Bombay High Court Disposes Of Plea Seeking To Quash Observations Against Father Stan Swamy In Elgar Parishad - Bhima Koregaon Case

The Bombay High Court on Thursday disposed of a petition filed in December 2021 by the next of kin of Father Stan Swamy, who sought clearing the now deceased (Swamy's) name from the Elgar Parishad - Bhima Koregaon case.

The plea was filed by Father Fraser Mascarenhas, the former principal of Xavier's College in Mumbai through senior advocate Mihir Desai, argued that the findings of the special NIA court against Swamy "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, they should be quashed.

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.

On Thursday, when the matter was called out for hearing before a division bench of Justices Ajay Gadkari and Ranjitsinha Bhonsale, the NIA through Additional Solicitor General (ASG) Anil Singh, assisted by special counsel Chintan Shah raised objections to the maintainability of the instant petition.

The NIA pointed out that the prayers in the instant petition filed way back in 2021 have become 'infructuous' and thus cannot be proceeded with further.

"The petition cannot be amended at this stage and no new cause of action can be inserted by way of amendment. The petitioner can file fresh petition or take resort to appropriate remedy challenging the report of the Magistrate," the ASG submitted.

Considering the objection, the judges disposed of the petition with a liberty to Mascarenhas to file a fresh petition to challenge the Magistrate Report, which ruled out any wrong in Swamy's death and instead confirmed it to be a 'natural death.'

It would not be out of place to mention that in a previous hearing held in October this year, the judges were informed by the State that a bench of the Maharashtra State Human Rights Commission (MSHRC) chairman Justice (retd) Anant Badar and Sanjay Kumar, Member had on May 2, 2025 accepted the Magistrate Inquiry report, which concluded that there was nothing 'unnatural' in Swamy's death and that there were no medical negligence too.

According to the MSHRC order and the Inquiry Report, Swamy had a history of ailments including Parkinsons with MDD and that he was given 'prompt' medical treatment for his ailments.

"...it is clear that there are no allegations about any mishap or anything which will suggest that the death occurred is unnatural, on account of certain other facts than the old age and illness of the deceased. He died due to septicaemia due to lobar pneumonia, which is natural death," the inquiry report stated.

Accepting the same, the MSHRC in its order, had recorded, "The cause of death was not found to be unnatural or homicidal. No foul play or medical negligence has been found in this case. The Commission has not noticed any material indicating violation of human rights or negligence in protection of human rights."

Thus, granting a liberty to challenge this Inquiry Report, the bench disposed of the petition filed by Mascarenhas.

Notably, even the NIA in its affidavit in response to the plea had contended that the trial against Swamy stood abated but the allegations ctonine to 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 Mascarenhas that continuing to show Swamy as an accused violates his fundamental rights under Article 21 of the Constitution of India, the NIA had 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.

It would also not be out of place to mention that this very petition filed in December 2021 till date, has been listed nearly 8 times before five different division benches of the High Court, of which three benches headed by Justices Prasanna Varale (now Supreme Court Judge), Sadhana Jadhav (now retired) and Revati Mohite-Dere (senior-most judge of Bombay HC) have recused from hearing the said matter.

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