Romila Thapar and Ors. vs Union of India and Ors.

Criminal Trial – Investigation pending – Use of electronic media by Police – Practice of – Held: Per Dr. D. Y. Chandrachud, J. Use of the electronic media by the investigating arm of the State to influence public opinion during the pendency of an investigation subverts the fairness of the investigation – Police are not adjudicators nor do they pronounce upon guilt. Disposing of the Writ petition, the Court

HELD: Per A.M. Khanwilkar, J. (for himself and Dipak Misra, CJI)

1.1 The accused persons do not have a say in the matter of appointment of Investigating Agency. Further, the accused persons cannot choose as to which Investigating Agency must investigate the offence committed by them. In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough. Rather, averment in the petition as filed was to buttress the reliefs initially prayed- regarding the manner in which arrest was made. Upon perusal of the material already gathered during the ongoing investigation, it is clear that the present is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of Communist Party of India (Maoist), a banned organization and its activities. This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated. [Paras 14, 21 and 26] [985-D-F]

1.2 The consistent view of Supreme Court is that the accused cannot ask for changing the Investigating Agency or to do investigation in a particular manner including for Court monitored investigation. In the present case, the original writ petition was filed by the persons claiming to be the next friends of the concerned accused (A16 to A20). Amongst them, (A19), (A16), (A18) and (A17) have filed signed statements praying that the reliefs claimed in the subject writ petition be treated as their writ petition. That application deserves to be allowed as the accused themselves have chosen to approach Supreme Court and also in the backdrop of the preliminary objection raised by the State that the writ petitioners were completely strangers to the offence under investigation and the writ petition at their instance was not maintainable. It is, therefore, assumed that the writ petition is now pursued by the accused themselves and once they have become petitioners themselves, the question of next friend pursuing the remedy to espouse their cause cannot be countenanced. The next friend can continue to espouse the cause of the affected accused as long as the concerned accused is not in a position or incapacitated to take recourse to legal remedy and not otherwise. [Para 27] [986-A-C]

1.3 Prayer clauses (i) and (ii) also make reference to FIR No.2/2018 registered at Pimpri (Urban) Police Station on 2 nd January, 2018. However, that is an independent FIR registered at a different police station against the Hindutva right wing leaders. It is, at best, in the nature of a cross FIR in respect of the same incident against the alleged aggressors filed by an eyewitness. Neither the writ petitioners nor the named accused in FIR No.4/2018 in that sense, can pursue relief in respect of FIR No.2/2018. Admittedly, Criminal Writ Petition has already been filed in the Bombay High Court by the complainant in FIR No.2/2018 herself for issuing directions to the Investigating Agency in that crime. There is force in the argument of the State that the crime under investigation in FIR No.4/2018, inter alia is to investigate the allegations that a banned organization, CPI(Maoist), organises events such as referred to in FIR No.2/2018 to propagate ill-will in different classes and turn them into unconstitutional and violent activities. Further, such activities were purportedly carried out by Kabir Kala Manch and others in different areas in the State of Maharashtra by delivering vituperative speeches and to spread false history, disputable statements and incite objectionable slogans, sing songs and road dramas and distribution of objectionable and provocative pamphlets and books also. The incidents such as at Bhima Koregaon and nearby places of stone throwing, castes clashes and arson incidents is the outcome of such conspiracy. Taking any view of the matter, the reliefs claimed in the modified prayer clauses (i) and (ii) for investigation in respect of FIR No.2/2018, cannot be taken forward at the instance of the named five accused persons in FIR No.4/2018 registered at Vishram Bagh Police Station (Pune City) on 8th January, 2018 or for that matter their next friends. A fortiori, it must follow that the writ petitioners, who are strangers to the offence under investigation (in FIR No.4/2018); and since they are merely espousing the cause of the arrested five accused as their next friends, cannot be heard to ask for the reliefs which otherwise cannot be granted to the accused themselves. What cannot be done directly, cannot be allowed to be done indirectly even in the guise of public interest litigation. [Paras 28, 29] [986-E-H; 987-A-D]

1.4 The prayer for changing the Investigating Agency cannot be dealt with lightly and the Court must exercise that power with circumspection. As a result, the writ petition at the instance of the next friend of the accused for transfer of investigation to independent Investigating Agency or for Court monitored investigation cannot be countenanced, much less as public interest litigation. The investigation of the offence in question is at a nascent stage and, therefore, it is not desirable to elaborate further as the modified reliefs (i) and (ii) as prayed cannot be granted. [Paras 30, 31] [986-E-H; 987-A-D]

1.5 The third modified relief claimed in the writ petition to issue directions that all electronic devices, records and materials, allegedly seized from the detenue/accused, be examined by Forensic Science Laboratory outside the State of Maharashtra to ensure fair play and in the interest of justice. Even this prayer cannot be taken forward. If any one of the twenty two named accused have any grievance or apprehension about the same, he is free to make that request before the jurisdictional Court, which can be considered at the appropriate stage in accordance with law. [Para 32] [988-A-B]

1.6 The fourth modified relief is to direct release of the arrested activists from custody as per law. The accused persons must pursue this relief before the appropriate court, which can be considered by the concerned court on its own merits in accordance with law. The concerned accused persons have already taken recourse to remedy before the jurisdictional High Courts. Hence, they are free to pursue all legal remedies available to them as per law. All questions will have to be considered by the concerned Court in accordance with law. Accordingly, even the fourth modified relief cannot be considered in the present writ petition.[Para 33] [988-C-E]

1.7 Accordingly, this writ petition is disposed of with liberty to the concerned accused to take recourse to appropriate remedy as may be permissible in law. The interim order passed by this Court on 29th August, 2018 (directing that the five arrested persons be placed under house arrest) shall continue for a period of four weeks to enable the accused to move the concerned court. The said proceedings shall be decided on its own merits uninfluenced by any observation made in this judgment, which is limited to the reliefs claimed in the writ petition to transfer the investigation to an independent Investigating Agency and/or Court monitored investigation. The Investigating Officer is free to proceed against the concerned accused as per law. [Para 37] [989-B-C] State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West Bengal and Ors. (2010) 3 SCC 571: [2010] 2 SCR 979 – followed.

Narmada Bai vs. State of Gujarat and Ors. (2011) 5 SCC 79: [2011] 5 SCR 729; Sanjiv Rajendra Bhatt vs. Union of India and Ors. (2016) 1 SCC 1: [2015]

12 SCR 498 – relied on.

E. Sivakumar vs. Union of India and Ors. (2018) 7 SCC 365; Divine Retreat Centre vs. State of Kerala and Ors. (2008) 3 SCC 542: [2008] 4 SCR 701 – referred to. Per Dr. D.Y. Chandrachud, J.: (Dissenting)

HELD: 1.1 The jurisdiction under Article 32 is wide enough to reach out to injustice in any form and originating in any source. Securing human liberty and dignity must occupy an important 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 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 watchdog to ensure that a fair and impartial investigation takes place. A fair and independent investigation is crucial to the preservation of the rule of law and, in the ultimate analysis to liberty itself. Besides the jurisdiction to order the constitution of a SIT, the proceedings of this Court are replete with instances where an investigation has been monitored under the authority of this Court. With the body of precedents on the subject, the maintainability of a prayer for relief, seeking that the investigation should be either monitored by this Court or should be entrusted to an independent SIT under the directions of this Court cannot be in doubt. [Paras 17, 18, 20 and 21] [1003-H; 1004-A-E; 1005A-B; 1006-D-E]

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

1.5 The first round of arrests in the present case took place on 6 June 2018. On 8 June 2018 an alleged letter was released by the police to the media a little before the proceedings for remand before the competent court (in the June arrests), alleging that the arrested persons were plotting to attack the Prime Minister. On 4 July 2018 when the arrested persons were to be produced before the Court in Pune, a letter attributed to one ‘SB’ was sensationally telecast on a television channel linking her with the unlawful activities of certain groups. A serious grievance has been made about the fact that these letters have 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 those individuals who were arrested in the months of June and July 2018. Paragraph 26 of the counter states that this material “clearly shows that they were involved” in (i) selecting and incorporating cadres to go underground in the ‘struggle area;

(ii) mobilising and distributing money; (iii) facilitating selection and purchase of arms; (iv) deciding the rates of such arms; and

(v) suggesting the routes and ways of smuggling such arms into India for its onward distribution amongst the cadres. Upon perusing the material, it is clear that the allegation that each of the five individuals arrested on 28 August 2018 is found to be engaged in activities of the nature set out in paragraph 26 of the counter affidavit is taking liberties with the truth. General allegations against the philosophy of a banned organisation, its policies and the modalities followed in the execution of its unlawful activities constitute one thing. Linking this to specific activities of named individuals is a distinct matter. [Paras 25, 26] [1009-CE, G-H; 1010-A]

1.8 One of the circumstances which must certainly bear upon the fairness and impartiality of the process which has been followed by the investigating agency is in regard to the importation of two panch witnesses from Pune, when the arrests were carried out. Section 41B of Code of Criminal Procedure emphasises the importance of an independent witness while making an arrest. The two panch witnesses in the present case are employees of the Pune Municipal Corporation. It is not disputed that they travelled as part of the police team which made the arrest. [Para 27] [1010-D, H]

D K Basu v State of West Bengal (1997) 1 SCC 416 : [1996] 10 Suppl. SCR 284 – relied on.

1.9 There is a serious allegation that the arrests have been motivated by an attempt to quell dissent and to persecute five individuals who have pursued the cause of persons who have suffered discrimination and human rights violations. In approaching the present case, the Court must be mindful of the need not to thwart a criminal investigation leading to the detection of unlawful acts. Equally, the Court has to be vigilant in the exercise of its jurisdiction under Article 32 to ensure that liberty is not sacrificed at the altar of conjectures. Individuals who assert 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)

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.