While the court “does not determine the course of the investigation”, Justice Chandrachud said, it acts as a “watchdog to ensure that a fair and impartial investigation takes place”. (Express Photo By Amit Mehra) While the court “does not determine the course of the investigation”, Justice Chandrachud said, it acts as a “watchdog to ensure that a fair and impartial investigation takes place”. (Express Photo By Amit Mehra)

Observing that “voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”, Justice D Y Chandrachud, in a dissenting opinion Friday on petitions seeking the release of five activists arrested in the Bhima Koregaon violence case, said “there are serious doubts” about the Pune police probe.

“Conscious as the Court is of the public interest in the effective administration of criminal justice, it cannot be oblivious to the overriding Constitutional concern to secure the dignity of the individual. The key to the balance between the two lies in a fair, independent and impartial investigation of crime. As a matter of principle, I am unable to agree with the views expressed by the learned Chief Justice and my learned brother Justice A M Khanwilkar,” Justice Chandrachud said.

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Coming down hard on Pune police, he said there is “sufficient material” placed before the bench “on the need to have an independent investigation”.

While the court “does not determine the course of the investigation”, he said, it acts as a “watchdog to ensure that a fair and impartial investigation takes place”.

“A fair and independent investigation is crucial to the preservation of the rule of law and, in the ultimate analysis to liberty itself… 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.

He said “while the investigation should not be thwarted”, this was a proper case for the appointment of a SIT. “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,” he said.

“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. Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes. Where, however, the expression of dissent enters upon the prohibited field of an incitement to violence or the subversion of a democratically elected government by recourse to unlawful means, the dissent ceases to be a mere expression of opinion,” Justice Chandrachud said.

Referring to police allegations, made during a press conference, that there was a plot against the Prime Minister, he said the Additional Solicitor General (ASG) “fairly stated that there was no basis to link the five arrested individuals to any such alleged plot against the Prime Minister”.

“Such an allegation is indeed of a serious order. Such allegations require responsible attention and cannot be bandied about by police officers in media briefings. But, during the course of the present hearing, no effort has been made by the ASG to submit that any such investigation is being conducted in regard to the five individuals,” he said.

“On the contrary, he fairly stated that there was no basis to link the five arrested individuals to any such alleged plot against the Prime Minister. Nor does the counter affidavit makes any averment to that effect.”

“All this has certainly a bearing on the basic question as to whether the Maharashtra police can now be trusted to carry out an independent and impartial investigation,” he said.

Justice Chandrachud said that 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”.

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