Bombay HC asks NIA, state and Fr Stan Swamy’s counsel to justify continuation of bail appeal

The Bombay high court (HC) on Friday asked the National Investigation Agency (NIA), state and the counsel for Elgar Parishad accused Fr Stan Swamy, who died due to a heart attack on July 5, to inform it through their submissions on whether the appeals for regular bail and bail on medical grounds filed by the octogenarian priest can be heard as, according to prescribed laws, they stood abated after his demise

The Bombay high court (HC) on Friday asked the National Investigation Agency (NIA), state and the counsel for Elgar Parishad accused Fr Stan Swamy, who died due to a heart attack on July 5, to inform it through their submissions on whether the appeals for regular bail and bail on medical grounds filed by the octogenarian priest can be heard as, according to prescribed laws, they stood abated after his demise.

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The court sought the submissions after NIA objected to hearing of the appeals but the counsel for Fr Swamy maintained that the HC could exercise its parens patriae power for the deceased citizen and supervise the magisterial inquiry that is yet to commence into the death of the priest.

The bench of justice SS Shinde and justice NJ Jamadar was hearing the bail applications of Fr Swamy which had been kept pending to ascertain the veracity of the claims of his counsel that there had been negligence by NIA and Taloja Central Prison towards Swamy’s health despite him complaining about the same before the court intervened.

While making submissions, senior counsel Mihir Desai sought four directions from the court — permitting Fr Fraser Mascarenhas to attend the preliminary enquiry conducted under section 176 of the Criminal Procedure Code (CrPC) into the custodial death of Swamy; conducting the probe in compliance of the guidelines of the National Human Rights Commission; appointing a magistrate from Mumbai as Fr Swamy’s death took place in Mumbai; and that the report of such investigation by the magistrate be submitted to the HC to ensure it is supervised.

However, additional solicitor general Anil Singh said while he could possibly not have any objection to the investigation being conducted in compliance with the procedure under law, he had objection to the report being submitted to HC. Citing section 346 of CrPC, Singh submitted that any appeal by an accused stood abated after the death of the appellant. He argued that as Fr Swamy’s appeal challenged the rejection of his bail application by the special NIA court, it was abated after his death, and hence no proceeding remained for the consideration of HC.

Chief public prosecutor Aruna Pai concurred and adopted NIA’s submissions.

After hearing the submissions the court asked Desai to clarify on this aspect.

Desai argued that while he agreed with Singh’s submissions on the legal issue, he was invoking the supervisory jurisdiction of the HC as it was a Constitutional court. He clarified that what was being sought was not part of the appeal and cited judgments wherein the Supreme Court had held that the HC was parens patriae to applicants which included the children, insane adults and deceased who could not speak or decide for themselves.

After hearing Desai, the court directed him to file a written submission with the relevant judgments supporting his argument and also serve a copy to the respondents. The court also asked NIA and state to file their response and posted next hearing on August 4.