No release of activists, no SIT probe; arrests not due to dissent, says SC

The Supreme Court on Friday rejected a plea for immediate release of the five rights activists, held in connection with the Koregaon-Bhima violence case for alleged Naxal links, saying "it is not a case of arrest because of mere dissenting views or difference in political ideology".

An apex court bench, by a majority verdict of 2:1, also refused to appoint an SIT to probe their arrest, in a shot in the arm for the Maharashtra Police which has maintained that the action against the activists was based on cogent material and evidence.

The court said the accused will remain in house arrest for four more weeks during which they are at liberty to avail legal remedies in appropriate court which can consider the case on merits.
 

The verdict came as a huge setback to activists who came out in support of the accused with various allegations against the investigators, as the top court held that the "accused cannot ask for changing the investigating agency or to do investigation in a particular manner including for court-monitored investigation."

The three-judge bench refused to interfere with the arrest of the five rights activists and said further proceedings against them would be decided on the merits of the case without being influenced by the observations of the apex court.

It also said that this is not the stage where the "efficacy of the material or its sufficiency" can be evaluated nor it is possible to enquire whether it is genuine or fabricated as it would cause prejudice to the parties, adding they can opt for discharge at an appropriate stage if there is no evidence against them.

The Maharashtra police had arrested the activists on August 28 in connection with an FIR lodged following a conclave -- 'Elgaar Parishad' -- held on December 31 last year that had allegedly triggered violence later at Koregaon-Bhima village in the state.
 

The five activists -- Varavara Rao, Arun Ferreira, Vernon Gonsalves, Sudha Bharadwaj and Gautam Navlakha -- were put under house arrest on August 29 following an apex court order on the plea by historian Romila Thapar, economists Prabhat Patnaik and Devaki Jain, sociology professor Satish Deshpande and human rights lawyer Maja Daruwala against the police action.

"We are of considered opinion that 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," the majority verdict of Chief Justice Dipak Misra and Justice A M Khanwilkar said.

Justice D Y Chandrachud, who wrote a separate dissenting judgement, said dissent is symbol of a vibrant democracy.

"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," the judge said.

Refraining from dealing with the issues raised by the accused, Justice Khanwilkar, writing the majority judgement for himself and the CJI, said any observation made by this court may cause "serious prejudice" to them who are not before this court resulting in "serious miscarriage" of justice.

"We may hasten to mention that we have perused the Registers containing relevant documents and the Case Diary produced by the State of Maharashtra. But we have avoided to dilate on the factual position emerging therefrom, lest any prejudice is caused to any accused or the prosecution, in any manner," it said.

"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. Investigating Officer is free to proceed against the concerned accused as per law," the court said.
 

Justice Khanwilkar said except pointing out some circumstances to question the manner of arrest of the five accused, no specific material facts and particulars are found in the petition about the alleged mala fide exercise of power by the investigating officer.

He said a vague and unsubstantiated assertion was not enough and the plea of the petitioners of lack of evidence against the accused has been seriously disputed by the investigating agency.

"They can avail such remedies as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation.
 

"During the investigation, when they would be produced before the court for obtaining remand by the police or for grant of bail, 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," it said.

It agreed with the argument of the State that the prayer for changing the Investigating Agency cannot be dealt with lightly and the court must exercise that power with circumspection.

"As a result, we have no hesitation in taking a view that 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 as public interest litigation," it said.