August 24, 2021 11:13:40 am
Eight accused in the Elgar Parishad case, while challenging the September 2019 order of the Pune Sessions court rejecting their default bail pleas, told the Bombay High Court that persons booked for scheduled offences under the Unlawful Activities (Prevention) Act (UAPA) had to be produced before special National Investigation Agency (NIA) court and the sessions judge had no power to take cognisance of their pleas.
The lawyer for the accused submitted that as the orders of remand, authorising custody were ‘illegally’ passed by the sessions judge and the same could not be sustained, they may be released on default bail.
A division bench of Justice S S Shinde and Justice N J Jamadar was hearing default bail plea by eight accused including Sudhir Dhawale, Mahesh Raut, Vernon Gonsalves, Arun Ferreira, Rona Wilson, Shoma Sen, Surendra Gadling and Varavara Rao.
Advocate Sudeep Pasbola for the petitioner submitted that when the accused were first produced before the sessions judge, Pune on June 7, 2018, they had objected to the competency of the sessions court to conduct proceedings, however, the same was not entertained. He added that thereafter, the accused had filed various interlocutory applications and default bail pleas, which were all heard by the sessions judge, while they were required to be decided by the special NIA Court.
Pasbola added that as the accused were booked for scheduled offences under UAPA, as per said law and criminal procedure code, they had to be produced before either the special court or magistrate court and the same was not done despite the then state government having constituted a special court in Pune as per NIA Act.
He said that the Pune Police subverted the law and filed a charge sheet before the sessions judge and the proceedings thereafter suffer from ‘gross impropriety’.
The petitioners further referred to the recent judgement of the Nagpur bench of HC in bail plea by accused Surendra Gadling, which on August 11 held that all scheduled offences, which are crimes under the UAPA will have to be dealt with exclusively by special NIA courts irrespective of the fact whether the crime is being probed by the NIA or the state government agencies.
“If the court has no jurisdiction then the order in remand or even for custody are in nullity,” Pasbola said and sought default bail to the accused persons.
The NIA, which took over the probe from Pune Police last January, had earlier filed an affidavit in reply opposing the plea and said that merely because a court is not empowered by law to take cognizance and yet does so in good faith does not mean that the proceedings should be set aside on that ground alone.
After hearing submissions, the bench said that it was inclined to expedite the hearing on the present plea, as it has reserved for order another default bail plea by co-accused Sudha Bharadwaj raising similar grounds and the same was pending for pronouncement.
“Therefore, we want to finish this matter at the earliest,” the court said and asked additional solicitor general Anil Singh for NIA to respond to the plea on Tuesday, August 24.
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