2018 Supreme(SC) 958

SUPREME COURT OF INDIA
Dipak Misra, CJI., A.M. Khanwilkar, Dhananjaya Y. Chandrachud, JJ.
Romila Thapar and Ors. – Petitioner(s)
Versus
Union of India and Ors. – Respondent(s)
WRIT PETITION (CRIMINAL) NO. 260 OF 2018
Decided On : 28-09-2018

IMPORTANT POINTS
(Majority view)
High Court, under Article 226 Constitution of India, can issue appropriate directions at the instance of the aggrieved person provided the power of investigation has been exercised by the investigating officer mala fide.
Next friend can continue to espouse cause of affected accused only so long as the concerned accused is not in a position or incapacitated to take recourse to legal remedy and not otherwise.
Relief of changing the Investigating Agency declined.
(Minority view)
When violation of human rights is pleaded, the Court must look beyond locus into the heart of the matter.
Technicalities should not be allowed to override the cause of substantive justice.
Fair and independent investigation is crucial to the preservation of the rule of law, and, liberty itself.
In an appropriate case or under exceptional circumstances Court can constitute a SIT or transfer the investigation to a Central Agency and monitor it, or even order a de novo investigation.
Police lending itself to media trial is a matter of grave concern.
Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.
Impartiality and independence of the investigative agency must be safeguarded and ensured.
Deprivation of human rights seriously impinges upon the dignity of the individual which may not be recompensed by compensation.

Headnote:Per A.M. Khanwilkar, J. (For himself and Dipak Misra, CJI)

       (a) Code of Criminal Procedure, 1973 – Section 156 – Investigation – Neither accused nor complainant has any right to choose investigating agency – High Court, under Article 226 Constitution of India, can issue appropriate directions at the instance of the aggrieved person provided the power of investigation has been exercised by the investigating officer mala fide – Instantly, petitioners not making out any mala fide in investigation – 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 – Efficacy, sufficiency or genuineness of the material cannot be evaluated at this stage. (Para 24, 26, 27)

       (2011) 5 SCC 79; (2016) 1 SCC 1; (2018) 7 SCC 365; (2008) 3 SCC 542 – Relied upon

       (b) Constitution of India – Article 32 – Writ petition filed by third parties espousing the cause of named accused as next friends – Accused themselves pursuing the writ petition therefore themselves becoming writ petitioners – Next friends can no more be allowed to espouse cause of the accused – Next friend can continue to espouse cause of affected accused only so long as the concerned accused is not in a position or incapacitated to take recourse to legal remedy and not otherwise. (Para 27)

       (c) Constitution of India – Article 32 – Criminal writ – Writ petitioners, strangers to the offence under investigation (in FIR No.4/2018) – Merely espousing cause of arrested accused – Seeking reliefs which otherwise cannot be granted to the accused themselves – Relief of changing the Investigating Agency declined – What cannot be done directly, cannot be allowed to be done indirectly even in the guise of public interest litigation. (Para 29)

       (d) Constitution of India – Article 32 – Criminal writ – Prayer by next friends for directing all materials seized from accused to be examined by an FSL outside Maharashtra – Any of the accused can make such prayer before jurisdictional court – Prayer declined. (Para 32)

        Per Dhananjaya Y. Chandrachud, J. (Dissenting)

       (e) Constitution of India – Article 32 – Locus – Maintainability of the petition challenged on ground of locus of petitioners – When violation of human rights is pleaded, the Court must look beyond locus into the heart of the matter – Even otherwise, arrested persons subscribing to the averments in the petition – Would stand by what is urged in protection of their rights – Held, objection to maintainability lacks substance. (Para 5)

       (f) Constitution of India – Article 32 – Criminal matters – During the course of investigation, as in instant case, the accused must ordinarily turn to the competent court for the remedies that are available under substantive or procedural provisions of the criminal law – Instantly however, not only the petitioners but also the arrested persons invoking jurisdiction under Article 32 alleging g violation of human rights – Prayer seeking appointment of a Special Investigating Team not to stop an investigation but to ensure an independent and credible investigation – Technicalities should not be allowed to override the cause of substantive justice – Held, present petition not motivated by extraneous reasons. (Para 14, 15, 16, 17)

       (2006) 6 SCC 613; (2012) 10 SCC 731; (1992) 4 SCC 653; (2004) 3 SCC 349; (2016) 12 SCC 375; (2008) 1 SCC 560; (2018) 10 SCALE 711 – Referred

       (g) Constitution of India – Article 32 – Constitution of SIT and monitoring of investigation – Intervention of Court under Article 142 – Fair and independent investigation is crucial to the preservation of the rule of law, and, liberty itself – Court does not determine the course of the investigation, it only ensures a fair and impartial investigation by constituting SIT – In an appropriate case, or under exceptional circumstances Court can constitute a SIT or transfer the investigation to a Central Agency and monitor it, or even order a de novo investigation. (Para 18, 19, 20)

       (2009) 6 SCC 342; (2009) 6 SCC 767; (2011) 8 SCC 1; (2017) 3 SCC 501; (2018) 3 SCC 664; (1996) 2 SCC 199; (2009) 9 SCC 610; (2011) 1 SCC 560; (2013) 15 SCC 578 – Relied upon

       (h) Code of Criminal Procedure, 1973 – Section 156 – Investigation by police – Conduct of the police – On 29 August 2018 within a few hours of Supreme Court proceedings issuing notices, staying transit remand of arrested individuals and placing them under house arrest, Joint Commissioner of Police in a press conference proclaiming that police had more than sufficient evidence against those five individuals – On 31 August 2018, in a press conference the ADG (Law and Order), and other senior police officers selectively flashing letters and also leaking them to media – On 4 July 2018 before production of the arrested persons before the Court in Pune, a letter attributed to Sudha Bhardwaj was sensationally telecast on a television channel linking her with the unlawful activities of certain groups – These letters neither been placed before the Court nor mentioned in transit remand applications Held, police seeking in oblique manner to respond to the interim order of Supreme Court by recourse to the electronic media – Police lending itself to media trial – Matter of grave concern – The two panch witnesses, employees of the Pune Municipal Corporation, travelling as part of the police team making the arrest – Contrary to provisions of Section 41B, CrPC and DK Basu – Conduct of police in utilising electronic media to cast aspersions on those under investigation fortifies the need for a fair investigation.

       (Para 22, 24, 27, 29)

       (2010) 1 SCC 457; (1997) 1 SCC 416; (2011) 5 SCC 79; (2018) 7 SCC 365; (2018) 11 SCALE 171 – Relied upon

       (2016) 1 SCC 1 – Referred

       (2008) 3 SCC 542 – Distinguished

       (i) Constitution of India – Articles 14 and 21 – Guarantee against arbitrariness, and right to life – Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes – Impartiality and independence of the investigative agency must be safeguarded and ensured. (Para 29)

       (j) Constitution of India – Article 21 and 142 – Deprivation of human rights – Seriously impinges upon the dignity of the individual – May not be recompensed by compensation – In case like the present, Court obliged to issue appropriate directions – Constitution of SIT and monitopring of investigation by Court directed. (Para 39, 41)

       (1989) 1 SCC 494; (1991) 4 SCC 406; (1994) 4 SCC 260; (1997) 1 SCC 416 – Relied upon

       Facts of the case:

       Five illustrious persons in their own field have filed this petition 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. The petitioners have made it clear in their petition that they were seriously concerned about the erosion of democratic values and were approaching the Supreme 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.

       Finding of the Court:

       (Majority view)

       Constitution of SIT is not called for.

       (Minority view)

       Constitution of SIT and monitoring by Court directed.

       Result: (Majority view)

       Writ petition disposed of with liberty to the concerned accused to take recourse to appropriate remedy as may be permissible in law.