9 Feb 2022 12:15 PM GMT
The Bombay High Court has directed the National Investigation Agency to respond to a review application filed by three accused in the Bhima Koregaon – Elgar Parishad Case seeking bail and factual corrections in the order refusing them default bail. A division bench led by Justice SS Shinde gave the agency two weeks to file their reply and posted the application filed...
The Bombay High Court has directed the National Investigation Agency to respond to a review application filed by three accused in the Bhima Koregaon – Elgar Parishad Case seeking bail and factual corrections in the order refusing them default bail.
A division bench led by Justice SS Shinde gave the agency two weeks to file their reply and posted the application filed by Vernon Gonsalves, Varavara Rao and Arun Ferreira thereafter.
On December 1, the High Court denied default bail to the petitioners and five of their co-accused on the ground that they had not filed their default bail applications within the stipulated period, which is after 60 days of their arrest and before filing of the charge sheet.
Therefore, it was held that even though the Pune Sessions Judge extended their detention after 60 days without jurisdiction, since he was not a special judge under the NIA Act, they were not entitled to relief. Co-accused Sudha Bharadwaj was however granted bail in the same order.
All the eight who were denied relief claimed that denial of bail was on account of a factual error; as just like Bharadwaj, they had also filed default bail applications in the trial could within the stipulated period.
Gonsalves, Rao and Ferreira have approached the High Court claiming they applied for default bail on November 30, 2018, just four days after Bharadwaj's application. They contended that the Pune Sessions Court rejected their default bail applications and Bharadwaj's default bail plea in a common order on November 6, 2019. They pointed out that the November 6, 2019 order was set aside by the High Court while granting bail to Bharadwaj.
"If necessary correction is not carried out it shall result in gross miscarriage of justice as the indefeasible right though exercised would be taken away and the applicants cannot enforce their right at all," the plea states.
As for Sudhir Dhawale, Rona Wilson, Surendra Gadling, Shoma Sen and Mahesh Raut, they are pursing their default bail pleas filed on September 26, 2018, i.e. 90 days after their arrest on July 6 and before the first charge sheet against them was submitted on November 15, 2018. They have sought for the special court to decide these applications now.
The three accused in their application before the High Court said that the result of the observations while rejecting their default bail plea is that "they had not made any application at all for default bail and secondly they are not entitled for relief of compulsive bail as they have not availed of the right available to them."
"The error appearing in paragraphs 146 and 149 in the judgement is factual and the correct position needs to be emphasised. It ought to be appreciated that these Applicants had also made application for default bail and the order dated 06.11.2019, which was set aside by this Hon'ble Court in criminal bail application No.: 2024/2021 had also referred to the bail applications made by these Applicants and thus these Applicants had also made default bail applications in time and were always prepared to furnish bail."
Finally the application filed through advocate R Satyanarayanan states that the High Court has plenary powers to correct such factual errors.
"If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record."
The matter has now been adjourned to February 24.
The National Investigation Agency booked 16 civil liberties activists under sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120b r/w 34 of the IPC and sections 13,16,17,18,18-B,20,38,39 and 40 of the UAPA. Father Stan Swamy, the 16th accused to be arrested, passed away on July 5, awaiting bail.
The NIA has accused them of a plot to overthrow the Government, being members of front organisations of the banned CPI(Maoists). However, the arrested activists claim that incriminating material was planted on Gadling and co-accused researcher Rona Wilson's laptop, based on an independent forensic analysis firm's reports.
They blamed the activists for furthering the CPI(Maoist) agenda and causing the caste violence at the Bhima Koregaon war memorial on January 1, 2018.
Apart from Bharadwaj and Rao (granted bail on medical grounds), all the accused are still in prison.