Bhima Koregaon: Supreme Court continues hearing the bail pleas of Vernon Gonsalves and Arun Ferreira

Additional Solicitor General K.M. Nataraj, representing the National Investigation Agency, alleges involvement of Gonsalves and Ferreira in alleged terrorist acts through letters and documents

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ON Wednesday, a division bench of the Supreme Court, comprising Justices Aniruddha Bose and Sudhanshu Dhulia, continued hearing arguments on behalf 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.

Both are accused in the Bhima Koregaon–Elgar Parishad case and charged under the stringent Unlawful Activities (Prevention) Act, 1967 (UAPA).

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 2021 after contracting COVID-19 in prison while awaiting bail on medical grounds.

Senior advocate Rebecca M. John, appearing for Gonsalves, continued her arguments and pointed to legislation in relation to the grant of bail. John highlighted the Supreme Court's judgment in the case of Ranjitsing Brahmajeetsing Sharma versus State of Maharashtra & Anr. (2005), and averred that the conditions of 'not guilty' and 'not likely to commit an offence' are required to be satisfied in certain legislations such as the Prevention of Money Laundering Act, 2002, the Maharashtra Control of Organised Crime Act, 1999, the Terrorist and Disruptive Activities (Prevention) Act, 1985, and the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

She compared that to the twin conditions laid down under Section 43D(5) of the UAPA which states that firstly, the Public Prosecutor needs to be heard, and secondly, that the accused person shall not be released on bail if the court finds reasonable grounds for believing that the accusation against such person is prima facie true.

Emphasising the observations made in the Supreme Court's judgment in NIA versus Zahoor Ahmad Shah Watali (2019), John stated that firstly, the requirement of the degree of satisfaction in the grant of bail is lighter under the UAPA than other special enactments, and secondly, that such degree of satisfaction is lower than the requirement during the stage of charges or discharge.

Further, John referred to Union of India versus K.A. Najeeb (2021), in which the Supreme Court, while allowing the grant of bail to a UAPA accused, observed that, "Section 43­D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre­condition under the UAPA".

In summing up her arguments, John stressed that the three alleged documents against Gonsalves are not conclusive, and parity must be drawn with co-accused, scholar, writer and activist Dr. Anand Teltumbde's grant of bail by the Bombay High Court. She submitted that Gonsalves, aged 64 years, has been in custody for over four-and-a-half years.

Senior Advocate R. Basant, appearing for Ferreira, stated that Ferreira was taken into custody on August 28, 2018, and has been lodged in jail for over four-and-a-half years. He briefed the bench that out of the eleven previous cases lodged against Ferreira, he was acquitted in ten cases, and discharged in one case. On the present stage of the trial, Basant explained that the prosecution intends to examine 336 witnesses and 2,105 documents.

Basant pointed out the documents that mention Ferreira, and submitted that such statements or letters were neither addressed to Ferreira nor written by him.

Additional Solicitor General of India (ASG) K.M. Nataraj, representing the NIA, challenged the claim of the petitioners seeking parity with the Bombay High Court's order granting bail to Dr. Teltumbde on the grounds that firstly, the materials consisting of the letters and documents are different as compared to the those in relation to Gonsalves and Ferreira.

Secondly, Natrajan argued that while the order granting bail relies on Dr. Teltumbde's absence of criminal antecedent, both Gonsalves and Ferriera have such antecedents. When Justice Dhulia pointed out that the cases against the petitioners have ended in acquittals, the ASG stated that in cases filed under UAPA, involving terrorist organisations, conviction is not easily sustained. The filing of the cases, filing of chargesheet, and framing of charges need to be considered, the ASG claimed.

Thirdly, the ASG pointed out that the Bombay High Court has considered the period of Dr. Teltumbde's incarceration of two-and-a-half years in relation to the punishment for his alleged membership of the banned organisation, the Communist Party of India (Maoist) (CPI (Maoist)) because in that case, at the most, the provisions of Sections 13 (punishment for unlawful activities), 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA are attracted where the maximum punishment prescribed under the provisions is imprisonment for a term which may extend to five years (section 13), and for a term not extending ten years or with fine or both (sections 38 and 39).

On Justice Dhulia enquiring whether there is any reference to the petitioners procuring arms or weapons in the letters or the documents used as evidence against them, the ASG stated that the terrorist activities are "underground", making it difficult for even the intelligence agency to identify them.

The ASG submitted that the petitioners are members of the banned CPI (Maoist) and its several frontal organisations. He argued that such frontal organisations have code names and they operate by sending messages to carry out activities in furtherance of their motives.

Reference was made by the ASG to letters and documents that made specific indications to the petitioners. According to him, the mention of the names of Gonsalves and Ferreira indicated their acts of involvement in the alleged terrorist activities that spread throughout the country.

The matter is posted for further hearing on Friday, March 3.