ROMILA THAPAR AND ORS. versus UNION OF INDIA AND ORS.

Citation: [2018] 11 S.C.R. 951 · Decided: 28-09-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Disposed off

Cited by 7 judgment(s) · cites 14 · see the full citation network in Lexace

Judgment (excerpt)

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[2018] 11 S.C.R. 951
ROMILA THAPAR AND ORS.
v.
UNION OF INDIA AND ORS.
(Writ Petition (Criminal) No. 260 of 2018)
SEPTEMBER 28, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Constitution of India – Art.32 – Writ petition filed by five
persons, as next best friend of five activists-accused who were
arrested purportedly in connection with FIR No.4/18 – Said FIR
registered in Pune in relation to communal violence that took place
in Bhima Koregaon as outcome of an event organized by organization
called Elgar Parishad – Plea of petitioners that neither of the five
accused persons were present in the said event nor any allegation
against them is found in the FIR and that the said FIR was fabricated
by Pune Police after FIR No.2/18 was filed against some Hindutva
right wing leaders based on an eye-witness account that they incited
violence against Dalit congregation in Bhima Koregaon – Petitioners
inter alia prayed for appointing Special Investigation Team (SIT)
and Court monitored investigation – Held: (Majority view) Per
A.M. Khanwilkar, J. (for himself and Dipak Misra, CJI) Accused
persons cannot choose as to which Investigating Agency must
investigate the offence committed by them – Present 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 organization, Communist Party
of India (Maoist) and its activities –Crime under investigation in
FIR No.4/2018, inter alia is to investigate the allegations that a banned
organization, Communist Party of India (Maoist), organises events
as referred to in FIR No.2/2018 to propagate ill-will in different
classes and turn them into violent activities – Incidents such as at
Bhima Koregaon is the outcome of such conspiracy – Reliefs claimed
not granted – (Minority view) Per Dr. D.Y. Chandrachud, J.
(Dissenting) In the present case, the initiation of the proceedings u/
Art. 32 is not motivated by extraneous reasons – Conduct of the
Pune police in utilising the agency of the electronic media to cast
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
aspersions on persons whose conduct is still under investigation,
fortifies the need for an investigation which is fair – Sufficient
material has been placed before the Court bearing on the need to
have an independent investigation – Dissent is a symbol of vibrant
democracy – Voices in opposition cannot be muzzled by persecuting
those who take up unpopular causes – Present is a proper case for
the appointment of SIT –SIT to be appointed – Investigation shall
be monitored by Supreme Court – Unlawful Activities (Prevention)
Act, 1967 – Constitution of India – Arts.21 and 22(1).
Constitution of India – Art.32 – Public Interest Litigation –
Locus for – Held: Per A.M. Khanwilkar, J. (for himself and Dipak
Misra, CJI) Prayer for changing the Investigating Agency cannot
be dealt with lightly and the Court must exercise that power with
circumspection – 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, much less as public interest litigation – Per Dr. D.Y.
Chandrachud, J. (Dissenting) When a group of citizens has moved
Supreme Court with an impassioned plea about the violation of human
rights the Court must look beyond locus into the heart of the matter.
Constitution of India – Art.32 – Writ petition under –
Maintainability of, in criminal matters – Held: Per Dr. D.Y.
Chandrachud, J. Ordinarily, when an investigation into a criminal
offence is in progress, recourse must be taken to the provisions of
the Code – However, in the present case the petitioners have not
sought recourse to the jurisdiction of Supreme Court for espousing
a remedy which is available before the competent court under the
Code of Criminal Procedure – Present proceedings have been moved
with a specific grievance that the arrest of the five individuals is an
attempt by the State to muzzle dissent – Supreme Court, as a
constitutional adjudicator, has been entrusted with the jurisdiction
u/Art. 32 to secure the fundamental freedoms guaranteed by the
Constitution – Protection of fundamental liberties is a subject so
integral to democratic constitutional values that technicalities should
not be allowed to override the cause of substantive justice.
Constitution 

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