Bhima Koregaon case: Bombay HC grants default bail to Sudha Bharadwaj, but declines the same to eight other accused

The Bombay High Court grants default bail to Sudha Bharadwaj in the Bhima Koregaon case on the ground that the court which took cognizance of the chargesheet against her was not competent, while it denied the same to the other accused in the case, because they did not claim their right to default bail in time.  PARAS NATH SINGH and SABAH GURMAT write about the High Court’s application of the principles of default bail in these cases.

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THE Bombay High Court, on Wednesday, allowed the default bail plea of lawyer and trade union activist Sudha Bharadwaj in the Elgar Parishad (Bhima Koregaon) case under section 167(2) of the Criminal Procedure Code read with Section 43D(2) of the Unlawful Activities (Prevention) Act (UAPA), 1967.
While granting bail to Bharadwaj, however, the Court rejected the default bail applications of eight other accused, namely, Sudhir Dhawale, Rona Wilson, P. Varavara Rao, Surendra Gadling, Vernon Gonsalves, Mahesh Raut, Arun Ferreira and Shoma Sen. All the nine accused were charged under the draconian UAPA.
The Bench of Justices SS Shinde and NJ Jamadar  directed Bharadwaj to approach the special National Investigation Agency (NIA) court on December 8, for the court to set out the conditions for bail. Bharadwaj, who worked as a lawyer and an activist on issues of workers’ rights and Adivasi rights in Chhattisgarh, was arrested in Delhi in August 2018 and has since been lodged in Mumbai’s Byculla women’s prison complex.
The petitioners, through their bail applications, contended whether the Pune sessions court presided by Judges K.D.Vadane and R.M.Pande could have taken cognizance of the chargesheet, since only a special court as per the provisions under the National Investigation Agency Act, 2008 (NIA Act) should have been allowed to hear the cases of the UAPA accused.
Challenge to the sessions court’s jurisdiction
A petition challenging the jurisdiction of the Pune sessions court came to be filed in 2019 itself, wherein they claimed that the judge who took cognizance was not a special judge designated by the State or Central Government. Counsel for the accused also argued that in Pune itself, there were at least two judges designated as Special Judges for conducting trial under the NIA’s scheduled offences (which include UAPA).
The bail pleas were filed under Sections 439, 193, 482 and 167(2)(a)(i) of the CrPC read with section 43D(2) of the UAPA. As per the CrPC, the sessions court does not have original jurisdiction and it cannot take cognizance of the offences directly without them having been committed to the sessions judge by the magistrate.
Also read: Right to seek default bail indefeasible part of right to personal liberty: Delhi HC
This requirement of the law, however, stands diluted in the case of special laws where, to ensure speedy disposal, the process of committal of proceedings by the magistrate to the sessions court is not followed and special judges or sessions judges get jurisdiction to take cognizance directly. In the Elgar Parishad (Bhima Koregaon) case, however, Sudha Bharadwaj’s counsel, Yug Mohit Chaudhary argued that even when there were two other judges designated as special judges to deal with NIA scheduled offences, the Pune Police preferred to file their charge sheet before the additional sessions Judge Vadane, and not before the court of competent jurisdiction. It was in these circumstances that their bail pleas came to be filed u/s 167(2) of the CrPC, stating that they are entitled to default bail owing to the chargesheet not being filed within the stipulated time before the court of competent jurisdiction.
It was urged that as per the scheme of the law, the chargesheet ought to have been filed either before a Judicial Magistrate of the First Class or before a Special Judge so designated under the NIA Act. This was, however, turned down by the Pune Court and thus, the High Court was approached thereafter.

Even when there were two other judges designated as special judges to deal with NIA scheduled offences, the Pune Police preferred to file their charge sheet before the additional sessions Judge Vadane, and not before the court of competent jurisdiction.

Chaudhary had relied upon certain replies under the Right to Information (RTI) Act, as received from the Deputy Registrar of the High Court, which stated that Sessions Judges Vadane and Pande were not appointed as special judges under the NIA Act, and that three other judges had been appointed as special judges by the Maharashtra government. This was opposed by the Maharashtra government, which argued that the proceedings pertaining to the investigation could be heard by the regular courts as long as the investigation hadn’t been assigned to the NIA.

Also read: How special statutes to imprison citizens lead to inconsistent judicial orders

Further, the NIA’s counsel placed reliance on a judgement by the Bombay High Court, which said that the NIA court comes into the picture only after the NIA takes over the investigation of a case. The government had entrusted the NIA with the investigation of the case on 24 January, 2020.
Chaudhary placed reliance on the judgment of the Supreme Court in the case of Bikramjeet Singh vs State of Punjab which held that cases arising out of the UAPA cannot be dealt with by any other court but the Special Court alone and in absentia of the Special Court, by the Sessions Court. It also held that irrespective of whether the NIA investigates the matter or the state police, the provisions of the NIA Act would come into force.
Rejection of default bail applications
The second plea, which was rejected by the Bombay High Court, was filed by advocate R Satyanarayanan in Sudhir Dhawale & Ors. v. State of Maharashtra & Ors on behalf of the other accused, namely, Sudhir Dhawale, Rona Wilson, Surendra Gadling, Mahesh Raut, Shoma Sen, P Varavara Rao, Vernon Gonsalves and Arun Ferreira.  They had challenged the  September 5, 2019 verdict by the Pune Sessions Judge Pande taking cognizance of the chargesheet against them and rejecting the default bail application under Section 167(2) of the CrPC. In their application for default bail, the eight accused made reference to the three notifications that had been issued by the Maharashtra government which provided details on the Special Court constituted for Pune, and which pointed out that Judge Pande was not designated as a Special Judge under the NIA.

Also read: Explained: Supreme Court’s guidelines on grant of bail after chargesheet is filed

The two-judge bench of the High Court held that the Additional Sessions Judge, Vadane, had no jurisdictional competence to extend the period of detention under section 43D(2)(b) of the UAPA, and hence, the very substratum of the prosecution case that the right to default bail did not ripen into an indefeasible right, as the period of detention was extended, gets dismantled.
The Court held that in the case of Dhawale, Jacob, Gadling, Sen and Raut, the aspect of legality or otherwise of the extension of the period of detention was of no relevance as they did not avail of the right to be released on default bail before the charge-sheet was filed against them on November 15, 2018.

“Is liberty available only to those who claim it? What about the State’s onus to detain only through procedure established by law?” 

In the case of the remaining three accused persons, the High Court opined that though the order passed by the Additional Sessions Judge on November 26, 2018, was without jurisdiction, the said declaration was of no assistance to them as they did not avail of the right to be released on default bail by filing an application, after the expiry of the initial period of 90 days and before the lodging of the charge- sheet on 21st February 2019.
Resultantly, a crucial condition of ‘availing of’ the right so as to cement it as an indefeasible right, has not been fulfilled and the right stood extinguished by the fling of the charge-sheet on 21st February 2019. Failure to take cognizance or defect in jurisdiction in taking cognizance, once the
 charge-sheet was laid, does not entail the consequence of default bail”, the High Court ruled.
On December 1, 2018, Pune police had initiated the investigation in a somewhat questionable manner. It alleged that the Elgar Parishad, organized on the previous day, led to violence at Bhima Koregaon and that it was a part of a conspiracy hatched by Maoists through “urban Naxals”.  The Pune police  also accused well-known scholars and lawyers of conspiring to assassinate the Prime Minister.   With the change of government in Maharashtra following the assembly elections, the NIA took over the investigation from the Pune Police.
Commenting on the High Court’s verdict, R.Vaigai, a well-known lawyer practising at Madras High Court commented, “So is liberty available only to those who claim it? What about the State’s onus to detain only through the procedure established by law?” 
(Paras Nath Singh is a Delhi-based lawyer and Sabah Gurmat is a staff reporter at The Leaflet. Views expressed are personal.)
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