Stan Swamy lawyer wants Bombay High Court to exercise parens patriae jurisdiction; supervise enquiry into Swamy's custodial death

Bhima Koregaon accused Stan Swamy's lawyer, Senior Advocate Mihir Desai has requested the Bombay High Court to exercise parens patriae jurisdiction to ascertain the veracity of the claims that there was negligence by the National Investigation Agency (NIA) and Taloja Central Prison towards Swamy's health (Father Stan Swamy v. National Investigation Agency & Ors.)

. Desai told a Bench of Justices SS Shinde and NJ Jamadar to keep the bail plea by Swamy pending posthumously stating that the High Court can exercise its parens patriae power over the deceased citizens and supervise the investigation.

Parens patriae jurisdiction is usually referred to the interference by State organs to protect individuals, particularly children, disabled or incapacitated individuals, who are unable to take a decision for themselves.

. The Court was hearing the bail pleas filed by Swamy before he passed away on July 5.

Desai sought the following directions from the Court:

Permission to Father Fraser Mascarhenas to attend the preliminary enquiry conducted under Section 176 of the Code of Criminal Procedure into the custodial death of Swamy;

That the investigation be conducted in compliance with the guidelines of the National Human Rights Commission;

That since the death was in Mumbai, the Magistrate to be appointed be from Mumbai;

That the report of such investigation by the Magistrate be submitted to the High Court to ensure it is supervised.

. Additional Solicitor General Anil Singh submitted that while he could possibly not have any objection to the investigation being conducted in compliance with the procedure under law, he has objection to the report being submitted to the High Court.

He cited Section 346 of Code of Criminal Procedure to contend that any appeal (barring challenge to the conviction or sentence) abates after the death of the appellant.

He argued that since the Swamy's appeal was a challenge to a bail rejection it had abated after his death and because of this, there was no proceeding remaining under which the High Court could exercise its jurisdiction.

Chief Public Prosecutor Aruna Pai adopted ASG's submissions.

. The Court acknowledged the submission and asked Desai to clarify on this aspect.

Desai argued that while he agreed with ASG's submissions on the legal issue, he was invoking the "supervisory jurisdiction of the High Court" which would fall under the constitutional jurisdiction.

He clarified that what he was seeking was not within the scope of appeal.

. In this regard, he cited the judgments in Charan Lal Sahu v. Union of India & Ors. and Aruna Ramchandra Shanbaug v. Union of India , to argue that the Supreme Court had held that the High Court was parens patriae to the applicants in the case.

"The High Court would continue to be parent of the deceased," he submitted.

. Upon such submission, the Court directed Desai to file a written submission with the relevant judgments supporting his argument and serve a copy of the same on the respondents so that they can prepare their response.

"We understand Article 215 we have powers (of supervisory jursdiction). But whether can you convert the appeal (into some other proceeding). Can a writ petition be maintainable," the Court asked.

. The Court will hear the plea again on August 4, 2021.

Stan Swamy lawyer wants Bombay High Court to exercise parens patriae jurisdiction; supervise enquiry into Swamy's custodial death

Neha Joshi

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