In 31 Months, Three Out Of Four Bombay HC Benches Recuse From Hearing Plea To Clear Father Stan Swamy's Name From Bhima-Koregaon Case

Last month, Bombay High Court judge Justice Revati Mohite-Dere recused from hearing a plea filed in December 2021 by the next of kin of Father Stan Swamy, who sought clearing the now deceased (Swamy's) name from the Bhima-Koregaon case.

The plea filed by Father Fraser Mascarenhas, the former principal of Xavier's College in Mumbai, recently came up for hearing before a bench of Justices Mohite-Dere and Prithviraj Chavan.

However, Justice Mohite-Dere, recused from hearing the case, recording in the September 20 order, "Not before the Bench of which Justice Smt. Revati Mohite Dere is a member."

Notably, the petition filed by Father Mascarenhas stated that the observations of the special court against Swamy, in its March 2021 order refusing bail "besmirches" his reputation and body of work in tribal and human rights. The findings further violate his fundamental right to reputation under Article 21 of the Constitution. Accordingly, the said order should be quashed, the plea had sought.

Swamy passed away due to a cardiac arrest in a private hospital ahead of his bail hearing in July 2021. He was the 16th and oldest civil liberties activist to be arrested in the case under the anti-terror Unlawful Activities (Prevention) Act, on October 8, 2020.

It would not be out of place to mention that from February 15, 2022 till September 20, 2024, the instant plea filed by Father Mascarenhas was listed five times, before four different division benches. Out of these, three benches have recused from hearing the petition.

As per the High Court's website, the matter was first listed before a bench of Justices Prasanna Varale and Surendra Tavade on February 15, 2022. However, Justice Varale, who is now a Supreme Court Judge, had then recused from hearing the plea.

"This writ petition not to be placed before the bench of which Justice Prasanna Varale is a member. Remove from the board," reads the order of February 15, 2022.

Subsequently, the matter came up for hearing before a bench of Justices Sunil Shukre and Govind Sanap on March 8, 2022 and April 6, 2022. On the first day of hearing, the bench issued notice to the NIA and the State, and also asked them to file their responses to the plea. On the next date, i.e. April 6, 2022, the hearing was adjourned till April 21, 2022.

However, the matter was then listed before Justices Sadhana Jadhav and Milind Jadhav on April 19, 2022. When the matter was called out, Justice Sadhana Jadhav recused from hearing the plea. 

"All matters pertaining to the case of Ealgar Parishad shall not be placed before the Bench presided over by Justice Sadhana Jadhav," the order states. 

Interestingly, after a gap of 29 months, the matter was listed on Justice Mohite-Dere's board on September 20, 2024, who too recused from hearing the plea and ordered the matter to be removed from her board. 

Allegations Were Prima Facie Upheld By Special Court, Trial Abated Against Swamy: NIA

Meanwhile, the NIA in its affidavit in response to the plea of Father Mascarenhas has contended that the trial against Swamy has stood abated but the allegations remain so.

"...to say that the odium of the accusation of Stan Swamy has followed him to the grave is highly depreciated. It is humbly submitted that the petitioner should be very responsible in making such a statement. The petitioner is making such statements accordingly to what he knows or wants to see Stan Swamy as without knowing the ground realities. The accused Stan Swamy was arrested after following the due procedure established by law, having sufficient evidence that establishes his involvement in furtherance of unlawful CPI (Maoists) activities and the same would be indecorous to be termed as such," the affidavit filed by the NIA reads.

To the contention in the plea filed by Father Mascarenhas that continuing to show Swamy as an accused violates his fundamental rights under Article 21 of the Constitution of India, the NIA has contended that Article 2l enshrines the right to life and personal liberty except according to the procedure established by law.

"Therefore, the said right is being used as a tool to expunge the charges which stand prima facie established by the designated court is per se illegitimate and unconstitutional. The petitioner is stating without knowing the true facts of the case and he has stretched it too far to imply that the face value shall backseat the course of law, irrespective of offence committed by the accused. It is the duty of the State to bring an offender to book with a view to getting him punished for a crime committed by him, failing to do so will lead things into a chaotic situation and clog the wheels of justice," the affidavit reads. 

As per the HC website, a new bench is yet to be assigned this plea. 

Appearance:

Senior Advocate Mihir Joshi has appeared for the Petitioner.

Special Prosecutor Sandesh Patil and Advocate Chintan Shah has represented the NIA.

Case Title: Frazer Mascarenhas vs National Investigation Agency (Criminal Writ Petition 6427 of 2021)

Click Below For Reading/Downloading Recusal Orders:

Justice Prasanna Varale's Recusal

Justice Sadhana Jadhav's Recusal

Justice Revati Mohite-Dere's Recusal