The matter is posted to be heard on February 8.
ON Monday, a division bench of the Supreme Court comprising Justices Aniruddha Bose and Sudhanshu Dhulia, at the request of the National Investigation Agency (NIA), adjourned the hearing of the bail pleas of trade unionist, activist and academic Vernon Gonsalves, and activist and lawyer Arun Ferreira. Gonsalves and Ferreira have filed bail applications in 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 Unlawful Activities (Prevention) Act, 1967.
On Justice Dhulia’s inquiry about the contents of the counter affidavits filed on behalf of the NIA, the advocate representing the NIA and arguing on behalf of Additional Solicitor General of India (ASG) S.V. Raju replied that it contains “serious allegations of Gonsalves’ and Ferreira’s membership and participation in banned organisations”. When the bench noted that both the accused have been lodged in prison for five years, the advocate responded that the delay in starting the trial cannot be attributed to the NIA.
Further, Justice Bose asked whether any harm would be caused if the accused persons were granted bail, and prompted the NIA to suggest conditions for bail. An adjournment was sought on behalf of the NIA to enable the ASG to argue the matter on the next date.
On Justice Dhulia pointing out that there were 20 cases previously filed against Gonsalves that have mostly resulted in acquittals, senior advocate Rebecca John, representing Gonsalves, reiterated that in 20 such cases filed prior to 2007, Gonsalves was convicted in only one case and discharged in all others. John further clarified that Gonsalves had already served the sentence at the time of his conviction and still filed an appeal, which is pending with the Nagpur bench of the Bombay high court.
John explained that the materials used in Gonsalves’ case pertain to the same period during which Gonsalves was acquitted in a large number of cases.
The matter is posted to be heard on February 8, 2023.
Gonsalves and Ferreira were among five activists arrested on August 28, 2018, for allegedly being affiliated with banned Maoist organisations, and provoking violence at Koregaon Bhima village in Maharashtra on January 1, 2018.
In October 2019, the Bombay High Court dismissed their bail applications.
In view of the revelations related to the use of the Pegasus spyware in India that came out in 2021, Gonsalves, like other accused persons in the case, requested a Supreme Court-appointed Technical Committee to direct the NIA to hand over his phone for inquiry to the committee to check for infection by the malware.
On August 22, 2022, a special NIA court rejected an application filed by Ferreira that sought direction for the prosecution to provide a copy of the formal order of interception by which his emails were intercepted by the NIA. Ferreira argued that the interception of his emails, as retrieved by the NIA within an hour of being sent and used as electronic evidence, is illegal.
Gonsalves and Ferreira are still lodged at the Taloja Central Jail, and are awaiting trial.
The prosecution in the case has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Thirteen 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 Fr. Stan Swamy, passed away in judicial custody in July in 2021 after contracting COVID in prison while awaiting bail on medical grounds.