Updated: December 8, 2021 1:19:00 am
The Supreme Court on Tuesday dismissed the National Investigation Agency’s (NIA) appeal challenging the default bail granted to activist Sudha Bharadwaj in the Elgar Parishad case.
A bench of Justices U U Lalit, Ravindra Bhat and Bela Trivedi turned down the agency’s plea, finding no reason to interfere with the December 1 Bombay High Court order which granted her bail on the ground that her detention under the Unlawful Activities (Prevention) Act (UAPA) was extended by a court that had no power to do so.
The High Court had said that when a special court designated under the NIA Act, 2008, existed in Pune, the court of the Additional Sessions Judge had no jurisdiction to extend the detention beyond the stipulated 90 days. It directed that she be produced before the special NIA court on December 8 for fulfilling conditions of bail and to decide the date of release.
The HC, however, rejected the default bail pleas filed by eight other accused – Varavara Rao, Sudhir Dhawale, Vernon Gonsalves, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut and Arun Ferreira.
Appearing for the NIA in the Supreme Court Tuesday, Additional Solicitor General Aman Lekhi tried to make a distinction between court trying the case and court allowing extension of remand prior to trial, but the bench did not agree.
“The moot question is whether the court was competent. If the competence was lacking, there was no valid extension of period and she was entitled to statutory bail,” remarked Justice Lalit.
Lekhi referred to Section 22 of the NIA Act which talks about the competence of the court to “try” and said this is distinct from the competence of a court to deal with the matters like remand at the stage of an investigation. He said that the context is ‘investigation’ and that this is distinct from ‘trial’. For remand, jurisdiction is not relevant, he said, adding the accused has to be brought to court.
The ASG further contended that the concept of Special Court under Section 22 of the NIA Act will come into play only when the agency takes over the investigation. He pointed out that the NIA took over the probe in the case only in January 2020 while the time was extended in November 2018.
As the bench referred to the SC’s October 2020 decision in Bikramjit Singh vs State of Punjab wherein it was held that UAPA offences are exclusively triable by special courts, the ASG submitted that the NIA Act saves the right of the state to investigate a UAPA offence. So even the state can investigate UAPA offence and the role of the special court will come into play only once the NIA takes over, Lekhi added.
The bench, however, pointed out that the proviso to Section 167(2) of the NIA Act uses the word “court” instead of “magistrate” as regards the extension of the remand period beyond 90 days.
“…it was open for the legislature to say magistrate. There are other laws where special courts are mentioned. Here they have used the expression court, not magistrate. You are saying any court has power to grant extension. Why should it be? Why not a special court?”, queried the bench.
Justice Lalit pointed out that if the ASG’s argument is accepted, it will lead to an “inconvenient situation”.
“It is not your case that there is no special court in Maharashtra. There are special courts in Maharashtra. So why did you prefer this application before the other court?”, Justice Lalit asked as the court proceeded to dismiss the plea.
Bharadwaj is the first among 16 activists 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.
Bharadwaj will be produced before the special NIA court in Mumbai on Wednesday. After her lawyers complete the formalities set by the court, she is likely to be released from Byculla women’s jail this week.
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