No SIT needed for the Bhima-Koregaon case?

While two of three judges on the Supreme Court Bench, hearing petitions praying for an independent investigation into the arrest of activists, lawyers and journalists in the Bhima Koregaon case, turned down the prayer, the dissenting judgment by Justice D Y Chandrachud stole the thunder by systematically demolishing the arguments made in the majority judgment.

The last paragraph of the dissenting judgment reads: “…I am firmly of the view that a Special Investigating Team must be appointed. The investigation shall be monitored by this Court. The Special Investigating Team shall submit periodical status reports to this Court, initially on a monthly basis... There shall be an order in these terms.”

Till the previous evening Justice Chandrachud alone was to deliver the judgment on behalf of all the three judges. It was on the morning of the judgment that the Supreme Court Registry indicated that there would be two judgments, one by Justice Chandrachud and the other by Justice Khanwilkar on behalf of himself as well as the then Chief Justice of India, Dipak Misra. What changed overnight?

Justice Khanwilkar cited several previous rulings of the Supreme Court when the court had refused to constitute a SIT or change the investigating agency or the Investigating Officer midstream.

The majority judgment selectively quoted part of a ruling (Narmada Bai vs State of Gujarat) in which the Supreme Court said, “It is trite law that accused persons do not have a say in the matter of appointment of an investigation agency” and that “the accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them”.

Justice Chandrachud, who obviously had sufficient time to go through the majority judgment, pointed out however that in the same case (Narmada Bai vs State of Gujarat), the Supreme Court had ordered a CBI inquiry into an alleged fake encounter in which the petitioner’s son was killed. This was done even though the charge-sheet had been filed by the Gujarat Police. But circumstances brought to the notice of the Supreme Court were such that the apex court felt that involvement of police officials of the state of Gujarat in the investigation was undesirable”.

“This case supports my view that 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,” said Justice Chandrachud in his judgment. He went on to say, “Circumstances have been drawn to our notice to cast a cloud on whether the Maharashtra police has in the present case acted as fair and impartial investigation agency. Sufficient material has been placed before the Court bearing on the need to have an independent investigation.”

Curiously, the majority judgment failed to note the doubts raised about the role of Gujarat Police in Narmada Bai’s petition or the doubts cast on the fairness and impartiality of Maharashtra and Pune police investigating the Bhima Koregaon case.

The majority judgment written by Justice Khanwilkar also cited another case (Divine Retreat Centre vs Union of India) in which the SC had frowned on a single judge of the Kerala High Court taking cognizance of an anonymous petition and directing a Special Investigating Team to take over case from the Investigating Officer. But the petition in the Bhima Koregaon case was not anonymous but by petitioners who are well known in their respective fields, pointed out Justice Chandrachud.

Similarly, Justice Chandrachud was not impressed by the argument that since the Supreme Court had refused to constitute a SIT prayed by Gujarat IPS officer Sanjiv Rajendra Bhatt, there was no case for a SIT in the Bhima Koregaon case. In Bhatt’s case, the dissenting judgment pointed out, the issue related to a false affidavit and hacking of an email. The court felt the issues did not warrant a SIT because it did not affect people at large.

Citing SC’s recent direction to pay a compensation of ₹50 lakh to former ISRO scientist Nambi Narayanan, Justice Chandrachud observed, “The fact that the payment of compensation was ordered nearly 24 years after the wrongful arrest is a grim reminder about how tenuous liberty can be and of the difficulty in correcting wrongs occasioned by unlawful arrest.” Days after the rejection of the petition filed by historian Romila Thapar, economists Prabhat Patnaik and Devaki Jain, Sociology Professor Satish Deshpande and Human Rights lawyer Maja Daruwala, Delhi High Court threw out the transit remand granted to Maharashtra Police for arresting and taking away activist Gautam Navlakha.

The government of Maharashtra has now filed an appeal against the order in the Supreme Court.