NIA Moves Supreme Court Against Bombay High Court's Order Granting Bail To Sudha Bharadwaj In Bhima Koregaon Case

The High Court accepted the petitioners' argument that the Additional Sessions Court, Pune, which took cognizance of the chargesheet filed by the NIA and also extended the period of detention of accused beyond 90 days as per Section 43D(2) of the UAPA, was not competent to do so. Because, the Pune Sessions Court was not notified as a Special Court under the NIA Act. Also, there was another Special NIA Court in existence in Pune at the relevant time.

"The extension of period of investigation and detention of the applicants by order dated 26th November 2018 by invoking the frst proviso under section 43-D(2) of UAPA, by the learned Additional Sessions Judge was not by a Court of competent jurisdiction", the High Court observed.

However, the High Court added that this irregularity will not result in vitiation of the cognizance taken on the chargesheet.

"Consistent with the enunciation in the case of Bikramjit Singh (Supra) and in the face of undisputed position of existence of Special Court at Pune, the charge-sheet ought to have been lodged before the Special Court. However, the act of taking of cognizance, by the learned Additional Sessions Judge (Shri K.D.Vadane), does not entail the consequence ofthe vitiation of the entire proceedings".

Sudha Bharadwaj had filed application for default bail when the 90 days period expired; other 8 accused had not

The High Court noted that Sudha Bharadwaj had filed an application seeking default bail on November 26, 2018. This was filed on the understanding that the period of 90 days will include her period underwent in house arrest from 28th August 2018 to 27th October 2018. Later, in the case of Guatam Navlkakha, the High Court and the Supreme Court observed that the period of house-arrest cannot be included in the 90-day period for the purpose of Section 43D(2) of UAPA.

Be that as it may, the Pune Court passed the order extending the period of detention on November 26, 2018. Because, the prosecution was also then under the impression that the house arrest period also should be included and had filed the extension application on November 25.

In any case, the period of 90 days, as far as Sudha Bharadwaj is concerned, expired on January 25, 2019, excluding the period of her house arrest. On that day, the application filed by her seeking default bail was pending. The supplementary charge-sheet against the applicant-Sudha Bharadwaj was fled on 21st February 2019.

In this backdrop, the High Court observed that the right of Sudha Bharadwaj to seek default bail had crystallized on January 25, 2019, on which date her earlier application was pending. The High Court rejected the NIA's argument that her application, which was filed on November 26, 2018, was premature.

The High Court summarized the situation as follows :

"In the case at hand, with the declaration that the learned Additional Sessions Judge (Shri K.D. Vadane) had no jurisdictional competence to extend the period of detention under section 43-D(2)(b) of UAPA, the very substratum of the prosecution case that the right to default bail did not ripe into an indefeasible right, as the period of detention was extended, gets dismantled. The hard facts which thus emerge so far as the application of Sudha Bharadwaj are : (i) that the period of detention of 90 days (excluding the period of house arrest) expired on 25th January, 2019; (ii) no charge-sheet was lodged; (iii) there was no lawful order of extension of period of detention; and (iv) an application preferred by Sudha Bharadwaj for default bail awaited adjudication".

"On the touchstone of the guarantee of personal liberty under Article 21 of Constitution, to deprive Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26th Nov 2018 was premature, would be taking a too technical & formalistic view", the High Court added.