Sudha Bharadwaj's Bail Plea : Bombay High Court To Verify If Pune Sessions Judge Was Competent To Take Cognizance Of Chargesheet

The Bombay High Court said it would verify with the Registry if Additional Sessions Judge Kishor Vadane was a Special Judge under the National Investigation Agency (NIA) Act in 2018/2019 and if he was authorised to take cognisance of the Pune police's charge sheet against the accused in the Bhima Koregaon Elgar - Parishad Case.

A division bench of Justices SS Shinde and NJ Jamadar heard Bharadwaj's plea seeking bail in default 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. She has challenged two orders of Judge KD Vadane.

Appearing prima facie convinced with the arguments canvassed by lawyer-activist Sudha Bharadwaj's counsels, the court said it would want to verify the RTI replies submitted by the petitioner from the High Court Registry.

"We only wish to verify from the High Court's records. A reply is not filed by the State, and NIA's reply is silent," Justice Shinde leading the division bench, observed.

RTI replies from the Deputy Registrar/Public Information officer of the Bombay HC, demonstrate that Additional Sessions Judge Vadane, who granted a 90 days' extension to the Pune police to file their charge sheet on November 26, 2018, was not designated as a special judge either under section 11 or 22 of the NIA Act.

He was also not authorised to take cognisance of the 1,800-page supplementary charge sheet filed by the Pune police in February 2019, the petitioners have claimed.

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

"This petition is filed by Sudha Bharadwaj, but it doesn't affect her alone. If the petition is allowed, then the orders of extension of time, the acceptance of the charge sheet, and the charge sheet in its entirety is null and void. And that would imply that they have been in illegal detention," Advocate Yug Chaudhry said while arguing the petition on Tuesday.

"On the basis of these RTIs, I stand entitled for release," he said.

He asked the court to imagine the effect upholding such orders, passed without jurisdiction, would have on the judicial system, especially when it results in continued incarceration.

"It shakes the very bedrock of the judicial system. When a man sitting in the seat of a judge claims to be something he is not and people languish in jail following his orders," Chaudhry said.

He pointed out from orders that the Judge had signed as a UAPA judge at one place while in another order he signed as a Special Judge. However, the RTI replies revealed he was not appointed as a Special Judge under the NIA Act.

"There is no chapter for the creation of a special judge under the UAPA, So how is he claiming to be a special judge under UAPA?" the counsel asked.

Chaudhry said that under the NIA Act, every scheduled offence (UAPA), whether the NIA investigates it or the State police, the case will go before a Special Court.

"The RTI reply shows he was not a special judge under any Act. So we claim that he was not a special judge and he had no business handling this case. And there is no denial by the state on this point," Chaudhry submitted.

Reading from the list of judges who were designated as Special Judges under the NIA Act at the relevant time, Chaudhry submitted, "There were Special Judges, but the Pune police preferred to go to Judge KD Vadne, who pretended to be a special judge."

Justice Jamadar asked Chaudhry to read sections 22(3) and (4) of the NIA Act, following which Chaudhry argued that as per the provision, in case a particular court is not constituted, then a sessions court would have the powers.

"But in our case, the State government had constituted special courts," Chaudhry asserted.

Towards the end of the hearing, Advocate R Sathyanarayan for a co-accused said he wanted to make a few submissions on law points, supporting Chaudhry's argument.

"I have also filed a petition. I tried moving 2-3 praecipes but didn't succeed," he said.

Court ordered his petition to be tagged along with Bharadwaj's petition and adjourned the case for Thursday, July 8.