Elgaar Parishad case: Supreme Court sets aside HC order refusing police more time to file chargeshttps://indianexpress.com/article/india/elgaar-parishad-case-supreme-court-sets-aside-hc-order-refusing-police-more-time-to-file-charges-5582812/

Elgaar Parishad case: Supreme Court sets aside HC order refusing police more time to file charges

The police claim that the conclave led to the violence at Bhima Koregaon, near Pune, the following day.

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The Pune court invoked Section 43-D (2)(b) of Unlawful Activities Prevention Act (UAPA), which says 90 additional days may be granted to investigators if it was not possible to complete the probe in the initial 90 days.

THE SUPREME Court on Wednesday set aside the Bombay High Court’s order refusing to give Maharashtra Police more time to complete its investigation against five rights activists arrested for alleged Maoist links in June last year in connection with the probe into the Elgaar Parishad conclave in Pune on December 31, 2017.

The police claim the conclave had led to the violence at Bhima Koregaon, near Pune, the following day. “We are…not able to persuade ourselves to agree with the conclusions of the learned single judge of Bombay High Court in the impugned order and hold that the respondents would not be entitled to the benefit of default bail. Consequently the impugned order is set aside,” a bench of Chief Justice of India Ranjan Gogoi and Justices L Nageswara Rao and S K Kaul ruled, allowing the Maharashtra government’s plea challenging the October 24, 2018 HC order.

On September 2, 2018, a trial court in Pune had given police 90 more days to complete its probe against the five accused — lawyer Surendra Gadling, Dalit activist Sudhir Dhawale, activists Mahesh Raut and Rona Wilson, and Nagpur University professor Shoma Sen. The Pune court invoked Section 43-D (2)(b) of Unlawful Activities Prevention Act (UAPA), which says 90 additional days may be granted to investigators if it was not possible to complete the probe in the initial 90 days. Hearing a challenge by Gadling and others, the HC set aside the trial court’s order.

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SC order validation for Pune court

On September 1 last year, Pune City Police had moved a local court, seeking a 90-day extension for filing its chargesheet against the five activists arrested on June 6. The court passed an order in favour of the police. But one of the accused, lawyer Surendra Gadling, moved the Bombay HC, arguing that Section 43 D of UAPA requires the application to be filed by the public prosecutor, whereas in the Pune court, it was filed by the investigating officer. The HC ruled that the Pune court order giving the extension and subsequently extending the custody, was ‘illegal’. Though the order would have facilitated a default bail for the five accused as per the provisions of the law, the HC did put a stay on its own ruling from becoming operational till November 1, allowing the state to move the Supreme Court. Police then moved SC and on January 10 this year, the SC reserved its judgement on the issue till February 13. The apex court’s ruling validates the Pune court’s order and denies default bail to five accused, implying they will remain in judicial custody till they are granted regular bail.

The accused contended before the High Court that under law, an application seeking such extension of time could be filed only by the public prosecutor (PP), but the application in the Pune court was filed by the investigating officer (IO).
Questioning this in Supreme Court, the state government said that the IO’s application had been signed by the PP, and this showed independent application of mind by the prosecutor.

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Appearing for the state, senior advocate Mukul Rohatgi said two applications were moved — one by the PP and the other by the IO — on August 30, 2018.

Senior advocate Abhishek Singhvi, who appeared for the accused, said the application was by the IO, and this was not what the law envisaged. It showed that there was no independent application of mind by the prosecutor, he contended. The SC observed, “There is no doubt that the report/application of the public prosecutor, setting out the reasons for extension of ninety days of custody to complete investigation leaves something to be desired”.

Justice Kaul, who authored the judgment, stated, “Clarity in the form of a proper endorsement by the public prosecutor that he had perused the grounds in the earlier document submitted by the IO and —- thus, was satisfied that a case had been made out for extension of time to complete the investigation —- would have obviated such a controversy. But that is not to be.” The bench noted that comparison of the two applications showed enough grounds justifying grant of such an extension of time, and “it cannot, thus, be said that there has been complete absence of application of mind by the public prosecutor”.

The judgment stated, “…since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind”.