Are the legislature, through laws such as the Unlawful Activities (Prevention) Act, and the judiciary, through the evolving jurisprudence of stays on bail, in perfect synchrony to deny life and liberty to the citizenry?
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ON Friday, the Supreme Court granted interim bail of two weeks to Bhima Koregaon case accused Mahesh Raut to attend rituals in connection with the death of his grandmother.
A Bench of Justice Vikram Nath and Justice S.V.N. Bhatti passed an Order to this effect even as the National Investigating Agency (NIA) strongly opposed the application.
The Bench, however, overruled the objections of the NIA, looking at the period of incarceration already undergone by Raut and also the nature of the request made for interim bail.
Raut is facing a first information report under Sections 120-B, 115, 121, 121-A, 124-A, 153, 201, 505(1)(b) along with 34 of the Indian Penal Code, 1860 (IPC) and under Sections 13, 16, 17, 18, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).
Raut will breathe free air for the first time since his arrest in June 2018.
The Bench overruled the objections of the NIA, looking at the period of incarceration already undergone by Raut and also the nature of the request made for interim bail.
Raut continues to languish in jail despite a September 21, 2023 Bombay High Court Order granting him bail on merit.
At that time, the high court had granted a stay of the Order for one week to enable the National Investigation Agency (NIA) to appeal against the bail Order in the Supreme Court.
Subsequently, on September 27, a division Bench of the Supreme Court comprising Justices Aniruddha Bose and Justice Bela M. Trivedi decided to hear the matter on the next date and extended the stay on the high court’s Order without hearing arguments in opposition to the stay.
Since then, the Supreme Court has continued to stay the bail Order of Raut, delaying his release. The matter is pending before a Bench comprising Justice Bela M. Trivedi and Justice Pankaj Mithal.
Background
Raut is an accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case under the UAPA and lodged in the Taloja Central Jail, awaiting trial.
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He is a land and forest rights activist, and used to work with gram sabhas in the mining areas of Gadchiroli, Maharashtra.
On June 6, 2018, Raut, along with five other accused persons, was arrested for allegedly spreading Maoist ideology, providing funds to banned organisations and conducting recruitments for the Maoists.
In November 2019, a sessions court in Pune rejected bail applications filed by the six accused persons. The court noted that prima facie evidence suggested that the acts of the applicants were aimed at undermining democracy in India.
Raut continues to languish in jail despite a September 21, 2023 Bombay High Court Order granting him bail on merit.
In November 2021, an NIA court, while taking note of the submission made by NIA that Raut’s name was found in a letter retrieved from co-accused Wilson’s computer, rejected his bail application.
The submission was opposed by Raut stating that the existence of the letter is disputed on account of forensic reports finding malware infiltration of Wilson’s electronic mail devices.
In April 2022, Raut approached an NIA court to seek discharge from the charges levied against him in the 2018 case related to allegedly spreading Maoist ideology. The same is still pending adjudication.
He claimed that the allegations of handling money for the banned Communist Party of India (Maoist) and for assisting students to go to Gadchiroli are based on the two letters obtained from co-accused Wilson’s device, which according to him have been compromised and the evidence tampered with.
Earlier, on May 4, 2022, the Bombay High Court dismissed a petition that sought review of its earlier December 1, 2021 Order under which an appeal for default bail presented by eight accused, including Raut, was dismissed.
Later, in September 2023, Raut was granted regular bail which remains stayed.
What about the other co-accused in the case?
Trial is yet to begin in the Bhima Koregaon case. The prosecution has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses.
Raut is an accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case under the UAPA and lodged in the Taloja Central Jail, awaiting trial.
Several of the accused persons have now spent almost six years in judicial custody without trial.
Besides Raut, seven of the accused persons, Sudha Bharadwaj, Varavara Rao, Dr Anand Teltumbde, Vernon Gonsalves, Arun Ferreira, Shoma Sen and Gautam Navlakha have managed to secure bail so far.
In July last year, a Bench comprising Justice Bose and Justice Sudhanshu Dhulia granted bail to co-accused Vernon Gonsalves and Arun Ferreira after observing that prima facie, no case could be made against them.
Another co-accused, P. Varavara Rao, is out on medical bail, Sudha Bhardwaj was granted default bail by the Bombay High Court, which was later confirmed by the Supreme Court.
On April 5 this year, former Nagpur University professor Shoma Sen was granted bail by the Supreme Court.
Recently, the Supreme Court lifted the stay on the bail granted to Gautam Navlakha, leading to his release. Navlakha had been granted bail by the Bombay High Court on December 19, 2023.
Anand Teltumbde was granted bail on merits by the Bombay High Court, which was later confirmed by the Supreme Court.
Father Stan Swamy died in judicial custody due to Covid in June 2021 after incarceration of over seven months.
The others remain behind bars.
Recently, another co-accused, Hany Babu withdrew his petition from the Supreme Court seeking bail. On January 3 this year, a Bench comprising Justice Bose and Justice Sanjay Karol had issued notice on the petition filed by Babu.
After the retirement of Justice Bose, the matter was listed before a Bench comprising Justice Trivedi and Justice Pankaj Mithal on May 3 when the counsel for Babu submitted that there was a change of circumstances and the petitioner would approach the high court for appropriate remedy.
The bail petition of another co-accused, Jyoti Jagpat, is pending before a Bench headed by Justice Sundresh, which recently decided to hear the petition in July.
Also read: Explained: The Shoma Sen bail judgment
An investigation by Arsenal Consulting, a leading, independent expert firm on digital forensics, has revealed that sophisticated malware was 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, Surendra Gadling and Wilson.
Arsenal’s findings were published in four reports in 2021.
Allegations against Raut and high court’s findings
Allegations against Raut range from him being a member of a banned organisation to the recruitment of persons in the said organisation to the handling and transfer of funds of organisation to the co-accused.
Trial is yet to begin in the Bhima Koregaon case. The prosecution has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses.
The NIA has cited material in the form of statements of witnesses and communications seized from the computers of co-accused.
There is a statement by one Monika R. Sakhrani. There is also a statement from a protected witness designated the code KW-4. Then there are some alleged communications addressed by ‘Com. Prakash’ to ‘Com. Rona’ seized from the computer of co-accused Rona Wilson and a letter seized from the computer of co-accused Surendra Gadling.
The Bombay High Court had noted that Sakhrani had stated that she knew Raut as a student of the Tata Institute of Social Sciences (TISS). She also remembered him due to the Gadchiroli issue. She had read in the papers that Harshali, an activist and one of the organisers of the Elgar Parishad, and Raut were apprehended in the Gadchiroli jungle.
On the statement of KW-4, the high court had observed that it indicated that Raut along with the co-accused and some other persons were working for the proscribed Communist Party of India (CPI) (Maoist), being its ‘urban Naxal members’.
The high court also dealt with every document sought to be used against Raut to render the findings that the accusations against Raut were not prime facie true.
The first document is a communication addressed by one Com. Prakash to Com. Rona, allegedly seized from the computer of co-accused Rona Wilson.
The allegation is that as per this communication, Raut was handed over ₹5 lakh for its onward transmission to ‘Com. Surendra’ and ‘Com. Sudhir’ and they were to be informed that the agitation of Bhima Koregaon appeared to be losing intensity. It is also allegedly mentioned in the communication that two comrades sent by the appellant (the TISS) had reached the guerilla region safely.
Regarding the second document, a letter allegedly seized from the computer of accused Surendra Gadling, the high court observed that it was not recovered from Raut and, therefore, the contents therein had weak probative value or quality.
The courts also tend to lean away from the accused in cases involving ‘national security’, which makes even interim bail difficult to obtain in such cases.
This letter is allegedly addressed to Gadling by an unknown person. The author of the said letter writes only that ‘Mahesh’ and ‘Nandu’ had reached them safely on January 3.
This letter was also a subject matter of discussion by the Bombay High Court during the hearings of the bail petition of co-accused Dr Anand Teltumbde. During those proceedings, it was held that it could not be said with certainty that the ‘Mahesh’ mentioned in the said letter referred to Mahesh Raut.
“The contents of these letters through which the appellant is sought to be implicated are in the form of hearsay evidence, recovered from aco-accused,” the high court had held.
The high court had further held that even if it were to assume for the sake of argument that ‘Com. Prakash’ had handed over ₹5 lakh to Raut for its onward transmission to ‘Com. Surendra’ and ‘Com. Sudhir’, there was no corroboration of the fact of Raut having actually received the money and handing it over to the co-accused.
“Merely because Com. Prakash says that he handed over the said amount to appellant ipso facto does not make the appellant recipient of it, for want of basic corroboration for it,” the high court had said.
The high court had also found no evidence that any person had been recruited or joined a terrorist organisation through Raut’s efforts. No such persons had been produced on record or brought before the court.
The Bench had thus found that there was no prima facie case against Raut to deny him bail.
A cruel system
It is notoriously difficult to get bail in cases under the UAPA.
Also read: Some personal reflections on prison medical care
Section 43D(5) provides that no person charged under terrorism-related provisions of the Act shall be released on bail if there are reasonable grounds for believing that the accusation against such person is prima facie true. This makes the grant of bail on merit extremely arduous.
The prosecution tends to rely on what the Jammu and Kashmir High Court recently termed as “copy-paste arguments” to oppose bail. Such copy-paste arguments include the classical ones, that the accused might influence witnesses, destroy evidence or flee, but they also invoke the ‘gravity’ of the case and ‘national security’.
The courts also tend to lean away from the accused in cases involving ‘national security’, which makes even interim bail difficult to obtain in such cases.
For example, at the time of Father Stan Swamy’s death due to Covid-related complications, he had been seeking medical bail.
A memorable recent incident underlining these issues is the short meeting with the press former Delhi University professor G.N. Saibaba undertook upon being acquitted of charges under the UAPA in connection with Maoist links recently.
In his moving speech, a teary-eyed Saibaba said, “Being a disabled child, my mother took me in her arms to school, so that her child could get his education. I was not allowed to see her before her death. I was denied parole. After her death, I was denied parole to attend her funeral.”
“The State was made to organise human societies into units based on justice and the rule of law. Today, the State itself has become anarchy,” Saibaba asserted.
