Senior advocate Rebecca M. John, appearing for Gonsalves, argued that the documents relied on by the NIA as evidence fail to prove Gonsalves' connection with the alleged offence.
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ON Tuesday, a division bench of the Supreme Court, comprising Justices Aniruddha Bose and Sudhanshu Dhulia, heard arguments on behalf of trade unionist, activist and academic Vernon Gonsalves for the grant of regular bail. Gonsalves, and activist and lawyer Arun Ferreira have filed bail applications at the Supreme Court challenging the order of the Bombay High Court dated October 15, 2019, rejecting their bail pleas.
Gonsalves and Ferreira are accused in the Bhima Koregaon–Elgar Parishad case and charged under the stringent Unlawful Activities (Prevention) Act, 1967 (UAPA).
Senior advocate Rebecca M. John, representing Gonsalves, delved into the background of how the present case emanated. John explained that six persons were named in the original first information report (FIR) filed by the Pune police on January 8, 2018 in relation to violence at a programme organised by the Elgar Parishad on December 31, 2017. Gonsalves and Ferriera were not named in the FIR, John clarified.
Pursuant to the simultaneous house searches on August 28, 2018, in the cities of Mumbai, Delhi, Faridabad and Hyderabad, Gonsalves and Ferriera were placed under house arrest on account of a petition pending before the Supreme Court at the behest of historian Romila Thapar, among others. On the dismissal of the petition, they were subsequently sent for judicial custody on October 27, 2018 and have since been lodged in jail, John said.
John further explained that on February 21, 2019, a supplementary chargesheet was filed, naming Gonsalves and Ferreira, by the Pune police. After the National Investigation Agency (NIA) took over the investigation of the matter on January 24, 2020, a second supplementary chargesheet was filed by the NIA on October 9, 2020.
Delving into the substance of the allegations laid against Gonsalves, John noted that there are three allegedly incriminating documents relied on by the NIA. Highlighting each of the documents, John pointed out that while the names of Gonsalves and Ferreira appear in the documents, they were not recovered from the petitioners, but allegedly from other co-accused or from unknown sources.
On Justice Dhulia's inquiry on Gonsalves' occupation, John replied that he retired as an accounts officer at German multinational conglomerate corporation Siemens. He lost his job due to the cases filed against him during the period of 2007–10, and thereafter, he stayed in Mumbai with his family and wrote columns with various reputed websites, John added.
When Justice Dhulia remarked that a lot of cases have been filed against Gonsalves, John emphasised he was convicted in only one case filed in August 2007, with an appeal pending before the Nagpur bench of the Bombay High Court. In all other matters, Gonsalves was acquitted, and either his statements recorded under Section 313 (power to examine the accused) of the Code of Criminal Procedure, 1973 were dispensed with for lack of evidence, or he was discharged.
John pointed out that the Bombay High Court granted regular bail on merits to co-accused, scholar, writer and activist Dr. Anand Teltumbde on November 18, 2022, which was upheld by the Supreme Court. Seeking parity with the bail order, John highlighted that the high court considered the letters that allegedly made reference to Dr. Teltumbde, as well as a trail of funds. John laid emphasis that the high court examined Sections 15 (terrorist act), 16 (punishment for terrorist act) and 20 (punishment for being member of terrorist gang or organisation) of the UAPA against Teltumbde, and observed that the provisions of the UAPA could not be invoked to imply that he was involved in any terrorist act on the ground of circulation of certain letters.
Further, John referred to the case of NIA versus Zahoor Ahmad Shah Watali (2019) in which the finding of the Delhi High Court, while granting bail to the accused, that similar documents were inadmissible, was challenged at the Supreme Court.
John explained that under legislation such as the Prevention of Money Laundering Act, 2002, the Maharashtra Control of Organised Crime Act, 1999, the Terrorist and Disruptive Activities (Prevention) Act, 1985, and the Narcotic Drugs and Psychotropic Substances Act, 1985, the accused needs to prove that they are not guilty of an offence. Whereas, in UAPA, the threshold is lower, where the accused needs to prove that the case is not prima facie true.
"In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is 'prima facie true', as compared to the opinion of accused 'not guilty' of such offence as required under the other special enactments," the Supreme Court observed in its judgment in Watali.
To this, Justice Dhulia questioned that when mere association or membership of a banned organisation can make a person an accused under UAPA, how can it be easier for an accused to prove his defence? John replied that in such cases, the membership allegation has to be examined by the court.
"What was the new material in 2018 that justified picking [Gonsalves] up once again under the same offence?" John asked the bench.
John stressed that the present matter was posted for bail, where the threshold is lower. She pointed out that the judgment in Watali says the court must look for "grave suspicion" once the charges are framed, not for bail.
Further, pointing out the four-and-a-half years of incarceration of the petitioners as undertrials, John highlighted that in the case of Union of India versus K.A. Najeeb (2021), the Supreme Court observed that delay in trial does not oust the constitutional court in granting bail.
John emphasised that pursuant to the order of the Supreme Court dated August 18, 2022, the trial court had said that the matter will take a year to finish. She further stated that the NIA refused to open its case on charge against the petitioner until all the accused persons finish arguments on the pending discharge applications.
The matter is posted for further hearing tomorrow, March 1.