The Supreme Court on Friday refused to interfere in the arrest in August of five rights activists, accused of having links with Maoists, and also declined to set up an SIT, allowing the Pune police to go ahead with its probe in the Bhima-Koregaon case.
However, the house arrest of five activists -- Sudha Bhardwaj, Varavara Rao, Gautam Navlakha, Vernon Gonsalves and Arun Ferreira -- will continue for four more weeks, the court said in a 2:1 majority judgment, read out by Justice A.M. Khanwilkar also on behalf of Chief Justice Dipak Misra. Justice D.Y. Chandrachud gave a dissenting judgment.
"Upon perusal of the material (given by the investigating agency), we are of the 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 banned organisation and its activities," Justice Khanwilker said
The five activists were arrested on August 28 from various cities on charges of having Maoist links. The Maharashtra Police had claimed that it was in possession of "digital evidence about a larger conspiracy to mobilise cadres for action against security forces". The Pune police had also alleged that the Maoists had plans to target Prime Minister Narendra Modi.
The Pune Police raids were carried out as part of a probe into a conclave - Elgar Parishad - held in Pune on December 31, 2017, which allegedly triggered violence at Bhima-Koregaon village in the district the next day.
In his dissenting judgment, Justice D.Y. Chandrachud said that "dissent is a symbol of a vibrant democracy" and voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.
Justice Chandrachud lashed out at the Pune police for going public with evidence and termed it "disconcerting behaviour".
"The court must be mindful of the need not to thwart a criminal investigation leading to the detection of unlawful acts," he said.
"The court has to be vigilant in the exercise of its jurisdiction under Article 32 of the Indian Constitution 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," Justice Chandrachud said.
The court rejected the plea for a SIT probe into charges that the five have links with banned Communist Party of India-Maoist and were allegedly involved in a conspiracy to kill sovereign leaders.
"The accused cannot ask for changing the investigating agency or to do investigation in a particular manner, including for court-monitored investigation," Justice Khanwilkar said.
However, Justice Khanwilkar said, the accused were at liberty to pursue appropriate legal relief.
As the bench extended its interim order to extend their house arrest, in his dissenting judgment Justice Chandrachud recalled the sequence of events when a senior police officer held a press conference and released letters.
Justice Chandrachud said that the impartiality of the Maharashtra Police was in doubt as it had tried to prejudice public opinion. He questioned "whether the Pune police can be trusted to carry out impartial 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," Justice Chandrachud said.
"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."
"The basic entitlement of every citizen faced with allegations of criminal wrongdoing is that the investigative process should be fair, Justice Chandrachud said, adding that "if this court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty."
He ordered a court-monitored SIT probe and said that the technicalities of law cannot be allowed to override the substantive justice.
"In the interest of justice, and particularly when there are serious doubts regarding the investigation being carried out, it is not only permissible, but our constitutional duty to ensure that the investigation is carried out by a special investigation team or a special investigative agency so that justice is not compromised," he said.
Circumstances have been drawn to our notice to cast a cloud on whether the Maharashtra police has in this case acted as fair and impartial investigating agency, Justice Chandrachud said, adding that sufficient material has been placed before it bearing on the need to have an independent investigation.