A Supreme Court bench of CJI-designate, Justice Uday Umesh Lalit, and Justice S. Ravindra Bhat has decided to keep the petition seeking bail by Vernon Gonsalves on hold , but its direction to the trial court to begin its trial within three months comes as a relief.
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AFTER hearing at considerable length a bail petition filed by trade unionist, activist and academic Vernon Gonsalves, one of the accused undertrials in the Bhima Koregaon violence case, the Supreme Court on August 18 chose to keep the petition pending with it for three months. In the meantime, it has directed the trial court in Mumbai to decide whether the charges are to be framed against the accused under the stringent Unlawful Activities (Prevention) Act (UAPA) and the Indian Penal Code (IPC).
The court also directed the trial court to simultaneously decide the applications preferred by the accused persons seeking discharge from the case.
Besides, it also directed the National Investigation Agency ('NIA') to take appropriate steps either to have the trial segregated against the arrested accused and/or to get the four absconding accused declared as proclaimed offenders under Section 82 of the Code of Criminal Procedure.
A bench comprising Chief Justice of India-designate Justice Uday Umesh Lalit and Justice S. Ravindra Bhat was hearing an appeal filed by Gonsalves against the Bombay High Court's order dated October 15, 2019 refusing bail to him, holding that there were reasonable grounds for believing that the accusation against Gonsalves was prima facie true.
The high court, thus, followed the bar imposed by Section 43D(5) of the UAPA, to deny him bail.
Gonsalves is facing accusations under Sections 121 (waging, or attempting to wage war, or abetting waging of war, against the Government of India), 121A (conspiracy to commit offences punishable by section 121), 124A (sedition), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 505(1)(b) (statements conducing to public mischief), 117 (abetting commission of offence by the public or by more than ten persons) and 120B (punishment of criminal conspiracy), read with 34 (acts done by several persons in furtherance of common intention), of the IPC, and under Sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy etc.), 18B (punishment for recruiting of any person or persons for terrorist act), 20 (punishment for being member of terrorist gang or organisation), 38 (offence relating to membership of a terrorist organisation), 39 (offence relating to support given to a terrorist organisation) and 40 (offence of raising fund for a terrorist organisation) of the UAPA. He was arrested by the Maharashtra police on August 28, 2018, and has been in jail since then.
Senior advocate Rebecca John, for Gonsalves, argued that there was no incriminatory material against him. She read out the papers allegedly recovered from co-accused, researcher and activist Rona Wilson's laptop, and the three statements of witnesses (including one witness whose identity is protected) which were recorded during the course of investigation, to contend that these statements did not spell out anything against the petitioner.
The NIA heavily relied upon three letters recovered from the device of Wilson. They are: a letter written to Surendra by an unknown writer; a letter written by one 'R' dated 18.4.2017 addressed to Comrade Prakash, and a letter written by Comrade Prakash to Comrade Surendra dated 25.9.2017. John wondered how the prosecution would prove the three documents against Gonsalves in the absence of the evidence of the sender or receiver, that is, one Comrade Prakash. She added that no incriminating document was seized from Gonsalves' devices, and thus, he could not be held remotely liable for letters written by others and sent to others in the absence of corroborative evidence.
Opposing the bail application, Additional Solicitor General S.V. Raju, for the NIA, stressed the fact that Gonsalves was already convicted by a Sessions Court in Nagpur in another case for offences punishable under Sections 10 (penalty for being member of an unlawful association, etc) and 13 (punishment for unlawful activities) of the UAPA, and was sentenced to three and five years of imprisonment, respectively, on these two counts, yet he continued with these activities after completion of the sentence.
Raju contended that the gravity of the activities was discernible from the statements recovered from the laptops as well as those made by the witnesses during the course of the investigation. He alleged that the arrested accused had been preferring some application or the other, as a result of which the concerned court was unable to take up the matter for effective consideration and see whether charges needed to be framed or not. He also informed the court that he had advised the public prosecutor either to take the appropriate steps for segregating the trial in respect of the 15 accused, who are before the trial court, and/or for issuance of proclamation declaring the other four accused to be proclaimed offenders.
A total of 16 accused persons have been arrested in the Bhima Koregaon violence case. Of them, Indian Catholic priest and tribal rights activist Father Stan Swamy died in judicial custody in July 2021 amidst his demand for medical bail.
Earlier this year, the Bombay High Court set free trade-unionist, activist and lawyer Sudha Bharadwaj on default bail, while another co-accused, activist, poet, teacher, and writer P. Varavara Rao, was granted interim medical bail by the high court in February last year, which came to be confirmed as permanent by the Supreme Court last week.
The remaining thirteen accused persons have now spent between almost two to over four years in judicial custody without trial.
The prosecution in the Bhima-Koregaon case has filed three charge sheets exceeding 5,000 pages, and intends to cross-examine at least 200 witnesses.
An independent investigation by Arsenal Consulting, a leading and 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 Wilson and another of his co-accused, human rights lawyer and Dalit rights activist Surendra Gadling. Arsenal's findings were published in four reports last year.
Last year, it was also revealed by an investigation by a consortium of 17 media organisations across the world that eight of the accused persons in the case were targeted for snooping through the Pegasus spyware. Subsequently, the Supreme Court appointed a Technical Committee to investigate the allegations of surveillance by several civil society members; the Committee, at the insistence of seven of the accused persons and their counsel, including Gonsalves, took possession of the seven persons' mobile phones to inspect if they were infected with Pegasus, earlier this year.