The National Investigation Agency (NIA) has opposed a petition filed in the Bombay High Court seeking to clear the name of late tribal rights activist Father Stan Swamy from the Elgar Parishad case, saying such a move would set a “wrong precedent.”
The petition was filed by Father Frazer Mascarenhas, former principal of St Xavier’s College, five months after Swamy’s death in custody. It sought a judicial inquiry into Swamy’s death and requested that the “odium of guilty” attached to him be removed.
Swamy, an 84-year-old Jesuit priest who worked with Adivasi communities in Jharkhand, was arrested by the NIA in October 2020 for alleged links with banned Maoist groups. His health worsened while lodged in Taloja Central Jail, and despite repeated bail pleas, a special NIA court refused to release him citing “prima facie evidence” against him. In July 2021, he died in a Mumbai hospital while still in judicial custody after contracting Covid-19.
On Monday, senior advocate Mihir Desai, appearing for Mascarenhas, argued that since Swamy died in judicial custody, a magisterial inquiry under law should have been conducted. The High Court then asked the Maharashtra government to explain the status of the inquiry. An Additional Public Prosecutor sought more time, and the court granted the state two weeks to file its response.
Meanwhile, the NIA filed its reply in court. Advocate Chintan Shah, representing the agency, assured the judges that the reply would also be served to the petitioner.
In its submission, the NIA objected strongly to Mascarenhas’s plea, noting that the trial court had already found prima facie (at first glance) evidence against Swamy. Whether Swamy was guilty or not can be declared only after a full-fledged trial, the agency said.
The NIA warned that allowing such petitions could undermine the entire legal process. If really courts were to function in such a way, then the whole purpose and mechanism of the Criminal Justice System would eclipse and the same would set a wrong precedent, the agency stated.
The reply also expressed shock at the demand to clear Swamy’s name. “The odium of the accusation of Stan Swamy has followed him to the grave,” it said, adding that his arrest was carried out “after following due procedure established by law” and on the basis of sufficient evidence linking him to unlawful CPI (Maoist) activities.
On the question of the inquiry, the NIA pointed out that a magisterial probe under Section 176(1A) of the Criminal Procedure Code — which makes it mandatory to inquire into deaths in custody — is already being conducted as directed by the High Court. Since there is no evidence that the Magistrate has failed in this duty, the agency argued, Mascarenhas’s plea is based only on assumptions.
The court will take up the matter again after two weeks.
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