that the High  

                                                           9  (2018) 7 SCC 365  10  Supra @ Footnote 5  11  (2009) 6 SCC 65   12  (2008) 3 SCC 542

37    

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 it may, it will be useful to advert to the  

exposition in State of West Bengal and Ors. Vs. Committee  

for Protection of Democratic Rights, West Bengal and  

Ors.13  In paragraph 70 of the said decision, the Constitution  

Bench observed thus:   

“70. Before parting with the case, we deem it necessary to  

emphasise that despite wide powers conferred by Articles 32  

                                                           13  (2010) 3 SCC 571

38    

and 226 of the Constitution, while passing any order, the  

Courts must bear in mind certain self-imposed limitations  

on the exercise of these Constitutional powers. The very  

plenitude of the power under the said articles requires great  

caution in its exercise. Insofar as the question of issuing a  

direction to the CBI to conduct investigation in a case is  

concerned, although no inflexible guidelines can be laid  

down to decide whether or not such power should be  

exercised but time and again it has been reiterated that such  

an order is not to be passed as a matter of routine or merely  

because a party has levelled some allegations against the  

local police. This extraordinary power must be exercised  

sparingly, cautiously and in exceptional situations where it  

becomes necessary to provide credibility and instil  

confidence in investigations or where the incident may have  

national and international ramifications or where such an  

order may be necessary for doing complete justice and  

enforcing the fundamental rights. Otherwise the CBI would  

be flooded with a large number of cases and with limited  

resources, may find it difficult to properly investigate even  

serious cases and in the process lose its credibility and  

purpose with unsatisfactory investigations.”  

 26. 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.

39    

Rather, averment in the petition as filed was to buttress the  

reliefs initially prayed (mentioned in para 7 above) – regarding  

the manner in which arrest was made. Further, the plea of the  

petitioners of lack of evidence against the named accused (A16  

to A20) has been seriously disputed by the Investigating  

Agency and have commended us to the material already  

gathered during the ongoing investigation which according to  

them indicates complicity of the said accused in the  

commission of crime. Upon perusal of the said material, we  

are of the considered opinion that it is not a case of arrest  

because of mere dissenting views expressed or difference in  

the political ideology of the named accused, but concerning  

their link with the members of the banned organisation and its  

activities. This is not the stage where the efficacy of the  

material or sufficiency thereof can be evaluated nor it is  

possible to enquire into whether the same is genuine or  

fabricated. We do not wish to dilate on this matter any further  

lest it 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

40    

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 obtaining remand  

by the Police or by way of application for grant of bail, and if  

they are so advised, they can also opt for remedy of discharge  

at the appropriate stage or quashing of criminal case if there is  

no legal evidence, whatsoever, to indicate their complicity in  

the subject crime.  

 27. In view of the above, it is clear that the consistent view of  

this Court is that the accused cannot ask for changing the  

Investigating Agency or to do investigation in a particular  

manner including for Court monitored investigation. The first  

two modified reliefs claimed in the writ petition, if they were to  

be made by the accused themselves, the same would end up in  

being rejected. In the present case, the original writ petition  

was filed by the persons claiming to be the next friends of the

41    

concerned accused (A16 to A20). Amongst them, Sudha  

Bhardwaj (A19), Varvara Rao (A16),  Arun Ferreira (A18) and  

Vernon Gonsalves (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 this 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. We would, therefore, assume  

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.   

 28. Be that as it may, we are conscious of the fact that  

prayer clause (i) and (ii) also make reference to FIR No.2/2018

42    

registered at Pimpri (Urban) Police Station on 2nd January,  

2018. However, that is an independent FIR registered at a  

different police station against the Hindutva right wing leaders  

Milind Ekbote and Sambhaji Rao Bhide. It is, at best, in the  

nature of a cross FIR in respect of the same incident against  

the alleged aggressors filed by an eye-witness. Neither the writ  

petitioners nor the named accused in FIR No.4/2018 in that  

sense, can pursue relief in respect of FIR No.2/2018 registered  

at Pimpri (Urban) Police Station. Admittedly, Criminal Writ  

Petition No.1875 of 2018 has alrady 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

43    

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  

conspiracy. Taking any view of the matter, the reliefs claimed  

in the modified prayer clauses (i) and (ii) 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.  

 29. 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,

44    

cannot be allowed to be done indirectly even in the guise of  

public interest litigation.   

30. We find force in the argument of the State that the prayer  

for changing the Investigating Agency cannot be dealt with  

lightly and the Court must exercise that power with  

circumspection. As a result, we have no hesitation in taking a  

view that 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.   

 31. As the answer to point Nos. (i) and (ii) are in the negative  

and against the writ petitioners and named accused, we do not  

wish to dilate on the circumstances pointed out to us by the  

accused regarding the manner of their arrest. For, any  

observation in that regard by this Court may prejudice the  

said accused including the co-accused who are not before this  

Court or the prosecution, which must be eschewed. We are of  

the considered opinion that the investigation of the offence in

45    

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 for the reasons noted hereinbefore.   

32. That takes us to the third modified relief claimed in the  

writ petition to issue directions that all electronic devices,  

records and materials, allegedly seized from the  

detenue/accused, be examined by Forensic Science  

Laboratory outside the State of Maharashtra to ensure fair  

play and in the interest of justice. Even this prayer cannot be  

taken forward. If any one of the twenty two named accused  

have any grievance or apprehension about the same, he is free  

to make that request before the jurisdictional Court, which  

can be considered at the appropriate stage in accordance with  

law. We are not expressing any opinion either way in the  

present writ petition in that regard.  

33. The fourth modified relief is to direct release of the  

arrested activists from custody as per law. The accused  

persons must pursue this relief before the appropriate court,  

which can be considered by the concerned court on its own

46    

merits in accordance with law.  As noted earlier, the concerned  

accused persons have already taken recourse to remedy before  

the jurisdictional High Courts.  Hence, they are free to pursue  

all legal remedies available to them as per law. We are not  

expressing any opinion either on the issue of maintainability  

thereof or on merits of the reliefs that may be claimed therein.  

All questions will have to be considered by the concerned  

Court in accordance with law. Accordingly, even the fourth  

modified relief cannot be considered in the present writ  

petition.   

 34. In view of the above, we have advisedly refrained from  

dealing with the factual issues raised by the parties and  

including the named accused represented by their counsel  

before us, as any observation made by this Court may cause  

serious prejudice to them or the co-accused who are not before  

this Court or, for that matter, the prosecution case, resulting  

in serious miscarriage of justice. Similarly, we do not wish to  

burden the judgment with the other reported judgments relied  

upon by the counsel for the parties and dealing with legal

47    

propositions canvassed by them, which are not necessary to  

be answered in the present writ petition.  

 35. We may hasten to mention that we have perused the  

Registers containing relevant documents and the Case Diary  

produced by the State of Maharashtra. But we have avoided to  

dilate on the factual position emerging therefrom, lest any  

prejudice is caused to any accused or the prosecution, in any  

manner.   

36. The record/files/documents and the Case Diary handed  

over to the Court in a sealed cover by the State be returned to  

the counsel for the State in a sealed cover.  

37. 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 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

48    

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. All the accompanying  

applications are also disposed of in terms of this judgment.   

.………………………….CJI.        (Dipak Misra)   

…………………………..….J.                (A.M. Khanwilkar)  

New Delhi;  

September 28, 2018.  

1    

IN THE SUPREME COURT OF INDIA  CRIMINAL ORIGINAL JURISDICTION  

WRIT PETITION (CRIMINAL)  NO  260 OF 2018 (D NO 32319)    

 ROMILA THAPAR AND ORS            ..PETITIONERS     

VERSUS   

UNION OF INDIA AND ORS                ..RESPONDENTS    

J U D G M E N T   

Dr Dhananjaya Y Chandrachud, J  

1 The intersection between criminal law and constitutional rights has led  

to the evolution of judicial precedent which originates in this Court. Our recent  

decisions reiterate the value of individual dignity as essential to a democratic  

way of life. But lofty edicts in judicial pronouncements can have no meaning to  

a citizen unless the constitutional quest for human liberty translates into  

securing justice for individuals whose freedom is under threat in specific cases.  

The role of the Court involves particularly sensitive balances when the state  

seeks to curb freedom to investigate perceived breaches involving offences  

against the state. Custodial interrogation involves the balancing of diverse and  

REPORTABLE

2    

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.     

         2 On 29 August 2018, the jurisdiction of this Court under Article 32 was  

invoked by five distinguished academics to seek an “independent and  

comprehensive inquiry” in the circumstances relating to the arrest of five human  

rights activists on 28 August 2018. The arrests by the Pune police took place  

following the raids which were conducted at their homes and offices. The arrests  

took place simultaneously in Delhi, Faridabad, Mumbai, Thane and Hyderabad.  

The petitioners assert that our jurisdiction has been invoked not to impede the  

investigation but to ensure that an independent and credible investigation is  

made by persons nominated by and subject to the supervision of this Court. The  

petitioners urge that the invocation of the draconian provisions of the Unlawful  

Activities (Prevention) Act, 1967 (UAPA) in the present case is an attempt to

3    

silence dissent by targeting human rights activists who have been working to  

protect the rights of the poor and the marginalised, particularly Dalits. This is set  

forth in the prefatory averments of the writ petition, extracted here:   

“The charges against them on the face of it appear  

indiscriminate, unwarranted, part of a malicious campaign to  

threaten human rights defenders, independent journalists,  

writers and thinkers in this country, from critiquing the  

government and its policies and an attempt to muzzle dissent.  

The activists who have been arrested are pro democracy  

workers who have been leading peaceful peoples rights based  

movements especially among the poor and marginalised  

communities, Dalits and adivasis, for several years, in different  

parts of the country. The use of the UAPA meant for  

exceptional and violent activity, against such persons, when  

there has been absolutely no evidence of any acts of violence  

by these activists is deeply disconcerting and calls for an  

urgent intervention by this Hon’ble Court.”      

The grievance is that those five persons are being persecuted for their views  

and their voices are sought to be chilled into silence by a criminal prosecution.  

3 First, as to the locus of the petitioners:   

(i) The first petitioner – Romila Thapar is an eminent historian and Professor  

Emeritus at Jawaharlal Nehru University. She was selected on two occasions  

for the conferment of the Padma Bhushan award by the Union Government,  

which she declined. Romila Thapar has been elected to the British Academy  

and the American Academy of Arts and Sciences and has been conferred with  

honorary doctoral degrees by the Universities of Oxford and Chicago, among  

others. Her writings include a book titled, ‘A History of India’;   

4    

(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 proposed Equal Opportunity  

Commission. He has held visiting appointments at the University of Chicago  

and in Paris; and  

(v) The fifth petitioner, Maja Daruwala, is a member of the Board and a  

senior advisor to the Commonwealth Human Rights Initiative. In that capacity  

she has been associated with significant research on the implementation of

5    

human rights norms in the country. She has been working in the field of  

advocacy for rights and social justice for over fourty years.  

4 The persons who were arrested on 28 August 2018 and on whose behalf  

these proceedings were initiated have been described thus in the petition:  

“i. Gautam Navalakha (Human Rights activist and journalist  

New Delhi). He was the President of the People’s Union  

for Democratic Rights and has been associated with the  

Economic and Political Weekly. He is a known  

commentator on current affairs. The state relied upon  

him to negotiate the safe return of persons abducted by  

left wing extremists in Chhattisgarh.   

ii. Sudha Bharadwaj (Advocate, Chhattisgarh High Court,  

currently residing in Faridabad) Prominent cause lawyer  

of Bilaspur High Court who has represented workers,  

poor and marginal farmers and others in Chhattisgarh.  

She is the national green secretary of PUCL and since  

2017 been teaching at the National Law University, Delhi.  

As a member of the Indian Association of People’s  

lawyers, advocated Sudha Bharadwaj was vocal against  

the arrest of lawyers like Surendra Gadling in recent  

times. Sudha Bharadwaj has been a member of  

committees and provided legal aid and is a recognised  

human rights defender.  

iii. Varavara Rao (Age 79, based in Hyderabad, political  

worker, commentator and renowned poet). He was a  

professor of English and Telegu literature.   

iv. Arun Ferreira, (Mumbai) Practising as a lawyer since  

2015 and a Human Rights activist.   

v. Vernon Gonsalves (Mumbai), Gold medallist from  

Bombay University in Commerce, accounts officer at  

Siemens, then lecturer of accounts in Maharashtra  

College, writer and columnist. His translation of  

Annabhau Sathe’s “Gold from the Grave” from Marathi to  

English published in David Davidar’s “A Clutch of Indian  

masterpieces”.  

6    

Three of the above individuals were prosecuted in the past for offences primarily  

under the Indian Penal Code, 1860, the Arms Act, 1959 and the UAPA. Arun  

Ferreria is stated to have been acquitted in all eleven cases instituted against  

him. Vernon Gonsalves was acquitted in seventeen out of the nineteen cases  

instituted against him (an appeal is pending in one case where he stands  

convicted while an application for discharge is pending before the Gujarat High  

Court in one case). Vara Vara Rao was acquitted in all twenty cases where he  

was prosecuted1.    

5 During the course of the hearing, a preliminary objection was raised by  

Mr Tushar Mehta, the learned ASG to the maintainability of these proceedings.  

He urged that the petitioners have no locus to question the circumstances  

relating to the arrest of the five individuals named above. I would not have been  

inclined to accept a technical argument of this nature in view of the  

constitutional imperatives for this Court to intervene when human freedoms and  

liberties are alleged to be imperilled. The jurisdiction under Article 32 is wide  

enough to reach out to injustice in any form and originating in any source.  

Securing human liberty and dignity must occupy an important space in the  

judicial docket. Liberty and freedom are defining values of our Constitution. The  

institutional role of this Court as a constitutional adjudicator should brook no  

technicalities which obstruct the cause of justice. When a group of citizens has  

moved this Court with an impassioned plea about the violation of human rights  

                                                           1 Details of these cases have been submitted in charts A, B and C annexed to the written submissions filed by    Dr AM Singhvi, learned senior counsel.

7    

— 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.   

6 A brief historical background is necessary. On 1 January 1818, a few  

hundred soldiers of the East India Company comprising of Dalits, tribals,  

Muslims, Christians and backward communities defeated the Peshwa army led  

by Bajirao II at Koregaon, on the banks of the Bhima river near Pune. Like many  

of its genre, the battle has assumed a legendary status primarily because of the  

victory of the Dalits. Honouring the then martyrs, the colonial government raised  

a victory pillar, the ‘Vijay Stambh’. The pillar is a symbolic rallying ground for an  

annual event to mark the victory. The event represents the aspirations of those  

who have been subject to discrimination and prejudice in the caste-ridden  

structure of our society.  

8    

7 In keeping with tradition, a public meeting was scheduled to  

commemorate the 200th anniversary of the Bhima-Koregaon victory on 31  

December 2017. Among those who were associated with the event were two  

judges: one of them, Justice PB Sawant is a former judge of this Court. Justice  

BG Kolse Patil is a former judge of the Bombay High Court. The event was  

planned at Shaniwar wada in Pune. An organisation known as the Kabir Kala  

Manch was to supervise a cultural programme. Besides the two judges who  

addressed the Elgar Parishad, the speakers included Shri Prakash Ambedkar,  

President of the Bharatiya Republican Party. The event was titled: “Bhima-

Koregaon Shourya Din – Elgar Parishad”. The petitioners claim that ‘Elgar’ is a  

clarion call. The state reads into it a sinister symbolism of an attack. On 1  

January 2018, a communal disturbance took place at Bhima-Koregaon when,  

as the allegation goes, a group of Dalits was attacked in the process of offering  

a salutation to the victory pillar. News of the incident spread across the state of  

Maharashtra, resulting in a violent agitation in the state.    

8 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

9    

vi Ramesh Gaychore.       

Sudhir Dhawale was arrested on 6 June 2018.  As the investigation progressed,  

Section 120B of the Penal Code was added on 6 March 2018 and two more  

persons – Surendra Gadling and Rona Wilson - were suspected to be involved.  

On 17 April 2018, the Pune police conducted searches at the residences and  

offices of the following persons:  

1 Rona Wilson, a resident of Delhi;  

2 Surendra Gadling, a resident of Nagpur;  

3 Sudhir Dhawale and Harshali Potdar, residents of Mumbai;    

4 Sagar Gorakhe, a resident of Pune;   

5 Dipak Dhengale, a resident of Pune; and  

6 Ramesh Gaychore and Jyoti Jagtap, residents of Pune  

In the counter affidavit which has been filed by the Assistant Commissioner of  

Police, Pune city, it has been stated that the material retrieved from the  

computers, laptops, pen drives and memory cards of the above accused  

persons implicated them as active members of the Communist Party of India  

(Maoist), a banned organisation, and reflected a design of being involved in the  

commission of offences having the potential to destabilise the country. Based  

on the investigation, the provisions of Sections 13, 16, 17, 18, 18B, 20, 38, 39  

and 40 of the UAPA were invoked on 17 May 2018 against the following  

individuals:  

(i) Surendra Gadling;  

10    

(ii) Rona Wilson;    

(iii) Shoma Sen;    

(iv) Mahesh Raut;    

(v) Comrade M. alias Milind Teltumbade (underground);  

(vi) Comrade Prakash alias Navin alias Rituparn Goswami                           (underground);    

(vii) Comrade Manglu (underground); and  

(viii) Comrade Dipu and other underground members.    

On 6 June 2018 five persons were arrested namely:  

(i) Surendra Gadling;  

(ii) Rona Wilson;  

(iii) Sudhir Dhawale;  

(iv) Shoma Sen; and  

(v) Mahesh Raut.  

The counter affidavit filed by the Assistant Commissioner of Police states that  

it is on the basis of the material recovered during the course of the search of  

the above persons that the five individuals on whose behalf the present  

proceedings have been instituted were found to be a part of the criminal  

conspiracy. The averment in the counter reads as follows:  

“I state and submit that based upon the aforesaid material  

recovered from the searches of the aforesaid persons [which  

is a part of the case diary and which would be placed for  

consideration and perusal of this Hon’ble Court in a sealed  

cover], the following persons were also clearly found to be a  

part of the criminal conspiracy and their role was not merely  

peripheral role but they were found to be playing a very vital  

role in the criminal offences committed and/or planned by

11    

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 the five  

accused persons named hereinabove are arrested, clearly  

show that they were involved in selecting and encouraging  

cadres to go underground in ‘struggle area’, mobilizing and  

distributing money, facilitating selection and purchase of arms,  

deciding the rates of such arms into India for its onward  

distribution amongst the cadres. Some of them have  

suggested training and laying of booby traps and directional  

mines.  They are also found to be providing strategic inputs in  

furtherance of the objective of armed rebellion as per the  

strategic document of the banned terrorist organisation namely  

Communist Party of India (Maoist).”   

The petition was initially taken up for hearing on 29 August 2018. Interim  

directions to place the five individuals under house arrest were issued, in terms  

of the request made by their counsel:

12    

“We have considered the prayer for interim relief. It is submitted  

by Dr. Abhishek Manu Singhvi, learned senior counsel  

appearing for the petitioners that in pursuance of the order of  

the High Court, Mr. Gautam Navalakha and Ms. Sudha  

Bharadwaj have been kept under house arrest. It is suggested  

by him that as an interim measure, he has no objection if this  

Court orders that Mr. Varavara Rao, Mr. Arun Ferreira and Mr.  

Vernon Gonsalves, if arrested, they are kept under house  

arrest at their own homes. We order accordingly. The house  

arrest of Mr. Gautam Navalakha and Ms. Sudha Bharadwaj  

may be extended in terms of our orders.”  

Since the case was being heard, the house arrest has since been extended by  

the interim directions of this Court of 6 September 2018 and 17 September  

2018.  During the course of the hearing, permission has been sought to formally  

amend the writ petition to seek the constitution of a Special Investigating Team  

under the directions of this Court, so as to ensure an independent investigation.  

9 Unfolding his submissions, Dr Abhishek Manu Singhvi, learned senior  

counsel stated that a First Information Report in respect of the violence which  

took place on 1 January 2018 (FIR 2/2018) was lodged by Anita R Sawale at  

PS Pimpri on 2 January 2018. The FIR alleges that violence was unleashed  

against Dalits by a mob armed with swords, rods and other weapons. The FIR  

specifically names Sambhaji Bhide, head of an organisation known as  

Shivajinagar Pratishthan and Milind Ekbote, Chief of Hindu Janjagaran Samiti  

as perpetrators and conspirators. Sambhaji Bhide has not been arrested while  

Milind Ekbote is stated to have secured bail within a month of his arrest. The  

FIR relates to offences under the Penal Code, Arms Act and the SC/ST Act2.   

                                                           2 The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989

13    

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  

Court3. 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,  

“The Good Person of Szechwan”, (1942).  Notably, according to the submission,  

FIR 4/2018 does not allude to any conspiracy to attack the Prime Minister. It has  

been submitted that it is undisputed that none of the activists under house arrest  

were named in the FIR. They are not alleged to be present at the Elgar Parishad  

on 31 December 2017 or at Bhima-Koregaon on 1 January 2018. Moreover,  

according to the submission, the State of Maharashtra opposed the anticipatory  

bail of Milind Ekbote on the ground that the violence was committed as a part of  

a pre-planned conspiracy by him and by others. The arrests of the five persons  

were affected nearly nine months thereafter.    

                                                           3 Criminal Writ Petition 1875/2018

14    

10 The next limb of the submission of Dr Singhvi is that certain letters which  

are alleged to have been authored by the arrested activists are ex-facie  

fabricated.  These letters are alleged to have been recovered by the police from  

the electronic devices of one of the accused who was raided in the month of  

April 2018 and was arrested in June 2018. Shri Parambir Singh, Additional  

Director General of Police (Law and Order), State of Maharashtra appeared in  

a television programme called “Truth v Hype” on NDTV on 1 September 2018  

and stated that the letters which were placed before the media by senior police  

functionaries were yet to be verified. According to the petitioners, thirteen such  

alleged letters were leaked to the media by the police during the course of press  

briefings. They are now available in the public domain. These letters, it has been  

submitted, do not find mention even in the transit applications filed by the Pune  

police before the concerned court. The letters are unsigned and do not bear any  

identifiable particulars including e-mail addresses or headers. Curiously, the  

recovery is stated to have been made from the electronic devices of a third  

person who is neither the author nor the addressee of the letters. Hence, it has  

been urged that:   

(i) While it was alleged that a plot against the Prime Minister has been  

uncovered in an alleged letter, it is noteworthy that no new FIR has been  

registered by the police and investigation continues by the Pune police under  

FIR 4/2018, pertaining to the Bhima-Koregaon violence;  

15    

(ii) The state is not taking the conspiracy theory seriously as is evident from the  

fact that no fresh FIR has been registered and the investigation continues to  

remain with the Pune police; and  

(iii) Seven out of the thirteen alleged letters which were leaked to the media by  

the police have been authored by or addressed to one “Comrade Prakash”. The  

Sessions Court at Gadchiroli in its judgment dated 7 March 2017 convicting GN  

Saibaba in Sessions Case 13/2014 held that he had used the pseudonym  

‘Prakash’ in letters scribed by him. It is a matter of record that Saibaba has been  

lodged in Nagpur Central Jail since 7 March 2017 and hence the alleged letters  

attributed to him after that date are ex-facie fabricated.    

Dr Singhvi has drawn the attention of the court to the consistent pattern and  

history of the police targeting human rights activists and incarcerating them by  

foisting false criminal cases. This is buttressed by adverting to the prosecutions  

launched against three of the August 2018 detenues. Vara Vara Rao was  

implicated in 25 cases out of which 13 ended in acquittal, 3 in discharge and 9  

in the withdrawal of the prosecution. He has not been convicted in any case and  

is 79 years of age. Arun Ferreira has been acquitted in all the 11 cases in which  

he was implicated. Vernon Gonsalves has been acquitted in 17 out of the 19  

cases in which he was accused; a discharge application is pending in one case  

while an appeal against conviction in another case is pending before the Nagpur  

bench of the High Court, where he has already served his sentence.    

16    

11 During the course of his submissions, Dr Singhvi urged that there was a  

gross violation of law rendering the arrest, search and seizure unlawful. The  

panch witnesses were ‘imported’ from Pune and are employees of the Pune  

Municipal Corporation. The two panch witnesses travelled together with the  

Pune police and are stock witnesses. Hence it has been submitted that there  

has been a clear violation of the safeguards introduced in Section 41B of the  

Code of Criminal Procedure, 1973. In the transit remand application of Sudha  

Bhardwaj, the Pune police submitted before the Court of the CJM, Faridabad on  

28 August 2018 that her remand was necessary since other individuals who  

were arrested in June 2018 had made disclosure statements in regard to  

incitement of the riots in Koregaon. Significantly, no such disclosure has been  

made by the arrested persons nor is there a mention of a Maoist conspiracy in  

the alleged letters or in the remand application.    

12 In summation, Dr Singhvi urged that each of the persons who were  

arrested on 28 August 2018 is an active defender of human rights. They have  

taken a position on human rights violations. The submission is that this targeted  

persecution is meant to strike fear amongst human rights’ lawyers, activists and  

writers to deter them from speaking against or critiquing governmental policies  

and police actions. Persecution of this nature would, it has been urged, shake  

the foundation of the rule of law and render the freedoms guaranteed by the  

Constitution illusory. Learned counsel submitted that the purpose of these  

proceedings is not to thwart an investigation but to ensure that the investigation

17    

is fair and impartial.  It was urged that in a long line of precedent, this Court has  

ordered the constitution of Special Investigation Teams (SIT) or a court  

monitored investigation under Article 32 of the Constitution. In the present case,  

it was urged, that the facts which have been adverted to before the Court  

indicate that the investigation has been anything but fair and impartial. The  

targeting of human rights 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.   

13 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 Criminal Procedure Code (Rajiv Ranjan Singh ‘Lalan’ (VIII)  

v Union of India,4 Gulzar Ahmed Azmi v Union of India,5 Simranjit Singh  

Mann v Union of India6  and Ashok Kumar Pandey v State of West Bengal7;  

(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.  

                                                           4 (2006) 6 SCC 613  5 (2012) 10 SCC 731  6 (1992) 4 SCC 653  7 (2004) 3 SCC 349

18    

Hence it would be impermissible to allow their prayer for transposing them or  

adopting the averments in the petition (Pratibha Ramesh Patel v Union of  

India8, Udyami Evam Khadi Garmodyog Welfare Sanstha v State of UP9);  

(iii) A PIL under Article 32 would not be maintainable for the purpose of seeking  

relief under Sections 438 and 439 of the Criminal Procedure Code;  

(iv) Reliefs in the nature of a writ of Habeas Corpus, which have been sought in  

the present proceedings under Article 32 are not maintainable (State of  

Maharashtra v Tansen Rizwan Siddiquee10);  

(v) The accused does not have a vested right to seek an investigation monitored  

by the court or to have a particular agency as the investigator; and  

(vi) The investigation in the present case is being conducted responsibly and  

impartially by an officer of the rank of an Assistant Commissioner of Police. The  

investigation is being carried out under the supervision of a Deputy  

Commissioner of Police and is being monitored by the Joint Commissioner of  

Police who is of the rank of an Additional Director General.  

14 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  

                                                           8 (2016) 12 SCC 375  9 (2008) 1 SCC 560  10 (2018) 10 SCALE 711

19    

such as remand, bail (including anticipatory bail) and quashing of proceedings,  

recourse must be taken to the provisions of the Code. These principles have  

been highlighted in the decisions to which a reference has been made by the  

ASG.  In Rajiv Ranjan Singh (supra) the trial had commenced in a criminal  

case involving a charge of amassing wealth disproportionate to the known  

source of income of a public servant.  This Court held that a PIL is not meant to  

advance a political agenda and would be alien to pending criminal proceedings.  

The petitioners were not de facto complainants and if at all they had a grievance  

regarding the removal of a public prosecutor, they should have moved the  

Special Judge or the High Court at the earliest point of time. The Court  

emphasised that any interference at the behest of a third party was liable to  

affect the course of justice and may even prejudice the accused by denying a  

fair trial. In Gulzar Ahmed Azmi (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

20    

allow a third party or stranger to question the correctness of a conviction and  

sentence imposed after trial.  These principles were also adverted to in the  

earlier decision in Ashok Kumar Pandey (supra).  They are well settled.  As a  

court which is governed by precedent, we are bound by them and by a  

consistent line of authority which requires that during the course of investigation,  

it is to the competent court that an accused must ordinarily turn for the remedies  

that are available under substantive or procedural provisions of the criminal law.   

15 But in the present case, it is necessary for the Court to bear in mind that  

recourse to its constitutional jurisdiction under Article 32 has been invoked not  

only by the petitioners but by the five individuals who were arrested on 28  

August 2018. The petition was moved before this Court on 29 August 2018  

when, as already noted, an interim order was passed directing that the five  

arrested persons be placed under house arrest. At the earliest possible point in  

time, these five individuals have moved this Court indicating that they abide by  

the averments and reliefs sought in the petition and seek that they should be  

transposed as petitioners under Article 32. The petitioners have not in their  

submissions sought recourse to the jurisdiction of this Court for espousing a  

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. When the petition was initially

21    

filed, the relief which was sought was in regard to the circumstances relating to  

the arrest of the human rights activists. By an application for amendment, the  

reliefs have been sought to be amended to inter alia seek the constitution of a  

Special Investigating Team (to be monitored by this Court). For clarity, the  

above reliefs are extracted below:  

“i) Issue an appropriate writ, order or direction for setting up of  

a Special Investigating Team (SIT) comprising of senior police  

officers with impeccable career records of professionalism,  

integrity and independence, reporting directly to this Hon’ble  

Court, for conducting a fair and independent investigation and  

inquiry into the offences stated 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 by Tushar Damgude, and all other related matters  

and allegations; or  

ii) Issue an appropriate writ, order or direction for the  

investigation 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;”   

16 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

22    

and credible investigation by such persons as may be deemed  

fit under supervision of this Hon’ble Court.  Anything short of  

this will damage the fabric of nation irreparably.”                                         

(emphasis supplied)  

The application for amendment, does not, in other words, set up a new case but  

is intended to introduce a formal prayer on the basis of averments which have  

already been made in the petition as it was originally filed.  

17 This Court, as a constitutional adjudicator, has been entrusted with the  

jurisdiction under Article 32 to secure the fundamental freedoms guaranteed by  

Part III of the Constitution. While the discipline of the law of criminal procedure  

must at all times be kept in view, it cannot be gainsaid that the protection of  

fundamental liberties is a subject so integral to democratic constitutional values  

that technicalities should not be allowed to override the cause of substantive  

justice. The court must undoubtedly tread with circumspection for in the guise  

of seeking access to its wide jurisdiction under Article 32, the normal remedies  

under the criminal law should not be displaced. Again, as the court has  

repeatedly emphasised, public interest litigation should not become a weapon  

for settling political scores or of pursuing extraneous ends. In the present case,  

we have no manner of doubt that 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 we have five citizens who have invoked the  

jurisdiction of this Court in extraordinary circumstances where they claim that a

23    

group of human rights activists has been targeted by the state police. Each of  

those five individuals has joined in these proceedings.   

18 Over the course of the last decade, the jurisdiction of this Court has  

evolved under Article 32 to order the constitution of a SIT. In National Human  

Rights Commission v State of Gujarat,11 a SIT was constituted in a matter  

involving a serious element of communal disharmony. Further directions were  

issued by this Court for regular status reports to be filed by the SIT (NHRC v  

State of Gujarat12). In Ram Jethmalani v Union of India,13 this Court observed  

that in several instances in the past, when the issues were of a complex nature,  

yet requiring the intervention of the Court, SITs were ordered to be constituted  

to enable the Court, the Union government and other organs of the state to fulfil  

their constitutional obligations. In Common Cause v Union of India,14 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,15  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  

                                                           11 (2009) 6 SCC 342  12 (2009) 6 SCC 767  13 (2011) 8 SCC 1  14 (2017) 3 SCC 501  15 (2018) 3 SCC 664

24    

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.  

19 Mr Harish Salve, learned senior counsel appearing on behalf of the  

complainant, has sought to urge that a SIT has been constituted in cases where  

there is an allegation against the political class in power, so that the investigation  

is not derailed by those who are capable of intercepting it. Such a construction,  

in my view, would restrict the width and ambit of the jurisdiction which has  

advisedly been entrusted to this Court by the framers of the Constitution. The  

fact that in a particular case, a SIT was ordered to be constituted in a situation  

where there was an allegation of interference with the investigation by the  

political establishment is not a reason to confine the exercise of the jurisdiction  

only to such cases. In the rights discourse, violations of law and transgressions  

of human rights arise in myriad situations which it may be difficult to anticipate  

exhaustively. Prudently therefore, the jurisdiction under Article 32 is not hedged  

in by technicalities nor would it be wise to confine it to stated categories. The  

ultimate touchstone for the exercise of the jurisdiction is that a violation of the  

fundamental human freedoms relatable to the cardinal values of liberty, dignity  

and equality under Part III of the Constitution is in issue.   

25    

20 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. In Vineet Narain v Union of India,16   

this Court in the context of the widely publicised Jain Hawala transactions case  

ordered a court monitored investigation to ensure that government agencies  

discharged their duties and functions bearing in mind the tenets of equality and  

the rule of law. In doing so, this Court emphasised the need to retain public  

confidence in the process of investigation. In Babubhai Jamnadas Patel v  

State of Gujarat,17 a two judge Bench, while noting that investigation of  

offences is normally the function of the investigating agency emphasised that  

where extraordinary facts or situations are involved, it is the duty of the High  

Courts and of this Court to intervene to ensure that the rights of citizens are duly  

protected:  

“The courts, and in particular the High Courts and the Supreme  

Court, are the sentinels of justice and have been vested with  

extraordinary powers of judicial review and supervision to  

ensure that the rights of the citizens are duly protected.”  

In Centre for Public Interest Litigation v Union of India,18 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,19 this Court held that in an appropriate case,  

or when exceptional circumstances have been made out, the jurisdiction under  

                                                           16 (1996) 2 SCC 199  17 (2009) 9 SCC 610  18 (2011) 1 SCC 560  19 (2013) 15 SCC 578

26    

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.    

21 With this body of precedent on the subject, the maintainability of a prayer  

for relief, seeking that the investigation should be either monitored by this Court  

or should be entrusted to an independent SIT under the directions of this Court  

cannot be in doubt. Though wide-ranging submissions have been urged before  

this Court on merits, it is necessary that the court must eschew a detailed or  

meticulous examination of the material produced by the ASG together with the  

case diary, particularly when the investigation is in progress.  The expression of  

a finding by this Court would affect the administration of criminal justice or  

perhaps in a given case, even the rights of the accused. The observations of  

this Court must, therefore, be confined to assessing whether a case has been  

made out for the constitution of a SIT and matters having a bearing on that  

decision.    

22 I must, at the outset, dwell on the fairness of the manner in which the  

police have approached this investigation. On 29 August 2018, this Court issued  

notices to the State of Maharashtra and to the others impleaded as respondents  

to the proceedings. Within a few hours of the conclusion of the court hearing, a  

press conference was held in Pune by Shivarjirao Bodhke, the Joint  

Commissioner of Police proclaiming that the Pune police had more than

27    

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 Shri Parambir Singh, 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.  A video of the  

press conference is annexed in the form of a CD at Annexure R-2 of the  

rejoinder and has been uploaded on  

https://www.youtube.com/watch?v=PCVKfstx2Qc. On 1 September 2018 the  

ADG (Law and Order) appeared on a television programme titled “Truth v Hype”  

on NDTV, during the course of which he is stated to have agreed that the letters  

which had been read out by him were still undergoing forensic analysis together  

with the electronic devices.  The CD of the programme is annexed as Annexure  

R-3 to the rejoinder. Besides this, the attention of the Court has been drawn to  

the fact that 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 Sudha Bhardwaj was

28    

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.  

23 In Rajendran Chingaravelu v RK Mishra,20  this Court deprecated the  

tendency of the police to reveal details of an investigation to the media even  

before the completion of the investigation. This Court observed:  

“21. But the appellant’s grievance in regard to media being  

informed about the incident even before completion of  

investigation, is justified. There is growing tendency among  

investigating officers (either police or other departments)  

to inform the media, even before the completion of  

investigation, that they have caught a criminal or an  

offender. Such crude attempts to claim credit for  

imaginary investigational breakthroughs should be  

curbed.  Even where a suspect surrenders or a person  

required for questioning voluntarily appears, it is not  

uncommon for the Investigation Officers to represent to the  

media that the person was arrested with much effort after  

considerable investigation or a case.  Similarly, when someone  

voluntarily declares the money he is carrying, media is  

informed that huge cash which was not declared was  

discovered by their vigilant investigations and thorough  

checking.  Premature disclosures or ‘leakage’ to the media in  

a pending investigation will not only jeopardise and impede  

further investigation, but many a time, allow the real culprit to  

escape from law...”                               (emphasis supplied)  

24 This facet of the case of serious concern. The manner in which the Joint  

Commissioner of Police and the Additional Director General of Police (Law and  

                                                           20 (2010) 1 SCC 457

29    

Order), Maharashtra have selectively disclosed purported details of the  

investigation to the media and on television channels casts a cloud on the  

impartiality of the investigative process. In its 2010 decision in Rajendran  

(supra) this Court was constrained to take note of this growing tendency on the  

part of investigating agencies. 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 has been  

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

30    

Maharashtra police can now be trusted to carry out an independent and  

impartial investigation.  

25 During the course of the hearing, the learned ASG has assisted the Court  

by tendering the case diary and a compilation of documentary material. As a  

matter of prudence, the court must desist from adverting to the details contained  

in the compilation or in the case diary save and except for indicating broad  

reasons in the course of evaluating the reliefs which have been claimed. The  

counter affidavit, which has been filed by the State of Maharashtra makes it  

abundantly clear that the arrest of the five individuals (on 28 August 2018) was  

based on “material gathered from others”. This adverts to the material alleged  

to have been gathered in the course of the raids conducted against those  

individuals who were arrested in the months of June and July 2018. Paragraph  

26 of the counter (which has been extracted earlier) states that this material  

“clearly shows that they were involved” in (i) selecting and incorporating cadres  

to go underground in the ‘struggle area; (ii) mobilising and distributing money;  

(iii) facilitating selection and purchase 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.  

 26 Next, it is alleged that “some of them” (i) “have suggested training and  

laying of booby traps and directional mines”; and (ii) “are found to be providing  

strategic inputs in furtherance of the objective of armed rebellion” in pursuance

31    

of a strategic document of a banned terrorist organisation namely, the  

Communist Party of India (Maoist). With the assistance of the ASG I have  

carefully perused the compilation produced before the Court. Upon perusing the  

material, I find that the allegation that each of the five individuals arrested on 28  

August 2018 is found to be engaged in activities of the nature set out in  

paragraph 26 of the counter affidavit (extracted above) is taking liberties with  

the truth. General allegations against the philosophy of a banned organisation,  

its policies and 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. At this stage, it is necessary to note the submission which has  

been urged in regard to an undated letter of Sudha Bhardwaj to Comrade  

Prakash which was also allegedly distributed to the media. There is a serious  

bone of contention in regard to the authenticity of the letter which, besides being  

undated, does not contain any details including the e-mail header. A statement  

has been handed over the court in support of the submission that the letter is  

an obvious fabrication made by a Marathi speaking person because in as many  

as 17 places, it contains references to words scribed in Devanagari, using forms  

peculiar to Marathi. It has been urged that Sudha Bhardwaj who does not belong  

to Maharashtra and is not Marathi speaking, could not possibly have written a  

letter in Devanagari utilising essentially Marathi forms of grammar or address.   

We need not delve into these aspects at this stage, since they are matters for a  

fair investigation.    

32    

27 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.  

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.”  

(emphasis supplied)  

The two panch witnesses in the present case are employees of the Pune  

Municipal Corporation. It is not disputed before this Court that they travelled as  

part of the police team which made the arrest.    

28 It was in DK Basu v State of West Bengal,21 that this Court laid down  

requirements to be followed in all cases of arrest, which included the following:  

“(2) That the police officer carrying out the arrest of the arrestee  

shall prepare a memo of arrest at the time of arrest and such  

                                                           21 (1997) 1 SCC 416

33    

memo shall be attested by at least one witness, who may either  

be a member of the family of the arrestee of a respectable  

person of the locality from where the arrest is made. It shall also  

be countersigned by the arrestee and shall contain the time and  

date of arrest.”  

This Court observed that the requirements it had enunciated emanated from  

Articles 21 and 22(1) of the Constitution and “need to be strictly followed” failing  

which action for contempt of court would be initiated.  

 29 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 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. In the  

background which has been adverted to earlier, it would be blasé to accept the

34    

submission that the investigation by the police should be allowed to proceed  

without a safeguard for ensuring the impartiality and independence of the  

investigative agency. 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. 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.  

30 The judgment of the majority has relied on certain decisions to hold that  

such a petition as in the present case is not maintainable and the prayer for the  

constitution of SIT at the behest of the five individuals under investigation cannot  

be entertained. In Narmada Bai v State of Gujarat,22 the petitioner filed a writ  

                                                           22 (2011) 5 SCC 79

35    

petition under Article 32 for issuance of a writ directing the CBI to register a FIR  

in a case pertaining to an alleged fake encounter in which her son was killed.  

The key issue was whether after filing of the charge-sheet by the state  

investigative agency, this Court was precluded from appointing an independent  

specialised agency like the CBI to go into the same issues, if the earlier  

investigation was not done in accordance with the established procedure. The  

factual determination to be carried out was whether the petitioner had made out  

a case for entrusting the investigation to the CBI.  

31 While this Court observed that “It is trite law that accused persons do not  

have a say in the matter of appointment of an investigation agency” and that  

“the accused persons cannot choose as to which investigation agency must  

investigate the alleged offence committed by them”, the Court also observed  

that there were “large and various discrepancies” in the reports and the  

investigation conducted by the police authorities of the State of Gujarat and that  

the charge-sheet filed by the state investigating agency could not be “said to  

have run in a proper direction.” A two judge Bench of this Court concluded that  

even though the charge-sheet had been filed, in view of the circumstances  

brought to the notice of the Court, the involvement of the police officials of the  

State of Gujarat in the investigation was “undesirable”. Thus, “to meet the ends  

of justice and in the public interest”, the CBI was be directed to take charge of  

the investigation.  

36    

32 This case supports my view that in the interest of justice, and particularly  

when there are serious doubts regarding the investigation being carried out, it  

is not only permissible, but our constitutional duty to ensure that the  

investigation is carried out by a special investigation team or a special  

investigative agency so that justice is not compromised.  

 33 In Sanjiv Rajendra Bhatt v Union of India,23 the petitioner, who was an  

IPS officer filed a plea before this Court seeking the appointment of a SIT, to  

probe into two FIRs 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.   

 34 In E Sivakumar v Union of India,24 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  

                                                           23 (2016) 1 SCC 1  24 (2018) 7 SCC 365

37    

criminal case to the Central Bureau of Investigation. One of us (Khanwilkar J)  

who authored the judgment on behalf of this Bench held:  

“The High Court has cogitated over all the issues exhaustively  

and being fully satisfied about the necessity to ensure fair  

investigation of the crime in question, justly issued a writ of  

mandamus to transfer the investigation to the CBI.”25  

The judgment of the High Court was upheld on the following ground:  

“… the question regarding the necessity to ensure a fair and  

impartial investigation of the crime, whose tentacles were not  

limited to the State of Tamil Nadu but transcended beyond to  

other States and may be overseas besides involving high  

ranking officials of the State as well as the Central  

Government, has now been directly answered. For instilling  

confidence in the minds of the victims as well as the public at  

large, the High Court predicated that it was but necessary to  

entrust the investigation of such a crime to CBI. Viewed thus,  

there is no infirmity in the conclusion reached by the High Court  

in the impugned judgment, for having entrusted the  

investigation to CBI.”26  

Drawing attention to the duty of this Court as adjudicator, it was also observed:  

“It is the bounden duty of a court of law to uphold the truth and  

truth means absence of deceit, absence of fraud and in a  

criminal investigation a real and fair investigation, not an  

investigation that reveals itself as a sham one. It is not  

acceptable. It has to be kept uppermost in mind that impartial  

and truthful investigation is imperative…If a grave suspicion  

arises with regard to the investigation, should a constitutional   

court close its hands and accept the proposition that as the trial  

has commenced, the matter is beyond it?...”27     

                                                     (emphasis supplied).  

                                                           25 Ibid, at para 5  26 Ibid, at para 9  27 Ibid, at para 13

38    

The above observations are a significant reminder of the function of this Court,  

as the protector of the fundamental rights of citizens. These rights must be  

safeguarded particularly when there is a possibility that failure to take a position  

may lead to a denial of justice.  

35 The case of Divine Retreat Centre v State of Kerala28 concerned with  

the maintainability of an anonymous petition to a judge of the High Court seeking  

a direction for an investigation. The anonymous petition was taken up suo motu  

by the High Court under Section 482 of the Code of Criminal Procedure and the  

investigation of the criminal case was directed to be taken away from the  

investigating officer and entrusted to a SIT. The central question 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.”       (emphasis supplied)  

                                                           28 (2008) 3 SCC 542

39    

The Court in the context of Article 226 commented on the maintainability of  

public interest litigation as follows:  

“It is well settled that a public interest litigation can be  

entertained by the constitutional courts only at the instance of  

a bona fide litigant. The Supreme Court has uniformly and  

consistently held that the individual who moves the Court for  

judicial redress in cases of public interest litigation must be  

acting bona fide with a view to vindicating the cause of justice  

and not for any personal gain or private profit or of the political  

motivation or other oblique consideration…”29  

It was also observed that:  

“the High Court in exercise of its whatsoever jurisdiction  

cannot direct investigation by constituting a special  

investigation team on the strength of anonymous petitions.30  

36 These observations indicate that what found disfavour with this Court was  

the High Court having entertained an anonymous petition to constitute a SIT.  

The facts of the above case are distinct from the case at hand. The observations  

made on the maintainability of public interest litigation only lend support to the  

present case. The petitioners in the present case are not anonymous. There  

has been no argument that the petitioners have been motivated by personal  

gain or political considerations.   

 37 Recently on 14 September 2018, the learned Chief Justice, speaking for  

the present bench of three Judges handed down a verdict31 granting  

                                                           29 Ibid, at para 59  30 Ibid, at para 50  31 S Nambi Narayanan v Siby Mathews, (2018) 11 SCALE 171

40    

compensation of Rs 50 lakhs to a space scientist who was found upon further  

investigation by the CBI to have been wrongfully implicated and subjected to  

custodial interrogation. This was on an allegation that he had leaked out official  

secrets of the Indian Space Research Organisation. The learned Chief Justice  

held:   

“...there can be no scintilla of doubt that the appellant, a  

successful scientist having national reputation, has been  

compelled to undergo immense humiliation. The lackadaisical  

attitude of the State police to arrest anyone and put him in  

police custody has made the appellant to suffer the ignominy.  

The dignity of a person gets shocked when psycho-

pathological treatment is meted out to him. A human being  

cries for justice when he feels that the insensible act has  

crucified his self-respect. That warrants grant of compensation  

under the public law remedy. We are absolutely conscious that  

a civil suit has been filed for grant of compensation. That will  

not debar the constitutional court to grant compensation taking  

recourse to public law. The Court cannot lose sight of the  

wrongful imprisonment, malicious prosecution, the humiliation  

and the defamation faced by the appellant.”  

The fact that the payment of compensation was ordered nearly 24 years after  

the wrongful arrest is a grim reminder about how tenuous liberty can be and of  

the difficulty in correcting wrongs occasioned by unlawful arrest.   

38 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,32  Delhi Judicial Service Association v State of Gujarat,33 Joginder  

                                                           32 (1989) 1 SCC 494  33 (1991) 4 SCC 406

41    

Kumar v State of UP34 and DK Basu v State of West Bengal35. In DK Basu,  

this Court elucidated on the importance of personal liberty in the constitutional  

scheme:   

“17. Fundamental Rights occupy a place of pride in the Indian  

Constitution. Article 21 provides “no person shall be deprived  

of his life or personal liberty except according to procedure  

established by law”. Personal liberty, thus, is a sacred and  

cherished right under the Constitution. The expression “life or  

personal liberty” has been held to include the right to live with  

human dignity and thus it would also include within itself a  

guarantee against torture and assault by the State or its  

functionaries.”  

The Court also emphasized that no arrest can be made without reasonable  

satisfaction after investigation about the genuineness and bona fides of a  

complaint:  

“20. This Court in Joginder Kumar v. State of U.P. [(1994) 4  

SCC 260 : 1994 SCC (Cri) 1172] (to which one of us, namely,  

Anand, J. was a party) considered the dynamics of misuse of  

police power of arrest and opined:   

“No arrest can be made because it is lawful for the police officer  

to do so. The existence of the power to arrest is one thing. The  

justification for the exercise of it is quite another. … No arrest  

should be made without a reasonable satisfaction reached  

after some investigation as to the genuineness and bona fides  

of a complaint and a reasonable belief both as to the person's  

complicity and even so as to the need to effect arrest. Denying  

a person of his liberty is a serious matter.””  

                                                           34 (1994) 4 SCC 260  35 (1997) 1 SCC 416

42    

39 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.   

40 Hence, I am of the view that 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.    

41 Hence, following the line of precedent of this Court which has been  

discussed earlier, I am firmly of the view that 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.36 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. I would direct that the petition   

                                                           36 Speaking as I do for the minority, I have not indicated the names of the personnel who would constitute the SIT.  Should that occasion arise, liberty is granted to seek an appropriate direction from this Court.

43    

be listed after three days for orders on the constitution of the Special  

Investigating Team. There shall be an order in these terms.   

                                   …….........................................................J            [Dr Dhananjaya Y Chandrachud]    New Delhi;  September 28, 2018