A bench, presided by the CJI-designate, Justice Uday Umesh Lalit, was satisfied that Dr. Rao did not misuse his freedom during the six-month bail granted by the Bombay High Court, and therefore deserves to be granted permanent bail for health reasons.
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ON Wednesday, a Supreme Court bench comprising Justices Uday Umesh Lalit, Aniruddha Bose and Sudhanshu Dhulia granted permanent medical bail to 82-years old poet, activist and teacher Dr. P. Varavara Rao, accused of inciting violence in the Bhima Koregaon case. Factors such as his old age, two and half years of custody, non-framing of charges against Dr. Rao, and his deteriorating health weighed in favour of the grant of bail.
“Matter has not even been taken up for framing of charges and the discharge applications by the accused and others are also pending. The medical condition of Rao has not improved over period of time so the bail granted is withdrawn. We thus find P Varavara Rao is entitled to bail on medical grounds. We thus delete the para limiting the bail to a period of time”, the bench ordered.
It, however, directed Dr. Rao not to leave Mumbai without the express permission of the Special National Investigation Agency (‘NIA’) Court in Mumbai. Besides, it directed Dr. Rao to ensure he does not misuse his liberty, and stays away from his co-accused, and should not influence the witnesses and investigation in the case. The bench allowed Dr. Rao to seek medical attention of his choice, but he is required to keep the NIA apprised of any such development.
Appearing for Dr. Rao, senior advocate Anand Grover argued that Dr. Rao’s health condition over the course of time has only deteriorated. Sending him back to jail is fraught with risk to his life, Grover argued. He added that as per medical reports, Dr. Rao has early Parkinson’s. Grover asked whether it was in the interest of the prosecution that Rao dies in jail like his co-accused Fr. Stan Swamy. Grover accused the NIA of not being interested in the trial, but only in keeping the accused in jail.
“You just need to say UAPA and it’s done. What’s happening, unfortunately. Sudha is on bail because of statutory conditions. Why should I be in a different boat”, Grover contended.
Opposing bail, Additional Solicitor General of India (ASG) S.V. Raju, for the NIA, contended that age should not be a factor in a matter like the present one, which involves serious allegations against the accused. He added that Dr. Rao was a member of the Communist Party of India (Maoist), which is banned by the Union Home Ministry.
“He (Dr. Rao) also engaged in nefarious activities. Thus he was denied permanent bail by the high court. The nature of activities by the person is dangerous and harmful for the nation. He is a very shrewd person”, Raju submitted.
At this juncture, when the bench sought to inquire from the NIA whether Dr. Rao misused his liberty while he was out on interim bail granted by the Bombay High Court, the NIA, through Raju, responded in negative. On the question of completion of trial, Raju submitted that it would be completed in one-and-a-half years, provided the accused do not adopt delaying tactics.
Raju also referred to Section 43D(5) of the Unlawful Activities (Prevention) Act (‘UAPA’), which prohibits the grant of bail if a court is satisfied that the allegations against the accused are prima facie true. Grover, however, referred to the decision of the Supreme Court in Union of India versus K.A. Najeeb (2021), in which the court held that a constitutional court can grant bail to an accused facing prosecution under the UAPA on grounds of violation of fundamental rights, notwithstanding the rigors of section 43D(5) which prohibits the grant of bail if the court is satisfied that the allegations against the accused are prima facie true. ASG Raju also conceded to it, but said there has to be extraordinary medical grounds for the exercise of inherent powers.
On February 22 last year, a division bench of Justices S.S. Shinde and Manish Pitale of the Bombay high court had granted six-month medical bail to Dr. Rao after observing that the conditions of old age, sickness, infirmity and multiple health ailments suffered by Dr. Rao indicated that his continued custody would be incompatible with his health conditions, and that sending him back to Taloja Central Prison would amount to endangering his life, thereby violating his fundamental right under Article 21 of the Constitution. The bench also directed that on completion of a period of six months, Rao would surrender to the jail authorities, or he may apply for extension, depending upon his health condition, supported by medical examination reports. Besides, the bench put a restriction that Dr. Rao would not leave Mumbai.
The appeal, filed through Advocate-on-Record Nupur Kumar, stated that after the grant of bail, Dr. Rao’s health deteriorated. He developed umbilical hernia, for which he had to undergo surgery. He also needs to be operated for cataract in both his eyes, which he has not undertaken as the cost in Mumbai is prohibitive.
In August last year, Dr. Rao approached the high court seeking permanent medical bail, and to relax conditions to allow him to travel to Hyderabad, his hometown. However, on April 13 this year, a division bench of the high court, comprising Justices S.B. Shukre and G.A. Sanap, dismissed the petitions filed by Dr. Rao, and directed him to surrender within three months. The bench, though, directed to expedite the trial.
Dr. Rao preferred an appeal in the Supreme Court against this order of the Bombay High Court.
Dr. Rao is facing prosecution in the Bhima Koregaon case under Sections 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 505(1)(b) (statements conducing to public mischief), 117 (abetting commission of offence by the public or by more than ten persons) and 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code, 1860, and Sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy etc.), 18B (punishment for recruiting of any person or persons for terrorist act), 20 (punishment for being member of terrorist gang or organisation), 38 (offence relating to membership of a terrorist organisation), 39 (offence relating to support given to a terrorist organisation) and 40 (offence of raising fund for a terrorist organisation) of the UAPA. He was arrested in August 2018, before being granted interim medical bail in February 2021.
It is to be noted that the trial is yet to begin in the Bhima Koregoan case. The prosecution has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Thirteen of the 16 accused persons have now spent between almost two to over four years in judicial custody without trial.
An independent investigation by Arsenal Consulting, a leading and independent expert firm on digital forensics, has revealed that sophisticated malware were used to plant the digital evidence that forms the basis for the prosecution’s case on the devices of two of the accused persons in the case. Arsenal’s findings were published in four reports last year.
Last year, it was also revealed by an investigation by a consortium of 17 media organisations across the world that eight of the accused persons in the case were targeted for snooping through the Pegasus spyware. Subsequently, the Supreme Court appointed a Technical Committee to investigate the allegations of surveillance by several civil society members; the Committee, at the insistence of seven of the accused persons and their counsel, took possession of the seven persons’ mobile phones to inspect if they were infected with Pegasus, earlier this year.
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