Got Certified Copy Of Bail Order To File Appeal After 55-Days: Bhima Koregaon Accused Surendra Gadling Justifies Delay In Default Bail Application

In the plea under Section 21(4) of the NIA Act Gadling has blamed the prison department for the delay of nearly two months in receiving certified copies of the order of the Special Court, to justify the delay in filing the appeal.

After briefly hearing his counsel, a division bench headed by Justice AS Gadkari issued notice to the National Investigation Agency seeking to first know its stand on 10-day delay in filing the appeal.

Gadling was represented by Advocate Yashodeep Deshmukh appointed by the HC’s Legal Services Committee.

A practicing lawyer from Nagpur, Gadling (54) was arrested in June 2018 and booked under the various sections of the Unlawful Activities (Prevention) Act and IPC along with other civil liberty activists alleging a larger conspiracy to overthrow the government and to further Maoist agenda.

According to the petition, soon after Gadling’s application for default bail under section 167(2) of the CrPC was rejected, his colleague Advocate P Larson filed an application for a certified copy of the order on June 29, 2022 and received it on 15 July, 2022. However, according to Gadling, he was able to get the copy of the order and the appeal only on August 22 when he was taken to the court on a hearing date, over a month after Advocate Larson received the copy.

Explaining the gap in him actually getting the documents in his hands, the plea further states that since the limitation to file an appeal under the NIA Act is 30 days, Advocate Larson had met him in the prison with the certified copy of the order and the appeal on August 13, 2022. Larson told Gadling that he would leave the documents at the prison gate. The plea, however, alleges that the Jailor later told him the documents weren’t deposited.

Subsequently, another colleague, Advocate Barun Kumar, visited Gadling on August 20, 2022 with the same documents and informed him about the prison officials’ refusal to accept the documents the first time. According to the plea, they then informed Taloja Central prison’s Jailor that the documents would be left behind and while he initially agreed, prison officials later asked him to get the order copy, appeal and other documents via a court order or post.

Finally on a regular court date on August 22, Gadling says he received the documents and handed it over to prison officials the following day to file the appeal. “Hence the delay of 10 days has occasioned due to the circumstances which are beyond the control of the appellant and therefore it may be condoned.”

Facts

On June 28, 2022 the Special NIA court refused default bail under section 167(2) of the CrPC to Gadling and four of his co-accused Rona Wilson, Shoma Sen, Sudhir Dhawale and Mahesh Raut.

The accused have claimed that the Special Pune Judge who extended their custody beyond 90 days in 2018 did not have the jurisdiction to do so as he was not a Special Judge under the NIA Act. On December 1, 2021, the High Court granted default bail to co-accused Sudha Bharadwaj on the same ground.

However, the court had refused relief and Writ Petition of eight others, including Gadling, on the ground that their default bail applications weren't filed within the stipulated period, which is after 90 days of their arrest and before filing of the charge sheet.

A review petition also failed but the HC clarified that its observations were based on the material placed before it. Gadling then pursued his default bail plea pending before the trial court. A rejection of default bail on June 28, 2022 has been assailed before the Bombay HC.