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Bombay High Court Grants Bail To Surendra Gadling For Nine Days To Attend Mother's Death Anniversary

Sharmeen Hakim
30 July 2021 9:35 AM GMT
Bombay High Court Grants Bail To Surendra Gadling For Nine Days To Attend Mothers Death Anniversary
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The Bombay High Court on Friday allowed temporary bail to Bhima Koregaon-Elgar Parishad accused Advocate Surendra Gadling from August 13 to 21 to attend his mother's death anniversary.A division bench headed by Justice SS Shinde and NJ Jamadar observed that the rigours of regular bail under the Unlawful Activities (Prevention) Act would not apply for the grant of temporary bail on...

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The Bombay High Court on Friday allowed temporary bail to Bhima Koregaon-Elgar Parishad accused Advocate Surendra Gadling from August 13 to 21 to attend his mother's death anniversary.

A division bench headed by Justice SS Shinde and NJ Jamadar observed that the rigours of regular bail under the Unlawful Activities (Prevention) Act would not apply for the grant of temporary bail on humanitarian grounds.

Therefore, the judgement in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali could not be used to oppose bail being sought purely on humanitarian grounds on the death of a parent, the court said.

A division bench of Justices SS Shinde and NJ Jamadar granted Gadling bail for nine days, from August 13-21, to perform his mother's funeral rites on her first death anniversary on humanitarian grounds.

Gadling had approached the High Court in an appeal under Section 21 (4) of the NIA Act challenging the Special Judge DE Kothalikar's order from September 2020, refusing him emergency bail.

"From the perusal of the impugned order, it does not appear that the NIA Court approached the issue from the perspective of humanitarian consideration. In our view, the NIA Court misdirected itself in importing the considerations which bear upon grant of regular bail to a prayer for release on humanitarian ground. Reliance placed on behalf of the respondent-NIA on the judgment in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali 4 , which governs the grant of a regular bail, therefore, does not seem well founded in the context of the consideration of the prayer for temporary bail to participate in the last rites/rituals of the deceased mother of the appellant."

The court rejected NIA's submission that Gadling's cause does not survive in an appeal u/s 21 of the NIA Act, as his mother passed away last year.

"On a humane consideration, which the circumstances of the case and the nature of the prayer warrant, the said objection appears untenable…It was not the prayer of the appellant that he should be released to attend the funeral of his deceased mother. The specific prayer was to release him so that he can join his family in performing the rituals. From this stand point, the claim of the appellant that the rites, rituals and condolence meeting, which have been kept in abeyance, are to be performed and held Shraddha Talekar on the first death anniversary of his mother, cannot be said to be impracticable or untenable."

The bench added that Gadling's prayers were not unjustified.

In the prevailing social construct, the first death anniversary of an immediate family member has an element of religious, personal and emotional significance. Admittedly, the appellant has not been able to participate in any of the rites/rituals in connection with the death of his mother. Viewed through this prism, we do not find the prayer of the appellant unjustifiable.

Accepting Senior Advocate Indira Jaising's arguments that Gadling was a practicing advocate before he came to be arrested on 6th June 2018 and stayed in Pune after his house was searched, the court said.

These submissions carry substance. Having regard to the situation in life of the appellant, as borne out by the record, we do not find that there is a reasonable ground to believe that the appellant may abscond.

Conditions for bail

Furnishing a PR bond in the sum of Rs. 50,000/-, with one or two sureties in the like amount, to the satisfaction of the learned Special Judge, NIA Court.

Inform S.P., NIA, Mumbai details of the travel from Mumbai to Nagpur.

The appellant shall intimate the jurisdictional police station the date and time of his arrival at Nagpur immediately after reaching Nagpur.

The appellant shall mark his presence at the jurisdictional police station on 16th August 2021 and 19th August 2021 at 10:00 a.m.

Gadling was arrested in the case three years ago on June 6, 2018, and booked under sections of the Indian Penal Code and the anti-terror Unlawful Activities (Prevention) Act for alleged CPI(Maoist) links.

Gadling had approached the High Court in an appeal under Section 21 (4) of the NIA Act challenging the Special Judge DE Kothalikar's order, refusing him emergency bail after his mother's demise due to Covid last year.

From the hearing

In the hearing held on July 26, Senior Advocate Indira Jaising, appearing for Gadling, submitted that since his family members were either hospitalised with Covid or under home isolation, in August 2020, his mother's funeral rites (cooling of ashes), rituals, and condolence meetings remain pending. However, the family has decided to perform these on her first death anniversary on August 15, 2021.

"The delay was not on my part ... I had filed the plea on time and even the appeal immediately. He can be granted bail on humanitarian grounds. I have to say that the court was in error in refusing him bail and restitution must be done," she argued.

 The National Investigation Agency (NIA) opposed the application stating that Gadling was booked under serious offences. Moreover, his reasons for temporary bail, on account of his mother's unfortunate death, do not survive, and he was not allowed to assign new reasons in an appeal.

The NIA called Gadling's appeal for release a "gross abuse" of the process of law and the Court's precious time.

 Advocate Sandesh Patil for NIA said, "Especially since the incident dates back to August 2020. Moreover, he had not provided the relevant documents. The question is, do the reasons for granting bail survive today? He says he wants to join the family for the last rituals, but the cremation is over. My humble submission is that the appeal should be dismissed."

On September 11, 2021, Special NIA Judge rejected Gadling's emergency bail application, accepting NIA's submissions that three weeks had already passed since his mother's demise; therefore, he would not be required for performing the funeral rites or rituals.

Gadling claimed that the judge failed to consider his three-year-long incarceration. In addition, not allowing him to share his grief with his family members only affects his mental condition, he argued.

Gadling was booked 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 along with 14 other activists. 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 report.

The Bhima Koregaon Case

The Bhima Koregaon battle was fought between 25,000 mighty Peshwa army and 500 British soldiers, including people from the Mahar (Dalit) community. The names of martyrs in the war are inscribed in the memorial by the British Army back then.

The hundreds of people visiting the war memorial at Bhima Koregaon were attacked on January 1, 2018, after violence erupted. They were mainly from the Dalit community, and one died in the stone-pelting.

An FIR was registered regarding the violence the same day. However, another FIR by right-wing activist Tushar Damgude was filed on January 8, 2018, and was pursued. The houses of several activists, including Rona Wilson's and advocate Surendra Gadling were searched on April 17, 2018. It was alleged that the violence at Bhima Koregaon resulted from inflammatory speeches held at the Elgaar Parishad conference on December 31, 2017.

The scope of the investigation was eventually widened, with the Pune police claiming retrieval of incriminating documents in the form of electronic records. This included an email written by a certain 'R' to Comrade Prakash on April 18, 2017 talking of a "Rajiv Gandhi-type" operation. The email was part of the documents investigated by Arsenal earlier.

The 15 people accused in the case are as follows — Jyoti Raghoba Jagtap, Sagar Tatyaram Gorkhe, Ramesh Murlidhar Gaichor, Sudhir Dhawale, Surendra Gadling, Mahesh Raut, Shoma Sen, Rona Wilson, Arun Ferreira, Sudha Bharadwaj, Varavara Rao, Vernon Gonsalves, Anand Teltumbde, Gautam Navlakha, Hany Babu.

Most of the accused in the case were neither named in the FIR over the violence nor present during the 2017 event.

Charges are yet to be framed in the case.

Click here to read/download the judgment





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