N Venugopal

| @ | November 15,2018

In its life of about ten months, the Bhima-Koregaon case has undergone as many twists and turns as no such case could ever imagine. Beginning simply as a rioting case, implicating the diametrically opposite group of people to protect the actual perpetrators, it went on to become a case of criminal conspiracy and then to a dreaded UAPA (Unlawful Activities Prevention Act) case of a conspiracy to assassinate the Prime Minister, all through involving a number of procedural lapses and arbitrary changes. Then it moved on to another level of searches and arrests violating established procedures, and then led to the Supreme Court’s intervention and at least five other courts of law delivering different, contradictory and often evasive verdicts, leaving everyone in utter confusion. Is the whole affair being enacted as a theatre of State-sponsored harassment for the accused-arrested activists and a terrible farce for the observers? Of course.

The conduct of the main investigating agency, Pune Police, demonstrates that the procedure adopted was far from reasonable and legal, at least on 11 counts

At this point of time, it is interesting to recapitulate the case and to examine the way the investigation and the legal process have proceeded till now.

The conduct of the main investigating agency, Pune Police, demonstrates that the procedure adopted was far from reasonable and legal, at least on 11 counts:

  1. Pune Police either did not act at all or acted shoddily on the first FIR filed on January 2, a day after the actual Bhima Koregaon violence (rioting, vandalism and murder), in which the actual perpetrators, Shambhaji Bhide and Milind Ekbote, were named.
  2. Pune Police acted swiftly on the second FIR filed on January 8 as an afterthought, in which the violence was linked to Elgaar Parishad meeting in Pune on December 31, 2017. While the meeting was organised by two former judges — P B Sawant and BG Kolse Patil — and addressed by several eminent persons, including Dalit leaders Prakash Ambedkar and Jignesh Mevani, as well as adivasi leader Soni Sori, JNU student leader Umar Khalid and Radhika Vemula, the mother of deceased Dalit scholar Rohith Vemula, the FIR cast aspersions on the meeting by alleging that it was held by a front organisation of the Maoists where provocative speeches were made and songs were sung.
  3. On March 6, Pune Police extended the scope of the Bhima Koregaon violence case by introducing the element of criminal conspiracy (Sec 120-B IPC) to widen the net and implicate more people from anywhere.
  4. On April 17, Pune police implicated advocate Surendra Gadling from Nagpur and research scholar Rona Wilson from New Delhi (even though both of whom were not associated with the meeting in any way) and raided their houses.
  5. On May 17, the purview of the case was further widened under the stringent Sections of the Unlawful Activities Prevention Act (UAPA) and implicated Professor Shoma Sen of Nagpur University and activist Mahesh Raut, along with the already accused Republic Panther activist Sudhir Dhawle, Surendra Gadling and Rona Wilson.
  6. On June 6, Surendra Gadling, Rona Wilson, Mahesh Raut and Sudhir Dhawle were arrested along with Shoma Sen after a 10-hour search at her house in Nagpur. All the arrestees, except Sudhir Dhawle, neither addressed nor participated in the Elgaar Parishad meeting.
  7. After the arrests, Pune Police, in a press conference, raised various wild allegations, including a conspiracy to indulge in a “Rajiv Gandhi type of assassination” against Prime Minister Narendra Modi, based on unverified, later proved to be fake, letters, which contained dozens of names of persons and organisations, probably to implicate all of them at a later stage.
  8. Pune Police leaked out some “letters” and selected portions of the “letters” to some media organisations to tarnish the image of the accused and would-be accused and a high-decibel media trial began to be conducted by police, parallel to, if not circumventing, the legal trial.
  9. On August 28, Pune Police conducted raids and searches on ten houses in six cities across the country without proper warrants, violating the established procedures, taking stock witnesses along with them, and giving out seizure reports in a language not known to the accused. They arrested Varavara Rao in Hyderabad, Vernon Gonsalves in Mumbai and Arun Ferriera in Thane and tried to arrest Sudha Bharadwaj in Faridabad and Gautam Navlakha in Delhi, but failed to do so thanks to the promptness of their lawyers and intervention of courts.
  10. Pune Police produced transit warrants and managed to get transit remands, and in at least three cases, the transit warrants were in a language not known either to the accused or even to the local courts.
  11. Pune Police and Maharashtra Police held a press conference on August 31 and leaked some more “letters” and read out portions of “letters”, even as the Supreme Court specifically asked them to furnish the evidence on September 6.

This is the saga of irregularities carried out by Pune Police that went on for eight months and then the Supreme Court intervened on a petition by historian Romila Thapar and others. The apex court adjourned the hearings to September 6 and gave an interim order to keep the five accused under house arrest.

The saga of irregularities carried out by Pune Police went on for eight months and then the Supreme Court intervened on a petition by historian Romila Thapar and others. The apex court adjourned the hearings to September 6 and gave an interim order to keep the five accused under house arrest

The arguments on the Romila Thapar petition were heard on September 6, 17, 19 and 20 and a 2:1 judgment was delivered on September 28. The majority judgment written and pronounced by Justice A M Khanwilkar in consonance with the then Chief Justice of India, Justice Dipak Mishra said, “the interim order passed by this court on 29th August, 2018 shall continue for a period of four weeks to enable the accused to move the concerned court”. Justice D Y Chandrachud, in his dissenting judgment, accepted the petitioner’s contention that the present investigation was mala fide and it needs to be done by another agency under the supervision of the court.

 

 

State-sponsored harassment

 

As the chain of events beginning from January to August clearly demonstrated that the investigating agency was not following the law of the land in letter and spirit, indicating its ulterior motive, the petitioners sought relief from the Supreme Court in terms of a “fair and independent investigation” by a different agency monitored by the court.

Strangely, the majority judges have not taken this chain of events into consideration and dealt a lot on the prayer and its legality alone and raised obviously unnecessary question of whether the accused or their friends have a right to choose investigating agency. In fact, the petitioners or the accused never thought or asked for an investigative agency of their choice. They just showed the series of events for eight months and expressed their suspicion on the present investigating agency and hence sought the help of the highest court in the land. The judgment kept silent on that long process and picked holes on the prayer which actually was the end result of that process.

Further, the learned judges after hearing the oral submissions and written arguments of the petitioners, which clearly portrayed the mala fide nature of Pune police investigation, said “except pointing out some circumstances to question the manner of arrest…no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer.”

Strangely, the majority judges have not taken this chain of events into consideration and dealt a lot on the prayer and its legality alone and raised obviously unnecessary question of whether the accused or their friends have a right to choose investigating agency

The majority judgment contained at least three major debatable aspects like arbitrariness in framing the questions or issues of the case, spelling out leading and prejudicial statements, even while categorically saying it was not in their purview, and suddenly becoming aware of something called “jurisdictional court” and “appropriate court” and the petitioners naturally appealed for a review. However, the Supreme Court rejected the review petition on October 27.

In the meanwhile, the activists arrest case has appeared in various forms before at least five different courts (Delhi, Punjab & Haryana, Telangana and Andhra Pradesh and Bombay High Courts and Pune Special Sessions Court):

  1. Sudha Bharadwaj withdrew her earlier petition in Punjab & Chandigarh High Court, which actually restrained the police from arresting her on August 28. She continued to be under house arrest till October 26, as per the Supreme Court’s order. In the meanwhile, she moved Pune Special Sessions Court for bail which was rejected a day prior to the end of he house arrest and she was immediately arrested
  2. Gautam Navlakha challenged the way the transit remand was issued by CMM in Delhi High Court. This was in fact a continuation of his petition on August 28, which was pending due to the Supreme Court’s intervention. Finally, on October 1, Delhi High Court observed that the CMM did not apply mind in granting transit remand and set it aside, thereby releasing Navlakha from house arrest. State of Maharashtra challenged this verdict in the Supreme Court which gave notice to Navlakha on October 29 asking him to respond in two weeks.
  3. Gautam Navlakha also moved Bombay High Court to quash the charges against him. The court gave notices to police and asked them not to arrest him till November 1 initially and later extended it till November 21.
  4. Varavara Rao challenged his transit remand in Telangana & Andhra Pradesh High Court, after the August 28 petition by his wife P Hemalata was closed due to the Supreme Court’s intervention. The matter came for hearing on October 25, a day prior to the end of the house arrest and the court, without going into the challenge of transit remand, extended his house arrest for three more weeks.
  5. Arun Ferriera and Vernon Gonsalves applied for bail in Pune trial court which was rejected a day before the end of the house arrest and then they moved Bombay High Court to extend their house arrest, as was done by Hyderabad court in Varavara Raos case. But the court rejected their appeal and they were immediately arrested.
  6. Surendra Gadling petitioned Bombay High Court to strike down the Pune trial court’s grant of additional 90-day time for filing charge sheet, without following proper procedure. Bombay High Court accepted his contention and struck down the trial court’s order. However, state of Maharashtra moved the Supreme Court against this verdict and the apex court granted stay on October 29.
  7. Anand Teltumbde and Stan Swamy moved Bombay High Court to quash the charges against them. The court posted the hearing for November 21 and asked police not to arrest them.
The majority judgment contained at least three major debatable aspects like arbitrariness in framing the questions or issues of the case, spelling out leading and prejudicial statements, even while categorically saying it was not in their purview, and suddenly becoming aware of something called “jurisdictional court” and “appropriate court” and the petitioners naturally appealed for a review. However, the Supreme Court rejected the review petition on October 27

It is strange that each of these five courts took different takes on similar petitions before them and gave different judgments and reliefs. The idea behind most of the courts seems to be what Justice C V Nagarjuna Reddy said during the arguments on Varavara Rao’s petition: “I have to satisfy both individual liberties and state’s interests!”

But the moot question is whether it is possible to reconcile individual liberties and state’s interests. The bigger question would be what would be the responsibility of the courts if individual liberties and state’s interests are at loggerheads and state uses illegal means to curtail individual liberties.

[Editor’s note: N Venugopal is a Telugu poet, literary critic, translator and journalist. He is currently editor of Veekshanam, Telugu monthly journal of political economy and society. His books include Understanding Maoists: Notes of a Participant Observer from Andhra Pradesh – Setu Prakashani, Kolkata, 2013.]

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