Bhima Koregaon Case: Supreme Court Reserves Verdict In Bail Pleas Of Vernon Gonsalves and Arun Ferreira

Arguments of the Appellants

Senior advocates Rebecca John and R. Basant, appearing for Gonsalves and Ferreira respectively, over the course of three days, argued that the material on the basis of which the National Investigation Agency sought to implicate the appellants, besides being indirect and having no ‘nexus’ with the appellants, was also grossly insufficient. Basant told the court,

“At this moment, if we were to answer whether a conviction could be sustained on the basis of this material, the answer would be no. On the totality of assessment, it would be impossible to come to a conclusion of guilty.”

The crux of their contention was that the documents that formed the basis for the charges under the anti-terror statute were neither recovered from the appellants’ electronic devices, nor sent by or addressed to them. Their names were also not explicitly mentioned in most of them, the senior counsel claimed. John submitted, “Some documents written by someone else were recovered from another person’s devices. The appellant’s name is taken. Even assuming that the reference is to the appellant, they need to establish the nexus between him and the crime of which he is being accused.” “This is also what the Bombay High Court stated in Anand Teltumbde’s case, while granting him bail,” John informed the bench, referring to the Bombay High Court’s decision to grant bail to Anil Teltumbde, a Dalit scholar also accused of instigating the January 1 violence in Pune. She added, “This is my argument as well. My name was taken in exactly the same way Anand’s name was taken.”

To further bolster her argument, she referred to the orders passed by the apex court granting bail to Thwaha Fasal, and K.A. Najeeb. In particular, the senior counsel relied on Union of India v. K.A. Najeeb, (2021) 3 SCC 713, in which it was held that constitutional courts had the power to grant bail to people accused of offences under the anti-terror statute, notwithstanding Sub-section (5) of Section 43D, in order to ensure the right to speedy trial guaranteed under Article 21. To illustrate why the present case stood on a better footing, she illustrated, “In Najeeb’s case, the high court granted bail to someone who was allegedly part of a conspiracy to chop off the hand of a professor. There was physical violence involved. In both this case and Thwaha Fasal, bail was granted despite the allegations being serious.”

Arguments of the National Investigation Agency

Taking severe objection to the appellants’ contention that the evidence against them was inadequate, Additional Solicitor-General K.M. Nataraj insisted that the material on record was ‘ample’ and ‘sufficient’ for a prima facie case to be discerned within the meaning of Sub-section (5) of Section 43D of the UAPA. He claimed that there were several documents and witness statements that corroborated the agency’s version of events.

The law officer also argued that their case was not ‘similarly placed’ as that of Anand Teltumbde owing to difference in the material available on record. Similarly, the senior counsel sought to distinguish the decision in K.A. Najeeb by saying that the essential factors that lead to a favourable ruling for the alleged Popular Front of India operative were missing in the present appeals. The length of incarceration alone, would not be determinative in cases involving terror charges, he said, “While there is no doubt that Article 21 is a very important right guaranteed to any citizen, but we have to balance the right of life and liberty with the larger interests of society.” In this connection, Nataraj expressed grave apprehensions about the threat insurgent groups having elaborate cross-country networks and their operatives had on the security of the nation. “Look at their network, their operations. Their reach extends from Kerala at the bottom right to Kashmir’s separatist groups. If these people are allowed bail, what will be the impact on society? That also needs to be considered.”

Addressing the issue of the pendency of the trial, which Nataraj had earlier refused to attribute to the federal agency, the law officer said, “We are ready to go ahead with trial, we are ready to examine witnesses, and we are ready to cooperate.” However, in the interest of national security, bail should not be granted to the accused, he vehemently submitted.

Observations by the Bench

Notably, the trial in this high-profile case has not yet begun and the undertrial prisoners have been lodged in jail since late August. It was pointed out that charges are yet to be framed, despite the passage of almost five years. The court was also informed that the agency intended to examine 336 witnesses. In response to the additional solicitor general's assurance that the trial would be commenced post-haste, Justice Dhulia said, “Even that would take a year.” He also asked, “Why do you need so many witnesses when fewer could corroborate your case just as well? What is the point in having several people repeat the same thing?” 

After hearing the submissions of senior advocates Rebecca John (for Gonsalves), R. Basant (for Ferreira), and the additional solicitor-general, K.M. Nataraj, the bench decided to reserve its verdict.

Case Title

1. Vernon v. State of Maharashtra | Special Leave Petition (Criminal) No. 5423 of 2022

2. Arun v. State of Maharashtra | Diary No. 24825 of 2022