Bombay High Court Disposes Father Stan Swamy's Petitions ; Allows Jesuits To Initiate Separate Proceedings

A division bench of Justices Nitin Jamdar and Sarang Kotwal disposed of as withdrawn Swamy's bail appeal and another petition challenging his prosecution under the Unlawful Activities (Prevention) Act.

Father Swamy passed away from a cardiac arrest in a private hospital ahead of his bail hearing on July 5. He was the 16th civil liberties activist to be arrested under anti-terror offences of the UA(P) Act on October 8, 2020.

The National Investigation Agency (NIA) accused him of being a banned CPI(Maoist) member and conspiring to overpower the Government.

On Wednesday, the bench was hearing ex-St Xaviers College Principal Fr. Frazer Mascarenhas interim application. The plea seeks to clear Father Swamy's name apart from certain directions regarding the mandatory judicial inquiry under section 176 (1-A) of the CrPC into his death.

Father Frazer is appointed by the Jamshedpur Jesuit Province to appear as Swamy's next of kin.

The court was of the view that the directions sought through the interim application were completely different from the prayers in father Swamy's bail appeal. Father Stan had filed the plea while he was still alive.

"We are not saying you aren't entitled (to pursue reliefs)," the court said adding that both pleas are filed for different causes.

Advocate Mihir Joshi for the petitioners then sought to take instructions and withdrew the petitions. The court granted him liberty to initiate appropriate proceedings.

Earlier Senior Advocate Mihir Desai appearing for Father Swamy submitted a note saying,  "Article 21 (Right to dignity) of the Constitution equally applies to deceased persons and just as the Appellant(Father Swamy) would have had a right to clear his name if he were alive, similarly those closest to him would have a similar right to clear his name."

Desai had claimed that the Special NIA Court's observations while refusing bail to Father Swamy amounted to preliminary findings of guilt, which must be expunged.

"…there is a stigma which attaches to the Appellant (Swamy) and will continue to be so attached unless these findings are set aside," the note read. The note was then converted into the interim plea.

Through the interim plea, directions were sought for Father Frazer to join the mandatory magisterial inquiry under Section 176-A into father Swamy's death as next of kin. Moreover, for the inquiry to be court monitored.

Swamy's lawyers contended that he was lodged in Taloja Prison until HC's directions to shift him to Holy Family Hospital in May, 2021. He tested positive for Covid-19 on admission in June. He was suffering from a pulmonary infection, post-COVID-19 complications in the lungs and pneumonia. "It is strongly believed by those closest to him that his death was caused (in view of his age and past health conditions) due to his arrest and prison conditions including inadequate health facilities and health care," the note had said.

Therefore, the magisterial inquiry should look into the immediate cause of death and events that have led to his death.