1 Dec 2021 5:13 AM GMT
The Bombay High Court on Wednesday granted default bail to lawyer-activist Sudha Bharadwaj in the 2018 Bhima Koregaon – Elgar Parishad caste violence case.However, the Court rejected the bail applications of the 8 other accused Sudhir Dawale, Dr P Varavara Rao, Rona Wilson, Advocate Surendra Gadling, Professor Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira. They...
The Bombay High Court on Wednesday granted default bail to lawyer-activist Sudha Bharadwaj in the 2018 Bhima Koregaon – Elgar Parishad caste violence case.
However, the Court rejected the bail applications of the 8 other accused Sudhir Dawale, Dr P Varavara Rao, Rona Wilson, Advocate Surendra Gadling, Professor Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira. They were arrested between June – August 2018.
The Court has directed Sudha Bharadwaj to be produced before the Special NIA Court on December 8 to decide the conditions of bail. Full copy of the order is awaited.
A division bench of Justices SS Shinde and NJ Jamadar had reserved Bharadwaj's bail plea for judgement on August 4 and the criminal application by eight others on September 1. Additional Solicitor General Anil Singh for NIA sought a stay on the operation and implementation of the order in view of two recent Supreme Court judgements. However, the court refused relief saying it has already considered the orders in its judgement.
Breaking : #BombayHighCourt allows lawyer SudhaBharadwaj 's plea seeking default bail in the #BhimaKoregaon #ElgarParishad case. She is ordered to be produced before the special court on December 8 to decide the conditions of bail.— Live Law (@LiveLawIndia) December 1, 2021
Breaking : #BombayHighCourt allows lawyer SudhaBharadwaj 's plea seeking default bail in the #BhimaKoregaon #ElgarParishad case. She is ordered to be produced before the special court on December 8 to decide the conditions of bail.
Pune Court was not competent to extend time of detention under UAPA as it was not notified as a Special NIA Court
The High Court accepted the petitioners' argument that the Additional Sessions Court, Pune, which took cognizance of the chargesheet filed by the NIA and also extended the period of detention of accused beyond 90 days as per Section 43D(2) of the UAPA, was not competent to do so. Because, the Pune Sessions Court was not notified as a Special Court under the NIA Act. Also, there was another Special NIA Court in existence in Pune at the relevant time.
"The extension of period of investigation and detention of the applicants by order dated 26th November 2018 by invoking the frst proviso under section 43-D(2) of UAPA, by the learned Additional Sessions Judge was not by a Court of competent jurisdiction", the High Court observed.
However, the High Court added that this irregularity will not result in vitiation of the cognizance taken on the chargesheet.
"Consistent with the enunciation in the case of Bikramjit Singh (Supra) and in the face of undisputed position of existence of Special Court at Pune, the charge-sheet ought to have been lodged before the Special Court. However, the act of taking of cognizance, by the learned Additional Sessions Judge (Shri K.D.Vadane), does not entail the consequence ofthe vitiation of the entire proceedings".
Sudha Bharadwaj had filed application for default bail when the 90 days period expired; other 8 accused had not
The High Court noted that Sudha Bharadwaj had filed an application seeking default bail on November 26, 2018. This was filed on the understanding that the period of 90 days will include her period underwent in house arrest from 28th August 2018 to 27th October 2018. Later, in the case of Guatam Navlkakha, the High Court and the Supreme Court observed that the period of house-arrest cannot be included in the 90-day period for the purpose of Section 43D(2) of UAPA.
Be that as it may, the Pune Court passed the order extending the period of detention on November 26, 2018. Because, the prosecution was also then under the impression that the house arrest period also should be included and had filed the extension application on November 25.
In any case, the period of 90 days, as far as Sudha Bharadwaj is concerned, expired on January 25, 2019, excluding the period of her house arrest. On that day, the application filed by her seeking default bail was pending. The supplementary charge-sheet against the applicant-Sudha Bharadwaj was fled on 21st February 2019.
In this backdrop, the High Court observed that the right of Sudha Bharadwaj to seek default bail had crystallized on January 25, 2019, on which date her earlier application was pending. The High Court rejected the NIA's argument that her application, which was filed on November 26, 2018, was premature.
The High Court summarized the situation as follows :
"In the case at hand, with the declaration that the learned Additional Sessions Judge (Shri K.D. Vadane) had no jurisdictional competence to extend the period of detention under section 43-D(2)(b) of UAPA, the very substratum of the prosecution case that the right to default bail did not ripe into an indefeasible right, as the period of detention was extended, gets dismantled. The hard facts which thus emerge so far as the application of Sudha Bharadwaj are : (i) that the period of detention of 90 days (excluding the period of house arrest) expired on 25th January, 2019; (ii) no charge-sheet was lodged; (iii) there was no lawful order of extension of period of detention; and (iv) an application preferred by Sudha Bharadwaj for default bail awaited adjudication".
"On the touchstone of the guarantee of personal liberty under Article 21 of Constitution, to deprive Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26th Nov 2018 was premature, would be taking a too technical & formalistic view", the High Court added.
Why other 8 did not get the benefit of default bail?
As far as the other 8 applicants are concerned, the High Court noted that none of them had filed an application seeking default bail at the time of expiry of 90 days of their detention.
Their case was premised on the argument that the cognizance of the chargesheet itself is vitiated, as the Court had no competence, and hence it should be presumed that no chargesheet has been filed as regards them. This was not accepted by the High Court on the basis of the principle that mere irregularity in taking cognizance will not vitiate the proceedings.
"...so far as the applicant Nos.1 to 5 in Application No.1458 of 2019, the aspect of legality or otherwise of the extension of period of detention is of no relevance as the applicants did not avail of the said right to be released on default bail before the charge-sheet was fled against them on 15th November 2018. In the case of applicant Nos. 6 to 8, though wehave held that the order passed by the learned Additional Sessions Judge on the report (Exh.33) on 26th November 2018 was without jurisdiction, yet the said declaration is of no assistance to the applicant Nos.6 to 8 as they did not avail of the right to be released on default bail by fling an application, after the expiry of the initial period of 90 days and before the lodging of the charge-sheet on 21st February 2019. Resultantly, a crucial condition of 'availing of' the right so as to cement it as an indefeasible right,has not been fulflled and the right stood extinguished by the fling of the charge-sheet on 21st February 2019. Failure to take cognizance or defect in jurisdiction in taking cognizance, once the charge-sheet was laid, does not entail the consequence of default bail".
Applicants 1 to 5 are Sudhir Dhawale, Rona Wilson, Surendra Gadling, Dr.Shoma Sen, Mahesh Raut and applicants 6 to 8 are Varavara Rao, Vernon Gonsalves and Arun Ferreira.
Arguments of the petitioners during the hearing
The petitioners contended that the Pune sessions court was not authorised to take cognisance of the case against them in 2018-19. Only a special court under the NIA Act was allowed to hear cases of those charged with offences under the Unlawful Activities (Prevention) Act, they argued.
Therefore, orders allowing the Pune police an extension to file the charge sheet in 2018 and subsequently taking cognisance of the 1,800-page supplementary charge sheet in 2019 would be null and void, the accused said.
The pleas are filed under sections 439, 193, 482 and 167(2)(a)(i) of the Criminal Procedure Code read with section 43 (d)(2) of the Unlawful Activities Prevention Act.
The bench had earlier observed that the HC's records were consistent with Bharadwaj's RTI documents demonstrating that the Pune Judge KD Vadane Judge was not notified as a Special Court under the NIA Act.
Advocate Yug Chaudhry assisted by Advocate Payoshi Roy argued that Bharadwaj and her co-accused were booked for offences under Unlawful Activities (Prevention) Act, which is a 'scheduled offence' under the NIA Act; therefore, their case should have gone before a special court, not before Judge Vadane.
In response, Advocate General Ashutosh Kumbhakoni and Additional Solicitor General Anil Singh for NIA submitted that cases under UA(P) Act would go before a special court only after the National Investigation Agency is entrusted with the investigation.
In the present case, the Centre entrusted the NIA with the investigation only on January 24, 2020. The Pune police was investigating the case when judge KD Vadane extended time for filing the charge sheet on November 26, 2018, and took cognisance of the charge sheet on February 21, 2019.
Chaudhary placed heavy reliance on the Supreme Court's judgement in the case of Bikramjit Singhv/s The State of Punjab where the court observed that all offences under the UAPA, whether investigated by the NIA or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under the NIA Act.
The three judge bench headed by Justice Rohinton Fali Nariman had observed that the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act.
Advocate General Kumbhakoni submitted that the facts of Bikramjit's case were different from the facts of the present case, and therefore the judgement would not apply.
He said that there were two applications in Bikramjit's case filed by the accused. The first challenging the magistrate's order granting extension to file the charge sheet and the second seeking default bail u/s 167(2) of the CrPC. The sessions court had set aside the magistrate court's order granting extension, which either party did not challenge.
He added that it was in the default bail plea that Bikramjit's case succeeded in Supreme Court. Therefore, the facts of the two cases were very different as there is no order setting aside the extension granted to the police for filing heir chargesheet in the Bhima Koregaon – Elgar Parishad Case.
Kumbhakoni claimed that the plea filed by the eight other accused challenging rejection of their default bail plea is not maintainable. He argued that they had failed to challenge the order granting the extension of time to file the charge sheet. "Once the charge sheet is filed within the stipulated period of time, the question of default bail does not arise," he said.
Additional Solicitor General for NIA said that Bharadwaj hadn't filed a valid default bail application at that time. However, Advocate Sudeep Pasbola said the order of extension to file the charge sheet was challenged in a separate proceeding. So, it cannot be said they had accepted the order.
Click Here To Read/Download Judgment/Order