Senior advocate Rebecca M. John, representing Gonsalves, highlighted the commonality between Dr. Teltumbde’s grant of bail by the Bombay high court last year and the evidence in the present case to draw the claim of parity with the high court’s bail order.
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ON Friday, a division bench of the Supreme Court, comprising Justices Aniruddha Bose and Sudhanshu Dhulia, reserved its judgment on the bail applications of trade unionist, activist and academic Vernon Gonsalves, and activist and lawyer Arun Ferreira for the grant of regular bail. Gonsalves and Ferreira have filed bail applications at 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 stringent Unlawful Activities (Prevention) Act, 1967 (UAPA).
Additional Solicitor General of India (ASG) K.M. Nataraj, representing the National Investigation Agency (NIA), continued with his arguments at yesterday’s hearing by referring to the Supreme Court’s judgment in Union of India versus K.A. Najeeb (2021), in which the court allowed the grant of bail to a UAPA accused. According to the ASG, Najeeb’s case considered factors such as long incarceration of more than five years, the non-inclination of the prosecution to finish the endless screening of witnesses, and the maximum punishment of imprisonment of eight years on conviction. The ASG submitted that none of these factors apply in the present case.
Referring to other judgements of the Supreme Court, the ASG further argued that considering the nature of the allegations, the gravity of the offence and the evidence, long incarceration could not be the sole ground for the grant of bail.
On the claim of the petitioners seeking parity with the order of the Bombay High Court that granted bail to their co-accused, scholar, writer and activist Dr. Anand Teltumbde, the ASG stated that the evidence against Dr. Teltumbde alleged mere membership of the banned Community Party of India (Maoist) (CPI (Maoist), whereas, in the present case, the allegations against Gonsalves and Ferreira are more severe.
It was the ASG’s contention that the bench must consider the interest of the society in granting bail to the petitioners, who are, according to him, involved in networks spreading from Kerala to Kashmir, in support of separatist groups.
The ASG further submitted that the prosecution is willing to go to trial on a day-to-day basis and extend its cooperation in completing the trial. To this submission of the ASG, Justice Dhulia noted that according to the report of the trial court, the process of trial is not likely to begin for a year. On the ASG’s remark that discharge applications by the accused persons are pending, Justice Dhulia observed that it was not a legally tenable argument that the accused had been filing discharge applications which was causing a delay in trial. He added that discharge applications are filed when charges are framed, and even that stage has not been reached yet.
In reply to the arguments of the ASG, senior advocate Rebecca M. John, representing Gonsalves, highlighted the commonality between Dr. Teltumbde’s grant of bail by the Bombay high court and the evidence in the present case to draw the claim of parity with the bail order. John pointed out that the high court noted that the use of the word “Anand” in the letters did not imply Dr. Teltumbde’s involvement in the alleged acts, which is similar to the use of the names “Vernon” and “Arun” in the letters produced as evidence in the present case.
John also pointed out the common allegations of involvement in the larger conspiracy of the CPI (Maoist). She submitted that the high court order made a note that the letters were not seized from Dr. Teltumbde, which is similar to the evidence against Gonsalves and Ferreira, as well as the lack of nexus with any crime or involvement in the alleged terrorist acts.
John submitted that none of the alleged acts against the petitioners fall under the definition of ‘terrorist act’ under Section 15(1)(a) to (c) of the UAPA. Further referring to Najeeb’s judgment, John highlighted that despite the severe allegations of physical violence involved, bail was granted in that case.
Background
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, along with some 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 300 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.
