[dropcap]J[/dropcap]ANUARY 2019 was expected to offer some respite to the first set of arrestees in the Bhima Koregaon case relating to the caste violence that broke out in Bhima Koregaon village on January 1, 2018. The prosecution demand for the extension of time to file a charge sheet against the first set of arrestees was found to be illegal, perverse and contrary to the law of the land. While most of the population had fallen for a media trial, a single bench of the Bombay High Court mustered the courage to call a spade a spade. However, it was soon to be overruled by the Apex Court, crushing all hopes and sending a wave of shock across the legal fraternity.

The judgment of the Bombay High Court was assailed before the Supreme Court by the state government and surprisingly, a bench led by the Chief Justice of India (CJI) Ranjan Gogoi stated it without offering any reasons and adjourned the matter for final hearing.

 

A good judgment stayed; the state employs evergreening tactics

 

The judgment of the  Bombay bench effectively meant that the first set of arrestee would have been entitled to statutory bail. Initially, the matter was being heard by a bench comprising CJIGogoi, Justice Sanjay Kishan Kaul and the newly elevated justice K M Joseph. While Justice Joseph was on the bench, he was clear during all four hearings that the impugned judgment was sound and that it was the State that had not abided by the law. However, he was later replaced by Justice NageswaraRao.

During one such hearing, Justice KM Joseph invited the attention of the counsel for the State to a statement made in the so-called report/application which was authored by the public prosecutor. According to the statement, a request for an extension had to be granted on an application by the investigating officer.  “If this is the understanding of the law of your public prosecutor, then where comes the question of the public prosecutor having applied his mind? Which is one of the essential most condition under the relevant provision?” Justice Joseph asked.

 

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While the challenge was still being heard, the State invoked another ghost case against AdvocateSurendra Gadling. This time, they accused him of being the mastermind of Surjagad arson case. It was apparent that the State did not have any good case on merit and they feared the release of Gadling was imminent. Therefore to ensure that he was kept behind bars they foisted this case on him. This “evergreening” tactic was taken cognizance of by the Supreme Court during its hearing and it called for the filing of relevant papers on records of the court.

 

A 5000-page charge sheet and a further adjournment

 

A day before the matter was to be heard in the Supreme Court, on November 15, 2018, a 5000-page incomplete charge sheet came to be filed in the trial court. During the hearing in the Supreme Court, the State insisted that it be given time to file a rejoinder to the reply filed by the activists. The matter thus came to be adjourned to December 3, 2018. On that day, the State requested the court to peruse the charges against the activists. Even though, as per the settled position of law, the court is not supposed to look at the charge sheet, it permitted State to file it and its gist by December 8, 2018. The matter subsequently had to be adjourned till January 10, 2019, to enable the defence counsels to educate themselves over the details of the charge sheet.

OnJanuary10, 2019, during the course of hearing, the court gave an earful to the State on many counts. It came down heavily on the trial court for showing so much zest in hearing the plea of State on a Sunday than on the next working day. “No heaven would have fallen had you given them a day’s time to respond,” the court said.  It pointed out that the contents of the application itself demonstrated that it was not a report of the public prosecutor and thereby in contravention of Section 43D. The second parameter for grant of such extension requires the satisfaction of the public prosecutor about the progress of the investigation and the need for further detention. The court pointed out that even that crucial element was lacking in the application. They also refused to look at the charge sheet and gravity of offences. After that experience, the mood of the court, and more so, since all three judges of the bench seemed content with the judgment of the high court, everyone was hopeful of a victory. After a detailed hearing, and interestingly, a hearing on the point of evergreening, the court closed the matter for judgment to be delivered on a still undecided date while the stay continued.

 

Teltumbde, Gadling, Navlakha and Vara Vara Rao – a tale of obfuscation and deliberate delays

 

While the judgment of the Supreme Court was awaited, Anand Teltumbde’splea for quashing of the proceedings against him came to be rejected by the Bombay High Court. The same was assailed in the Apex Court, but it refused to interfere with the high court verdict.  However, it gave four weeks’time to enable Teltumbdeto to obtain pre-arrest bail.

At the same time, in Pune, Surendra Gadling and Vara Vara Rao were taken in custody by the Gadchiroli police. The “no objection” of the Pune court was obtained late evening, without hearing any of the activists or their lawyers. They were then produced before the Judicial Magistrate First Class (JMFC), Aheri. The JMFC was informed by Vara Vara Rao that he was not made aware of the reason for his arrest and that his signature was obtained on a document scripted in Marathi, a language foreign to him. He also demonstrated that the production warrant was sub judice before the Supreme Court and the verdict was expected anytime soon. It was also pointed out that the persons arrested earlier had been granted bail and till date, no charge sheet had been preferred. The case diary of the matter was shown to be not in accordance with the mandate of the law; it was neither paginated nor was it bound. Oddly though the JMFC, Aheri granted 12 days Police Custody Remand (PCR) to the two activists. Both had apprised the court that they were only being victimized and the entire case was motivated by extraneous motives. They said that one motive was to frustrate any positive order of the Supreme Court in the matter pertaining to statutory bail, and the second, the police was simply harassing them to beat down their morale.

 

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For all twelve days, they were kept in solitary confinement in a dark lightless cell with no ventilation, and importantly no interrogation whatsoever. The Investigating Officer would take them out for an hour each day, so as to let them exercise and take a breather in the open. On February 11, 2019, the JMFC, Aheri on hearing the plea of the police for further PCR, and considering the contentions raised by the parties in person, rejected it, with a direction to send both the activist back to Yerwada Jail Pune.

Human rights activists were being denied their due human rights;  the law did not take its course. At least, the directions to send them back to Pune offered some respite, since it enabled Gadling to defend his case in person.

Everyone was hopeful of a favourable outcome from the Supreme Court and that it would only be a matter of time before all the arrestees would be free. No one expected the shock of  February 13, 2019, when Justice Kaul allowed the State’s plea and set aside the judgment of the Bombay High Court. The law had been rewritten.

On another front, the second set of people/arrestee was going through an equally frustrating battle. After a heavily charged battle in the Romila Thapar case, there came a notice that a judgment for the bench will be rendered by Justice Chandrachud. Given that he was outspoken and had expressed his mind during the hearing, the arrestees were hopeful. However the next morning, a notice from the registry announced that it would be Justice Khanvilkar who would deliver the verdict. Predictably it was a split verdict. Justice Chandrachud held it to be a case of suppressing dissent while Justice Khanvilkar refused any independent probe, with Chief Justice Dipak Mishra concurring. The only relief that the majority gave was four weeks’time to file appropriate proceedings and obtain appropriate orders. Their house arrest was to continue till then.

Meanwhile, the Bombay High Court extended the interim relief from arrest till June 26, 2019, to activist Gautam Navlakha for his alleged involvement in the Bhima Koregaon violence. Navlakha had filed a plea urging the court to quash the first information report registered against him by Pune police. In previous hearings, the bench on perusing letters written to Navlakha by senior Maoist leaders had remarked “There is nothing against him (Navlakha) in any of the letters. We are of the prima facie opinion that there is nothing against him based on the documents submitted to us.”

Navlakha had obtained relief from the Delhi High Courts bench lead by Justice Muralidhar, which had held his arrest to be illegal and had set him free. He then approached the Bombay bench for quashing the proceedings, where he was able to get a stay from arrest. Interestingly, during one of the hearings, a sealed envelope came to be submitted to the court by State.  When Navlakha’s counsel demanded copies of the documents, the public prosecutor said he would require instructions from the Investigating Officer to do so. “There is nothing secretive in these documents. We are of the prima facie opinion that these documents can be given to him,” the court remarked. Then on  June 18, 2019,  citing instructions from the IO, the public prosecutor refused to hand over copies of the sealed cover documents to Navlakha.

Meanwhile, poet Vara Vara Rao also approached Hyderabad bench and managed to get a stay on his arrest. Sudha Bharadwaj who had a similar petition before the Punjab and Haryana High Court did not receive any such relief and was directed to adopt other remedies.

 

An unending struggle for basic prison necessities

 

Sudha Bharadwaj, Arun Ferreira, Vernon Gonsalves all approached the trial court for bail. The hearing, very interestingly, was dragged on till the last day of relief given by Supreme Court. As expected the bail application was rejected.

This time, the Pune Police acted with great alacrity and arrested all three without any delay. They did not even produce them before the nearest magistrate in complete contravention to the provisions of the CrPC. They were brought straight to Pune and taken on PCR. Their bail appeals remain pending before the high court even today.

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Vara Vara Rao also had to face a travesty of justice. While his transit remand was stayed by the Hyderabad High Court, it rejected the petition soon thereafter, allowing the Pune Police to arrest him. The elderly poet has been languishing in the Yerwada Jail since November 2018. In the Gadchiroli matter, he was not produced before the court thereafter. However, it is learnt from local newspapers that a charge sheet has been filed against the accused. They have not been produced before the court nor have they been informed of the charges.

These activists in jail since about a year, have not only been humiliated, they have been made to struggle for basic necessities. In winters, warm clothes needed an order of the court. Medicine, clothes, books, paper, pen  – they have had to struggle for them. Even ceiling fans in the summer have been forbidden. During this frustrating period came an application from the jail authorities demanding their transfer to various jails on the ground that they were Maoist and may influence other prisoners. The application was abandoned for reasons best known to the authorities.

When Surendra Gadling made an application seeking permission to join a diploma course in cyber law, otherwise available for the prisoners in Yerwada, the prison authorities argued that Gadling would use the course material to hack the jail computer system. The court rejected the application. When he sought permission to study a diploma course in human rights, the prosecutor objected saying his knowledge of human rights would create trouble for the jail authorities. She even wanted to go through the study material to ensure that there was nothing seditious in it.

Despite a lapse of over a year, the bail applications of the first set of arrestees are awaiting their disposal at the trial court itself. Given that this delay since July 2018 is on account of the time taken by the State to file its reply or advanced oral arguments, equity must lie in favour of the incarcerated activists. However, with a new bench now hearing the bail applications, all the arguments will have to be advanced de novo; the struggle to get justice will start anew.

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