'Trial Judge Not Authorized To Take Cognizance' : Sudha Bharadwaj Moves Bombay High Court Seeking Default Bail In Bhima Koregaon Case

Her application under Sections 439 and 167 (2) of the Criminal Procedure Code cites RTI replies to demonstrate that the court of Additional Sessions Judge Kishor Vadane in Pune was not authorised to take cognisance of the 1,800-page supplementary charge sheet filed by the Pune Police in February , 2019.

Therefore judge Vadane could not have granted the extention in November 2018, to file the charge sheet. According to Bhardwaj's plea, filed through Advocate Yug Chaudhry and Payoshi Roy, the court was not the designated special court under NIA Act which has exclusive jurisdiction to try scheduled offences, which includes offences under Unlawful Activities Prevention Act, and therefore, not competent to extend the time for filing of charge sheet.

A single judge bench of Justice Sarang Kotwal, while hearing the plea on Friday, directed the department to place the petition before a division bench. The court observed that as per the Supreme Court order in State of Andhra Pradesh through IG National Investigation Bureau vs Md. Hussain @ Saleem applications for bail where the NIA Act applies, would lie before a division bench.

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.

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 last year.

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).

One of the documents is that of a Special Women's Meeting held on January 2, 2018, of which Bharadwaj was allegedly a part, and five other documents include 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.