The National Investigation Agency told the Supreme Court on Wednesday that the delay in the trial of the Bhima Koregaon accused could not be attributed to them. Additional Solicitor General for India K.M. Nataraj told the court:
“The matter has been posted for framing of charges. However, there are as many as nine applications filed by the accused for discharge, which are pending. This is why the trial has not yet begun. There is also a direction from the high court to take up the matter on a day-to-day basis. Let me clarify that there is no default from our side, as a prosecuting agency, resulting in the delay.”
A division bench of Justices Aniruddha Bose and Sudhanshu Dhulia was hearing the bail applications of Vernon Gonsalves and Arun Ferreira, both of whom have been lodged in jail since August 2018 for charges under the Unlawful Activities (Prevention) Act, 1967. They were arrested in connection with the 2018 caste-based violence that broke out at Bhima Koregaon in Pune, and for having alleged links with the proscribed far-left outfit, Communist Party of India (Maoists).
Notably, the trial in this high-profile case has not yet begun. Senior advocates Rebecca John (for Gonsalves) and R. Basant (for Ferreira) have both pointed out that even charges have not been framed yet, despite the passage of almost five years. “The NIA keeps filing supplementary chargesheets,” John exclaimed, while arguing for Gonsalves to be released on bail in light of the length of his incarceration. However, the ASG assured that the investigation as against the appellants in the present case, was complete and the final chargesheet already filed.
In this connection, also relevant are Basant’s remarks on the delay in the process. He pointed out, “They intend to examine a total of 336 witnesses and go through 2,105 documents. Several accused persons have not yet been apprehended.” When the appellant raised their concern over the delay in the commencement of the trial, a bench headed by Justice Uday U. Lalit (as he was then), in August of last year, had asked the NIA the reason for not splitting up the trial and examining the culpability of the available accused. The apex court had directed the NIA to either ‘segregate’ the trial, or pray for a declaration designating the persons who have not yet been apprehended as ‘proclaimed offenders’ under Section 82 of the Code of Criminal Procedure, 1973, as well as ‘consider’ whether charges need to be framed against the accused. The trial court was also directed to simultaneously hear the applications filed by some of the accused seeking to be discharged. “Let this entire exercise be undertaken within three months from today,” the bench had ordered. Basant revealed, “In a report, they have indicated that they would need an extension of one year’s time for compliance with these directions. This time has not been sought for the completion of trial, and not even for the commencement of trial, but to do what the court asked them to do in three months.”
The failure of the criminal justice machinery to expedite the trial flew in the face of the rights of the undertrial prisoners to speedy justice guaranteed under Part III of the Constitution of India, the senior counsel said. Referring to the decision of the apex court in Union of India v. K.A. Najeeb, (2021) 3 SCC 713, Basant said, “Najeeb humanised the law relating to bail. It said, maybe provisions are harsh and draconian, but the paramount considerations of fundamental rights would step in where such rights were denied, notwithstanding the rigours of the statutory language.”
A total of 16 persons were arrested in connection with the Bhima Koregaon violence, of whom one (Jesuit priest and tribal rights activist Father Stan Swamy) passed away while waiting to be granted bail on medical grounds. Four others have been released from jail for various reasons. Lawyer and trade union activist Sudha Bharadwaj was granted statutory bail by the Bombay High Court, which was affirmed by a three-judge bench of the top court. The Supreme Court also granted bail to Telegu poet, P.Varavara Rao and released journalist Gautam Navlakha from jail and put him under house arrest, both for health-related reasons. Apart from this, the regular bail granted to Dalit professor Anand Teltumbde on merits by the Bombay High Court was later upheld by the apex court as well. All other accused have been lodged in jail since late 2018. Multiple people implicated in the alleged conspiracy have also evaded arrest.
1. Vernon v. State of Maharashtra | Special Leave Petition (Criminal) No. 5423 of 2022
2. Arun v. State of Maharashtra | Diary No. 24825 of 2022