Prima Facie Deep Involvement With RDF & Maoist Activities: Bombay High Court Refuses Bail To DU Professor Hany Babu In Elgar Parishad Case

Prof Babu was arrested by the National Investigating Agency on July 28, 2020 in the Bhima Koregaon – Elgar Parishad larger conspiracy case.

The court relied on a "Secrecy Handbook" allegedly recovered from Babu on setting up a secret network and avoiding surveillance, which explicitly states that "if one comrade is arrested, other comrades must do everything to help…by providing legal representation, publicity and organising protest."

"The material shows his deep involvement in the activities of the Revolutionary Democratic Front (RDF) and the CPI (Maoist), and his role cannot be seen only as an academician trying to help a colleague for release from custody, as is sought to be argued."

A division bench of Justice Nitin Jamdar and NR Borkar said that their opinion about Babu not just being a mere sympathiser but being someone who was given substantial responsibility, at RDF, an alleged front organisation, was based on broad probabilities.

"Having considered the totality of the material on record indicating accusations against the Appellant, we find that there are reasonable grounds for believing that the accusations of the NIA against the Appellant having conspired, attempted, advocated and abetted the commission of a terrorist act/s and the act/s of preparatory to the commission of a terrorist act, are prima facie true."

Babu 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 stringent Unlawful Activities (Prevention) Act.

He approached the HC after the trial court refused to grant him bail in February this year. The HC reserved his application for orders on August 30.

During the hearing, NIA represented by ASG Anil Singh alleged that Babu was involved in the Maoist conspiracy to set up 'Janta Sarkar' (people's government) by overthrowing the elected government through armed struggle. Singh also referred to a list showing hierarchy of CPI (Maoist) leaders which included Babu and other accused persons.

The NIA claimed that Babu was keeping accounts for developing an IED and also raising funds for the release of co-accused in the case. He was in contact with co-accused Varavara Rao, late father Stan Swamy and Sudha Bharadwaj, they argued.

Advocate Yug Mohit Chaudhry along with Advocate Payoshi Roy has submitted that just mens rea cannot lead to an offence. "How can he be prosecuted when no terrorist act is committed or alleged? There is a world of a difference between waging war as an objective and an actual waging war," he added.

Chaudhry claimed that unless actual steps of waging war are taken, one cannot be guilty of waging war. He also emphasized that the trial would take a long time to be completed.

At the outset the court cited Supreme Court's judgement in Watali's case to state that it was not expected to analyse individual pieces of evidence but to form an opinion based on broad probabilities and totality of material before it.

Then the court considered documents allegedly recovered from Babu and then other material being relied upon against him.

Documents seized include one on mass mobilisation and party building. The State is allegedly referred to as an enemy for its repressive nature. The document also deals with mobilisation of the urban masses, particularly the working class.

Another document seized from the Appellant is Mumbai Perspective, the bench noted. Reference is made to slums and students' work, and the purpose of the analysis is not academic research but for the 'antifascist movement' and 'anti-imperialist' work. It refers to the 'Hindu fascists' having an organised structure in Mumbai city and the necessity for uniting religious minorities.

"In view of the seriousness of the conspiracy, the threat that it poses and the role of the Appellant in it, the arguments of the Appellant based on educational qualifications and his conduct, cannot be considered.

The Appellant was in charge of the appointments, coordinating with the foreign collaborators, creating propaganda and raising funds for the release of co-conspirators and members of the banned organisation in furtherance of the party agenda," the bench noted.

Case Title : Hany Babu v National Investigation Agency and anr

Citation : 2022 LiveLaw (Bom) 337

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