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Elgaar Parishad case: Bombay HC grants default bail to Sudha Bharadwaj, pleas of 8 others rejected

Sudha Bharadwaj is the first among 16 activists and academicians arrested in the case to have been granted default bail. Poet-activist Varavara Rao is currently out on medical bail. Jesuit priest Stan Swamy died in a private hospital on July 5 this year, while waiting for medical bail.

Written by Omkar Gokhale | Mumbai |
Updated: December 2, 2021 6:35:38 am
Lawyer-activist Sudha Bharadwaj (File)

The Bombay High Court Wednesday granted default bail to lawyer-activist Sudha Bharadwaj, an accused in the Elgar Parishad case, but rejected the pleas of eight others who had applied for bail on similar grounds.

A Bench of Justices S S Shinde and N J Jamadar directed that Bharadwaj, who is lodged in Mumbai’s Byculla women’s prison, be produced before the Special NIA Court here on December 8, for the conditions of her bail and date of her release to be decided.

Bharadwaj is the first among 16 activists and academicians arrested in the case to have been granted default bail. Poet-activist Varavara Rao is currently out on medical bail. Jesuit priest Stan Swamy died in a private hospital on July 5 this year, while waiting for medical bail.

Advocate Yug Chaudhry, who appeared for Bharadwaj, cited an RTI reply from the High Court Registry to argue that Additional Sessions Judge K D Vadane of a Pune trial court who had heard the case of Bharadwaj was not designated to do so regarding scheduled offences under the Unlawful Activities (Prevention) Act (UAPA).

Bharadwaj also argued that the judge was not authorised as a “special judge” to take cognizance of the supplementary chargesheet filed by the Pune Police in February 2019. A recent Supreme Court judgment said that special courts alone can try UAPA offences.

The High Court, however, rejected the default bail pleas filed by Varavara Rao, Sudhir Dhawale, Vernon Gonsalves, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut and Arun Ferreira.

The Division Bench refused the request of NIA counsel, Additional Solicitor General Anil Singh, for a stay on its order.
The Bench played down the argument of court jurisdiction regarding pre-trial and trial proceedings. It held that as per Section 43 D of the UAPA Act, a special court was competent to hear the case, and in its absence, a sessions court would deal with the same. It said that in the present case, the Special NIA Court under the NIA Act had been constituted in Pune at the relevant time, and “the act of taking cognisance by Judge Vadane does not entail the consequence of the vitiation of entire proceedings”.

Granting bail to Bharadwaj, the Bench referred to the right of personal liberty under Article 21 of the Constitution and noted, “In our view, to deprive the applicant Bharadwaj of the indefeasible right on the premise that the application preferred on November 26, 2018, was premature, would be taking a too technical and formalistic view of the matter. In our view, all the requisite conditions to release Bharadwaj on default bail stood fully satisfied.”

On the eight other accused, the court held that that the applicants did not avail the right to be released on default bail before the respective chargesheets were filed against them on November 15, 2018, and February 21, 2019.

The Bench had concluded the hearing on Bharadwaj’s default bail plea and reserved a verdict on August 4. It had concluded the hearing of pleas by the eight other accused, reserving the orders, on September 1.

In their plea, the eight other accused also said that persons booked under the UAPA had to be produced before a special NIA court and that the Sessions Judge had no power to take cognizance of their pleas.

Advocate General Ashutosh Kumbhakoni, who represented the Maharashtra government and Pune Police, argued against default bail to Bharadwaj saying her counsel had referred to selective portions of the apex court verdict favourable to her case.

The AG said the National Investigation Agency (NIA) Act stipulated the need for a special judge only at the time of trial in a case being probed by it, and not during pre-trial proceedings. He said a special NIA court would have come into picture in this case only after the probe was transferred to the agency on January 24, 2020.

The NIA, through Additional Solicitor General Anil Singh, opposed the default bail plea saying the 90-day extension granted to the Pune Police in 2018 by a trial court to file a chargesheet did not cause any prejudice to the rights of the accused.

AG Kumbhakoni argued that the chargesheet had been filed within the extended time granted by the Pune court.

ASG Singh said the cognizance of the chargesheet taken by the sessions court had no relevance for a default bail plea.

 

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