Senior advocate Mihir Desai, appearing on behalf of Mahesh Raut, took the court through material cited by the National Investigation Agency, claiming lack of evidence against Raut. Desai sought parity with judgments granting bail to other co-accused persons— Dr Anand Teltumbde, Vernon Gonsalves and Arun Ferreira.
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ON Monday, a division Bench of the Bombay High Court comprising Justices A.S. Gadkari and Sharmila U. Deshmukh heard the bail plea of forest rights activist Mahesh Raut.
Mahesh Raut is an accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case under the Unlawful Activities (Prevention) Act, 1967.
He is currently lodged in Taloja Central jail, awaiting trial.
The bail application, filed in 2022, challenges the rejection of bail pleas by a sessions court in Pune in 2019 and a National Investigation Agency (NIA) court in Mumbai in 2021.
Senior advocate Mihir Desai, on behalf of Raut, argued that the NIA has relied on two letters that were allegedly recovered from electronic devices of other co-accused persons.
Desai argued that neither of the letters were recovered from Raut. Desai also submitted that the letters were neither written or signed by Raut, nor were they addressed to him.
Desai pointed out that the senders of the allegedly incriminating letters have not been questioned and their statements are not a part of the chargesheet.
Desai referred to a statement by professor Monica Sakhrani, relied upon by the NIA. As per Desai, her statement makes reference to a news article that alleged Raut was seen in Gadchiroli; hence, it amounts to hearsay evidence.
It was stressed by Desai that besides Sakhrani's statement, no eyewitness statement has been recorded to link Raut to the banned Communist Party of India (Maoist) [CPI (Maoist)].
Desai apprised the court that Raut was a student at the Tata Institute of Social Sciences and a former fellow of the Prime Minister Rural Development Programme of the Union Ministry of Rural Development.
Desai submitted that as part of Raut's work, he was stationed in Nagpur and Chandrapur during 2011–15, where he worked closely with tribal people.
"There is no evidence pointing to his active involvement [with the CPI (Maoist)]," Desai contended.
Desai contended that the prosecution has failed to show any evidence regarding bank transactions or recovery of funds to prove allegations that Raut was involved in fund transfers for the CPI (Maoist).
Desai sought parity with the Bombay High Court judgment, dated November 18 last year, which granted regular bail to Dalit scholar, academic and activist, Dr Anand Teltumbde— a co-accused in the Bhima Koregaon case.
While granting bail to Dr Teltumbde, the high court had observed that, firstly, none of the allegedly incriminating letters were recovered from Dr Teltumbde; and secondly, that the identity of the accused persons referred to in the letters is disputed.
Desai relied on these two observations while seeking parity. He sought to emphasise the absence of evidence to prove that the mention of the name "Mahesh" in the letters refers to Raut.
Parity was also sought by Desai with the Supreme Court's judgment, dated July 28, granting bail to two other co-accused persons in the Bhima Koregaon case— trade unionist and activist Vernon Gonsalves and lawyer and activist Arun Ferreira.
Desai relied on the Supreme Court's observation that documents recovered from other co-accused persons cannot be relied upon by the court to convict an accused person.
Desai contended that Raut was not present during the Bhima Koregaon incident and that he was not connected with any activities of the Elgar Parishad.
Desai also referred to the principle laid down in the cases of Union of India versus K.A. Najeeb (2021) wherein delay in holding a trial was considered a relevant factor in examining the plea for bail of the accused.
The right to liberty is guaranteed under Article 21 of the Constitution, Desai submitted.
It was highlighted by Desai that Raut has already spent five years and three months in jail and that the prosecution seeks to examine more than 200 witnesses, which is going to take a long time.
Mahesh Raut, a land and forest rights activist, worked with gram sabhas in the mining areas of Gadchiroli, Maharashtra.
On June 6, 2018, Raut, along with five other accused persons, was arrested for allegedly spreading Maoist ideology, providing funds to banned organisations and conducting recruitments for the Maoists.
In November 2019, a sessions court in Pune rejected bail applications filed by the six accused persons. The court noted that prima facie evidence suggested that the acts of the applicants were aimed at undermining democracy in India.
In November 2021, an NIA court, while taking note of the submission made by NIA that Raut's name was found in a letter retrieved from co-accused Wilson's computer, rejected his bail application.
The submission was opposed by Raut stating that the existence of the letter is disputed on account of forensic reports finding malware infiltration of Wilson's electronic mail devices.
In April 2022, Raut approached an NIA court to seek discharge from the charges levied against him in the 2018 case related to allegedly spreading Maoist ideology.
He claimed that the allegations of handling money for the CPI (Maoist) and for assisting students to go to Gadchiroli are based on the two letters obtained from co-accused Wilson's device, which according to him have been compromised and the evidence tampered with.
Earlier, on May 4, 2022, the Bombay High Court dismissed a petition that sought review of its earlier December 1, 2021 Order under which an appeal for default bail presented by eight accused, including Raut, was dismissed.
Trial is yet to begin in the Bhima Koregaon case. The prosecution has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses.
Several of the accused persons have now spent almost five years in judicial custody without trial.
Five of the accused persons, Sudha Bharadwaj, Varavara Rao, Dr Anand Teltumbde, Vernon Gonsalves and Arun Ferreira have managed to secure bail so far.
Another co-accused, Father Stan Swamy, passed away due to COVID in custody in June 2021 after incarceration of over seven months. The others remain behind bars.
An investigation by Arsenal Consulting, a leading, independent expert firm on digital forensics, has revealed that sophisticated malware was used to plant the digital evidence that forms the basis for the prosecution's case on the devices of two of the accused persons in the case, Surendra Gadling and Wilson.