Mumbai: National Investigation Agency (NIA) has told Bombay high court that to declare late Fr Stan Swamy, a Jesuit priest and tribal rights activist, not guilty is possible only after a decision in the trial in the 2018 Elgar Parishad case.“The death of an accused ordinarily abates criminal action, however, the petitioner cannot take it as an advantage to make that as a ground to change the policy of the law. ..to declare the accused not guilty would only rise out of decision after due trial,” said the affidavit by NIA, Mumbai.NIA opposed the petition filed on Dec 8, 2021, by Fr Frazer Mascarenhas, as next of kin, following Swamy’s death on July 5, 2021, while in judicial custody. Mascarenhas urged HC to set aside the March 22, 2021 finding of special NIA court of Swamy’s prima facie guilt. He also sought a magistrate inquiry into Swamy’s custodial death and removal of “odium of guilt” attached to him.Senior advocate Mihir Desai, for Mascarenhas, told a bench led by Justice Ajey Gadkari that he was unaware if NIA had filed its reply. NIA’s advocate Chintan Shah submitted NIA’s April 6, 2022 reply. It stated that allowing the prayer “would be nothing but to supersede well-established rule of law…” It added: “If courts really 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.“NIA said the prayer to quash the findings is not maintainable because the proceedings on “Stan Swamy, who was an accused, have already abated”. Since HC, in Nov 2021, held that Swamy’s appeal has become infructuous, “there is no question of reconsidering the question of prima facie guilt of the accused person not set up for trial”.NIA also said for Mascarenhas to say “that the odium of the accusation of Stan Swamy has followed him to the grave is highly deprecated.” Swamy was arrested “after following due procedure established by law, having sufficient evidence that establishes his involvement in furtherance of unlawful CPI (Maoists) activities…”NIA also referred to HC’s July 5, 2021 order directing that magistrate inquiry under Criminal Procedure Code on account of Swamy’s death in custody. “There is nothing to show the magistrate has not conducted the inquiry or shall not conduct the inquiry in accordance with law,” said NIA , adding Mascarenhas has approached HC “purely on the basis of unfounded apprehension.” The bench sought state’s response on the status of the magistrate’s inquiry after two weeks.The case relates to an Elgar Parishad conclave held on Dec 31, 2017, in Shaniwar Wada in Pune. The next day, violent clashes broke out near Bhima Koregaon war memorial. Pune police alleged that the violence was triggered by “inflammatory speeches” given at the Elgar event and also that it was backed by Maoists. Sixteen persons, including Fr Swamy, were arrested for their alleged conspiracy in the case.
