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New Delhi: The Bombay high court on Wednesday, December 1, granted default bail to Sudha Bharadwaj but rejected the default bail pleas filed by eight other accused in the Elgar Parishad case.
The eight others are Sudhir Dawale, Varavara Rao, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira.
A bench of Justices S.S. Shinde and N.J. Jamadar has directed Sudha Bharadwaj to be produced before the Special NIA court on December 8 to decide the conditions of bail.
The court noted, “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 the period of detention; and (iv) an application preferred by Sudha Bharadwaj for default bail awaited adjudication.”
“As the period of detention was extended by the learned Additional Sessions Judge by 90 days, the applicant, Sudha Bharadwaj, could not have applied for default bail after 25th January 2019 till the fling of the chargesheet. Therefore, it cannot be urged that the applicant-Sudha Bharadwaj did not make an application during the said period and thus she did not avail the right of default bail,” the bench continued.
For others, whose bail application was rejected, the court has observed that since the accused “failed to apply for default bail when the right accrues to him (them) and subsequently a chargesheet is filed before the magistrate, the right to default bail would get extinguished as it cannot be said that the accused ‘availed of’ his right to be released on default bail”.
In the case of Dhawale, Wilson, Gadling, Sen and Raut, the court observed that “the aspect of legality or otherwise of the extension of the 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 filed against them on November 15, 2018”.
In the case of Rao, Gonsalves and Ferriera, the high court noted, “Though the sessions judge had acted on the on the report (by the public prosecutor) on 26th November 2018 without jurisdiction, yet the said declaration is of no assistance to the applicant as they did not avail of the right to be released on default bail by filing an application, after the expiry of the initial period of 90 days and before the lodging of the chargesheet 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 fulfilled and the right stood extinguished by the fling of the charge-sheet on 21st February 2019,” the court further observed.
In total, 16 activists, academics and lawyers were arrested by the Pune Police and the NIA in the Elgar Parishad case. Several of them suffer from illnesses and their medical bail pleas have been rejected multiple times. The oldest of them, Father Stan Swamy, died in July this year. He had contracted COVID-19 while in custody.
Critics of the government have rejected the claims made by the NIA in the case, describing the investigation as a witchhunt against dissenters and rights activists.
In February, political activist and poet Varavara Rao was granted bail on medical grounds. Rao has since been granted multiple extensions by the court.
Bharadwaj is the first to be granted a default bail. Bail applications of other accused persons including Sagar Ghorke and Ramesh Gaichor are pending before the special NIA court.
The court’s decision today will have a bearing on the bail applications filed by other accused too.
In August, the high court had reserved its verdict on the default bail plea filed by lawyer-activist Bharadwaj. Bharadwaj’s bail application was argued on technical points.
Bharadwaj had approached the HC earlier, seeking default bail on the ground that Pune additional sessions judge K.D. Vadane, who had taken cognisance of the police chargesheet in the case filed in 2019, was not authorised to do so.
Bharadwaj had annexed RTI (Right to Information) replies from the HC to demonstrate that judge Vadane was not a designated special judge, as was necessary to adjudicate offences under the Unlawful Activities Prevention Act (UAPA).
Senior counsel Yug Choudhary, who appeared for Bharadwaj, who was booked under schedule offences under the NIA Act, had earlier told the HC that the case should have been assigned to a special judge.
For this argument, Choudhary relied on a Supreme Court judgement in the case of Bikramjit Singh v/s The State of Punjab where it was decided that offence under the UAPA, regardless of the investigating agency involved, the case should be tried before a special court set up under the NIA Act.
That, however, has not happened in the Elgar Parishad case.
In response, advocate general Ashutosh Kumbhakoni and additional solicitor general Anil Singh for NIA submitted that cases under UAPA would go before a special court only after the National Investigation Agency is entrusted with the investigation, according to LiveLaw.
The NIA took over the case in January 2020.
Eight others’ plea
In the other plea filed through advocate R. Satyanarayanan, the eight accused had pointed out three notifications issued by the Maharashtra government which said that special court had been constituted for Pune city.
The counsel for the petitioners, senior advocate Sudeep Pasbola, told the high court that since all the accused persons in the case had been charged for scheduled offences under UAPA, besides sections of the Indian Penal Code, only a designated special court could have taken cognisance of the case.
It challenged orders by judge R.M. Pande, taking cognisance of the chargesheet and rejecting their default bail application under Section 167(2) of the Code of Criminal Procedure, noting that as per the notifications judge Pande had not been designated a special judge under the NIA Act.
‘Delighted but rejection worrying’
Smita Gupta, a Delhi- based economist and activist, and a close friend of Bharadwaj’s, told The Wire that she is “delighted” at the outcome.
“We have been waiting for her to be granted bail for too long. Her friends and family are absolutely delighted with the court’s decision today,” she said.
She added that the decision to deny bail to the remaining eight (who had moved HC along with Bharadwaj) is worrying. “This case is entirely based on fraudulent and concocted evidence. We can only hope that this anomaly is corrected eventually and others too are soon released on bail.”
On the HC’s decision, the NIA has sought a stay and time to approach the Supreme Court.
Gupta said this was an expected move and that the NIA will certainly contest it in the apex court.
“But Sudha’s bail application was heavily based on a recent judgement (Bikramjit Singh case mentioned above) which has very categorically said that a special NIA court ought to be appointed to handle cases pertaining to UAPA cases,” Gupta pointed out.
“This is exhilarating news, but tempered with some disappointment that the others have not been granted bail. Haven’t read the order, so don’t know the details and can’t comment on it,” Shalini Gera, part of Bharadwaj’s legal team and her friend, told The Wire. “We have been saying from the beginning that there was no case against Sudha, but political vendetta and none of the rules and regulations were followed on this case. Sudha’s judgment proves this. We hope that this judgment paves the way for others on this case also to get bail.”