Sudha Bharadwaj Gets Default Bail in Elgar Parishad Case

Lawyer-activist Sudha Bharadwaj was granted default bail in the 2018 Bhima Koregaon–Elgar Parishad caste violence case by the Bombay High Court (HC) on Wednesday. On December 8, she will be arraigned before the special National Investigation Agency (NIA) court, which will impose bail conditions to finalise her release.

The eight co-accused, Sudhir Dhawale, Mahesh Raut, Vernon Gonsalves, Arun Ferreira, Rona Wilson, Shoma Sen, Surendra Gadling and Varavara Rao, were not lucky as a Division Bench of Justices SS Shinde and NJ Jamadar rejected their default bail pleas.

When additional solicitor general Anil Singh, appearing for the NIA, sought a stay on the operation and implementation of the order in view of two recent Supreme Court judgements, the HC refused relief saying it has already considered the orders in its judgement, Live Law reported.

Contending that the Pune sessions court was not authorised to take cognisance of the case against them in 2018-19, the petitioners argued that only a special court under the NIA Act was allowed to hear cases of those charged with offences under the Unlawful Activities (Prevention) Act (UAPA).

Therefore, according to the accused, orders allowing the Pune police an extension to file the charge sheet in 2018 and subsequently taking cognisance of the 1,800-page supplementary charge sheet in 2019 would be null and void. The pleas are filed under Sections 439, 193, 482 and 167(2)(a)(i) of the Code of Criminal Procedure Code read with Section 43 (d)(2) of the UAPA.

The Bench had earlier observed that the HC’s records were consistent with Bharadwaj’s RTI documents demonstrating that the Pune Judge KD Vadane Judge was not notified as a Special Court under the NIA Act, according to Live Law.

Advocate Yug Chaudhry, assisted by advocate Payoshi Roy, argued that since Bharadwaj and her co-accused were booked for offences under the UAPA, which is a ‘scheduled offence’ under the NIA Act, their case should have been before a special court, not Judge Vadane.

In response, advocate general Ashutosh Kumbhakoni and additional solicitor general Singh, appearing for the NIA, submitted that cases under the UAPA would go before a special court only after the NIA 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 Vadane extended time for filing the charge sheet on November 26, 2018, and took cognisance of it on February 21, 2019, they added. Chaudhary also relied heavily on Bikramjit Singh vs The State of Punjab in which the apex court had observed that all offences under the UAPA, whether investigated by the NIA or by the investigating agencies of the state, are to be tried exclusively by Special Courts set up under the NIA Act.

The three-Judge Bench, in that case, headed by Justice Rohinton Fali Nariman, had observed that the Special Court alone had jurisdiction to extend the time to 180 days under the first proviso in Section 43-D(2)(b) of the UAPA.

Submitting that the facts of Bikramjit case were different from the present one and therefore the judgement would not apply, advocate general Kumbhakoni said that the accused in the Bikramjit case had filed two applications—the first had challenged the magistrate’s order granting extension to file the charge sheet and the second sought default bail under Section 167(2) of the CrPC, Live Law reported.

The sessions court had set aside the magistrate court’s order granting extension, which either party did not challenge, advocate general Kumbhakoni said, adding that it was in the default bail plea that Bikramjit’s case succeeded in the apex court. Therefore, the facts of the two cases are very different as there is no order setting aside the extension granted to the police for filing their charge sheet in the Bhima Koregaon-Elgar Parishad case, he further said.

Additional solicitor general Singh said that Bharadwaj hadn’t filed a valid default bail application at that time. However, advocate Sudeep Pasbola said that since the order of extension to file the charge sheet was challenged in a separate proceeding. it cannot be said they had accepted the order.