Bhima Koregaon Violence: We May Quash Case If It’s a Cooked Up Story, Says SC

New Delhi: Extending the house arrest of five activists who have been taken into custody for alleged Maoists links and their purported involvement in the Bhima-Koregaon violence, the Supreme Court on September 17 said it will quash the case if  it is a cooked up story.

“We have to see police documents. We will see the records for what the allegations are. In every criminal investigation, the allegation is that the charges are cooked up. We may quash the case here if it is a cooked up story. If it calls for our intervention, we will look into it,” said the top court, posting the matter for September 19, when it will hear a petition seeking their release.

The petition by historian Romila Thapar and four others has challenged last month’s arrest of the five activists – Telugu poet Varavara Rao, Advocate Sudha Bhardwaj and rights activists Gautam Navlakha, Vernon Gonsalves and Arun Ferreira – that sparked a nationwide outrage among human rights defenders.

Vociferous submissions were made by senior advocate Abhishek Manu Singhvi, Rajeev Dhawan, Anand Grover and additional solicitor generals (ASG) Tushar Mehta and Maninder Singh during arguments before the bench of Chief Justice Dipak Misra, Justice DY Chandrachud and Justice AM Khanwilkar for the petitioners and state, respectively.

As the hearing resumed, ASG Mehta told the court that this was not only a case of dissenting opinion. “According to their (petitioners’) perception, those arrested are social activists. But we have proof that these persons have committed serious offenses. We have video-graphed every raid.”

He also said if they (the parties) are pursuing the current case in the Supreme Court, they should withdraw cases in the high courts as they cannot have two channels of relief. “Let them withdraw the respective proceedings (in high courts),” he said.

Advocate Singhvi, representing the petitioners, responded by stating that the cases in high courts have not been heard as the apex came to be seized of the matter and directed house arrest of the accused.

ASG Maninder Singh also intervened and questioned the petitioners’ locus standi in the matter and why they should be heard by the court. “What is that aspect which creates doubt in their minds that lower judicial forum will not hear them. Why have they approached the Supreme Court? Naxalism is a huge concern in the country. While the investigation is going on, this petition cannot be entertained. What is the situation that has been brought before the SC, that the court needs to intervene. There are already petitions before the high courts. There is no need for a petition to be brought to the Supreme Court,” he said.

Clarifying that he is not questioning the jurisdiction of the country’s top court, he said, “No instance of concern regarding investigation has been brought before this court. It is the appropriateness and regard that we contest. No one is questioning the court’s jurisdiction.”

Senior Advocate Harish Salve, appearing for Tushar Damgude – whose FIR is aggressively pursued by the police -- said, “We would be failing  in our duties if this petition was allowed. It is upon the state to show why we arrested someone.”

Advocate Singhvi responded by stating that the Supreme Court can decide on the maintainability of the petition. Terming the submissions of the ASGs “pedantic”, Singhvi said, “This issue of whether to hear me or not can be decided by Your Lordships itself.”

Singhvi then proceeded to make submissions on the events surrounding the Bhima-Koregaon violence. But the submissions were marked by interruptions from the respondents.

Taking a major dig at the ASGs for conducting a  “stupid drama”, senior Advocate Rajeev Dhawan, appearing for petitioners, said, “Let’s have proper hearing without interruptions.”

Seeking  20 minutes, Singhvi argued, “Unless I shock the court’s conscience, I know I can’t get relief. Varavara Rao had 25 cases against him, but he was acquitted in all. Arun Ferreira had 11 cases, all acquitted. Vernon Gonsalves had 18 cases of which he has been acquitted in 17 cases. One matter resulted in conviction for which he has served sentence and is before the court on appeal.”

He further said, “None of the five are named in the FIR, it is admitted that none of these five were present there.” Explaining the term Elgaar (Parishad), which was followed by violence at Bhima-Koregaon on December 31 last year, he said, “Elgaar means clarion call for struggle/all out effort or struggle.”       

He continued his arguments. “Arrest is a major issue, we want independent inquiry. We have directly come to the Supreme Court as we only need a court-monitored investigation or a CBI (Central Bureau of Investigation) or NIA (National Investigation Agency) probe to ascertain what the case is and who is involved in it,” he said.

Justice AM Khanwilkar then asked Singhvi, “Your prayer is for a probe into the whole episode. But three of them have already approached high courts.”

Justice Chandrachud also asked Singhvi, “You ask for SIT probe, do you wish to amend your prayer.

Shighvi replied to the bench, “After Your Lordships ordered house arrest, no proceeding has taken place.”

Additional documents were filed by intervener in the case for those arrested in June by their counsel Anand Grover. The ASGs and the court said they were not given the documents earlier. The Pune police had earlier arrested Advocate Surendra Gadling, Rona Wilson, Sudhir Dhawale, Mahesh Raut and Professor Shoma Sen from different locations of the country.

Singhvi said, “The position of the Maharashtra government in the initial affidavit changes completely in the fourth FIR.”

He continued with his arguments. “The Maharashtra police is fabricating letters. The charge is ‘Maoist’ comrade Prakash is writing letter to these five (accused), but he (the author of the letter) is in jail according to the police.”

Advocate Rajeev Dhawan, also arguing on behalf of the petitioners, said, “We must only show there is sufficient doubt in fact and law.”

Advocate Grover said, “Procedure not followed, which is why we have come here under Article 32 (of the Constitution). CrPc (Code of Criminal Procedure) procedures is not being followed in the investigation. The matter is in lower courts. It’s shocking.”

The Chief Justice at this juncture also said, “We wanted to see whether the case is connected to the CrPc or Article 32.”    

The bench remarked that it will “look into the material” to determine whether an SIT probe is required or not. “We have to examine the relief you seek in context,” said Justice Khanwilkar.

Chief Justice Dipak Misra remarked, “First of all, we must have a look at the material. If we find that the material is cooked up, we will set up SIT.”

The Court also remarked that it might consider extending the interim protection while leaving the matter to be decided by the high courts.

It eventually proceeded to adjourn the matter for September 19 this week. It also allotted time for each counsel who are slated to argue that day.