Bombay High Court Seeks Reply On Sudha Bharadwaj's Plea For Default Bail In Bhima Koregaon Case

The Bombay high Court on Tuesday directed the National Investigating Agency and State to file their replies in lawyer-activist Sudha Bharadwaj's plea seeking default bail on the grounds that the Pune judge was not authorized to grant extension for filing the charge sheet against her in 2018 or to take cognizance of the charge sheet filed subsequently in February 2019.

Bharadwaj was arrested on August 28, 2018 in connection with the Bhima Koregaon/Elgar Parishad case. The case was initially investigated by the Pune police, however, the Union government handed over the case to the NIA in 2020.

The Pune police's charge sheet, which is the basis for Bharadwaj now seeking bail, claims that some documents were recovered from her co-accused which mention her activities and prove that she is an 'active member' of banned organisation CPI (Maoist).

During the hearing on Tuesday Bharadwaj's counsel submitted that they have received RTI replies from the Deputy Registrar/ Public Information officer of the Bombay High Court, which demonstrates that Additional Sessions Judge Kishor Vadane, who granted the Pune Police extension of 90 days - to file their charge sheet on November 26, 2018, was not a designated as a special judge either under section 11 or 22 of the NIA Act.

Therefore, he was also not authorised to take cognisance of the 1,800-page supplementary charge sheet filed by the Pune Police in February 2019.

A division bench of justices SS Shinde and NJ Jamadar heard Bharadwaj's plea seeking bail Under Sections 439, 482 and section 167(2)(a)(i) of the Criminal Procedure Code read with section 43 D(2)of the Unlawful Activities Prevention Act.

Following submission made by Advocate Yug Chaudhry appearing along with Advocate Payoshi Roy for Bharadwaj, NIA's counsel Sandesh Patil sought time reply to the contentions, urging the to court to direct the State(Pune Police) to file its response as well, as the NIA came into the picture only in 2020.

The bench then asked the respondents to filed their replies by July 2 and the matter is posted for hearing on July 3.

The Petition

The plea states that Bharadwaj and the others accused were booked for offenses punishable under the UAPA, which is categorised as "scheduled offence" under the NIA Act. Section 11 and 22 of the NIA Act deals with the powers of the Central Government and State Government to constitute special courts to deal with such scheduled offenses.

In the absence of a special court, the Sessions Court within whose jurisdiction the alleged offences are committed would have the jurisdiction to try such offences, as per the act.

However according to Bharadwaj's plea, despite the Maharashtra Government appointing special Judges for scheduled offences in Pune District by notification in 2017, 2018 and 2019 the "Special Public Prosecutor, sought extension of time to complete the investigation before K D Vadane."

According to the petition, Bharadwaj filed RTI applications on August 5, 2019 with the Deputy Registrar/ Public Information Officer of the Bombay High Court.

According to the replies received by her on August 8, 2019 she was informed that Judge KD Vadane and another Judge RM Pande had not been appointed as special judges of additional special judges by the State Government u/s 22 of the NIA Act between January 1, 2018 and July 31, 2019.

On March 21, 2021 responses to another RTI revealed another Judge SR Narvander was also not appointed as a Special Judge by the GoM between September 5 to February 14, 2020.

Further responses revealed that the judges were not appointed u/s 11 of the NIA for the same period, either.

"It is thus clear that Hon'ble Judge KD Vadane was not appointed as a special judge" for the relevant period and therefore had no jurisdiction to deal with an scheduled offenses under the NIA Act for the years 2018 and 2019," the plea states.

She has therefore sought orders dated November 26, 2018 and February 21, 2019 to be quashed and set aside as they "lack jurisdiction and legal authority, are null and void, and bad in law."

And sought to be released on default bail u/s 167(2) read with 43 D(2) of the UAPA.

"The chargesheet was not filed against the applicant within the period of 90 days from the date on which the applicant was produced before the Magistrate in Faridabad (after her arrest).. even if the period from August 28, 2018 to October 27, 2018 (House arrest) is excluded from consideration.

The order dated November 26, 2018 extending the detention of the applicant by 90 days was invalid, having been passed by a judge who lacked jurisdiction to do so. The charge sheet was filed before and process was issued by a judge who did not have the jurisdiction to either accept the chargesheet or to issue process to the accused on the same," the plea states.

BACKGROUND

Last month, while hearing another petition filed by Bharadwaj's daughter seeking her medical records, another division bench of Bombay HC had observed that prisoners had a right to their medical records under Article 21 of the Constitution of India, and prison officials should provide the information, on request. Medical records would include tests results and medicines prescribed, the bench had observed.

Documents cited against Bharadwaj include details of a Special Women's Meeting held on January 2, 2018, alleged meetings of Indian Association of Peoples' Lawyers, of which Bharadwaj is a Vice-President, documents claiming discussions about funds in the banned organisation, discussions of activities of CPI (Maoists) in Chhattisgarh and Maharashtra, and a seminar in Delhi on Unlawful Activities Prevention Act (UAPA) and. The Bombay High Court rejected her bail application in in October 2019, observing that these documents showed a prima-facie case against her.

Bhima Koregaon Case

The Bhima Koregaon battle was fought between 25,000 mighty Peshwa army and 500 British soldiers, including people from the Mahar (Dalit) community. The names of martyrs in the war are inscribed in the memorial by the British Army.

The hundreds of people visiting the war memorial at Bhima Koregaon were attacked on January 1, 2018, after violence erupted. They were mainly from Dalit community, and one person died in the stone-pelting.

An FIR was registered regarding the violence the same day. However, there has been no substantial progress since.

Another FIR by right-wing activist Tushar Damgude, filed on January 8, 2018 and was pursued. It was alleged that the violence at Bhima Koregaon resulted from inflammatory speeches held at the Elgaar Parishad conference on December 31, 2017.

The scope of the investigation was eventually widened, with the Pune police claiming retrieval of incriminating documents in the form of electronic records. This included an email written by a certain 'R' to Comrade Prakash on April 18, 2017 talking of a "Rajiv Gandhi-type" operation.

The NIA took over the investigation in 2020.

However, recently Arsenal Consulting, a digital forensics consulting company in the USA, concluded that most of the electronic evidence the police has relied on was planted on co-accused Rona Wilson's laptop through Malware.

So far, 16 people have been arrested in the case — Jyoti Raghoba Jagtap, Sagar Tatyaram Gorkhe, Ramesh Murlidhar Gaichor, Sudhir Dhawale, Surendra Gadling, Mahesh Raut, Shoma Sen, Rona Wilson, Arun Ferreira, Sudha Bharadwaj, Varavara Rao, Vernon Gonsalves, Anand Teltumbde, Gautam Navlakha, Hany Babu and Father Stan Swamy.

In the case, most of the accused were neither named in the FIR over the violence nor present during the 2017 event.