Elgaar Parishad: Recent bail orders raise questions on serious charges levelled by NIA

The courts have also noted in their orders that the possibility of the trial concluding in the near future is bleak and, therefore, the accused, who are guaranteed the right to a speedy trial under Article 21 of the Constitution, shall be released on bail.

The accused have been booked under various Sections of the stringent Unlawful Activities (Prevention) Act (UAPA) and Indian Penal Code’s 153A (promoting enmity), 121 (waging or attempting to wage a war or abetting) and 124 A (sedition). IPC Section 121 is punishable by death.

Sixteen arrests have been made till date in the case, starting with the first arrest by Pune police in 2018 and then by NIA in 2020. Allegations against those arrested included that they were members of banned terrorist organisation, Communist Party of India (Maoist), and indulged in activities to further its cause. While seven of those arrested have been granted bail, eight are in Mumbai jails. Accused Stan Swamy, 84, a priest and Jharkhand-based tribal rights activist, passed away in July 2021 in custody.

With trial in the case yet to begin, a trial court is currently hearing discharge applications by the accused. The Bombay HC had said on December 19 that the charge sheet contains about 20,000 pages in 54 volumes and that charges have not been framed against the accused till date. While SC and HCs have passed orders in bail pleas, they have said the trial court shall decide the case uninfluenced by said “prima facie” observations.

Bails and observations by courts

Former IIT professor Anand Teltumbde was the first accused to be granted bail in the case on merits on November 18, 2022. Arrested on April 14, 2020, by NIA, his bail order states that based on prima facie material produced “it cannot be concluded that appellant has indulged in a terrorist act”.

While granting bail to activists Vernon Gonsalves and Arun Ferreira on July 28, 2023, a Supreme Court Bench order stated that it was unable to accept the NIA’s contention that the duo “have committed the offence relating to support given to a terrorist organisation”.

Granting bail to activist Mahesh Raut on September 21, 2023, an HC Bench had said “there is no corroboration at all” that he had received the money from the co-accused belonging to CPI (Maoist) and that a person had been recruited through him. However, he is still behind bars after the stay on his release was extended by the SC, which is yet to hear NIA’s appeal against the HC order.

In Navlakha’s December 19 bail order, the Bombay HC Bench said the NIA’s submission of nexus between Navlakha and Syed Gulam Nabi Fai, convicted by a US court in 2012 for links with Pakistani spy agency ISI, “has no correlation with the present crime” since the allegedly seeking clemency for Fai was written by Navlakha “in his individual capacity”.

Pune police and NIA’s case against the 16 accused is largely based on “incriminating documents” found in electronic devices belonging to some of them. The agency had claimed that letters were recovered from the co-accused, including lawyer Surendra Gadling and activist Rona Wilson. However, the accused have referred to independent forensic reports that claim the seized devices were infected with malware.

In Teltumbde’s case, the NIA presented a letter addressed to Comrade Anand by one Prakash. The HC said since the letter was not recovered from Teltumbde, it cannot be presumed that he is an active member of CPI (Maoist).

Another allegation against Teltumbde was that he was secretly in touch with his brother Milind, a top Maoist leader who was killed in a police encounter on November 13, 2021, in Gadchiroli. The HC noted that a document claiming “Anand T” had received Rs 90,000 from co-accused “Surendra (Gadling)” through Milind (Teltumbde) was unsigned. The court noted that merely being the elder brother of Milind cannot be a sole ground to indict him. It also termed the statement of one of the three witnesses as “hearsay”.

Default bail and relief denied

While granting bail to Gonsalves and Ferreira, the SC said the letters submitted as evidence against them “have weak probative value or quality”. In Navlakha’s bail order too, the HC termed as “hearsay piece of evidence” the letter submitted by NIA. Allegedly recovered from Gadling, NIA said they were written by one “Com. Gautam”, which it said was Navlakha.

In the case of Navlakha and Raut, an HC Bench noted that the accused can be said to be members of CPI (Maoist), attracting Sections 13 (unlawful activities) and 38 (membership of a terrorist organisation) of UAPA, and not others related to terrorist acts, etc. Under Sections 13 and 38 of UAPA, the maximum punishment is seven and ten years respectively.

The first person to be released on bail in the case was Telugu poet P Varavara Rao, 82, on medical grounds for six months in February 2021. Though his bail was extended from time-to-time, HC rejected his plea for permanent bail in April 2022. In August 2022, the SC granted him bail on medical grounds since he had already spent over two years as an undertrial.

Lawyer-activist Sudha Bharadwaj was granted default bail by the HC on December 1, 2021, over three years after her arrest. In 2019, the HC had rejected her bail plea, but her subsequent plea was allowed on the grounds that her detention was illegal since the court that had granted Pune police an extension to file a chargesheet under UAPA did not have the power to do so.

In the same order, the HC rejected bail for Sudhir Dhawale, Wilson, Gadling, Shoma Sen, Raut, Rao, Gonsalves and Ferreira. It also rejected a review plea of its order by three accused. In October 2019, the HC rejected bail to Bharadwaj, Ferreira and Gonsalves.

On October 17, 2023, an HC Bench rejected the bail plea of Jyoti Jagtap, observing that she was in active touch with all other co-accused working for different mask organisations to further the objectives of CPI (Maoist).

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