The Bombay High Court on Wednesday allowed default bail plea of Sudha Bharadwaj in the Elgaar Parishad case. Bharadwaj will be arraigned before the special NIA court on December 8, which will impose bail conditions and finalise her release on bail.
The bench, however, rejected the default bail plea of eight co-accused, including Sudhir Dhawale, Mahesh Raut, Vernon Gonsalves, Arun Ferreira, Rona Wilson, Shoma Sen, Surendra Gadling and Varavara Rao, in the case.
A Division Bench of Justices S S Shinde and N J Jamadar had concluded the hearing and reserved the verdict in Bharadwaj’s default plea on August 4. Thereafter, the bench heard a plea by eight other accused, the hearing of which was concluded and orders were reserved for September 1.
Advocate Yug Chaudhry for Bharadwaj, while referring to responses filed under the Right to Information (RTI) Act availed from the High Court Registry, alleged that Additional Sessions Judge K D Vadane of the trial court in Pune was not designated to hear matters regarding scheduled offences under the Unlawful Activities (Prevention) Act (UAPA).
Bharadwaj’s plea also alleged that the judge was not authorised as a “special judge” to take cognizance of the supplementary chargesheet filed by the Pune police in February 2019. Chaudhry referred to a recent Supreme Court judgment and said that special courts alone have exclusive jurisdiction to try UAPA offences.
Advocate General Ashutosh Kumbhakoni for state government and Pune police opposed the argument and said Bharadwaj’s counsel referred to selective portions of the Supreme Court verdict favourable to his case and not the judgment in its entirety as the case before the SC was different from Bharadwaj’s case.
The state government further said although Bharadwaj was booked under UAPA, the National Investigation Agency (NIA) Act stipulated the need of a special judge only at the time of trial, when the case is being probed by the central agency, and not during pre-trial proceedings.
Kumbhakoni said Bharadwaj’s claims were misconceived, as there was no procedural lapse in the sessions judge conducting the proceedings. He said that as long as the investigation in a case was not assigned to the NIA, the proceedings pertaining to the same could continue before a regular court and sought dismissal of the plea.
Kumbhakoni said a special NIA Court could come into picture only after the case was transferred to NIA on January 24, 2020 as per the Centre’s order and more specifically, from February 12, 2020, when Pune police actually handed over the case to NIA.
The NIA, through Additional Solicitor General Anil Singh, opposed the default bail plea and said the 90-day extension granted to Pune police in 2018 by a trial court to file a chargesheet in the case did not cause any prejudice to the rights of the accused.
Moreover, the eight other accused, in their plea, argued through advocate Sudeep Pasbola, had said that persons booked for scheduled offences under the UAPA had to be produced before a special NIA court and that the sessions judge had no power to take cognizance of their pleas.
However, the same was not done despite the state government having constituted a special court in Pune as per NIA Act, they said. The petitioners sought from the High Court to quash and set aside the September 2019 order of the Pune Sessions Court that rejected the default bail pleas.
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.
AG Kumbhakoni for state and Pune police had submitted that the chargesheet was filed within the extended time period rightly granted by the Pune sessions court and therefore accused were not entitled for default bail. He said that the Special NIA court is to hear matters pertaining to trial stage; therefore, the sessions court was competent to take cognisance of the chargesheet during “pre-trial stage.” Hence, the plea to be dismissed as the same was not maintainable, he said.
ASG Singh for NIA opposed the pleas by eight accused by supplementing arguments made by Pune police and said that the cognizance of the chargesheet taken by sessions court has no relevance for default bail plea.