Is Cognizance By Pune Sessions Court In Bhima Koregaon Case Void? Bombay High Court Reserves Judgment In Sudha Bharadwaj's Plea For Default Bail

Justices SS Shinde and NJ Jamadar heard Bharadwaj's plea filed under sections 439, 482 and 167(2)(a)(i) of the Criminal Procedure Code read with section 43 D(2)of the Unlawful Activities Prevention Act.

The bench had earlier observed that the HC's records were consistent with Bharadwaj's RTI documents demonstrating that the Pune Judge was not notified as a Special Court under the NIA Act.

Therefore, the moot question is – will Judge KD Vadane's orders granting Pune Police an extension to file the chargesheet, and subsequently taking cognisance of the 1,800-page supplementary charge sheet be null and void as he was not a special judge under the NIA Act?

Consequently, would Bharadwaj and her co-accused - Sudhir Dhawale, Rona Wilson, Surendra Gadling, Dr. Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira – who have also filed a similar plea, be entitled to default bail?

Advocate Yug Chaudhry assisted by Advocate Payoshi Roy argued that Bharadwaj and her co-accused were booked for offences under UA(P) Act, which is a 'sheduled offence' under the NIA Act; therefore, their case should have gone before a special court, not before Judge Vadane.

In response, Advocate General Ashutosh Kumbhakoni and Additional Solicitor General Anil Singh for NIA submitted that cases under UA(P) Act would go before a special court only after the National Investigation Agency is entrusted with the investigation.

In the present case, the Centre entrusted the NIA with the investigation only on January 24, 2020. The Pune police was investigating the case when judge KD Vadane extended time for filing the charge sheet on November 26, 2018, and took cognisance of the charge sheet on February 21, 2019.

Closing his arguments on Wednesday, Chaudhary placed heavy reliance on the Supreme Court's judgement in the case of Bikramjit Singh v/s The State of Punjab where the court observed that 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 the NIA Act.

The three judge bench headed by Justice Rohinton Fali Nariman had observed that the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act.

"You cannot get a more clearer enunciation of the law. The Special court alone has exclusive jurisdiction to try UAPA offences. In the face of SC's judgement in Bikramjit Singh, all the other HC judgements cited by the State and NIA are legless", Chaudhry argued.

He added that in most cases a special court is created for an offence, or character of the accused, eg. POCSO Cases.

"The state's mantra to chant National Security to dull and deflect judicial scrutiny must stop!,"  he said.

Advocate General Kumbhakoni vehemently submitted that the facts of Bikramjit's case were different from the facts of the present case, and therefore the judgement would not apply.

He said that there were two applications in Bikramjit's case filed by the accused. The first challenging the magistrate's order granting extension to file the charge sheet and the second seeking default bail u/s 167(2) of the CrPC. The sessions court had set aside the magistrate court's order granting extension, which either party did not challenge.

He added that it was in the default bail plea that Bikramjit's case succeeded in Supreme Court. Therefore, the facts of the two cases were very different as there is no order setting aside the extension granted to the police for filing heir chargesheet in the Bhima Koregaon – Elgar Parishad Case.

"Whether NIA Act applies or not when NIA investigates was not something that was adjudicated in that judgement. So, Bikramjit has said many things but that is not the ratio, the facts of the two cases are completely different", Kumbhakoni argued.

Additional Solicitor General for NIA said that Bharadwaj hadn't filed a valid default bail application at the time;

"The first default bail plea was submitted by Bharadwaj in November 2018, before her 90 day custody period was over on January 25th, 2019. As for the other default bail applications, they were filed in May and June 2019, which was after the charge sheet had been filed on February 21, 2019."