ROMILA THAPAR & Ors. v. UNION OF INDIA & Ors.

space in the judicial docket. Liberty and freedom are defining values of the Constitution. The institutional role of Supreme Court as a constitutional adjudicator should brook no technicalities which obstruct the cause of justice. When a group of citizens has moved this Court with an impassioned plea about the violation of human rights- in the present case no less than five distinguished citizens with a track record of service to the nation have done so- the Court must look beyond locus into the heart of the matter. Whether the grievance has any substance is indeed a distinct matter which must be determined objectively. The Court will not interfere in every case merely because it has the jurisdiction. But its duty to scrutinise, perceive and remedy violations of human rights is non-negotiable. However, the issue of locus, even in a technical sense, has receded into the background. During the course of the hearing, the Court has been apprised that each of the five individuals who were arrested has subscribed to the averments in the petition and would stand by what is urged before this Court in protection of their rights. The objection to maintainability lacks substance, in either view of the matter. [Para 5] [993-A-D]

1.2 While entertaining these proceedings, this Court is conscious of the fact that ordinarily, when an investigation into a criminal offence is in progress, rights and remedies are provided by the Code of Criminal Procedure. Hence, it is but trite law that in matters pertaining to or arising during the course of investigation such as remand, bail (including anticipatory bail) and quashing of proceedings, recourse must be taken to the provisions of the Code. During the course of investigation, it is to the competent court that an accused must ordinarily turn for the remedies that are available under substantive or procedural provisions of the criminal law. But in the present case, it is necessary for the Court to bear in mind that recourse to its constitutional jurisdiction under Article 32 has been invoked not only by the petitioners but by the five individuals who were arrested on 28 August 2018. The petition was moved before this Court on 29 August 2018 when an interim order was passed directing that the five arrested persons be placed under house arrest. At the earliest possible point in time, these five individuals have moved this Court indicating that they abide by the averments A B C D E F G H 958 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H and reliefs sought in the petition and seek that they should be transposed as petitioners under Article 32. The petitioners have not in their submissions sought recourse to the jurisdiction of this Court for espousing a remedy which is available before the competent court under the Code of Criminal Procedure. These proceedings have been moved with a specific grievance that the arrest of the five individuals is an attempt by the State to muzzle dissent and that each of them is being persecuted for being a defender of persons subjected to human rights’ violations. [Paras 14, 15] [1001-D-E; 1002-C-G]

1.3 Supreme Court, as a constitutional adjudicator, has been entrusted with the jurisdiction under Article 32 to secure the fundamental freedoms guaranteed by Part III of the Constitution. While the discipline of the law of criminal procedure must at all times be kept in view, it cannot be gainsaid that the protection of fundamental liberties is a subject so integral to democratic constitutional values that technicalities should not be allowed to override the cause of substantive justice. The court must undoubtedly tread with circumspection for in the guise of seeking access to its wide jurisdiction under Article 32, the normal remedies under the criminal law should not be displaced. Again, as the court has repeatedly emphasised, public interest litigation should not become a weapon for settling political scores or of pursuing extraneous ends. In the present case, the initiation of the proceedings under Article 32 is not motivated by extraneous reasons. The law is not a respecter of social, economic or political status and every litigant who seeks access to justice has to be treated evenly. Here five citizens have invoked the jurisdiction of this Court in extraordinary circumstances where they claim that a group of human rights activists has been targeted by the State police. Each of those five individuals has joined in these proceedings. Over the course of the last decade, the jurisdiction of this Court has evolved under Article 32 to order the constitution of a SIT. Such instances indicate the diversity of settings in which this Court has ordered the constitution of SITs. Decisional flexibility in the exercise of this jurisdiction meets exigencies which arise in unforeseen situations, warranting the intervention of this Court under Article 142. While the Court does not determine the course of the investigation, it acts as a ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. 959 watchdog to ensure that a fair and impartial investigation takes place. A fair and independent investigation is crucial to the preservation of the rule of law and, in the ultimate analysis to liberty itself. Besides the jurisdiction to order the constitution of a SIT, the proceedings of this Court are replete with instances where an investigation has been monitored under the authority of this Court. With the body of precedents on the subject, the maintainability of a prayer for relief, seeking that the investigation should be either monitored by this Court or should be entrusted to an independent SIT under the directions of this Court cannot be in doubt. [Paras 17, 18, 20 and 21] [1003-H; 1004-A-E; 1005- A-B; 1006-D-E]

1.4 On 29 August 2018, this Court issued notices to the State of Maharashtra and to the others impleaded as respondents to the proceedings. Within a few hours of the conclusion of the court hearing, a press conference was held in Pune by the Joint Commissioner of Police proclaiming that the Pune police had more than sufficient evidence against the five individuals whose transit remand was stayed by this Court while ordering them to be placed under house arrest. This is disconcerting behaviour – the Joint Commissioner sought in this oblique manner to respond to the interim order of this Court by recourse to the electronic media. On 31 August 2018, a press conference was addressed by a team of senior police officers headed by ADG (Law and Order), Maharashtra. During the course of the press conference letters (many of which should form part of the case diary) were selectively flashed and read out. According to the petitioners they were also leaked to the media. [Para 22] [1006-G-H; 1007-A-C]

1.5 The first round of arrests in the present case took place on 6 June 2018. On 8 June 2018 an alleged letter was released by the police to the media a little before the proceedings for remand before the competent court (in the June arrests), alleging that the arrested persons were plotting to attack the Prime Minister. On 4 July 2018 when the arrested persons were to be produced before the Court in Pune, a letter attributed to one ‘SB’ was sensationally telecast on a television channel linking her with the unlawful activities of certain groups. A serious grievance has been made about the fact that these letters have A B C D E F G H 960 SUPREME COURT REPORTS [2018] 11 S.C.R. neither been placed before the Court of law nor did they find mention in the transit remand applications moved before the CJM, Faridabad by the Pune police. [Para 22] [1007-E-F]

1.6 This facet of the case is of serious concern. The manner in which the Joint Commissioner of Police and the Additional Director General of Police (Law and Order), Maharashtra have selectively disclosed purported details of the investigation to the media and on television channels casts a cloud on the impartiality of the investigative process. The use of the electronic media by the investigating arm of the State to influence public opinion during the pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt. In the present case, police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is unfortunately a trial by the media. That the police should lend themselves to this process is a matter of grave concern. The investigation commenced as an enquiry into the Bhima-Koregaon violence. The course of the investigation was sought to be deflected by alleging (in the course of the press briefings of the police) that there was a plot against the Prime Minister. Such an allegation is indeed of a serious order. Such allegations require responsible attention and cannot be bandied about by police officers in media briefings. But during the course of the present hearing, no effort was made by the ASG to submit that any such investigation is being conducted in regard to the five individuals. On the contrary, he fairly stated that there was no basis to link the five arrested individuals to any such alleged plot against the Prime Minister. Nor does the counter affidavit makes any averment to that effect. All this has certainly a bearing on the basic question as to whether the Maharashtra police can now be trusted to carry out an independent and impartial investigation. [Para 24] [1008-D-H; 1009-A-B]

1.7 The counter affidavit, which has been filed by the State of Maharashtra makes it abundantly clear that the arrest of the five individuals (on 28 August 2018) was based on “material gathered from others”. This adverts to the material alleged to have been gathered in the course of the raids conducted against A B C D E F G H ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. 961 those individuals who were arrested in the months of June and July 2018. Paragraph 26 of the counter states that this material “clearly shows that they were involved” in (i) selecting and incorporating cadres to go underground in the ‘struggle area; (ii) mobilising and distributing money; (iii) facilitating selection and purchase of arms; (iv) deciding the rates of such arms; and (v) suggesting the routes and ways of smuggling such arms into India for its onward distribution amongst the cadres. Upon perusing the material, it is clear that the allegation that each of the five individuals arrested on 28 August 2018 is found to be engaged in activities of the nature set out in paragraph 26 of the counter affidavit is taking liberties with the truth. General allegations against the philosophy of a banned organisation, its policies and the modalities followed in the execution of its unlawful activities constitute one thing. Linking this to specific activities of named individuals is a distinct matter. [Paras 25, 26] [1009-C- E, G-H; 1010-A]

1.8 One of the circumstances which must certainly bear upon the fairness and impartiality of the process which has been followed by the investigating agency is in regard to the importation of two panch witnesses from Pune, when the arrests were carried out. Section 41B of Code of Criminal Procedure emphasises the importance of an independent witness while making an arrest. The two panch witnesses in the present case are employees of the Pune Municipal Corporation. It is not disputed that they travelled as part of the police team which made the arrest. [Para 27] [1010-D, H] D K Basu v State of West Bengal [1996] 10 Suppl. SCR 284 – relied on. (1997) 1 SCC 416 :

1.9 There is a serious allegation that the arrests have been motivated by an attempt to quell dissent and to persecute five individuals who have pursued the cause of persons who have suffered discrimination and human rights violations. In approaching the present case, the Court must be mindful of the need not to thwart a criminal investigation leading to the detection of unlawful acts. Equally, the Court has to be vigilant in the exercise of its jurisdiction under Article 32 to ensure that liberty is not sacrificed at the altar of conjectures. Individuals who assert A B C D E F G H 962 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes. Where, however, the expression of dissent enters upon the prohibited field of an incitement to violence or the subversion of a democratically elected government by recourse to unlawful means, the dissent ceases to be a mere expression of opinion. Unlawful activities which violate the law have to be dealt with in accordance with it. The conduct of the Pune police in utilising the agency of the electronic media to cast aspersions on those under investigation fortifies the need for an investigation which is fair. When the Joint Commissioner of Police and the Additional Director General of Police cast aspersions in the public media against persons whose conduct is still under investigation, and in disregard of proceedings pending before a judicial forum, it is the duty and obligation of this Court to ensure that the administration of criminal justice is not derailed. However, it is made clear that nothing in this order shall be construed as any observation on the merits of the investigation which is to take place. [Para 29] [1011-D-H; 1012-A-B]

1.10 Supreme Court has a constitutional obligation, where its attention has been drawn, in a case such as the present, to a real likelihood of the derailment of a fair investigative process to issue appropriate directions under Article 142 of the Constitution. Hence, while the investigation should not be thwarted, this is a proper case for the appointment of a Special Investigating Team. The Special Investigating Team shall submit periodical status reports to this Court, initially on a monthly basis. The interim order passed by this Court on 29 August 2018 shall continue to hold the field for a further period of three weeks within which it would be open to the said five individuals or any one or more of them to apply for bail before the Court of competent jurisdiction. [Paras 39-41] [1017-F-G; 1018-B] Sanjiv Rajendra Bhatt v Union of India (2016) 1 SCC 1 : [2015] 12 SCR 498 – distinguished. National Human Rights Commission v State of Gujarat (2009) 6 SCC 342; SIT (NHRC v State of Gujarat (2009) ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. 963 6 SCC 767 : [2009] 7 SCR 236; Ram Jethmalani v Union of India (2011) 8 SCC 1: [2011] 8 SCR 725; Common Cause v Union of India (2017) 3 SCC 501: [2017] 1 SCR 556; Sunita Devi v Union of India (2018) 3 SCC 664; Vineet Narain v Union of India (1996) 2 SCC 199 : [1996] 1 SCR 1053; Babubhai Jamnadas Patel v State of Gujarat (2009) 9 SCC 610; Centre for Public Interest Litigation v Union of India (2011) 1 SCC 560; Bharati Tamang v Union of India (2013) 15 SCC 578 : [2013] 14 SCR 525; Rajendran Chingaravelu v. RK Mishra (2010) 1 SCC 457 : [2009] 15 SCR 1113; Narmada Bai v State of Gujarat (2011) 5 SCC 79 : [2011] 5 SCR 729; E Sivakumar v Union of India (2018) 7 SCC 365; S. Nambi Narayanan v Siby Mathews (2018) 11 SCALE 171 – relied on. Rajiv Ranjan Singh ‘Lalan’ (VIII) v Union of India, (2006) 6 SCC 613: [2006] 4 Suppl. SCR 742; Gulzar Ahmed Azmi v Union of India, (2012) 10 SCC 731: [2012] 9 SCR 287; Simranjit Singh Mann v Union of India (1992) 4 SCC 653; Ashok Kumar Pandey v State of West Bengal (2004) 3 SCC 349 : [2003] 5 Suppl. SCR 716; Pratibha Ramesh Patel v Union of India (2016) 12 SCC 375: [2016] SCR 896; Udyami Evam Khadi Garmodyog Welfare Sanstha v State of UP (2008) 1 SCC 560; State of Maharashtra v Tansen Rizwan Siddiquee (2018) 10 SCALE 711; Divine Retreat Centre v State of Kerala (2008) 3 SCC 542 : [2008] 4 SCR 701; Kiran Bedi v Committee of Inquiry (1989) 1 SCC 494: [1989] 1 SCR 20; Delhi Judicial Service Association v State of Gujarat (1991) 4 SCC 406 : [1991] 3 SCR 936; Joginder Kumar v State of UP (1994) 4 SCC 260– referred to. Case Law Reference In the judgment of A.M. Khanwilkar, J. (for himself and Dipak Misra, CJI) [2011] 5 SCR 729 2015 12 SCR 498 relied on relied on Para 21 Para 22 A B C D E F G H 964 SUPREME COURT REPORTS [2018] 11 S.C.R. A (2018) 7 SCC 365 [2008] 4 SCR 701 [2010] 2 SCR 979 referred to referred to followed Para 23 Para 24 Para 25 In the judgment of Dr. D. Y. Chandrachud, J. (Dissenting) B C D E F [2006] 4 Suppl. SCR 742 referred to [2012] 9 SCR 287 (1992) 4 SCC 653 referred to referred to [2003] 5 Suppl. SCR 716 referred to [2016] SCR 896 (2008) 1 SCC 560 referred to referred to (2018) 10 SCALE 711 referred to (2009) 6 SCC 342 [2009] 7 SCR 236 [2011] 8 SCR 725 [2017] 1 SCR 556 (2018) 3 SCC 664 [1996] 1 SCR 1053 (2009) 9 SCC 610 (2011) 1 SCC 560 [2013] 14 SCR 525 [2009] 15 SCR 1113 relied on relied on relied on relied on relied on relied on relied on relied on relied on relied on [1996] 10 Suppl. SCR 284 relied on [2011] 5 SCR 729 relied on G [2015] 12 SCR 498 distinguished (2018) 7 SCC 365 [2008] 4 SCR 701 relied on referred to (2018) 11 SCALE 171 relied on H [1989] 1 SCR 20 referred to Para 13 Para 13 Para 13 Para 13 Para 13 Para 13 Para 13 Para 18 Para 18 Para 18 Para 18 Para 18 Para 20 Para 20 Para 20 Para 20 Para 23 Para 28 Para 30 Para 33 Para 34 Para 35 Para 37 Para 38 ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. 965 [1991] 3 SCR 936 (1994) 4 SCC 260 referred to referred to [1996] 10 Suppl. SCR 284 relied on Para 38 Para 38 Para 38 CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 260 OF 2018 Under Article 32 of the Constitution of India. Tushar Mehta and Maninder Singh, ASG, Dr. Abhishek Singhvi, Dr. Rajeev Dhawan, Amarendra Sharan, Harish N. Salve, Anand Grover, Sr. Advs., Prashant Bhushan, Ms. Vrinda Grover, Amit Bhandari, Avishkar Singhvi, Susan Abraham, D. Suresh, Soutik Banerjee, Ms. Ratna Appnender, Ms. Cheryl D’ Souza, Ms. Madhur Bhartiya, Ankit Grewal, Ms. Nidhi Ram, Harinder Neel, Omman Kuttan, Nishant Ramakantrao Katneshwarkar, Kanu Agrawal, Manan Popli, Ranvijay Singh, Shantanu Sharma, Rajeev Ranjan, R. Bala, Rajat Nair, Prabhas Bajaj, Swati Ghildiyal, Sachin Sharma, Ms. Devanshi Singh, Ms. Diksha Rai, Ms. Palak Mahajan, Ms. Diksha Rai, Nihal Sing Rathod, Ms. Tripti Tandon, Ms. Nehmat Kaur, Jagdish Meshram, Paras Nath Singh, Ms. Sangita Madan, Jitendra Ashok, Aakarsh Kamra, Abhishek Kumar, Shiv Sagar Tiwari, Advs. for the appearing parties. The Judgments of the Court were delivered by A. M. KHANWILKAR, J. 1. Five illustrious persons in their own field have filed this petition on 29th August, 2018 complaining about the high-handed action of the Maharashtra Police in raiding the homes and arresting five well known human rights activists, journalists, advocates and political worker, with a view to kill independent voices differing in ideology from the party in power and to stifle the honest voice of dissent. They complain that the five activists, namely, Gautam Navalakha, Sudha Bharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalves were arrested on 28th August, 2018 from their homes at New Delhi, Faridabad, Mumbai, Thane and Hyderabad, respectively, without any credible material and evidence against them justifying their arrest, purportedly in connection with FIR No.0004/2018 dated 8th January, 2018 registered with Police Station Vishram Bagh, Pune City. This action was to silence the dissent, stop people from helping the poor and downtrodden and to instill fear in the minds of people and was a motivated action to deflect people’s attention from real issues. The petitioners have made it clear in A B C D E F G H 966 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H their petition that they were seriously concerned about the erosion of democratic values and were approaching this Court “not to stop investigation into allegations” “but” to ensure independent and credible “investigation into the arrest of stated five human rights activists.” They claim that anything short of that relief will damage the fabric of the nation irreparably.

#2. The FIR in connection with which the said five persons came to be arrested has been appended and marked as Annexure P-2. It was registered on the basis of the statement given by one Tushar Ramesh Damgule, which reads thus: “Translation: FIR COPY I, Tushar Ramesh Damgule [Age 37] Occupation – Reconstruction, Residing at survey no.70, Santosh Nagar, Kafraj Pune, 411016, Mobile Number – 9850065423) personally states that, I am residing at the above mentioned address from last 20 years. I am completed Masters in Arts (History). I am running construction business by the name of Rao enterprises, from last 4 years. Somewhere in last week of December, I read one post of Facebook, that Elgar Parishad organized 31/12/2017 at Shaniwar Wada. Therefore on 31st December 2017, I personally went to Shaniwar Wada, opposite Ground, Pune, on around 2’o clock in this concern programme conduct by Sagar Gokhale, role describer Sudhir Dhavale, singer and artist Jyoti Jagtap, Ramesh Gaychor and other speakers like Jignesh Mewani, Umar Kahlid, Vinay Ratansingh, Prasanth Dontha etc. orators were seated on the stage. The said ground was crowded fully. I had read information and news related Kabir Kala Manch and their representatives by social media and newspapers. So, known them. On the programme of following other subjects, had express statement again and again malice statement such as “Bima Koregaon ne Diladhada, Navi Peshawar Mainatgada, Udavathikrya Rai Rai re, Gadun Taka Peshwai Re Garjana Sidnakache, Aalee Nvyane Peshwai re Garaj Tila Thokyachee, Re Saimka Garaj Tila Thokyachee”. After this, some other orators had their speeches, as well as in that, Kabir Kala Manch’s artist such as Jyoti Jagtap, Ramesh Gaichor and other six seven person sing the song again “Bhima Koregaon ne diladhada, Navi Peshwa Navi Peshawar Mainat Gada, Udavathikrya Rai Rai re, Gadum ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. [A. M. KHANWILKAR, J.] 967 Taka Peshwai Re Garjana Sidnakache, Aalee Nvyane Peshwai re Garaj Tila Thokyachee, Re Saimka Garaj Tila Thokyachee…” as well as, the same had presented in the form of Pathnatya (Raadaramaj) and Dance Event with malice and enmity intentions. After in Second session, said Sudhir Dhawade while expressing role, he made the malice and disputable statement that “Jab Julm Ho to, Bagawat Honi Chahiye shahar mein, Jab Julm Ho to bagawat honi chahiye shahar mein aur agar bagawat na ho to, behatar hai kee, rat dhalane se phle ye shahar jalke rakh ho jaye, ye shahar jalke rakh ho jaye….” Then he said some other malice statement that “ye jo satrahai, ye satra hia, tayat hi apane aap mein ladai ka ellanhai, ye nave peswai ko haemin Samshan Ghat mein, kabrastan meindajana hai..” Afterwards, other speakers also expressed themselves in grudge words in the same Programme, some objectionable and provocable books kept for selling. After ending the program, I left from the there. On the date of 1st January, 2018 as usual year, huge crowd gathered to salute and honour the victory stambh/monument at Bheema Koregaon. But because of the Elgar Parishad which was held at Shaniwar Wada on 31st December, 2017, Kabir Kala Manch’s Sudhir Dhawale, Sagar Gorakhe, Harshali Potdar, Jyoti Jagtap, Ramesh Gaichor and other six seven persons tried to express malice statement and tried to incite disputable words, sentences between two society groups, raise some provocable slogans, songs and road drama imposed wrong and false History above mentioned Sudhir Dhawale, Harshali Potdar and other Kabir Kala Manch’s Activists been interrogated by legal inspection and sources. Therefore, I state that, banned Maoist Organisation (CPI) have organized role is to boast and implicate the strong Maoist thoughts in depressed class and misdirect or misguide them and turn them towards unconstitutional violence activities, carrying the same thoughts, Kabir Kala Manch’s Sudhir Dhawale and his other activist had presented different areas in Maharashtra, malice speeches, had spread false History, disputable statements and incite objectionable slogans, sung songs and road-dramas. They distributed some objectionable and provocable pamphlets, books too. So remarkably it reflected at Bheema Koregaon A B C D E F G H 968 SUPREME COURT REPORTS [2018] 11 S.C.R. and nearer places by stone throwing, castes clashes and arson incidents. Therefore, an organization –Elgar Parishad, on the day of 31st December, 2017 at 2.00 p.m. to 10.00 p.m. at Shaniwar Wada, Pule, role defines Kabir Kala Manch’s Sudhir Dhawale, programme conductor Sagar Gorakhe, and other artists HarshaliPotdar, Jyoti Jagtap, Ramesh Gaichor and others had presented objectionable songs as well as “Jab Julm ho to, Bagawat Honi Chahiye shahar mein, Jab Julm Ho to bagawat honi chahiye shahar mein aur agar bagawat na ho to, behatar hai kee, rat dhalane se phle ye shahar jalke rakh ho jaye, ye shahar jalke rakh ho jaye…” such type of disputable, objectionable passing statements, tried to incite disputable words, sentences between two society groups, raised some provocable slogans, songs and road drama, imposed wrong and false History misguided the society. The same had been disputable and 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, In front of: (M.B. Talware) Police - Sub-Inspector Vishram Baug, Police Station, Pune.” Date: 08/01/2018 (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 A B C D E F G H ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. [A. M. KHANWILKAR, J.] 969 Unlawful Activities (Prevention) Act, 1967 (“UAPA”) and under the Indian Penal Code. A

#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 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 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. B C D E F G H 970 SUPREME COURT REPORTS [2018] 11 S.C.R. 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 espouse, so as to have a chilling effect in the minds of the activists and dissuade them from criticizing the policies and programmes of the Government.

#7. The petitioners then state that without providing any evidentiary link between the persons arrested and raided inter alia Gautam Navlakha and Sudha Bhardwaj with FIR No.4 of 2018, they were served with the arrest memos signed by the persons who were brought as part of the entourage of the Pune Police as so-called “independent and respectable persons” to authenticate the arrest memos. The seizure memos were prepared in Marathi and signed by the Panchas who were brought by the Pune Police as part of the entourage. No translated copy of the FIR or the seizure memo was made over to Gautam Navlakha or Sudha Bhardwaj even though they were not conversant with Marathi. In this backdrop, Gautam Navlakha filed habeas corpus petition before the Delhi High Court, being Writ Petition No.2559 of 2018 challenging the transit remand order passed by the Chief Metropolitan Magistrate on 28th August, 2018. Similar petition was filed in the Punjab and Haryana High Court to direct the jurisdictional 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: A B C D E F G H ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. [A. M. KHANWILKAR, J.] 971 “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.”

#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. A B C D E F G H 972 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H 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.

#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, 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 ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. [A. M. KHANWILKAR, J.] 973 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: 1) Rona Wilson, R/o Delhi 2) 3) 4) Surendra Gadling, R/o Nagpur Sudhir Dhawala and Harshali Potdar, R/o Mumbai 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 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, A B C D E F G H 974 SUPREME COURT REPORTS [2018] 11 S.C.R. A further offences under Sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of the UAPA are added on 17th May, 2018 against the following individuals: 1) Surendra Gadling, R/o Nagpur 2) Rona Wilson, R/o Delhi 3) Shoma Sen R/o Nagpur 4) Mahes Raut R/o Nagpur and Gadchiroli 5) Comrade M. alias Milind Teltumbade [underground] 6) Comrade Prakash alias Navin alias Rituparn Goswami R/o Assam [underground] 7) Comrade Manglu [underground] 8) Comrade Dipu and other underground members. The affidavit further states that during the on-going investigation, following persons came to be arrested on 6th June, 2018: 1) Surendra Gadling, R/o Nagpur 2) Rona Wilson R/o Delhi 3) 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 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 B C D E F G H ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. [A. M. KHANWILKAR, J.] 975 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 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 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 A B C D E F G H 976 SUPREME COURT REPORTS [2018] 11 S.C.R. A for permitting them to amend the 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; (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 (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 B C D E F G H ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. [A. M. KHANWILKAR, J.] 977 were they present during the event referred to in the FIR. Registration of two FIRs in respect of the same incident, first on 2nd January, 2018 at Pimpri (Urban) Police Station and the second, at Visharam Bagh Police Station, Pune City, was impermissible and was a ploy to deflect the inaction of the Pune Urban Police for the reasons best known to them. Moreover, the offences under the draconian law (UAPA) have been added without due authorization of the competent authority. It is contended that liberty of individual and dignity of the accused are the facets of core constitutional values. They submit that this case is not about ordinary criminal jurisprudence but of actualization of constitutional values and to expose the unjustified incarceration of innocents who happen to be human rights activists. They submit that the liberty and dignity of the accused persons must be preserved. According to them, the Investigating Agency was not discharging its statutory obligation of fairness in 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 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 A B C D E F G H 978 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C D E F G H 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 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 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 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 ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. [A. M. KHANWILKAR, J.] 979 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 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 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. A B C D E F G H 980 SUPREME COURT REPORTS [2018] 11 S.C.R.

#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 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 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 A B C D E F G H ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. [A. M. KHANWILKAR, J.] 981 against each of the accused. He further submits that the argument of the writ petitioners based on the circumstances pressed into service for a direction to change the Investigating Agency is completely against the cardinal criminal jurisprudence and such a relief is not available to persons already named as accused in a crime under investigation.

#18. Mr. Harish Salve, learned senior counsel appearing for the complainant at whose instance FIR No.4/2018 came to be registered at Vishram Bagh Police Station (Pune City), submits that there is no absolute right, much less a fundamental right, to market 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. 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 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 A B C D E F G H 982 SUPREME COURT REPORTS [2018] 11 S.C.R. A B C 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:- (i) (ii) Should the Investigating Agency be changed at the behest of the named five accused? 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? D (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? E F G (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 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) H (2011) 5 SCC 79 ROMILA THAPAR AND ORS. v. UNION OF INDIA AND ORS. [A. M. KHANWILKAR, J.] 983

#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. SAIL 7 and Janta Dal v. H.S. Choudhary.8” (emphasis supplied)

#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