No illegality in Elgar Parishad case accused Sudha Bharadwaj’s detention: Maharashtra govt to HC

The Maharashtra government on Thursday opposed the default bail plea by Elgar Parishad case accused Sudha Bharadwaj and her contention that the extension of her custody granted by an additional sessions judge was beyond his jurisdiction as only a designated special judge could pass the extension order.

The state told the court that the extension granted by the sessions judge was justified as even though the activist and lawyer was booked under the Unlawful Activities (Prevention) Act, the National Investigation Agency (NIA) Act stipulated the need for a special judge at the time of the trial and not pre-trial, and the sessions judge had passed the extension order in 2018 before NIA took over the case last year.

Advocate general Ashutosh Kumbhakoni for the state argued that the contentions of Bharadwaj’s lawyer was not maintainable as there had not been any lapses on the part of Pune Police in approaching the additional sessions judge who granted extension to the custody of Bharadwaj and also authorised the charge sheet.

A division bench of justice SS Shinde and justice NJ Jamadar, was hearing the application for default bail of Bharadwaj, who was arrested after her name cropped up in the electronic devices of another accused Rona Wilson. After her arrest in November 2018, Pune Police had filed for extending the period of her custody to enable them to file the charge sheet.

Additional sessions judge KD Vadane had not only granted the extension but had also authorised the charge sheet in 2018 and 2019.

Bharadwaj’s counsel, Dr Yug Choudhry, while arguing for her default bail, had submitted that as per the provisions of law, only special judges could preside over and hear cases under NIA and UAPA Acts. Hence, the orders passed by sessions judge Vadane were not valid, and Bharadwaj’s detention and that of eight other accused was illegal. Dr Choudhry had based his assertions on the right to information (RTI) queries from HC registry which had stated that judge Vadane was not a special judge when he had passed orders in the case of Bharadwaj and other Elgar Parishad accused.

While refuting the claims, Kumbhakoni submitted that the orders by sessions judge Vadane were justified and there was no illegality as averred. He referred to sections 13 and 14 of NIA Act which clarified that trials had to be conducted by special courts. He further submitted that the special court would come into the picture only during the trial and when the case was being investigated by NIA and not when the state was the investigating agency.

When HC questioned why a special court was constituted, Kumbhakoni submitted that they were set up for trials or when NIA returned the investigation to the state after previously taking over it. He added that the definition of courts under UAPA and NIA Acts were very clear as also which court could hear which case. Hence, the orders by sessions judge Vadane did not suffer from any illegality as it was provided for by the legislation.

The state will continue its arguments and is expected to reply to another query of the court as to why Pune Police had not approached the magistrate court, which was also permitted under the said Acts. The next hearing has been posted for July 23.