New Delhi: In the political tussle between the Bharatiya Janata Party (BJP) and the Telangana Rashtra Samithi (TRS) party (now renamed the Bharat Rashtra Samithi or BRS), the Constitutional and statutory rights of the accused seem to have been forgotten, the Telangana High Court observed in a 93-page judgment that transferred investigation in the Telangana MLA poaching case from the state police’s special investigation team (SIT) to the Central Bureau of Investigation (CBI).
A single-judge bench of Justice B. Vijaysen Reddy, ordered the transfer Monday and took a dim view of state Chief Minister K. Chandrashekar Rao publicly condemning the three accused in the case as “conspirators”, saying his actions gave rise to “reasonable” apprehension in the mind of the accused about “unfair and biased” investigation. The order was made available Wednesday evening.
The Cyberabad police on 26 October arrested three people, Ramachandra Bharati alias Satish Sharma, K. Nanda Kumar and Simhayaji Swami, during a raid at a farmhouse in Moinabad, on the outskirts of Hyderabad. The raid was based on a tip-off by BRS MLA from Tandur, P. Rohith Reddy, who alerted the police about the trio’s offer to him to join the BJP. The accused had allegedly offered to pay him Rs 100 crore and Rs 50 crore each to three other BRS MLAs to join the BJP.
On 3 November, Chief Minister Rao held a press conference and released video and audio clips, while accusing the BJP of plotting to bring down his government through the three arrested men. It was alleged during the conference that the three accused were heard talking about one “Santosh”, insinuating a reference to senior BJP leader B.L. Santhosh. The BJP has denied links to the accused.
The verdict, delivered on petitions filed by the three arrested people demanding a transfer of the probe outside the jurisdiction of the state police, held: “When accused are condemned publicly and branded as conspirators levelling serious allegations by none other than the Hon’ble Chief Minister by conducting Press Meet and circulating the videos to the important Constitutional Functionaries, even before charge sheet is filed and at the initial stages of the investigation, it cannot be said that investigation is being done in an unbiased and fair manner.”
The constitutional functionaries referred to in the verdict included the Chief Justice of India (CJI), as well as Supreme Court judges.
The court rejected a similar petition filed by the BJP, observing it did not have a locus standi in the matter. A third party cannot be permitted to espouse the cause of the accused when the accused themselves are pursuing the writ petition, noted the judge.
Terming “leakage” of the material collected during its investigation a “serious lapse”, the court said: “The rights of the accused stand as a high pedestal in the criminal law jurisprudence”. He went on to quash the notification dated 9 November that constituted the SIT set up to probe the poaching allegations.
The judge took the view that the events that unfolded from the date of registration of the FIR till the press conference by the CM, where the accused were publicly branded as conspirators, had caused prejudice to the accused, deprived their rights to effectively “defend the criminal proceedings and availing their legal remedies under the law”.
These events “run contrary to the fundamental concept of criminal law jurisprudence that every accused is deemed to be innocent until proven guilty”, observed the court.
The state’s failure to offer any plausible explanation as to how the video CD and pen drives, seized during the raid, were handed over to the CM weighed in heavily with the court, while it rejected the state’s argument not to accept the accused’s case.
““Who has handed over the same (CD and pen drives), when and how, remains a mystery,” the court said, adding the police action is not in accordance with the procedure established by law, even at the initial stages. In such a scenario, the court held, it cannot shirk its responsibility to “set rights things.”
According to the petitioners, the events that unfurled subsequent to the registration of the FIR indicated that “everything was pre-meditated” and “at the instance of higher ups in the Government and political dispensation”. They took strong exception to the “public flaunting of incidents” and leaking of excerpts of investigation to the media.
In the instant case, the petitioners alleged, the police “breached their limits.” They claimed that they were ordinary people, but the Telangana government had given the colour of a “political hangover” to their arrests.
On its part, the state first apologised for disclosing details of investigation in the public domain. But it added there was no” truth in the allegation that investigation is being done in an unfair and biased manner”.
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‘Rights of accused to have fair & unbiased investigation’
There were procedural lapses as well, argued the accused. The offences made out against them were punished with less than seven years of imprisonment. Therefore, according to the criminal procedure code, they submitted, the police should have issued notices to them to appear before the investigating officers.
However, the same was not done in the case and the accused were directly arrested and produced for remand before the special court.
The state, meanwhile, submitted that the allegations made by the accused were bald and bereft of any material or supported by any material on record. Moreover, it was argued that transfer of investigation cannot be routine exercise and should be done in exceptional circumstances.
Transfer of the probe at this juncture, state claimed, would “scuttle investigation at the investigation stage” and the same would not be in public interest.
Merely because BJP, which is a National Party, is involved, directly or indirectly, it cannot be said that the matter has got nation-wide political ramifications, the state contended, describing poaching of MLAs as a “serious issue, an insult to the Constitution, one that breaks the federal fabric of the Constitution”.
However, the court opined that actual bias need not be probed and it would “suffice if legitimate and reasonable apprehension of bias, taint and unfair investigation is made out by the accused”.
The constitutional rights guaranteed to an accused is not limited to just fair trial, but also impartial investigation. “Rights of the accused to have fair and unbiased investigation are defeated in this case which is in violation of Articles 14 and 21 of the Constitution of India,” the court said. While Article 14 guarantees equality before law, Article 21 relates to protection of life and personal liberty.
“The controversy regarding poaching of MLA’s is, no doubt, a serious one. The official press conference arranged by the Chief Minister and speaking about the sequence of events and the attempt made to poach ruling party MLA’s is understandable,” the court said.
But what it disapproved of was the breaching of the procedure established by law. “The manner in which the video recordings through electronic spy gadgets and the documents have been uploaded in the public domain tested on the viewpoint of the accused would certainly cause prejudice to them. Though the investigation is at the preliminary stage, crucial documents, which were in the nature of pre-trap proceedings, have come out open in public,” it held.
For the court, the entire episode and turn out of events was “unprecedented”. It, therefore, “unhesitatingly” held that “the accused have made out a case for transfer of investigation”.
(Edited by Poulomi Banerjee)
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