Justice continues to be elusive to those arrested in the case, with legal remedies not proving to be effective so far.
AS we have completed four years since the first arrest in the Elgar Parishad case, a quick recap of how 16 renowned human rights activists were jailed may be useful.
There is much more than meets the eye. Maybe we will have a few answers after the trial ends, but not all. It would be difficult to say what exactly caused the arrest of these 16 eminent persons, but we can definitely relook at the turn of events and try to understand what really happened.
Elgar Parishad and its immediate aftermath
Towards the end of 2014, Maharashtra came under the rule of a Bharatiya Janta Party (‘BJP’)-led coalition government wherein Shiv Sena was one of the partners. The Chief Ministership as also the Home Ministry was retained by the BJP’s Devendra Fadnavis. As a Rashtriya Swayamsevak Sangh (‘RSS’) follower, he was able to leapfrog many stalwarts from his party.
The then prevailing social unrest in Maharashtra was a result of several factors. To name just a few: long-pending demands of farmers for loan waivers, the demand for reservation of the Marathas; the Kopardi rape case where Dalits were accused of committing rape on a Maratha girl, and unending caste atrocities against Dalits — these widened the gap among the Bahujans.
On June 7, 2018, a press conference was held by the police. It claimed to have unravelled a big conspiracy to assassinate the Prime Minister of India. It said that it found incriminating material as per ‘secret information’, from the electronic devices seized from the detained activists.
What fuelled the feeling of enmity among Marathas and non-Marathas were the “Muk Morchas” and the unprecedented show of strength by this community. Though many communities initially came forward in support, certain RSS-sponsored organisations ensured that hatred kept brewing. Certain organisations declared their counter-morchas against muk morchas, which then simply added fuel to fire.
Amidst all this, Dalits had started to forgo infighting and join hands for a particular cause. Youngsters were taking the lead, with new zeal and anger against injustice. These agitations were not happening under the banner of any political party or organisations, but under cause-oriented common leadership. They were learning to decipher the truth and articulate their grievance.
However, realising the growing strength of Dalits, Marathas and even other smaller communities, were organising themselves in a more effective manner as a counter-effort.
Many among the torchbearers of social harmony could sense this mischief of the right-wing. Taking the lead was late Justice P.B. Sawant and Retd. Justice B.G. Kolse Patil, who called for a meeting and expressed their understanding of the situation to activists who had gathered from various places. Agreeing with their insight and foresight, it was readily agreed that some effort must be made to defeat this mischievous effort on part of the right-wing to create Dalit vs. Maratha tension. One of the occasions suggested by the jurists was the forthcoming 200th anniversary of the Bhima Koregaon Battle.
They pointed out that it was that battle where the mighty Peshwas were defeated by a handful of Bahujan soldiers. They proposed an idea of holding a meeting in Pune, the former capital of Peshwas, to revisit what was the battle of Koregaon Bhima, and to inspire people to come together to fight the neo-Peshwas, among other things.
After a series of meetings held at different places across the state, finding consensus among activists from different organisations, it was formally announced that an ‘Elgar Parishad’ with select celebrated speakers will be held at Pune on the ground of Shaniwar Wada on the occasion of the bicentenary of the Bhima Koregaon Battle.
Also read: #BhimaKoregaonArrests: Timeline of a terrifying, State-sponsored farce
As expected, Brahmin community organisations opposed the program. Additionally, Milind Ekbote, a local right-wing leader, led a frontal objection to the program. Another organisation objected to the presence of activists Jignesh Mewani and Umar Khalid at the event. Some even threatened physical assault on Khalid and Mewani if they came to Pune.
In reply, Sambhaji Brigade, one of the organisers of the Elgar Parishad, intervened. It declared that if permission for the program is cancelled, it will hold the meeting on the streets of Pune. It also dared opposing organisations to touch any of the speakers.
A few days before the program, villages in the vicinity of Bhima Koregaon were charged with communal hatred. “Someone” violated one of the memorials. This was pursuant to disputing the recorded and widely accepted fact that Govind Gopal Gaikwad, a Dalit, defied the dictates of Aurangzeb, gathered pieces of Emperor Sambhaji, and gave him an honourable cremation. He earned a prize and honour for the same. On his death, his memorial was built next to the emperor. It was this memorial that came to be violated, knowing well the consequences that may entail.
Celebrating the bicentenary of the Koregaon Bhima battle was also called into question. It was labelled as an anti-national act. It was objected to on the lines that the battle was fought between Britishers and Peshwas. Though the British forces were of mixed Indian population, they defeated Peshwas; hence it was an act against India and therefore must be condemned. Those who participated in the celebration were termed as anti-nationals.
One of the factors which was demonstrated to the court was the usage of peculiar Marathi terms in a letter supposedly written by the Hindi-speaking Bhardwaj. It was also demonstrated to the court that Bharadwaj is not conversant with Marathi, and attributing such a letter to her appears to be prima facie illogical and therefore necessitates a probe through an independent body.
The Elgar Parishad program was to happen on the ground of Shaniwar Wada. That very venue was booked for the next day by a local college for felicitation of a scientist. It needed the ground a day in advance so that it could decorate as per their desire. It reached out to Justice Kolse Patil seeking his permission to start putting up its decoration, with an offer that the stage, LCD and sound equipment, chairs and so on could be used by the Elgar Parishad for no cost. Logical and mutually beneficial, it was agreed upon.
Amid opposition on December 31, 2017, the program took place. Speakers from across the country and communities invoked a feeling of togetherness against the neo-Peshwa. They criticised the government and the ruling combine, and ultimately took a pledge to defend the Constitution of India in any and all circumstances.
The program for the day ended at 9:30 p.m. People went back home in peace. Nothing untoward happened in the program. The organisers too wrapped up their material and went home as soon as they finished. But the program did not end there. It had shaken the hearts and minds of the ruling combine.
The next morning, that is, on January 1, 2018, Dalits from across the nation who had gathered to pay their respects to the fallen of the Koregaon Bhima Battle, were attacked by a mob of 300-400 bike riders claiming to be locals. They were holding saffron flags in their hands. They torched vehicles and shops, assaulted visitors, pelted stones, and shouted slogans. They took the liberty to create a ruckus while the police played mute spectators. Hundreds were injured. Baffled by the unexpected attack, a few retaliated and returned stones with stones, but they were hopelessly outnumbered.
This went on uninterrupted for a few hours. Finally, the police swung into action. Dalits suffered the most: apart from injuries on person, their vehicles were torched. Many of the vehicles were on hire, and earned a livelihood for a family. Those being burnt to ashes meant starving one whole family. Therefore, the center of attack was mostly vehicles; this was also because vehicles from outside are easily recognizable.
The news of the attack spread across the state like wildfire. Those whose near and dear ones had gone to Koregaon Bhima were worried and agitated. Many of them, not knowing what to do, gathered on the streets.
On January 3, 2018, all barring BJP-RSS affiliates – all political parties, including the Nationalist Congress Party (‘NCP’) and the Indian National Congress, various social organisations, and several individuals and scholars – gathered on the streets in support of a call for bandh, condemning the attack. It was a successful peaceful bandh.
Of course, in some places, the protesters were provoked to resort to violence, but those were exceptional, given that this protest occurred in almost every village. Importantly, it showed what Justice Sawant had desired, that is, peace among Bahujan, and, if possible, unity for the cause. Just one Elgar Parishad had started to pay off; it had defeated the efforts of the Right-wing to distance Dalits and Bahujan.
It was clear that Hindutva activist Sambhaji Bhide and Ekbote were the masterminds behind this act. Thus, another agitation was announced by Balasaheb Prakash Ambedkar, demanding immediate action for the arrest of the culprits.
The then Chief Minister cum Home Minister Fadnavis made his statement to the state assembly detailing how the actual incident took place. He also reiterated the involvement of bikers wielding saffron flags. He said that Ekbote would not be spared, and that the strongest of lawyers would be fielded by the state to oppose his bail plea.
In the Supreme Court, opposing Ekbote’s anticipatory bail plea, the state government filed an affidavit claiming that it had found his involvement to be pivotal in the attack, and that he mastered the plan along with his coteries. Evidence was found in that regard, as per the state government. The involvement of right wing extremist organisations was likely, it was urged before the Supreme Court.
The court rejected his bail application, leading to his brief arrest. On the other hand, Bhide remained at large untouched. Recently, Ekbote was given a so-called clean chit, which is to say that a closure report was filed claiming that he was not involved.
In the background, two crimes were registered by the local police station at Vishrambag. The complainants in both the cases happened to be devotees of Bhide and members of right wing organisations. They alleged that speeches at the Elgar Parishad led to the outbreak of violence on January 1, 2018. They also alleged that the banned organization Communist Party of India (Maoist) was involved in this.
On the other hand, scores of first information reports pertaining to actual violence that took place across the state were registered. In the prominent ones, Bhide and Ekbote were cited as accused.
Also read: Bhima Koregaon Inquiry Commission: Police evasive when questioned about its failure to prevent violence
Suddenly, on April 17, 2018, the Pune Police conducted raids across the nation. The reason for such sensational raids in Pune, Mumbai, Delhi and Nagpur on activists based in these cities was their alleged involvement in the violence that took place on January 1, 2018. Though applications by the police seeking to conduct raids were rejected by courts of law twice, yet based on “secret information”, electronic devices of these activists were seized from their residences.
On June 6, 2018, advocate and activist Surendra Gadling, activist and publisher Sudhir Dhavale and researcher-activist Rona Wilson were arrested from their respective residences. They were raided by Pune Police on April 17, 2018. In addition to them, two more were picked: Prof. Shoma Sen, and former Prime Minister Rural Development Fellow, Mahesh Raut.
Defying the mandate of the law once again, the police did not produce them before the nearest magistrate. It was later on learned that it produced Gadling at Amravati, a town situated 150 km from Nagpur. The magistrate therein pointed out the law, requiring production before the nearest magistrate, and not just before any magistrate, and refused to grant any transit remand. The police brought him back to Nagpur, put him on a flight, and took him straight to Pune, wherein he was produced in the early hours before a special judge.
On June 7, a press conference was held by the police. It claimed to have unravelled a big conspiracy to assassinate the Prime Minister of India. It said that it found incriminating material as per ‘secret information’, from the electronic devices seized from the detained activists. The material included the plan of Maoists to hold the Elgar Parishad, propagate their agenda through the program, cause unrest in the country, and remove the Prime Minister from power. The accusations, however, raised more questions than they answered.
The extremely surprising and disappointing judgment of the Supreme Court, allowing the appeal of the state and holding the activists not entitled to default bail, when perused, showed many factual blunders and erroneous interpretation of the law.
The police distributed some letters supposedly uncovered from the activists to select media entities; it being alleged that these letters were exchanged between the sender and receiver as per the contents. The letters contained names such as Anand, Surendra, Vernon, Arun, Shoma, Sudhir and, most talked of all, “Prakash”. Mystery surrounds this name to date, for all the people with these first names are jailed, but the only connectable person with the first name Prakash, that being Prakash Ambedkar, also known as Balasaheb, was not touched. This is perhaps because, as soon as TV channels started talking of the possible arrest of Balasaheb, there was tremendous unrest, and fear of violent reactions at the hands of his followers.
In the months to come, a total of 16 valued activists were to be jailed, one after other, fettering their bodies, humiliating them, restraining access to books, preventing their critical writings, prohibiting their speeches, slaying the eldest of them, garrisoning them from the public; yet failing to break their spirits, their free-thinking, their wisdom, and their resolve to fight the people’s battle.
Also read: ‘We are all prisoners of conscience’, say those facing trial in Bhima Koregaon case on the occasion of fourth anniversary of their arrests
Romila Thapar & Ors versus Union of India
Next in line were the lawyer and activist Arun Ferreira, activist and academic Vernon Gonsalves, activist and poet P. Varavara Rao, Roman Catholic priest and activist Stan Swamy, scholar and activist Dr. Anand Teltumbade, activist and journalist Gautam Navlakha, academic Hany Babu, and lawyer and activist Sudha Bharadwaj. All of these, without exception, had taken a vocal and vociferous stand against the arrest of the first five. They were critical in their writings and speeches.
These people were arrested from their residences, produced before local magistrates and were on their way to Pune where they were to be detained. However, before things could work out for the police, Navlakha challenged his arrest and transit remand before the Delhi High Court. The high court stayed his transit to Pune, and placed him under house arrest. Later on, the high court allowed the petition and set aside his arrest, finding the process adopted to have vitiated the arrest. It gave liberty to the Pune Police to take action afresh. Soon, Bharadwaj’s next of friends followed suit and sought a stay on her arrest.
Looking at the nationwide action targeting human rights activists owing to their dissent and critical stand against the government, prominent citizens of the country knocked on the doors of the Supreme Court, seeking an independent probe. It was contended that the allegations being leveled against the activists are palpably unbelievable, and reek of vengeance against the activists for having dared to speak the truth to power.
Historian Romila Thapar, human rights lawyer Maja Daruwala, economist and writer Devaki Jain, Marxist economist and political commentator Prabhat Patnaik, and writer and academic Satish Deshpande were the petitioners. They were represented by legal heavyweights. During the hearing, a three-judge division bench of the Supreme Court was presented with compelling arguments to discredit the whole prosecution story. Some of the supposedly incriminating electronic evidence, heavily relied upon by the prosecution and publicised by the investigating officer, was produced before the court and shown to be illogical and factually contradictory.
One of the factors which were demonstrated to the court was the usage of peculiar Marathi terms in a letter supposedly written by the Hindi-speaking Bhardwaj. It was also demonstrated to the court that Bharadwaj is not conversant with Marathi, and attributing such a letter to her appears to be prima facie illogical, and therefore necessitates a probe through an independent body. The court, in an interim order, directed to place Bharadwaj, Ferreira, Rao, Navlakha and Gonsalves under house arrest. Teltumbde, being absent at the time of the raid, escaped arrest, and remained untouched for a short while. Whereas Fr. Swamy was not arrested.
After high-voltage arguments, the bench, comprising then Chief Justice of India Dipak Misra, and Justices D.Y. Chandrachud and A.M. Khanwilkar, closed the matter for judgment, continuing the house arrest of all the activists in the interregnum. On the preceding evening of the delivery of judgment, a notice indicated that the judgment in the matter would be delivered by Justice Chandrachud. However, by morning, there was a change in the notice, and it said that judgment would be rendered by Justice Khanwilkar as well.
The judgement was pronounced in the open court, wherein the majority, that is, the Chief Justice and Justice Khanwilkar, held that the petition is not maintainable, while Justice Chandrachud held that the petition is maintainable and necessitates a probe through an independent body. In his minority opinion, the latter had examined the case diary as well as the released letters.
The majority judgment gave four weeks of time to the activists to approach an appropriate forum to obtain relief therefrom. Consequently, the petition was dismissed. However, the apprehensions upheld by the court in minority judgment were to resonate in the days to come. So much so that a forensic analysis would reveal the implanting of all those letters in the computers of Gadling and Wilson over a period of time.
Also read: #BhimaKoregaonVerdict: Between the majority and the minority judgments of the Supreme Court, falls the shadow
Pursuant to the Supreme Court’s verdict, Bharadwaj, Ferreira, Rao and Gonsalves applied for anticipatory bail, which came to be dragged on till the last day of the four weeks’ time, before being rejected. Before they could seek any intervention from the high court, they were arrested and placed in police custody.
The arrests of Anand Teltumbde and Gautam Navalkha
Dr. Teltumbde, Fr. Swamy and Navalkha moved applications under Section 482 of the Criminal Procedure Code at the Bombay High Court praying for quashing of the proceedings against them. Of these, in Fr. Swamy’s case, the investigation agency made a statement that it doesn’t seek to arrest him at that point of time, and therefore his petition was disposed of. Whereas Dr. Teltumbde and Navalkha managed to get interim orders against their arrest.
Anticipatory bail applications of Dr. Teltumbde and Navlakha were rejected by the high court, with further protection from arrest for another four weeks. In the meantime, the first terrifying wave of corona hit the nation. The strictest of all lockdowns was brought into force by the union government, impeding movement, communication, and even the tempo of life. In such circumstances, these septuagenarian activists, suffering from various co-morbidities, had to approach the Supreme Court, challenging the Bombay high court judgment. A bench presided by Justice Arun Mishra heard the case, and rejected it, leading to both Dr. Teltumbde and Navlakha submitting themselves to the custody of the National Investigation Agency (‘NIA’) on April 14, 2020, the birth anniversary of Dr. B.R. Ambedkar. Dr. Teltumbde was taken in custody by the Mumbai office, whereas Navlakha, by the Delhi office, of the NIA.
Navlakha therein filed for interim bail on health grounds in wake of pandemic before the Delhi High Court, which was under serious consideration by the court. While it was pending, without intimation to the court or to the family, lawyers or anyone for that matter, Navalkha was whisked away from Delhi to Mumbai. Taking a serious view of the matter, the Delhi high court directed the NIA to come clean on its action and justify the same. The high court directed the agency to place on record all judicial documents and relevant orders obtained for removing Navalkha from the custody of Delhi courts to that of Mumbai courts.
However, a Supreme Court bench of Justice Arun Mishra stayed this order and further proceedings in the matter. Eventually, it set aside the entire order itself, sanctioning the action of the NIA in frustrating judicial proceedings. Navlakha’s custody was then given to the NIA, which interrogated him for days to come. The same was the ordeal of Dr. Teltumbde. They both continue to be imprisoned since then.
The petitions filed by Dr. Teltumbde and Navlakha went through many exciting developments. At one point of time, the Bombay high court bench said in so many words that it doesn’t find any prima facie case against them. The investigating agency thus prayed for some more time to present more evidence to satisfy the court. In what can be called a sealed cover, something was presented to the court without giving its copies to the counsels appearing for the two. The prosecutor read out some material in such a way that no one could understand anything except for hearing abbreviations as HM, CCM and PB, among others. He also explained their meaning to be Hijbul Mujahiddin, Central Committee Member and Politburo, respectively.
Without affording any opportunity to counter these yet another set of electronic evidence, the court found serious allegations to be made against the two to reject their plea. This was challenged before the Supreme Court, but to no avail. The Supreme Court granted them a little more time to seek anticipatory bail. That led to another round of effort.
Even after four years, the accused persons have not received mirror images of all the hard discs, and there is great amount of confusion even within the prosecution as to whether they are done supplying the copies or not.
Dr. Teltumbde and Navlakha therefore went to the trial court, which as expected also rejected their pleas. This rejection came a couple of days before protection granted by the Supreme Court was to expire. Knowing well that he still had time, the then investigating officer told the media that he won’t be proceeding to arrest him. Dr. Teltumbde, in order to assail this rejection, was on his way to Mumbai and landed at the Mumbai airport wearing his tracksuit, in the early hours of the morning. The investigating officer, however, pounced on him at first sight, arrested him and brought him to court in Pune. For the first time ever, the trial court questioned this high-handedness of the police, and refused to certify the arrest. Anand Teltumbde was surprisingly released.
Also read: Notes from the Anand Teltumbde arrest and release saga
When Dr. Teltumbde approached the high court seeking anticipatory bail, the State opposed the grant of any interim tooth and nail. Yet, the court granted interim protection from arrest. Later on, Dr. Teltumbde and Navlakha both were directed to attend the police station in order to cooperate with the investigating authorities. Both attended to the investigating officer ritually, and they were interrogated even more ritualistically. Every time they attended, they were made to sit for hours without any question being asked, and then told to leave. This arrangement continued for a few months.
With political equations changing after the 2019 Maharashtra assembly elections, the then Home Minister Anil Deshmukh, and Deputy Chief Minister Ajit Pawar called upon the entire investigating team to their Ministry to hear their side of story before proceeding to announce the formation of a special investigation team.
It is learnt that the investigation team could not justify the case and kept on pointing out orders of rejection of bail by the courts. On demanding any other proof apart from those emails or electronic evidence, the investigating team had nothing to justify the act. It was learnt that the ministers were convinced that the action against the activists was politically motivated. That led to the Ministers giving a dressing down to the team.
Transfer of investigation to National Investigation Agency
Just a few hours after the meeting got over, the union government made over the investigation into the case to the NIA.
Furious with the action of the union government in interfering with its affairs, the state government refused to hand over the case. This stalemate continued for a few days. However, one late night, a file came to be called by the new Chief Minister Uddhav Thackeray, who vetoed the action of the Home Minister and directed the handing over of the case to the NIA. Learning of the late-night development, the Home Minister rushed to the house of the Chief Minister early in the morning trying to convince him to recall his decision, but in futility. It was later on learnt that some I.A.S. officers influenced the Chief Minister’s decision, citing his fear of President’s rule being imposed and the possible dissolution of his government. That led to another round of press conferences by various ministers of the NCP, expressing their anguish over the union government’s action, calling it murder of the federal structure, and so on.
Although the law governing the field, that is, the NIA Act states that the union government can make over a case within 15 days from the date of registration of offence, it had taken this action after a lapse of at least one and a half years. The law also allows the exercise of suo motu powers on taking over the investigation on coming to know of such cases. But the union government was party to various cases in the matter, the most important of all being the Romila Thapar case wherein it did not just defend the investigating team but even praised the action of the Maharashtra government. It had opposed the demand for a probe through any other body.
Yet, the orders were served on the state government by the Union Home Ministry informing its decision. Before the state could approve of the action, prosecutors from NIA landed in Pune and made an application to the trial court demanding it to transfer the case to its Mumbai court.
In Pune, the trial court, presided by an Additional Sessions Judge, acceded to the odd demand of the NIA, which fell within the absolute jurisdiction of the High Court, and thus it alone could have granted the same. It directed the transfer of the case from Pune to Mumbai, that is, from one division to another division.
Aggrieved by this whole turn of events, Dhawale and Gadling challenged these actions in the high court in 2020, which remains pending till date.
Also read: 3 years after Bhima Koregaon: How criminal law was violated
After the NIA took charge of the case, amid the first national wave of COVID, it began its further investigation into the matter. While arresting Dr. Teltumbde and Navlakha, it also called upon Prof. Babu to appear before it. His requests for deferments owing to the pandemic were turned down. After grilling him for days together, he came to be arrested in July 2020.
Soon, the NIA started issuing summons to scores of people from across the country. This included the late Fr. Swamy, as well as Gorkhe, Gaichor and Jagtap. All three happen to be an integral part of the Kabir Kala Manch, which had performed at the Elgar Parishad. Of them, Gorkhe and Gaichor were earlier booked and detained for three and a half years under allegations of having gone into a forest area to partake in training in the usage of arms and ammunition. They had managed to come out on bail only in mid-2016, with stringent conditions to attend the local police station every weekend.
Gorkhe and Gaichor, who stood arrested, published a video claiming that they were being forced to give false statements against already arrested activists if they wished to not be arrested. Reluctant to give any false statement, they chose to be arrested. Jagtap was also arrested the next day.
On their production before the remand court, both Gorkhe and Gaichor filed their written complaint narrating the facts and circumstances leading to their arrest. They demanded a recording of their statement as a complaint in view of the D.K. Basu Guidelines, production of video footage from the CCTV cameras of the NIA office which is proof, action against the officers for creating false records, and their release. This was outright rejected by the trial court: an appeal against the same is pending in the high court even today.
Default bail and extension under Section 43D of UAPA
The charge sheet for the first five arrestees was due to be filed on September 4, 2018. On September 1, the investigating officer filed an application seeking an extension of time invoking, Section 43D of the Unlawful Activities (Prevention) Act (‘UAPA’), 1967.
Although the law requires that there must be a report of the public prosecutor disclosing their satisfaction over the need for having extended the period for further investigation, there was no such report in the instant case. Instead, there was an application by the investigating officer in Marathi, and another one in English. Both bore the signature of the Public Prosecutor. Somewhat identical to what was the situation in Hitendra Vishnu Thakur versus State of Maharashtra (1994).
The investigating officer filed this application on a Friday, without giving copies to the activists. The court directed the supply of copies to them, and produced them in court on the next day. On Saturday, they were all brought into court, their lawyers unaware. They demanded time until at least Monday to make submissions, but this request was rejected. The court sent a special messenger to bring the concerned lawyers to court. They echoed the same request. The court, however, decided to sit on a Sunday on its own to decide the application of the investigating officer.
The judgment of the high court committed another factual error in assuming that the others did not avail the remedy. In fact, the first five had moved their bail application seeking default bail way back in 2018 itself, which remains pending on the files of the court even today.
On Sunday, the five were brought to court. Their lawyers again said they needed some time to respond and make their submissions. Yet again, the court refused any request for adjournment. Under protest, none of the lawyers advanced their submissions, whereas the investigating officer and the Public Prosecutor both made their submissions justifying their application. The court allowed the investigating agency a further time of 90 days to complete the investigation and file the charge sheet. It noted down the contentions of the investigating officer, and granted a full additional 90 days permissible under the law.
That order of the court was challenged before the high court. The state government fielded its highest law officer, the advocate general (‘AG’), to oppose the petition. The bench of Justice Mridula Bhatkar considered the matter and made its opinion clear that such extension was impermissible. AG Ashutosh Kumbhakoni defended the order, insisting that the court must take a pragmatic approach and not a technical one. He wanted the court to consider the gravity of the allegations. Unimpressed, the high court quashed the order and held the same to have been passed by exceeding the jurisdiction available.
That meant that the first five arrestees were to be released on bail, for the State’s failure to file a chargesheet within a period of 90 days. In the end, the high court acceded to the request of the AG to stay the effect of its order for a period of seven days.
With unprecedented speed, the state government challenged that order before the Supreme Court. A three-judge division bench comprising then Chief Justice Ranjan Gogoi, and Justices K.M. Joseph and S.K. Kaul heard the matter, which was argued by Senior Advocate Mukul Rohatgi on behalf of the state. After giving an earful to the state and its officers for being ignorant of the law, the court granted a stay on the high court’s decision. Around the same time, this very bench was also hearing the Rafale fighter jet corruption case.
Given the consistent line of judgments supporting the case, it was obvious that the court would be siding with the law interpreted and set these activists at liberty. In the meantime, the state filed its first charge sheet running in some 5,000 pages. The state argued before the court that it would like to demonstrate the gravity of the allegations and evidence against the activists, and that therefore, it be permitted to file charge sheet copies before the court.
After detailed arguments from both sides, a bench comprising the then Chief Justice Ranjan Gogoi, and Justices L. Nageswara Rao and Kaul reserved the matter for judgment. Before the judgment could be rendered, the state executed a warrant of production against Gadling and Rao, which in itself was a surprising move, leaving it for others to speculate on the motive behind the same.
Also read: [In-Depth] #BhimaKoregaonArrests: Anatomy of a clampdown and the history of a long oppression
Soon after came the extremely surprising and disappointing judgment of the Supreme Court, allowing the appeal of the state and holding the activists not entitled to default bail. The judgment, when perused, showed many factual blunders and erroneous interpretations of the law. Be that as it may, their fate was sealed.
Scores of people from across the country were denied default bail in the days to come, and continue to suffer from this judgment, which has in course diluted the ratio of Hitendra Vishnu Thakur.
With the kind of speed at which the legal machinery was processing this case, it was calculated that it would take 2,300 days in completing the process and giving copies of the hard disks containing the evidence against them to the accused person, which ought to have been given to them on the first day. Even after four years, the accused persons have not received mirror images of all the hard disks, and there is great amount of confusion, even within the prosecution, as to whether they have supplied the copies or not.
Aggrieved thereof, a petition was filed challenging the order in the high court that it was clearly prejudicial to the interest of the accused even when the prosecution was at fault. The high court, however, directed the prosecution to supply mirror images of the disks at the earliest and decided their bail applications nevertheless. Consequently, their regular bail applications were rejected by the court, relying on what was not supplied to the accused persons.
In similar fashion, another (supplementary) charge sheet was filed against four of the second set of arrestees. This charge sheet brought forth nothing new; all it contained were more copies of the literature allegedly retrieved from the hard discs of the accused persons.
Judges in Pune had no power
Judges who were dealing with the case, were not nominated as special judges, or assigned with the powers of the court of original jurisdiction. On the contrary, it was found that other judges in the same court premises were nominated as special judges within the meaning of the NIA Act, yet the prosecution chose to go before the judges who did not have powers or authority. Based on the same, nine of the accused persons made an application seeking default bail, arguing that the entire process before the court was without jurisdiction, and therefore, all the orders of remand and taking cognisance of the chargesheet were a nullity, entitling the activists to bail.
The case, filed by eight of them back in 2019, was not to see light of the day till 2021, by which time the investigating agency had changed. Bharadwaj also filed a fresh petition on the same ground. The matter was heard by the high court, which accepted that the trial judge was not a nominated special judge, and therefore did not have any powers to accept charge sheet directly. It also accepted the contention of the petitioners that since the court was not one of competent jurisdiction, the entire proceedings were without any power or authority. However, it held that to give default bail, one must have availed the opportunity, which according to the court was done by Bharadwaj alone and not by others. It allowed bail to Bharadwaj, and rejected it for rest. The NIA unsuccessfully challenged it in the Supreme Court.
The judgment of the high court committed another factual error in assuming that the others did not avail the remedy. In fact, the first five had moved their bail application seeking default bail way back in 2018 itself, which remains pending on the files of the court even today. Whereas others had also filed their default bail application, citing incorrect use of jurisdiction in granting extension of time in filing the chargesheet against them. It was rejected by the trial court, and the challenge to the same remains pending in the high court.
In such circumstances, the first five moved an application before the trial court seeking its order on the pending bail application, whereas three of the second set of arrestees filed for review of the judgment, pointing out the factual error. The trial court, citing pendency of the review petition, kept the application in abeyance till the time the high court decides the review.
All the evidence cited as incriminating material were planted on the computers of the accused in a clandestine manner. The subject computers were first hacked through an email attachment, then taken remote control of, and documents in various formats saved in a hidden folder.
The high court, after considering the review application and arguments, refused to review it; however, it clarified that its judgment sought to be reviewed and observations made with respect to the availing of the remedy shall not come in the way of deciding any pending applications. Thus, it was hoped that the trial court would now decide the bail application of the first five; however, it refused to do so, saying it does not have time to pass orders on those applications, given that the judge had been transferred and was supposed to leave charge in a week or so.
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Forensic analysis reveals planting of letters secretly in hidden folders of the activists’ computers
Of the mirror copies of the hard disks obtained, pertinently of Wilson and Gadling (these hard disks are the most crucial evidence, on the basis of which the whole prosecution’s case rests), after a prolonged battle, the same was sent for examination to M/s Arsenal Consulting, an American digital forensics consultancy. It is a leading expert in digital forensics and is routinely approached by various national governments for forensic examinations, due to which it has built an impeccable reputation. Tools created by this firm are purchased and used by government agencies across the globe. Some of the most talked-about cases of electronic evidence have had this firm as witness and expert.
It came out in their examination that all the evidence cited as incriminating material was planted on the computers of the accused in a clandestine manner. They were awestruck by the manner in which the perpetrators used their resources, time, and money in planting this material. Their report shows, in technical detail, how the subject computers were first hacked through an email attachment, then taken remote control of, and documents in various formats saved in a hidden folder.
When the news media sought a response on the reports from the NIA, it had no reply. Later, in court, it took the stand that this report is prepared by an overseas firm and therefore not binding on it. Looking at the Criminal Procedure Code, activists would be able to rely on this report towards the end of the trial, only after the prosecution completes leading its evidence, which realistically means after many more years from now.
Based on the Arsenal Report, among other things, Wilson and later Prof. Sen approached the high court. They argued that the basic requirement that investigating agencies were supposed to comply with, as a precondition to rely on electronic evidence, is missing and therefore, the report now presented by Arsenal needs to be read in conjunction with the forensic analysis report of State-run laboratories. The investigating agencies, under the law, are bound to examine electronic records meticulously to rule out the possibility of any tampering, which is lacking in the case. They also highlighted inherent flaws in the sanction order, which was rather mechanical, defeating its very purpose.
The petition highlighted the breach of one of the crucial most safeguards laid down in the law. When the UAPA was amended in 2004, the then ministers had assured Parliament that they had taken every effort to ensure that the law was not misused. They told the Parliament that there would be an independent body which would review the evidence, form an independent opinion, and then only the State would be able to give sanction to invoke the anti-terror law. Significantly, in the Bhima Koregaon case, the forensic analysis of all the electronic evidence did not take place till much after filing of the chargesheet. In such a situation, how did this independent body carry out an independent review to form its opinion is a question that goes to the roots of the matter.
Also read: New forensic report confirms Pegasus spyware attack for over a year on phone of Rona Wilson, in detention for over three years in the Bhima Koregaon case
The NIA, in response, raised a preliminary objection to the very maintainability of the petition. It alleged that the evidence obtained by the Defence couldn’t be looked into at this stage. In short, come what may be the consequences, the Defence must wait till the appropriate stage is reached in the trial, and only then shall it be allowed to press the report in service. It also asserted that an independent analysis of the evidence had been carried out by the prescribed independent body, and there was no flaw in the same.
This matter, after initial hearings, remains pending to date. Among the prayers for quashing the proceedings, there is also one for holding an independent probe in the matter on the basis of the reports.