Historian Romila Thapar and the Maharashtra government Thursday traded charges in the Supreme Court over the arrest of five rights activists in the Koregaon-Bhima violence case, with her accusing the police of "cooking up" the probe and the agency countering by terming her a "stranger" to the litigation.
A bench headed by Chief Justice Dipak Misra reserved its verdict on a plea by Thapar and others seeking the immediate release of the rights activists and an SIT probe into their arrest, after a battery of lawyers from both sides concluded their submissions.
The bench, also comprising Justices A M KHanwilkar and Dy Chnadrachud, asked the Maharashtra police to submit its entire case diary pertaining to the probe by September 24. All parties will also have to submit their written submissions by then.
Terming the entire probe as "cooked up", senior advocate A M Singhvi, appearing for Thapar and four others, referred to three letters and said these were used to "incriminate" the activists.
Moreover, the two FIRs strangely did not contain the allegation that there was a "Rajiv Gandhi-like plot" to assassinate the Prime Minister, he said.
Additional Solicitor General Tushar Mehta, appearing for Maharashtra government, referred to the evidence collected by the agency in its ongoing probe and vehemently urged the court not to interfere with the criminal proceedings and that too, at the behest of the "strangers" in a public interest litigation (PIL).
"No interference should be allowed in criminal matters in the garb of PIL. At the behest of strangers, the present petition cannot be entertained," he said, adding that the plea should be dismissed and the accused asked to join the probe which is at a "premature" stage.
He said all materials including the letters have been recovered from the laptops and computers of the arrested accused during the probe, which was being carried out "impartially" and "diligently".
"The PIL under Article 32 of the Constitution cannot be entertained to seek relief under section 438 (provision for bail) under the Code of Criminal Procedure," he said, adding that moreover, the writ of habeas corpus (bring the person) would not lie when the accused is in the judicial custody.
"The petition deserves to be dismissed. The status quo ante (position before the litigation) be restored and the five accused be asked to surrender for the investigation," the law officer said.
Senior advocate Harish Salve, appearing for complainant Tushar Damgude, said he was not aware of the materials seen by the court which in any case would look at them with "hawk's eye", but there was a distinction between free speech and unlawful activities.
"Unlawful activities cannot be permitted. You can have any ideology," he said, "I am suggesting the contours where free speech ends and unlawful activity begins".
He said the issue was whether the probe be allowed to continue and if it led to any unlawful activities, then "this investigation must continue".
If any person is wrongly roped in, then he or she has a remedy and the apex court was here and the fact is that "our judiciary is robust".
He assailed the prayer for an SIT probe into the case, saying it was a "cut-paste template prayer" and such a probe can be ordered only when there was apprehension that fair probe was not possible.
Salve gave the example of the 2G case and said there a minister was a suspect and the government agency was probing the case. "If their prayer is accepted, it would mean we cannot trust anybody the police, NIA and the CBI," he said.
When Singhvi, during his rejoinder submissions, referred to the three letters used to "incriminate" the accused, Salve objected to it and said the petitioners should file on affidavit as to how they had accessed the letters.
Singhvi countered saying that the letters were available on the websites of two news channels and referred to the transit remand application of the police to highlight the point that it was based the Koregaon Bhima violence and there was no mention of the three letters.
He also referred to the press conference held by the Additional Director General of Police of Maharashtra and said these letters, which have been referred to be very sensitive, were flashed in the presser.
Senior advocate Anand Grover alleged that the letters, attributed to Rona Wilson and Sudha Bharadwaj, had words in Marathi which only "Maharashtrians could have written".
The five activists --Varavara Rao, Arun Ferreira, Vernon Gonsalves, Sudha Bharadwaj and Gautam Navlakha-- are under arrest at their respective homes since August 29.
The plea by Thapar and economists Prabhat Patnaik and Devaki Jain, sociology professor Satish Deshpande and human rights lawyer Maja Daruwala has sought an independent probe into the arrests and the immediate release of the five activists.
The Maharashtra police had arrested the rights activists on August 28 in connection with an FIR lodged following a conclave -- 'Elgaar Parishad' -- held on December 31 last year that had later triggered violence at Koregaon-Bhima village.
The apex court had said on September 19 that it would look into the case with a hawk's eye as liberty cannot be "sacrificed at the altar of conjectures". It had earlier said that it may order an SIT probe if it found that the evidence has been "cooked up".
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