Elgaar Parishad case: HC dismisses review plea by three accused seeking default bail

The bench observed that there was no factual error in the judgment as claimed by the accused.

“The applications of bail were not placed before the court. Hence, we cannot agree that there was factual error. No case of exercising jurisdiction is made out. We clarify that observations in previous judgment are based on documents placed before us. The application stands rejected,” the court held.

The plea filed through advocates Sudeep Pasbola and R Sathyanarayan had said that the bail requests were at par with another accused Sudha Bharadwaj, who secured default bail in December last year, and hence the rejection order should be reviewed.

On December 1, 2021, the Bombay High Court had granted default bail to Bharadwaj but rejected the pleas of eight other co-accused, who had sought bail on similar grounds. The eight accused included Sudhir Dhawale, Rona Wilson, Surendra Gadling, Shoma Sen and Mahesh Raut, who were arrested on June 6, 2018, and Rao, Gonsalves and Ferreira, who were arrested on August 28, 2018.

The high court had observed that in the case of the three accused, the default bail plea was not filed within the stipulated time before the chargesheet was lodged against them on February 21, 2019.

The accused had pointed out that they had also filed default bail pleas before the Pune court and the November 6, 2019 order of Pune court, referring to which Bharadwaj was granted default bail by the high court, was “common order, which also included their applications”. Therefore, they stood in ‘pari materia’ (in similar case) with Bharadwaj’s case and were entitled to the same relief, the plea said.

While Ferreira and Gonsalves are currently lodged at Taloja jail, the high court has recently extended medical bail granted to Rao for three months to undergo cataract surgery.

However, for National Investigation Agency (NIA), advocate Sandesh Patil submitted an affidavit in reply opposing the review plea and stated that the review plea is barred by law as the prayer was nothing but an alteration or review of the final judgment of the high court. The submissions were not part of their previous plea, based on which the high court had rejected their default bail plea, and therefore review should not be allowed, the affidavit said.

The NIA affidavit, filed through its Mumbai branch SP Vikram Khalate, referred to Section 362 of the Criminal Procedure Code (CrPC) which put an embargo on courts to alter or review its judgment or final order, “except to correct a clerical or arithmetical error”.

The central agency claimed that the petitioners’ prayer was unfounded as the high court had passed the judgment after due verification of records and the relief which is expressly barred by CrPC should not be granted.

The NIA said that the accused ought to have approached the appellate court/Supreme Court against the high court judgment. The agency also argued that the accused were trying to bring in a new case and blame the court when their entire pleading in the application was defective and insufficient.

“By filing a present application in the final order seeking default bail in the criminal petition where this court was pleased to pass judgment is unsustainable in the eyes of law and liable to be dismissed at the threshold,” the affidavit read.