The human rights lawyer and the writer-activist accused in Elgar Parishad case approached the Bombay High Court. They alleged the transfer of probe from Pune Police to the National Investigation Agency (NIA) as ‘politically motivated’.
Brief Facts of the Case
A coalition of 260 non-profit organizations organized the event called as Elgar Parishad. This was organised on 31.12.2017. The event commemorated 200th anniversary of the Battle of Bhima- Koregaon. This was at the Shaniwarwada Fort in Pune.
The victory was vital to the Mahar Dalits. It signified their victory over Brahmin Peshwas. Hence, the event was based on the anti-caste theme.
On 01.01.2018, violence broke out at the event. The Pune Police arrested several persons under the Unlawful Activities (Prevention) Act (UAPA). It also claimed the speeches during the event partly responsible for the violence.
Soon after, the Police arrested some high-profile activists and lawyers, it alleged their active links to the CPI (Maoist), a threat to national security. The charge sheet mentioned the event as ‘creating communal disharmony’.
In November 2019, the elected government in Maharashtra had to re-examine the case. However, transfer of the probe to NIA was immediately done after BJP lost state elections. Advocate Surendra Gadling and Activist Sudhir Dhawale challenged the move on 19.06.2020.
Contentions by the Petitioner
The petitioners contended the transfer to be arbitrary, unjust and discriminatory. That, it violated Article 14, 20 and 21 of the Constitution.
The Central Government passed the order on 24.02.2020. The gap between the police investigation and decision taken was 750 days. According to Section 6(3) of the NIA Act, the Centre could exercise such powers within the statutory period of 15 days.
Hence, they claim the order to be a fraud on the legislature and in sheer abuse of the statutory mandate. Further, it suffers illegality on account of the doctrine of waiver and promissory estoppel.
Further, the petitioners claim it as a ‘political expediency’ and unreasoned order. The Centre passed the order only after BJP failed to form the government in Maharashtra. It may avoid the humiliation of being exposed to the manipulated investigation. Moreover, it does not specify the reasons for transferring the investigation. Thus, the State Police’s investigation was deemed satisfactory for one and a half year.
The plea states the order as ‘interference with the administration of justice’. It cannot order a de-novo investigation into a matter in cognizance of the competent Court. It did not make out any case of bias or malafides before the Court.
The petitioners also challenged the territorial jurisdiction of Additional Judge, Pune and demanded a transfer of the probe which is contrary to Section 13 and 22 of the NIA Act.
The petitioners have not received copies of electronic evidence despite the Trial Court orders. They said that NIA might indulge in procuring fabricated evidence. Hence, there is an urgent need to restrain NIA from any further investigation.
Prayer for Relief
The petitioners filed the matter under Article 226 of the Constitution. As well as Section 482 of CrPC.
The Petition seeks the Bombay High Court to quash the impugned order dated 24.01.2020 which transfers probe to NIA.
The Court may set aside the order passed by Additional Sessions Judge, Pune to transfer the records and proceedings. Moreover, the Court may grant an interim injunction to restrain NIA from carrying out any investigation.
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