SC Dismisses NIA Plea Against Default Bail for Sudha Bharadwaj

'It is not your case that there is no special court in Maharashtra. There are special courts in Maharashtra. So why did you prefer this application before the other court?'

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New Delhi: The Supreme Court on Tuesday, December 7, rejected the National Investigation Agency’s plea to stay the default bail granted to activist-lawyer Sudha Bharadwaj by the Bombay high court on December 1.

Bharadwaj had been jailed for over three years in the Elgar Parishad case, which is yet to go to trial. She is now expected to be released after the NIA court sets bail conditions tomorrow, December 8. The case was earlier handled by Pune Police and was later taken over by the NIA.

A bench of Justices S.S. Shinde and N.J. Jamadar granted bail to Bharadwaj who sought it 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 as his court was not notified as a ‘special court’ under Section 22 of the NIA Act.

On Tuesday, an apex court bench of Justice U.U. Lalit, Justice Ravindra Bhat and Justice Bela Trivedi observed that there was no reason to interfere with the Bombay high court order, LiveLaw has reported.

For the NIA, additional solicitor general of India Aman Lekhi raised technicalities of the Unlawful Activities (Prevention) Act that he alleged the Bombay high court had missed.

Bharadwaj was arrested under the UAPA on August 28, 2018.

When the Supreme Court asked after the “basic chronology” of the case, Lekhi said that the period of 90 days within which a chargesheet needs to be produced expired for Bharadwaj on January 25, 2019, but claimed that the NIA which apparently considered the period of house arrest as part of the incarceration had applied for extension on November 22, 2018. The court granted NIA time on November 26, 2018, on which day Bharadwaj applied for statutory bail, Lekhi said, according to LiveLaw.

Justice Lalit then said that if the court had not been “competent” to grant extension then such an extension was not valid and “the lady was entitled to statutory bail.”

This observation will have a bearing on the bail appeals of other accused persons. Last week, the Bombay high court rejected bail applications moved by Bharadwaj’s eight co-accused. The high court did not accept their arguments relating to the court’s competency, and their plea for default bail application was also rejected on the grounds that they did not move it within the stipulated time.

Lekhi argued that a court’s competence to ‘try’ a case is different from its authority to remand an accused at the investigation stage – a matter the ASG claimed was distinct from ‘trial’.

He also held that the Supreme Court’s decision in Bikramjit Singh versus The State of Punjab had ignored Section 10 of the NIA Act, which accords the state the right to investigate an UAPA offence, according to the ASG.

To this, Justice Lalit observed that “[I]t is the Special Court which is aware of the intricacies of the matter. These are the factors which weighed with Justice Nariman (in the Bikramjit decision).”

Both Justices Lalit and Bhat observed that in the presence of a special court, that is the only one which can hear the relevant case.

“It is not your case that there is no Special Court in Maharashtra. There are Special Courts in Maharashtra. So why did you prefer this application before the other Court?” Justice Lalit asked, according to LiveLaw’s report.

To the ASG’s repeated assertion, which the apex court even asked him to clarify at a point, that the special court comes in play only after the trial has begun, Justice Lalit observed that a “dichotomy” is created.

“This will be doing violence to the entire scheme of Special Courts,” he added.

The ASG also said that a case, before it is taken over by the NIA must be tried in a “UAPA court,” to which the apex court replied that there is no special UAPA court and only an NIA court.

“The root is very clear. The UAPA Act defines ‘court’ in Section 2 which is the Section 11 or 22 (of the NIA Act) Court,” Justice Lalit also noted.

In total, 16 activists, academics and lawyers were arrested by the Pune Police and the NIA in the Elgar Parishad case. Like Bharadwaj, several of them suffer from illnesses and their medical bail pleas have been rejected multiple times. In February, political activist and poet Varavara Rao was granted bail on medical grounds. In July, the oldest of the activists arrested, Father Stan Swamy, passed away in custody after having contracted COVID-19.

Bharadwaj is the first to be granted a default bail in the case, investigation into which has been described as partisan and an attempt to silence dissenters and grassroots activism.

While granting bail to Bharadwaj, the Bombay high court also refused the bail pleas – on similar grounds – of Sudhir Dawale, Varavara Rao, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira.