Advocate Yug Chaudhry, representing Gautam Navalkha, sought parity with the recent judgment of the Supreme Court granting bail to co-accused Vernon Gonsalves and Arun Ferreira. Chaudhry took the court through the material cited by the National Investigation Agency, claiming there was no evidence to prove the commission of any “terrorist act” by Navlakha.
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ON Friday, a division Bench of the Bombay High Court comprising Justices A.S. Gadkari and Shivkumar Dige heard a fresh bail application filed by journalist and human rights activist Gautam Navlakha.
Navlakha is an accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case and is charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
On March 2 this year, the high court had directed the special National Investigation Agency (NIA) court to rehear the bail plea for its reconsideration.
The court had averred that a special NIA court had rejected Navlakha’s September, 2022 bail application without proper reasoning.
On April 6 this year, after adjudicating and reconsidering the submissions, the special NIA court had again denied bail to Navlakha.
On June 12, the high court issued a notice to the NIA on Navlakha’s fresh bail application.
Yesterday, advocate Yug Mohit Chaudhry, appearing for Navlakha, sought parity 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.
Chaudhry relied on the Supreme Court’s observation that the allegedly incriminating letters recovered from the electronic devices of other co-accused persons, including human rights lawyer and Dalit rights activist, Surendra Gadling; and activist and researcher, Rona Wilson record only third party responses and are in the nature of hearsay evidence.
According to Chaudhry, there is no evidence to prove the commission of any “terrorist act”, as defined under Section 15 of the UAPA, to attract the charges under Sections 16 (punishment terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy), 38 (offence relating to membership of terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA.
Chaudhry also contended that the trial at the NIA court has been delayed, discharge applications filed by accused persons are pending and the special public prosecutor is yet to open his arguments.
He also asserted that applications filed by the accused persons for the NIA to comply with Section 207 (supply to accused of copy of police report and other documents) of the Code of Criminal Procedure (CrPC) are yet to be decided by the NIA court.
Chaudhry argued that considering that Navlakha is an eminent activist and a scholar, he is unlikely to tamper with the evidence or abscond.
Today, Chaudhry took the court through the materials cited by the NIA, allegedly proving Navlakha’s links with the banned organisation, Communist Party of India (Maoist) [CPI (Maoist)].
Chaudhry claimed that the evidence cited contradicts the allegations made by the NIA, since it shows that CPI (Maoist) itself has heavily criticised Navlakha for his alleged involvement with the government.
According to Chaudhry, the NIA has failed to produce any evidence to corroborate the statements of prosecution witnesses, particularly the statements that allege that Navlakha visited foreign countries and returned with inciting “write-ups” and other literature.
Chaudhry emphasised that Navlakha’s association with the Maoists was confined for research purposes.
Chaudhry relied on the Supreme Court’s bail judgment of Gonsalves and Ferreira under which it has been observed that evidence of the intention to further a terrorist organisation’s activities should be proved for a person to be guilty under Section 39 of the UAPA.
It is not sufficient to demonstrate that the alleged offender is associated with a terrorist organisation, the Gonsalves and Ferreira judgment says.
Chaudhry averred that not a single allegation of Navlakha having been involved in violence or in any activity that assisted terrorism has been proven.
The matter is posted for further hearing on August 7.
Background
Navlakha was arrested on August 28, 2018, for his alleged involvement in the Elgar Parishad–Maoists links case. While he was initially kept under house arrest, he was subsequently sent to judicial custody, in April 2020.
During his custody as an undertrial prisoner, a chargesheet was filed on October 9, 2020; charges are yet to be filed in the court.
In May 2021, the Supreme Court rejected Navlakha’s default bail on the ground that the 35 days which he spent under house arrest in 2018 did not constitute custody in order to compute the 90-day period as provided under Section 167(2)(a)(i) of the CrPC.
According to the Section, the chargesheet should be filed within 90 days from the day the accused is arrested, failing which, he is entitled to default bail.
On October 12, 2021, Navlakha was shifted to the ‘anda circle’ (high-security zone) from the barracks at Taloja, further deteriorating his health, as claimed by his partner, Sahba Hussain.
On April 26 last year, the Bombay High Court dismissed Navlakha’s petition that sought to shift him from the Taloja jail in Navi Mumbai to house arrest.
On May 23, Navlakha approached the NIA to be provided with a mosquito net, which he was previously allowed but which was subsequently taken away by the prison authorities.
Earlier, prison authorities had refused his request for a new pair of spectacles, which were given only after media and legal intervention.
The Maharashtra prison authority has also barred Navlakha from availing telephonic communication facilities in Taloja.
This was done in accordance with a circular signed by the state’s inspector general of police that provides that undertrial prisoners booked under charges of terrorism or other “serious charges” cannot make telephone calls from the prison.
On November 10 last year, the Supreme Court allowed Navlakha to be placed under house arrest for a period of one month under certain restrictions.
On November 19, after hearing and incorporating further concerns of the NIA, the Bench dismissed the petition filed by the NIA to vacate the Order granting house arrest.
The court directed for the house arrest Order to be implemented within 24 hours of its pronouncement.
Since then, his house arrest has been periodically extended by the court.
The prosecution in the case has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Eleven of the 16 accused persons are presently incarcerated, having now spent between two to almost five years in judicial custody without trial.
Another accused, tribal rights activist and Jesuit priest Father Stan Swamy, passed away in judicial custody in July 2021 after contracting Covid in prison while awaiting bail on medical grounds.
