“We are in 2023 now and still, charges have not yet been filed,” Senior Advocate Rebecca John told the Supreme Court on Monday, while appearing for activist and Bhima Koregaon accused Vernon Gonsalves, who has been lodged in jail since August 2018 for charges under the Unlawful Activities (Prevention) Act, 1967. A division bench of Justices Aniruddha Bose and Sudhanshu Dhulia was hearing the bail applications of Gonsalves and a co-accused, Arun Ferreira, who were arrested for alleged links with the 2018 caste-based violence that broke out at Bhima Koregaon in Pune, as well as with far-left militants. Indicating that they would like to hear the arguments at length, the bench decided to post the matter on a ‘non-miscellaneous’ day in the week starting on January 30.
In her brief submissions today, John informed the court that Gonsalves had been acquitted in all the other cases in which he was implicated, apart from the first one. In the first case, he was convicted for being a member of an ‘unlawful association’ under Clause (i) of Sub-section (a) of Section 10 and sentenced to three years’ imprisonment, and for ‘advocating, abetting, advising, or inciting’ the commission of an ‘unlawful activity’ under Clause (b) of Sub-section (1) of Section 13 and sentenced to five years’ imprisonment. “Even at the time of conviction, Gonsalves had already served out his sentence in the only case in which a conviction was made. His appeal is currently pending at the Nagpur High Court,” the senior counsel said. She also stressed that the order passed by the Supreme Court confirming the bail granted to another co-accused, Anil Teltumbde, by the Bombay High Court was ‘squarely applicable’ to Gonsalves’ application. “The facts are almost the same, although the documents against the present petitioner may be different.”
Referring to the decision in National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, in which the top court extensively dealt with Sub-section (5) of Section 43D of the anti-terror statute and laid down the guidelines for dealing with bail petitions under this provision, Justice Dhulia asked, “Isn’t the Watali verdict against you?” John, however, pointed out that since the offences allegedly committed by the petitioner answered to the descriptions given in Clause (i) of Sub-section (a) of Section 10 and Clause (b) of Sub-section (1) of Section 13, the rigours of Sub-section (5) of Section 43D, which enjoined a court from releasing an accused on bail unless it found no reasonable grounds for believing that the allegations were prima facie true, would not apply. To further bolster her argument, she referred to the orders passed by the apex court granting bail to Thwaha Fasal, and K.A. Najeeb, and confirming the bail of Anil Teltumbde. In particular, the senior counsel relied onUnion of India v. K.A. Najeeb, (2021) 3 SCC 713, in which it was held that constitutional courts had the power to grant bail to people accused of offences under the anti-terror statute, notwithstanding Sub-section (5) of Section 43D, in order to ensure the right to speedy trial guaranteed under Article 21.
Resisting the plea on behalf of the state, Additional Solicitor-General, S.V. Raju exclaimed, “They were assisting the Naxals who then attacked the Indian armed forces. I will bring all relevant information on the record.” In turn, heavily assailing the prosecution’s case, John said, “What additional material pertaining to events taking place after 2005 have they placed on record? The two witnesses that the state has relied upon only spoke about things prior to 2005. So far, even charges have not been framed…What is the nature of the evidence against the petitioner? Apart from only one case, in all other cases, he has already been acquitted. Even in the case in which he has been convicted, the petitioner has served his sentence.” Ferreira was represented by Senior Advocate R. Basant.
Justice Bose pronounced, “List both the matters on a non-miscellaneous day in the week starting on January 30, 2023. Learned counsel for all sides shall be permitted to file additional affidavit setting out the judgements they seek to rely on.”
Last week, Justice Dipankar Datta had recused from hearing this matter.
Vernon v. State of Maharashtra | Special Leave Petition (Criminal) No. 5432 of 2022
Arun v. State of Maharashtra | Diary No. 24825 of 2022