Bombay High Court Reserves Order On Default Bail Plea Of Eight Accused In Bhima Koregaon

The accused have filed the appeal against the Sessions court's order rejecting the default bail application under Section 167(2) of the Code of Criminal Procedure read with Section 43-D (2) of Unlawful Activities (Prevention) Act.

The National Investigation Agency has accused the petitioners - Sudhir Dhawale, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira – along with seven others of terror acts under the Unlawful Activities (Prevention) Act.

The petitioners represented by Advocates Sudeep Pasbola and  R Satyanarayanan have contended that only a special court under the NIA Act had the jurisdiction to take cognisance of the charge sheet, not a sessions judge.

The cognisance of the charge sheet was vitiated since it was without jurisdiction.

Opposing the plea, Advocate General Ashutosh Kumbhakoni argued that for default bail under the proviso of section 167(2) of the CrPC, a judge taking cognisance of the charge sheet was immaterial.

The only criterion is that the charge sheet must be filed within the stipulated 180 days, considering the police were granted an extension of 90 days to file the document.

Kumbhakoni claimed that the plea is not maintainable since the petitioners had not challenged the order granting the extension of time to file the charge sheet. "Once the charge sheet is filed within the stipulated period of time, the question of default bail does not arise," he said.

Additional Solicitor General Anil Singh adopted Kumbhakoni's arguments. "It is rightly argued that for default bail, which is being sought now, cognisance is immaterial."

In his rejoinder arguments, Pasbola said the order of extension to file the charge sheet was challenged in a separate proceeding. So, it cannot be said they had accepted the order.

He contended that the main issue is whether the court that ultimately took cognisance of the chargesheet had the jurisdiction to do so or not.

"Please see 460 of CrPC. This (not filing the charge sheet before the special court) is not an irregularity, it is an illegality which cannot be cured," the court said.

Following this, the court reserved the plea for order. The HC is likely to pronounce its judgement along a similar plea made co-accused Sudha Bharadwaj, on which order was reserved on August 4.