The hearing lasted for about an hour and a half.
ASG Tushar Mehta appearing for State of Maharashtra began by yet again arguing that the Petitioners are strangers to the Petition and that the arrestees have already approached various high courts. It was yet again submitted by the counsel appearing for the Petitioners and also acknowledged by the Court that the written statements of the arrestees asking that this Petition be treated has already been filed on 5th September and hence the issue of locus has been resolved. ASG Maninder Singh appearing for Union of India made long-winded submissions about how the Union has no role to play because this investigation is under the State of Maharashtra and about how the problem of naxalism is prevalent in several states and is an extremely serious problem, the present case involves very grave allegations impacting on national security. He also argued that the SC should not deal with the matter as the HC and subordinate courts are competent to deal with it.
Dr. Abhishek Singhvi representing the Petitioners kept insisting that the Court should first hear his submissions since he is the Petitioner after which the respondents may be allowed to argue. His primary point was to show the mala fide and motivated nature of the arrests and the investigation.
Dr. Abhishek Singhvi began with the origin of this incident, Bima Koregaon and the violence of 1st January 2018. That Elgar Parishad- Elgaar means a clarion call and not a call to attack the State( as alleged by State of Maharashtra in its counter affidavit); that the entire basis of the FIR against those arrested is that Sudhir Dhawale sang a song whose words were a call to bring down the State — he explained how these words are actually a translation of a poem in a play by Bertolt Brecht, The Good Person of Szchewan. He quoted CJI Dipak Mishra’s judgments rejecting the ban on the Malayalam novel Meesha where there SC upheld freedom of expression particularly cultural, artistic expression of a poet.
Dr. Abhishek Singhvi then went on to explain that Elgar Parishad was organised by Retd Justice Sawant and Justice Kolse Patil; that none of those arrested in August 2018 had anything to do with the event or were present at the event. He emphasised that 2 FIR’s were filed, first by Anita Sanwle on 2nd January, 2018, about the violence incited by right wing groups on 1st January, which names Milind Ekbote and Sambhaji Bhide- how these are the people and groups responsible for the violence, and how some days after this FIR another FIR was filed by Tushar Damgude (who is being represented by Sr. Adv Harish Salve in the SC) on 8th January, which for the first time introduces the Maoist angle through a bald averment.
He argued that even in February 2018, when Milind Ekbote had applied for anticipatory bail, the State of Maharashtra had filed a counter affidavit opposing the bail saying that the violence was preplanned and Ekbote had a role to play in the violence. How then do the present arrestees become involved in the incident all of a sudden? He referred to the report by Siddharth Dende the Deputy Mayor of Pune submitted to the IG police, Pune which also categorically holds that the violence was preplanned through social media and by collecting material to attack the Dalit community, and the Sambhaji Bhide and Milind Ekbote played key roles in this and the motive was to teach the community a lesson for celebrating a history which undermines the Hindutva agenda.
He argued that while this report was submitted to the IG Pune police in January 2018, after Petitioners filed this Writ Petition and their Rejoinder referring to this contradiction on 10 September 2018 the Pune police on 11th September issued a press note denying this Committee and Report. This shows the shifting stands and mala fide of the State. Dr. Singhvi went on to explain how the investigation itself is mala fide since witnesses to the seizure were brought along with the Police from Pune, though the CrPC mandates that they are supposed to be independent witnesses from the locality. He explained how the “letters” being leaked by the Pune Police are on the face of it fabricated.
At this point the Court interjected saying that there wasn’t enough time left and adjourned the matter, it has now been listed on Wednesday.
Through the hearing, the ASG kept interjecting to say that he would show the Judges the evidence collected through investigation/the case diary kept by the police and that this would shock the judges and shock the Judicial conscious. At this stage of criminal proceedings, prior to filing its charge sheet, the arrested persons (or the Petitioners) are not entitled to access the case diary or material collected by the investigating agency.
Towards the end of the hearing, the Court suggested that this was a matter relating to the criminal procedure, that he would need to look at all the evidence provided by the State of Maharashtra on the next date and would possibly consider an SIT only if the material shown by the State warranted it.
The next date of hearing is 19th September 2018, and the interim order directing that the arrestees be kept only under house arrest has been extended.
[With inputs from Advocate Vrinda Grover.]