Bhima Koregaon Arrests: SC Decision not a Victory for Anyone

The Pune Police and the Maharashtra government have presented the Supreme Court’s decision in the Bhima Koregaon petition as a victory. However, it was not a victory for anybody. This matter will still have to be fought and the evidence will still have to pass legal scrutiny, but the investigation must first be completed. The issue that was before the Court was not whether the evidence collected and presented was genuine, instead the issues concerned the procedure of investigation adopted, which is not actually a matter for the Supreme Court to decide.

The initial set of prayers moved by Romila Thapar, Prabhat Patnaik, Devaki Jain, Satish Deshpandey and Maja Daruwala were:

“(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 is fully investigated and decided by this court.”

When the matter was first heard by the Court, the respondent state government challenged the locus standi of the petitioners. The respondents claimed that the petitioners had no interest in the matter as they were not affected by the arrests. However, the accused persons later impleaded themselves in the petition. Thus, the prayers were accordingly modified at their request as:

“(i) Issue an appropriate writ, order or direction for setting up of a Special Investigating Team (SIT) comprising of senior police officers with impeccable career records of professionalism, integrity and independence, reporting directly to this Hon’ble Court, for conducting a fair and independent investigation, and inquiry into the offences stated in the zero FIR lodged at Pimpri Police Station on 02.01.2018 (now Cr. Case No.2/2018), and the FIR 4/2018 lodged and all other related matters and allegations; or

(ii) Issue an appropriate writ, order or direction for the investigation into the offences alleged in the zero FIR lodged at Pimpri Police Station on 02.01.2018 (now Cr. Case No.2/2018), and the FIR 4/2018 lodged at Vishrambagh Police Station on 08.01.2018, and all other related matters and allegations, to be carried out by an independent agency which shall be monitored directly by this Hon‟ble Court through regular filing of status reports of the investigation by the investigating agency; and/or 

(iii) Issue an appropriate writ, order or direction directing that all electronic devices, records and materials allegedly seized from the detenues or even otherwise, if relied upon/being relied upon for denial of liberty to the detenues, to be examined by a Forensic Sciences Laboratory outside the State of Maharashtra to ensure fair play and in the interest of justice; and/or 

(iv) Issue an appropriate writ, order or direction, directing the release from custody of the arrested activists as per law, upon such terms and conditions as may be deemed necessary and appropriate, to the satisfaction of this Hon’ble Court.”

Based on these modified prayers, the Supreme Court proceeded to frame the following issues:

“(i) Should the Investigating Agency be changed at the behest of the named five accused?

(ii) If the answer to point (i) is in the negative, can a prayer of the same nature be entertained at the behest of the next friend of the accused or in the garb of PIL?

(iii) If the answer to question Nos.(i) and/or (ii) above, is in the affirmative, have the petitioners made out a case for the relief of appointing Special Investigating Team or directing the Court monitored investigation by an independent Investigating Agency?

(iv) Can the accused person be released merely on the basis of the perception of his next friend (writ petitioners) that he is an innocent and law abiding person?”

Choice of Investigation Agency

The majority decision of the Court decided that the accused do not have a choice in which agency is to investigate the allegations against them. To this effect, the Court cited several precedents including Divine Retreat v. State of Kerala and Ors. which stated that the high court cannot change the investigating officer midway in the investigation. In this case, the Supreme Court had made it clear that neither the accused nor the complainant or informant are entitled to choose their investigation agency. However, this decision also stated that the high court under its writ jurisdiction can always issue appropriate directions if it is convinced that the investigation is mala fide.

The majority decision on this issue stated that;

“ … This is not the stage where the efficacy of the material or sufficiency, thereof, can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter any further lest it would cause prejudice to the named accused and including the co-accused who are not before the Court. …

During the investigation, when they would be produced before the Court for obtaining remand by the police or by way of application for grant of bail, and if they are so advised, they can also opt for remedy of discharge at the appropriate stage or quashing of criminal case if there is no legal evidence, whatsoever, to indicate their complicity in the subject crime.”

Justice Chandrachud’s dissenting opinion on this issue can be summed up in his reference to Narmada Bai v. State of Gujarat which was the petition filed by Tulsiram Prajapati’s mother regarding the fake encounter resulting in his death. Tulsiram Prajapati was Sohrabuddin Sheikh’s aide. Both men were killed in separate fake encounters by the Gujarat Police. In Narmada Bai, the Supreme Court was posed with the question as to whether after the charge-sheet had been filed by the state investigating agency, the Court was precluded from ordering the Central Bureau of Investigation (CBI) to delve into the same issues. A Division Bench of the Supreme Court had perused the material presented before them and held that depending on the circumstances, the Court could direct such an investigation.

Locus Standi of the Petitioners

The majority decision was that the question of locus was put to rest the moment the accused persons impleaded themselves in the petition. Thus, once the accused became parties to the petition, then questioning the locus in the petition was no longer necessary. In this regard, the majority decision observed that “[t]he 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.”

Justice Chandrachud’s position on the question of locus differed from that of the majority on the technical side, but he too agreed that the question had been put to rest when the accused impleaded themselves in the petition. Addressing the issue he stated, “I would not have been inclined to accept a technical argument of this nature in view of the constitutional imperatives for this Court to intervene when human freedoms and liberties are alleged to be imperilled. The jurisdiction under Article 32 is wide enough to reach out to injustice in any form and originating in any source.”

Averments to the FIRs

The petitioners had based some of their arguments on the basis that the arrests had been made on the basis of Tushar Damgude’s complaint in the First Information Report (FIR) on January 8. They claimed that the contents of the first FIR on January 2 filed on a complaint by an eyewitness contradicted Damgude’s FIR. The Supreme Court made it clear that the petitioners cannot seek relief on the basis of the FIR. The Court further noted that Anita R. Sawale had filed a criminal writ petition in the Bombay High Court in furtherance of her January 2 FIR. The majority decision stated that since the matter is still in the investigation stage, the Court cannot intervene.

Forensic Examination of Seized Electronic Devices to be Conducted Outside Maharashtra

The majority decision on this issue was that, “If any one of the twenty two named accused have any grievance or apprehension about the same, they are free to make that request before the jurisdictional Court, which can be considered at the appropriate stage in accordance with law. We are not expressing any opinion either way in the present writ petition in that regard.”

Release From Custody

The majority decision here too was that:

“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. … We are not expressing any opinion either on the issue of maintainability thereof or on merits of the reliefs that may be claimed therein. All questions will have to be considered by the concerned Court in accordance with law.”

Hence, it is clear from the language employed by the majority decision that the Supreme Court declined to grant relief primarily because the relief sought pertained to procedural relief, which ordinarily should be obtained from either the jurisdictional magistrate or from the concerned High Court. The Supreme Court at no point gave its stamp of approval to the material presented by the respondent state, but instead instructed the petitioners to approach the appropriate court for legal relief.