'May Be An Irregularity, Not An Illegality' : Maharashtra Govt On Special NIA Court Not Taking Cognizance Of Bhima Koregaon Case

The Maharashtra Government and the National Investigation Agency on Friday continued their arguments opposing Bhima Koregaon-Elgar Parishad accused Sudha Bharadwaj's default bail application.

The State submitted that in her entire petition Bharadwaj hasn't averred at a single place that she was "denied justice" because a sessions court, and not a special court under the NIA Act, took cognisance of the chargesheet against her and other accused on February 21, 2019.

A division bench of Justices Shinde and NJ Jamadar was hearing Bharadwaj's plea under sections 439, 482 and section 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 records of the Court were consistent with the RTI documents produced by Bharadwaj to show that the Pune Judge was not notified as a Special Court under the NIA Act.

"Assuming without admitting, can it be said that just because cognisance was taken by someone who didn't have jurisdiction, a person is entitled to default bail under 167(2)? This cognisance aspect…let us not make a mountain out of a molehill," Advocate General Kumbhakoni said, adding, that it may be, at its highest, an irregularity, not an illegality.

However, Bharadwaj has contended that since she and the other accused were charged under the UA(P) Act, which is a scheduled offence under the NIA Act, their case should have been heard by a Special Court constituted under the Act.

In fact, during earlier hearings, Advocate Yug Chaudhry for Bharadwaj cited Pune Judge KD Vadane's orders to demonstrate how he signed as a special UAPA Judge despite not being one.

However, it is the State and NIA's argument that offences under UAPA would go before a special court only if the NIA investigates the case. And the NIA took over investigations in the Bhima Koregaon-Elgar Parishad case only in January 2020.

The orders assailed by the petitioner were from the time Pune Police was investigating the case in 2018 and 2019, therefore it was not required for a special judge to hear the case.

On Friday, Kumbhakoni reiterated that the case could have gone only before a sessions court, and not a magistrate with original jurisdiction.

He argued that the case was for offences the UA(P) Act. And the definition of "court" under the Act "means a criminal court having jurisdiction, under the Code, to try offences under this Act [and includes a special court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008 (34 of 2008);]"

Kumbhakoni had earlier interpreted the section to say that "includes" means also a special court under the NIA Act but not just a Special court under the Act.

He further relied on the judgement of State of T.N. vs. V. Krishnaswami Naidu, (1979) 4 SCC 5 according to which the word 'magistrate' under section 167 of the CrPC can be a special judge or a sessions court by placing reliance on section 3(32) of the General Clauses Act which defines the word 'magistrate'.

"For our purposes, the sessions court will be the magistrate court in light of 43D of the UA(P) Act. Section 43D of the Act empowers the sessions court to take cognisance of the charge sheet u/s 167(2) of the CrPC.

Additional Solicitor General Anil Singh said that all sessions judges are equal and it is merely a matter of notification by which a judge is appointed as a special judge under the NIA Act.

He further said that Bharadwaj hasn't filed a valid default bail application at the time. "The first default bail plea was submitted by Bharadwaj in November 2018, before her 90 day custody period was over on January 25th, 2019. As for the other default bail applications, they were filed in May and June 2019. Which was after the charge sheet had been filed on February 21, 2019."

During the next hearing on August 2, 2021 the court will also hear arguments in a 2019 plea by other accused in the Bhima Koregaon Elgar Parishad case, seeking default bail on similar grounds. The petitioners include Sudhir Davale, Rona Wilson, Surendra Gadling, Dr. Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira.