'S.362 CrPC Puts An Embargo': NIA Opposes Plea Filed By Bhima Koregaon Accused Seeking Review Of Bombay HC's Judgement Refusing Default Bail

In their reply tendered to the Bombay High Court, the agency cited the embargo under section 362 of CrPC to alter or review judgements once a petition is decided on merits.

"It is humbly submitted that the prayer sought by the applicants/accused No. 6, 7 & 8 is directly to alter the observation made final by this Hon'ble court after due verification of record and hearing of the present appeal that has been already disposed of. Thus, the applicants/accused persons ought not to crave. any relief that is subjected to judicial proceedings that to be exercised to alter or review the order which expressly barred by the Code of Criminal Procedure," the reply reads.

On December 1, the High Court denied default bail to the petitioners and five of their co-accused on the ground that they had not filed their default bail applications within the stipulated period, which is after 60 days of their arrest and before filing of the charge sheet.

The High Court held that even though the Pune Sessions Judge extended their detention after 60 days without jurisdiction, since he was not a special judge under the NIA Act, they were not entitled to relief. Co-accused Sudha Bharadwaj was however granted bail in the same order.

All the eight who were denied relief claimed that denial of bail was on account of a factual error; as just like Bharadwaj, they had also filed default bail applications in the trial court within the stipulated period.

Gonsalves, Rao and Ferreira have approached the High Court claiming 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.

"If necessary correction is not carried out it shall result in gross miscarriage of justice as the indefeasible right though exercised would be taken away and the applicants cannot enforce their right at all," the plea states.

The NIA claims that the applicants ought to have approached appellate court instead of the High Court.

By introducing fresh arguments after the final order is passed refusing them default bail "is unsustainable in the eyes of law and liable to be dismissed in the threshold," the agency said.

The agency stated that under section 362 of the CrPC, only clerical and arithmetic errors could be corrected.

"It is humbly submitted, that section 362 of Cr.PC puts an embargo on the court to alter or review a judgment or a final order passed by this Hon'ble Court on merits after signing it, except to correct a clerical or arithmetical error."

In it's reply, the agency further contended that launching a new argument after the court analysed facts and circumstances of the bail plea is "unwarranted."

"Under the guise of the review or otherwise is directly abuse of the due process of law and it completely thwarts the systematic procedure of law and the same sets a wrong precedent."

Referring to the memo of their original application and the grounds raised therein, the NIA claims that the accused are "virtually trying to shift the blame upon this Hon'ble Court when their entire pleading in Criminal Application is totally defective and insufficient."

The Court shall hear the matter next on March 2, 2022.

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, ahead of his bail hearing. 

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.