Bombay High Court Turns Down Plea By 8 Bhima Koregaon Accused For Factual Corrections In Order Denying Bail

Through a precipice (application) for "speaking to minutes", the accused claimed that just like Sudha Bharadwaj, who was granted bail, they had also filed their default bail pleas in the stipulated time.

A speaking to minutes is a way of seeking minor factual modifications, corrections or typographical errors in an order that has already been passed.

During the hearing, a division bench of Justices SS Shinde and NJ Jamadar orally observed that such reliefs could not be granted through a speaking to minutes request.

After Justice Shinde said that the bar under section 362 of the CrPC would apply to grant such relief, counsel of the accused Sudeep Pasbola sought for the plea to be disposed of. He proposed to file a petition seeking review of the order.

Under section 362, once the court passes a judgement it can alter or review the order only for correcting clerical or arithmetical errors.

On December 1 the High Court had granted default bail to lawyer-activist Sudha Bharadwaj, an accused in the case, on the ground that the Pune Sessions Court was not competent to extend the time for probe as it was not notified as a Special Court under the NIA Act. However, the Court denied the same benefit to other accused by saying that they had not filed applications for default bail when that right accrued to them.

According to the HC's 120-page judgement, the main differentiator between the Bharadwaj and the other accused was seeking bail under section 167(2) of the CrPC, in time. ie. after completion of 90 days of custody but before the charge sheet is filed.

The 8 accused - Sudhir Dhawale, Dr P Varavara Rao, Rona Wilson, Advocate Surendra Gadling, Professor Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira -approached the High Court again claiming that they had in fact filed petitions seeking default bail and that the judgment is based on a "factual error".

Dhawale, Wilson, Gadling, Sen and Raut said that they filed default bail pleas on September 26, 2018, ie. 90 days after their arrest on July 6 and before the first charge sheet against them was submitted on November 15, 2018. These applications haven't been decided till date, they claimed.

As for Vernon Gonsalves, Varavara Rao and Arun Ferriera, they applied for default bail on November 30, 2018, just four days after Bharadwaj's application. They contended that the Pune Sessions Court rejected their default bail applications and Bharadwaj's default bail plea in a common order on November 6, 2019.

They pointed out that the November 6, 2019 order was set aside by the High Court while granting bail to Bharadwaj.

"The date of arrest of the accused 6—9(Gonsalves, Rao, Ferriera and Bharadwaj) being the same and all the accused had preferred application for default and hence are at par. The Accused No. 6-8(Gonsalves, Rao and Ferriera) have been denied same relief accorded to Sudha Bharadwaj on account of a factual error," the plea said.

Bail Order

In its detailed order granting default bail to Bharadwaj, the High Court said that Additional Sessions Judge of Pune KD Vadane was not authorized to extend the time for Pune Police to file the charge sheet or extend her further detention under the provisions of the UAPA  on November 26, 2018.

The High Court had however refused to accept the argument put forth by all the accused that because the Pune sessions court was not empowered to take cognizance of the charge sheet for scheduled offences (UAPA), its consequence would entail no charge-sheet having been filed by the investigating agency on the given dates – November 15 and February 21 and therefore the accused are entitled to default bail.

The court relied on section 460(e) of the CrPC under which a magistrate taking cognisance of proceedings in good faith cannot be vitiated merely on the ground that the court was not empowered.

Thus the HC ruled that failure to take cognizance or defect in jurisdiction in taking cognizance, once the charge-sheet was laid, does not entail the consequence of default bail.

Background

The National Investigation Agency booked 16 civil liberties activists under sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120b r/w 34 of the IPC and sections 13,16,17,18,18-B,20,38,39 and 40 of the UAPA. Father Stan Swamy, the 16th accused to be arrested, passed away on July 5, awaiting bail.

The NIA has accused them of a plot to overthrow the Government, being members of front organisations of the banned CPI(Maoists). However, the arrested activists claim that incriminating material was planted on Gadling and co-accused researcher Rona Wilson's laptop, based on an independent forensic analysis firm's reports.

They blamed the activists for furthering the CPI(Maoist) agenda and causing the caste violence at the Bhima Koregaon war memorial on January 1, 2018.

Apart from Bharadwaj and Rao (granted bail on medical grounds), all the accused are still in prison.