Mumbai: The Bombay High Court bench on July 23 withdrew its oral observations praising the late Father Stan Swamy and even appreciating his work for society.

The bench of Justices Sambhaji Shinde and Nijamoodin Jamadar withdrew their comments after the National Investigations Agency (NIA) took strong objection to the “personal comments of the bench.”

The bench was hearing the pending plea of Jesuit Father Swamy by which he had sought interim bail on medical grounds before he died.

On July 23, senior counsel Mihir Desai appearing for Swamy told the judges that he seeks four prayers i.e. to allow Father Frazer Mascarenhas to participate in the Magistrate enquiry in Swamy’s custodial death, to direct the Magistrate to submit its report before the judges and to follow the guidelines of the National Human Rights Commission (NHRC) on custodial deaths.

The last request that Desai made was that the enquiry should be done by a Magistrate in Mumbai.

However, the NIA through additional solicitor general Anil Singh opposed the request. The ASG said that the court shouldn’t give directions particularly to follow the NHRC guidelines and also to submit the enquiry report to the bench.

“Moreover, we think that the appeal should be abated as he (Swamy) is no more,” Singh argued.

Countering the submission, Desai pointed out that even if Swamy isn’t here but the HC does have it’s “supervisory powers” and thus the appeal cannot be abated.

Aruna Kamat-Pai, the chief public prosecutor for the state said she agreed with the submissions of the ASG over guidelines, monitoring the enquiry etc. “As far as enquiry in Mumbai is concerned the state will take care of it,” she submitted.

At this, Justice Shinde pointed out, “This means that you (state) too think that the appeal should be abated, meaning it should go. Then there’s no point of enquiry. If the appeal goes everything goes Mrs Pai.”

The judge further sought to know if any Magistrate has been entrusted with the enquiry to which Pai responded in the negative.

While the bench was about to adjourn the matter for hearing till August 4, ASG Singh told the bench that he would like to make certain submissions.

The ASG said, “We (NIA) have condoled the death of Mr Swamy. But the personal and private comments made by the judges or judicial officers in open court does make a difference.”

“From last one week, after this court made certain comments the investigating agency is being criticized. Several other things are going on…” Singh added.

The ASG was referring to the comment by Justice Shinde, wherein he had said, “We gave huge respect for Stan Swamy and for his work, irrespective of the legal position. He was a wonderful human being.”

Having heard the strong objection of the ASG, Justice Shinde said, “But I clearly said subject to the legal position. If you think, I should take back my words because you are hurt, I will take my words back.”

“Our endeavor is to always be balanced. End of the day, we are also human beings and suddenly something happens we express. But we haven’t commented against you Mr ASG or the Prosecutor or even the prosecuting agency,” Justice Shinde clarified.

The ASG then said that he has no grievance against the court now but just that the agency is being criticised out. “We don’t have any control outside,” Justice Shinde responded.

The bench has adjourned the matter for further hearing till August 4.

https://www.freepressjournal.in/mumbai/fpj-legal-bombay-high-court-withdraws-words-of-appreciation-for-father-stan-swamy-after-nia-objects