Recalling his bruising experiences with an unjust criminal justice system as part of the legal team of the activists arrested in the questionable Bhima Koregaon violence case three years ago, NIHALSING B. RATHOD, in this second of a three-part series, recollects how basic tenets of criminal law were violated by the Pune Police in arresting Sudha Bharadwaj, Varavara Rao, Arun Fereira, and Vernon Gonsalves at various points, and extending their detention, as well as that of Surendra Gadling, Shoma Sen, Rona Wilson, Sudhir Dhawale and Mahesh Raut. All this while, Gautam Navlakha and Anand Teltumbde exhausted all legal options to evade arrest, as the judiciary looked on, condoning the deprivation of the activists’ liberty and denying their bail applications, sometimes making gestures that filled the activists’ legal team with hope but ultimately continuing the farce that is the Bhima-Koregaon travesty.
THE Supreme Court’s judgment in Romila Thapar, though having a difference of opinion among the three judges on the division bench, gave three weeks’ time to the five activists placed under house arrest to exhaust their legal remedies.
Most importantly, in his dissenting opinion, Justice D.Y. Chandrachud had analysed the letters placed as evidence against the accused, to a certain extent, casting serious doubt over their authenticity and emphasising the necessity of holding an independent probe.
Given these sharp judicial findings, it was expected of the investigating agencies that they would overcome them, yet there is no iota of material on record which can endorse the facts stated in the letter.
Activists struggle to get bail from arrest
Of the five house arrestees, Varavara Rao and Gautam Navlakha challenged their arrests before different high courts, receiving different verdicts. Gautam’s petition succeeded, as the Delhi High Court set aside his arrest in a historic judgment, after which he immediately moved for quashing the case against him before the Bombay High Court and managed to get interim relief.
Varavara, on other hand, got an extension on his house arrest from the Hyderabad High Court for a little time, only for it to be abruptly vacated and him being arrested.
Sudha Bharadwaj, Arun Ferreira and Vernon Gonsalves had filed for anticipatory bail before the Pune Special Court, which kept sitting on their bail applications before rejecting them on the very last day, paving the way for their arrest. This time, the Pune police chose to give a go-by to Article 22 of the Constitution and did not produce any of them before the nearest magistrate.
Anand Teltumbde, Father Stan Swamy and Gautam contested their cases before the Bombay High Court. There, the Pune Police said that it did not seek to arrest Father Stan. While Gautam’s and Anand’s matters were being considered, they were granted interim relief and hence were not arrested.
After considering the case and relevant records, the High Court made an important remark. It said: “We do not see any case made out against them, from what has been shown so far; there is no prima facie case.” Rattled by this, the Pune Police sought and obtained time to present more material to the court. Then came the notorious sealed cover, to be perused only by the judges, and not even shown to the counsel for Anand and Gautam.
From what we could glean from sources, there were certain documents mentioning ‘HM’ (supposedly a reference to the Hizb-ul-Mujahideen), ‘Hurriyat’, ‘Gilani’, and many more such vague terms, the meaning of which was known only to the Investigating Officer (IO) and the Public Prosecutor (PP). Ultimately, the matter was dismissed by the High Court in view of the “serious allegations”, with interim relief granted for few more days.
Default bail deceptively denied to activists arrested on June 6
While this was ongoing, the mandatory period of 90 days for filing the chargesheet against the five activists arrested on June 6, 2018, was about to expire. Failure thereof would have meant that they would have been granted default bail. However, the IO invoked Section 43D of the Unlawful Activities (Prevention) Act, 1967 (UAPA), demanding an extension of a further 90 days to conduct the investigation.
On a late Friday afternoon, an application with an affidavit of the IO came to be filed before the special court. Though the fundamental requirement under the law is that a report has to be filed by the PP which must reflect that they are satisfied with the reasons given by the IO for seeking an extension of time, there was no accompanying report from the PP with the IO’s application in the instant case.
There are a plethora of Supreme Court judgments, which have nullified such extensions for failure to follow this mandatory provision. Ignoring those, the special court directed to serve its copies on the inmates and produce them before the court for giving them their due opportunity.
The next day, a Saturday, almost post noon, without notice to their lawyers, they were produced before the special court. They were asked by the Court to reply to the application immediately. On finding out that there was no lawyer, a special messenger was sent for them. Some of these lawyers are not from Pune and had gone back to their homes for the weekend, yet they were called upon to immediately reply.
All of them made applications seeking time till Monday to file a reply, but these were rejected by the court, which kept the matter for hearing the following day, a Sunday. A special sitting was arranged in the court, wherein the five inmates and their lawyers were denied any further time, even of a day, to make their submissions or written replies. The special court, in undue haste, then proceeded ex parte, allowing the IO’s application, extending the time for investigation by a further 90 days.
Bombay High Court sets aside extension of investigation period
The order and the proceedings, being absolutely in contravention of established legal principles on the topic, were challenged before the Bombay High Court. In spite of vehement opposition from the Advocate General himself, the High Court found merit in the case and thereby set aside the order of the special court, finding it in contravention with the mandatory provisions of the UAPA.
During the hearing, the Advocate General said, “I do not like to lose a case. Strict interpretation and pragmatic approach need to be taken, and the petition requires to be dismissed” Justice Mrudula Bhatkar of the Bombay High Court allowed the petition, but accepted the request of the State and granted stay to the order for only a limited period.
Bombay High Court decision challenged before Supreme Court
At lightning speed, a special leave petition came to be filed by the State challenging the judgment of the high court. It was heard by a three-judge division bench comprising then Chief Justice Ranjan Gogoi (now a nominated Member of the Rajya Sabha), Justice K.M. Joseph and Justice S.K. Kaul.
Appearing for the State, Senior Advocate Mukul Rohtagi faced many difficult questions. Justice Joseph pointed out the inherent lacunae, and absence of application of mind by the PP, which he rightly pointed out was the condition precedent for the grant of extension of time to file chargesheet. While it seemed like the apex court was on the verge of dismissing the matter, we were stunned to hear the words “Stay!” from the court.
I felt like earth moved under my feet. Stay on the High Court’s judgment? Stay on the order granting liberty? The Supreme Court did not just stop there; it proceeded to adjourn the matter sine die. It took angry remonstrations from Senior Advocates Indira Jaising, Kapil Sibal, Anand Grover and Abhishek Manu Singhvi, representing the arrestees, demanding a fixed date, for the bench to yield and allocate the next date of hearing.
At the next hearing, the bench composition had changed, as Justice Joseph was replaced. Continuing on the “pragmatic approach” argument, the State asked the court to glance at the chargesheet which it had filed in utmost haste on November 15, 2018, just a day before the 180th day from the date of arrest. Acceding to the request, the court directed the State to file copies of the chargesheet with translations and a summary of allegations.
At that point of time, the chargesheet ran more than 7,000 pages. With its translation and gist of allegations, each of the five arrestees was to get over 15,000 pages, while my colleagues and I, as their legal counsel, were supposed to receive, on their behalf, not less than 65,000 pages of documents, and ferry them back home. Collecting chargesheets has been another adventurous, hilarious, and tiring story, but I shall write about that some other time.
Given the importance of the case, and more importantly, understanding that the whole case was meant to stifle dissent, lawyers concerned with democratic and constitutional values represented the arrested activists pro bono. Yes, a battery of legal luminaries appeared for the five of them. They were motivated neither by money nor by fame, but by their sense of duty to the Constitution, and to lend their voices to the voiceless.
We would run among the offices of these stalwarts to brief them, along with several local lawyers, who would selflessly accompany us, at the cost of their own paid work. Many a time, we were joined for these conferences by Ms. Jaising and Mr. Grover. In a borrowed car, filled with two sets of charge sheets running into tens of thousands of pages, we would literally cover a circuit of legal offices, not knowing which counsel would want to see which documents. Glancing through the gist of allegations was sufficient for all, except for Mr. Grover, who went through the entire stack of papers.
All of them, be it senior advocates, advocates on records or juniors, expressed confidence, based on their own study of the case and legal experience, that the Supreme Court would dismiss the appeal of the State, for there was nothing to fault in the erudite judgment of the Bombay High Court.
During the hearings too, the apex court expressed its dissatisfaction, in harsh words, over the whole process undertaken by the Pune Police. When the court was informed by Ms. Jaising that in order to circumvent any positive order from this court, another case has been slapped against Surendra Gadling, a seemingly concerned then Chief Justice Gogoi asked us to file the papers on record, boosting our hopes of a favourable decision.
To our utter shock and surprise, the Supreme Court set aside the judgment of the High Court. To render such a verdict, it misread the facts and brushed aside many pivotal points. With our hopes shattered and having read the law being rewritten, we were disheartened to no end. It was such a big setback; reading the judgment again and again only fuelled our disappointment and anger.
Thereafter, another charge-sheet came to be filed against the second set of arrestees. A challenge to the extension granted therein remains pending before the Bombay High Court till date.
The special court in Pune also found time to finally dispose off the bail applications, filed in August 2018, in late 2019. The reason offered for rejection was, as expected, that the allegations made were serious. Our challenge to this order denying bail, filed in early 2020, also remains pending before the High Court till date.
Electronic evidence used by prosecution not shared with defence counsel
During the time regular bail applications were being considered by us, the prosecution was heavily relying on electronic evidence, without supplying us copies of it. Though they would attach printouts of the so-called incriminating material, they would refuse to provide us with mirror copies of the hard disc. This lead to a situation where, without getting any opportunity to verify the credibility of the electronic material, defence was being dragged to prove their innocence.
We made repeated demands for access, which were followed by repeated assurances; however, nothing came of those assurances.
Relying on material not supplied is generally not permitted, neither in criminal trials nor even in departmental inquiries. That is because it is inimical to the principles of natural justice, but not in this case. The prosecution took full advantage of the electronic material, and objections from defence fell on deaf ears.
Ultimately an application came to be moved, praying that the prosecution be refrained from relying on the electronic material without supplying its mirror copy to the defence. The special court, considering that application, directed to place the bail application in suspension until the prosecution supplied the mirror copy.
In other words, whether to restore liberty of a citizen would be considered by the court only after the prosecution complies with the law.
It took another battle in the High Court to get the order set aside. Even then, the High Court did not direct hearing of the bail application by restraining the prosecution from relying on the material. It merely said that the bail application must be decided preferably within two months, subject to an undertaking that the defence lawyers would “co-operate”.
On other front, Anand and Gautam approached the Supreme Court challenging the dismissal of their quashing petition by the High Court. However it came to be dismissed, with further time of four weeks being granted to seek anticipatory bail.
As was done in case of the other arrestees, this time, too, the bail applications were decided only a day before the interim protection was to exhaust. On the dismissal of his bail application by the special court, journalists confronted the IO as to whether he would arrest Anand. To this, he replied in the negative and said: “He still has time, and until such time gets over we cannot arrest him.”
Anand, in order to present his anticipatory bail application before the Bombay High Court, took flight from Goa. As soon as he landed, he was arrested from the Mumbai airport and produced before the special court in Pune. This time, however, the special court refused to authorise his detention, and released him in view of the Supreme Court’s interim protection.
Their bail pleas before the High Court was moved, wherein prosecution had to undertake not to arrest him till they file their reply. Later on, the bail application were also rejected by the High Court citing serious allegations.
NIA takes over investigation of case
Late 2019 brought about a political storm in Maharashtra. In an unbelievable turn of events, three parties came together to form the new Maharashtra government and keep the Bharatiya Janta Party out of power. With Sharad Pawar orchestrating this unexpected change of guard, it was hoped that he would live up to his promise of holding an independent probe in the Bhima Koregaon case.
Acting on his words, Pawar made various public statements demanding a probe by an independent body. The newly formed government then called upon the entire police team with their evidence to hear their side before ordering any probe.
It was learnt that they miserably failed to satisfy the government, and would consistently cite court orders rejecting the bail applications. Upset with the police’s high-handedness and apparent manipulation to frame the activists, the government was reportedly set to have retired police officers of proven integrity look into the whole issue under the supervision of a retired High Court judge.
The same day, the Union Home Ministry directed to hand over the investigation to the NIA. After some tussle, the new Chief Minister Uddhav Thackeray approved the transfer of the case in order to avoid any conflict with the union government.
The NIA then approached the special court in Pune, seeking transfer of the charge-sheeted case to a special court in Mumbai. Although the Criminal Procedure Code, 1973 does not empower a sessions court to transfer a case beyond the territorial jurisdiction of its district and specifically entrusts such powers with the High Court only, the special court in Pune itself directed the transfer of the case to the special court in Mumbai.
Our challenge to this transfer of investigation to the NIA, and transfer of the case by the special/sessions court in Pune to the special/sessions court in Mumbai remains pending before the High Court, too.
(Nihalsing B Rathod is a lawyer based in Nagpur. This is the second of a three-part series; read part one here. The views expressed are personal.)