Bhima Koregaon: Sufficient Material To Enable Court to Record Prima Facie Opinion Regarding Commission Of Offence u/UAPA Says Bombay HC [Read Judgments]

Justice PD Naik perused through the sealed envelope submitted by the Special Public Prosecutor Aruna Pai which contained "additional material" against both the accused and observed-

"Apart from the material produced in sealed envelope, there is sufficient other material to enable the Court to record prima facie opinion regarding commission of offence under UAPA Act by the applicant."

Case Against Navlakha and Teltumbde

Both the accused applicants in the case were apprehending arrest in a case registered at the Vishrambagh Police Station under Sections 153-A, 505(1)(b), 117, 34 of Indian Penal Code.

According to the prosecution, following documents have been relied upon and are a part of charge sheet filed against co-accused,

(1) letter to Gautam from Sudarshan,

(2) report on Gautam Navlakha

(3) letter to Comrade Mainibai from Comrade Anantwa

(4) letter to Comrade R from S/S

(5) letter from Sudha Bharadwaj to Prakash

(6) document titled "strategic and tactics of Indian revolution"

(7) letter to Prakash by Surendra

(8) letter to Sudarshan by Surendra.

The prosecution contended that the letter to Gautam from Sudarshan reveals Gautam's role in open work activities assigned by the party and fact-finding missions driven by CPI(Maoist) party all over the country. Sudarshan is none other than Katkar Sudarshan @ Anand, Secretary of Central Bureau and Central Committee of CPI(Maoist). This fact is reflected in the affidavit-in-reply filed by prosecution. The affidavit further indicates that the report on applicant elaborates his deep-rooted involvement and association with CPI(Maoist) party. It also refers to applicant's work in Kashmir and his role in mass organizations and overt activities, SPP Pai submitted and said that version reflected in the said report is required to be investigated by custodial interrogation.

Regarding the case against Teltumbde, prosecution cited letter addressed to him by one Prakash. The prosecution is contending that Professor GN Saibaba, who is in jail since 2017 is Prakash. The next letter referred to by the prosecution is dated June 8, 2017 from Comrade M to Comrade Surendra. It is not even alleged that this is addressed to the applicant. This refers to Anuradha Ghandy Memorial Trust. The applicant is a member of the trust. Other members include journalists. The third letter was allegedly written by Surendra Gadling to Sudarshan talks about Comrade Anand's role in mobilizing youths. It further suggests that Comrade Anand is over seeing all the matters relating to Ambedkar Periyar Study Circle, which is a students organization.

Submissions

Dr.Yug Chaudhry, appeared on behalf of Navlakha and submitted that although there is bar u/s 43D(4) of UAPA Act for exercising power u/s 438 of Cr.P.C; the application is maintainable in law.

Chaudhary submitted that the Supreme Court by order dated October 15, 2019 granted liberty to Navlakha to apply for pre-arrest bail. He contended that the order passed in petition preferred by the co-accused Anand Teltumbade dated January 14, 2019 was also considered by Supreme Court and interim protection was continued for a period of four weeks with liberty as stated above.

He further contended that this is not the first time that the Supreme Court has crafted an extraordinary remedy for the applicant. Prior to this, the Supreme Court had protected the applicant's liberty by granting house arrest, which is unknown to the Code, and now by granting him the right to file an anticipatory bail application, in UAPA case.

The applicant is a peace activist and journalist of repute and his work has to be kept in mind while scrutinizing the allegations against him. During the course of his journalism and as an activist, the applicant had visited and lived with Maoists, which he has described in detail in his book. The connection which he had with them, is in public knowledge and he cannot be prosecuted for his academic work. As a journalist and peace activist, the applicant has kept open communications from all sides. In recognition of the applicant's work, the State had chosen him as an interlocutor to mediate the release of Policemen who had been abducted by Maoists, Chaudhary argued.

Senior Advocate Mihir Desai argued the case on behalf of Anand Teltumbde. He submitted that his client is an academician having published several books, some of which have won awards.

"The applicant does not mobilize youths. He is not concerned with APSC. The other letter relied upon by the prosecution is dated 23rd December 2017 sent by R to Prakash. The said letter mentions that the applicant has taken the responsibility of fact finding committee in Gadchiroli. The applicant has not participated or organized any fact finding committee at Gadchiroli. He is in Goa since 2016 and prior to that he was at Kharagpur. Thus, Com.Anand referred to in the said letter is someone else and not the applicant. In any event, organizing fact finding responsibility is not an offence." Desai argued.

The last document referred to some accounts indicating money having been paid to Anand who is allegedly applicant. This document has no date and signature and is likely a diary entry, which cannot be relied on for any purpose. The applicant has never taken money from any banned organization and he is not connected with any banned organization. Person who is referred as Anand in the letter cannot be the applicant, Desai submitted.

Both the counsels relied upon the decisions of the Supreme Court in Arup Bhuyan Vs. State of Assam, Kartarsingh Vs. State of Punjab, PUCL Vs. Union of India and State Vs. Nalini. It is submitted that none of the documents adduced by the prosecution would show that the applicant had conspired to commit any violence.

Order

Section 43D(4) of UAPA Act states- "Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act."

Thus, the applicability of Section 438 of CrPC is excluded by the aforesaid provision.

Court referred to the sealed envelope submitted by the prosecution and observed-

"In the light of principles enunciated in the aforesaid decision of Hon'ble Supreme Court in P.Chidambaram Vs. DRI (supra), although I have perused the documents in the sealed envelope, I refrain from commenting on those documents. The other documents form part of the charge sheet filed against co-accused, which are part of this application and submissions were advanced by both parties. Even otherwise, apart from the material produced in sealed envelope, there is sufficient other material to enable the Court to record prima facie opinion regarding commission of offence under UAPA Act by the applicant. The decisions relied upon by applicants are not applicable in this case.