Bhima Koregaon Case: 'Show Us Where They Asked People To Pick Up Guns', Supreme Court Tells NIA In Bail Pleas Of Accused

The Additional Solicitor-General for India, K.M. Nataraj, appearing for the federal agency, took the court through various records that allegedly indicated the appellants’ involvement in the conspiracy to, inter alia, wage a war against and overthrow the Indian government. Some of the documents on which the NIA relied purportedly suggested that Gonsalves and Ferreira both would ‘brainwash’ youngsters belonging to ‘radical’ students’ unions to join the proscribed organisation of which the accused were a part, the law officer claimed. He said, “The accused played an active role in recruiting students, illiterates, Dalits into this radical movement and encouraging them to take this revolutionary path. These gullible people would be brainwashed and would be trapped.”

Justice Dhulia countered:

“This document [containing a mention of one alleged ‘radical students’ union initiative’ spearheaded by Gonsalves and Ferreira] only indicates that they have something to do with students, and are close to students. Show us something which shows that the accused encouraged the students to pick up guns. They may just be saying ‘Bharat Mata ki Jai’ or be cheerleaders. They may not be actively recruiting students to overthrow the government. Is there anything to indicate that they told students to procure arms or get a bomb or something like this?”

“They refer to Bolshevik training…,” the law officer supplied.

“‘Bolshevik training’ is a very vague term. It could mean so many things,” Justice Dhulia replied. In response, Nataraj said:

“What we understand of Bolshevik training, and what they understand might be very different. We cannot delve into their language because they routinely used code words. Operatives of the organisation work in different areas across the country – from Assam to Kerala – through code words…They have projected as though there is nothing. My primary duty is to show that there is something and that something is very serious.”

Apart from arguing that the evidence against Gonsalves and Ferreira was ‘ample’ and ‘sufficient’ for a prima facie case to be discerned within the meaning of Sub-section (5) of Section 43D of the UAPA, the senior counsel sought to challenge the bail pleas of the two accused on two other grounds.

First, he argued that the case of Vernon Gonsalves and Arun Ferreira was not ‘similarly placed’ as that of Anand Teltumbde owing to difference in the material available on record. “There can be no parity,” Nataraj exclaimed. Referring to the November 2022 decision of the Bombay High Court to grant Dalit scholar and activist Anand Teltumbde regular bail on merits, Nataraj said, “The court recorded a finding that at the most, Teltumbde may be a member of the Communist Party of India (Maoist). Mere membership cannot be a ground, under the circumstances, to deny bail.”

“You agree with this? That just being a member is not an exclusive offence under the Act,” Justice Dhulia asked. “Mere membership is a distinct offence under UAPA,” the law officer strongly asserted, “But it is a less serious offence.”

Justice Bose also asked the additional solicitor-general about the effect of a ban brought into effect with respect to an organisation, on the membership of a person who has been a part of the now-proscribed organisation since before the prohibition. “Is it presumed that the membership of such a person continues, because in the eyes of law, the party no longer functions?” the judge queried. Normally, the ban order cannot be given retrospective effect even though there may be exceptions occasioned by factors such as peculiar circumstances, evidence, and criminal antecedents, the additional solicitor-general responded. He illustrated further, “Let us assume, a particular organisation is banned today. However, it is found that the party has propagated violence and other illegal activities. These would have to be taken into consideration.”

Organisations like the Communist Party of India (Maoist) operate through its formations and front organisations, Nataraj told the bench. “These organisations do not come into the limelight or project themselves in the public domain. They carry out their activities from underground by using code names. The investigative agencies also get to know of the true nature of these front organisations as more material is unearthed. This is the situation today.”

The ASG also said that the a document has been seized in the case which indicated that there was a conspiracy hatched by the accused in the Bhima Koregaon case to assassinate the Prime Minister.

He also sought to distinguish the judgment which granted bail to co-accused Anand Teltumbde on merits. From the material at least, the additional solicitor-general submitted, it appeared that apart from being a member of CPI(Maoist), there was nothing in Anand Teltumbde’s case that would attract any other provision of the UAPA. More importantly, while granting bail, a factor that weighed heavily with the court was the lack of criminal antecedent, he told the bench. Finally, the high court took into account the fact that he had been in custody for two and a half years for an offence, for which the maximum sentence was of five years. “But the length of incarceration has to be considered in reference to the other findings of the court, and the allegations against an accused. For example, the maximum sentence for mere membership was five years, and he had already spent two and a half years in custody,” Nataraj explained.

On the issue of criminal antecedents of Vernon, Justice Dhulia notably pointed out, “One case, he has been acquitted, while the other has served out his sentence.” The additional solicitor-general promptly countered, “In such cases under the UAPA, it is very difficult to sustain the convictions. What we need to look at is whether there was a prior case. Also, Vernon Gonsalves was convicted in the first case.”

The National Investigation Agency also shrugged off the responsibility for the delay in the trial of the Bhima Koregaon accused, saying that it could not be attributed to them. The undertrial prisoners have been in custody since August, 2018. Nataraj told the court that the matter had been posted for framing of charges. However, there were nine discharge applications delaying the process.  “Let me clarify that there is no default from our side, as a prosecuting agency, resulting in the delay,” the law officer vehemently argued.

After hearing the submissions of senior advocates Rebecca John (for Gonsalves), R. Basant (for Ferreira), and the additional solicitor-general, the bench decided to adjourn the hearing till Friday, March 3.

Case Title

1. Vernon v. State of Maharashtra | Special Leave Petition (Criminal) No. 5423 of 2022

2. Arun v. State of Maharashtra | Diary No. 24825 of 2022