Elgar Parishad case: Bombay high court grants bail to Sudha Bharadwaj

: The Bombay high court on Wednesday granted default bail to activist Sudha Bharadwaj but rejected the applications of eight co-accused facing terrorism and conspiracy charges for allegedly fomenting violence in Maharashtra’s Bhima Koregaon village in 2018.

This is the first time that a person accused in the high-profile case has been granted default bail, which can be given if a person is jailed for more than 90 days without a charge sheet. One of the other accused, poet Varavara Rao, is out on medical bail, and a second accused, Jesuit priest Stan Swamy, died in July. All other 14 accused are in custody as under-trial prisoners.

Also Read | Elgar Parishad case: Sudha Bharadwaj moves Bombay HC, seeks default bail

A division bench of justices S S Shinde and N J Jamadar said Bharadwaj filed her default bail application on November 26, 2018 -- before the expiry of the detention period cutoff on January 25, 2019 -- but her application was valid. The charge sheet was filed on February 21, 2019.

Also Read | Elgar Parishad case: Furnish records of Sudha Bharadwaj’s default bail plea, HC tells Maharashtra govt

“On the touchstone of the guarantee of personal liberty under Article 21 of the Constitution, in our view, to deprive the applicant Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26th November 2018 was premature, would be taking a too technical and formalistic view of the matter,” said the 120-page order.

“In our view, all the requisite conditions to release the applicant Sudha Bharadwaj on default bail stood fully satisfied,” the judges added.

The bench directed Bharadwaj, currently lodged in the Byculla women’s jail in Mumbai, be produced before the Mumbai special National Investigation Agency (NIA) court on December 8 to decide the conditions of her bail and date of release. It rejected NIA’s request for a stay on Bharadwaj’s bail for two weeks.

But the court held that Bharadwaj’s co-accused -- Rao, Sudhir Dhawale, Mahesh Raut, Vernon Gonsalves, Arun Ferreira, Rona Wilson, Shoma Sen and Surendra Gadling -- didn’t qualify for automatic bail.

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

At least 16 activists, lawyers and authors are facing charges under the Unlawful Activities Prevention Act (UAPA) for participating in an alleged Maoist conspiracy to trigger violence on January 1, 2018, in Bhima Koregaon village in Maharashtra’s Pune district. The event, attended mostly by Dalit communities, marked the bicentennial celebration of a British-era war.

The activists are accused of delivering inflammatory speeches during an event called Elgar Parishad organised in Pune on December 31, 2017. The NIA took over the probe from the Pune Police on February 12, 2020 after the Central government had ordered the transfer on January 24, 2020. The activists have denied all charges and accused the prosecution of planting evidence.

Bharadwaj, arguably the most prominent of the arrested activists, applied for default bail arguing that sessions judge K D Vadane, who granted Pune Police a 90-day extension on November 26, 2018, to file the charge sheet, did not have jurisdiction to do so as only a special NIA court could hear UAPA cases.

Her advocate, Yug Chaudhry, cited responses from the high court’s registry under the Right to Information Act to say that Vadane was not competent to hear matters under UAPA. He added that Vadane was not even authorised as a special judge to take cognisance of the Pune Police’s supplementary charge sheet filed on February 21, 2019.

Chaudhry cited a Supreme Court judgement that held only special courts can hear cases under the UAPA.

The other applications argued that additional sessions judges of the Pune sessions court had not been designated as special judges and therefore, could not have taken cognisance of their case registered under UAPA.

But the high court found that the other petitions were not filed before the charge sheet or supplementary charge sheet were submitted, and therefore couldn’t be allowed.

“We have seen that where the accused fails to apply for default bail when the right accrues to him and subsequently a chargesheet is filed before the magistrate, the right to default bail would get extinguished as it cannot be said that the accused ‘availed of’ his right to be released on default bail,” said the court order

Bharadwaj was first placed under house arrest on August 28, 2018. She was taken into custody on October 27, 2018 by Pune police. On November 22, 2018, Pune Police sought an extension for filing the chargesheet and Bharadwaj subsequently filed a plea seeking default bail on the ground that the 90-day period of her custody was over. On November 26, 2018, judge Vadane granted an additional 90 days to Pune Police to file their chargesheet.

“A crucial condition of ‘availing of’ the right so as to cement it as an indefeasible right, has not been fulfilled and the right stood extinguished by the filing of the charge-sheet on 21st February 2019. Failure to take cognizance or defect in the jurisdiction in taking cognizance, once the charge sheet was laid, does not entail the consequence of default bail,” the court held.

Advocate general Ashutosh Kumbhakoni, who represented the state, opposed Chaudhry’s argument saying Bharadwaj was booked under UAPA but as per the NIA Act, hearings were to be held before a special judge only during the trial and not during pre-trial proceedings. Kumbhakoni also argued that special judges were required only when the NIA probed a case. He added as the NIA took over the probe after the Centre ordered its transfer from Pune Police on January 24, 2020, there were no lapses in Vadane’s November 2018 order.

Additional solicitor general Anil Singh, who appeared for NIA, opposed Bharadwaj’s bail arguing the extension did not prejudice her rights.

A default bail application under section 167 (2) of the Code of Criminal Procedure (CrPC) can be filed when an investigating agency does not file a charge sheet within 90 days of arresting an accused. The 90-day period can be extended by a court if it feels that the prosecution deserves more time. But the HC found that the sessions judge was not authorised to do so under law.