Bombay High Court Rejects Surendra Gadling's Bail Plea In 2016 Case, May Halt Release For Mother's Funeral Rites

On Wednesday, a division bench of Justices VM Deshpande and Amit Borkar disposed of Gadling's 2020 bail application at the preliminary stage itself on the grounds that it is not maintainable.

Gadling was granted temporary bail in the Bhima Koregaon – Elgar Parishad case "purely on humanitarian grounds" from August 13- 21 to perform his mother's funeral rites on her first death anniversary.

However, to be released, Gadling also needed temporary or regular bail in the 2016 case, which pertains to the burning of around 80 vehicles at the Surjagrah mining site in the Maoist belt of Gadchiroli.

Accordingly, Gadling sought relief on August 2 before the Nagpur Bench of the HC where his regular bail application under section 439 of the CrPC was pending since January last year.

On August 4, Justice Rohit Deo granted liberty to Gadling to move a division bench to decide if a single judge bench or a division bench should hear the matter depending on the applicability of the NIA Act.

"The applicant is already granted temporary bail on the humanitarian ground in a separate offence and the said order will be rendered ineffective if the applicant's request for temporary bail in the present matter is not considered expeditiously," Justice Deo observed.

The division bench's ruling was two-fold. First, relying upon the Supreme Court's Judgement in Bikramjit Singh's Case, the court upheld Gadling's arguments that provisions of the NIA Act would apply even though the state police and not NIA had investigated the case.

"We, therefore, hold that all Scheduled Offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act. Therefore, an accused whose bail application is rejected for UAPA offences must approach the High Court in appeal under section 21 of the NIA Act," the court observed.

However, the court rejected Gadling's argument that since the sessions court that dismissed his bail application was treated as a special court under Section 22 of the NIA Act, his plea for bail under the CrPC would be treated as an appeal under section 21 (4) of the NIA Act.

According to Section 22 of the NIA Act, a sessions court is to be treated as a special court in the absence of a special court.

However, the bench held that Gadling couldn't have approached the High Court under 439 of the CrPC after the trial judge rejected his bail application and should have instead filed an appeal under section 21(4) of the NIA Act.

Disposing of Gadling's regular bail application, the division bench held that he should have approached the court in an appeal under provisions of the NIA Act and not filed a bail application under the CrPC.

"We are therefore of the view that the Court trying offences under second Schedule of the NIA Act being the Special Court as contemplated by Section 22 of the NIA Act, the person aggrieved by an order of refusing bail is required to file appeal under Section 21(4) of the NIA Act and the application under Section 439 of the Code of Criminal Procedure is not maintainable before the High Court."

"The applicant can avail remedy of statutory appeal under Section 21(4) of the NIA Act, if permissible in law and subject to limitation." the bench observed.

The fate of Gadling's temporary bail application is unclear and remains pending as per the High Court's website.

Gadling was arrested in the case three years ago on June 6, 2018, and booked under sections of the Indian Penal Code and the anti-terror Unlawful Activities (Prevention) Act for alleged CPI(Maoist) links.

Appearances: Senior Advocate S.P. Dharmadhikari and N.B. Rathod for Gadling, APP VA Thakare for State

[Case Title: Surendra Gadling vs State of Maharashtra]