Sunday, February 5, 2023

Tripura violence: Supreme Court refuses to constitute SIT, directs petitioner to High Court

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The Supreme Court on Friday asked the counsel to approach the High Court for hearing his plea seeking SIT investigation into the violence in Tripura last year as the High Court is seized of the matter. 

The two-judge bench of Justices D.Y. Chandrachud and Surya Kant noted,

“High Court has undertaken suo motu exercise under Article 226 of the Constitution. We are of the view that it would be apt that issue sought to be highlighted by the petitioner is raised by the petitioner before the HC by filing a suitable intervention application. So that HC can take considered view. In view of the apprehension expressed by the petitioner, we without expressing opinion on merits, we permit the petitioner to make a request before the Chief Justice of High Court by video conferencing and such request be appropriately considered.”

“We clarify that if the petitioner approaches physically before the High Court then no coercive step will be taken by Tripura Police or no steps which precipitate his access to justice”

– the Court added. 

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The bench was hearing the plea filed by Advocate Ehtesham Hashmi, who contended that he had personally visited riot-affected areas of the state, along with other Delhi-based advocates and published a fact-finding report about the visit. 

The counsel for the petitioner submitted before the Apex Court today that communal violence had erupted in Tripura and a large number of mosques were burnt. He requested through a writ to grant mandamus for an impartial investigation and requested for formulation of SIT and also mandamus to respondent for following guidelines in the Tehseen Poonawala case. He submitted that Tripura Police and the state had denied for a long time that there was any violence, that the state had filed a status report in the HC which differed from its earlier counter-affidavit. That the CM continues to say “no”mosques were burnt. 

The Supreme Court inquired as to at what stage was the matter at, before the High Court, and what was the latest order of the High Court.

The counsel for petitioner submitted that counter-affidavit had been filed by the State.

The Apex Court was of the view that if the High Court had the matter before itself then the Supreme Court taking it up may show non-confidence in one of the High Courts.

The Counsel for petitioner advanced that the High Court was only going into the aspect of compensation and not into the lapses by the police and state.

The Top Court held as the High Court is dealing with some aspects, what could be done was that the Court would give permission to petitioner to intervene and assist the High Court in the matter on points that had been raised before this Court.

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Recently, the Tripura government had filed an affidavit in the Supreme Court in response to Hashmi’s plea, which contended that he had personally visited riot-affected areas of the state, along with other Delhi-based advocates and published a fact-finding report about the visit.

The Tripura government said the petition seeking intervention in hate crimes that allegedly took place in October in Tripura, was “selective” in nature since the petitioner was silent, when a “larger scale communal violence” occurred in West Bengal in May, 2021 after the West Bengal Assembly elections.

In its affidavit filed before the apex court, the Tripura government had stated that a series of violent incidents had shook West Bengal before and after the State assembly elections, which was “larger in magnitude” compared to Tripura violence, but the public interest of the petitioner was aroused only selectively during the latter.

“No individuals or group of individuals professionally functioning as public-spirited persons can selectively invoke the extraordinary jurisdiction of this court to achieve some apparent, but undisclosed motive,” the affidavit said.

The following findings were inter alia published in the report:

a) 12 mosques were damaged;

b) 9 shops owned by Muslim businessmen were damaged;

c) 3 houses owned by Muslims were vandalised.

The above findings were arrived at by the petitioner after meeting with families and persons who were at the receiving end of the vandalism, the plea said.

However, Hashmi said in his petition that instead of taking action against the miscreants and rioters, police took action against those, who spoke against the same.

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It was also submitted that two of the Delhi advocates, who were part of a fact-finding team, were sent notices under Section 41A of the Criminal Procedure Code, alleging that their social media posts promoted enmity between communities.

Further, it was also put to the Bench that police had invoked the Unlawful Activities (Prevention) Act against 102 persons, including journalists, for reporting and writing on violence.

The state government had rebutted Hashmi’s petition, contending that allegations against the state started with planted and pre-planned articles in tabloids. “Planted and pre-planned articles started emerging in few tabloids, which becomes the basis of such a PIL subsequently or the so-called public spirited persons send their own teams to generate a self-serving report. Such reports, so generated, thereafter becomes the cause of action, as well as material based upon which the petitions are filed,” the state affidavit said.

It had further alleged that the fact-finding report was based on incorrect facts, aimed towards creating disaffection between communities and the state in particular.

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The state had also pointed out that a suo motu case concerning the same subject was already pending before the Tripura High Court and that the petitioner should have approached the High Court first, instead of moving the Supreme Court

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