The Supreme Court on Tuesday dismissed the petition filed by the National Investigation Agency challenging the default bail granted to lawyer-activist Sudha Bharadwaj by the Bombay High Court on December 1, after over three years of her arrest in the Bhima Koregaon case.
A Bench comprising Justice UU Lalit, Justice Ravindra Bhat and Justice Bela Trivedi observed that there was no reason to interfere with the Bombay High Court’s order and dismissed the NIA’s Special Leave Petition.
Sudha Bhardwaj was granted default bail by Bombay High Court on 1st December based on a finding that the Additional Sessions Court, Pune, which extended the time for investigation in the case beyond 90 days, was not competent to do as it was not notified as a Special Court under Section 22 of the NIA Act. The High Court had directed her to be produced before the Trial Court on December 8 to complete the bail formalities.
Arguments of NIA
Additional Solicitor General of India Aman Lekhi, appearing for the NIA, opened the arguments by raising two main points – 1) Section 43D(2) of UAPA only modifies proviso to Section 167(2) CrPC; (2) The definition of “court” under Section 2 of UAPA starts with “unless the context otherwise requires”, which has been missed by the High Court.
The bench then asked the ASG about the basic chronology. The ASG explained that the period of 90 days as regards Sudha Bharadwaj expired on January 25, 2019. The application for extension of time was however filed on November 22, 2018, under the impression that her house-arrest period also should be included. The Court allowed the application on November 26, 2018. On that day itself, she had filed the application for statutory bail.
“So the moot question is whether the court was competent. If the competence was lacking there was no valid extension of period and the lady was entitled to statutory bail”, Justice Lalit observed.
ASG argued that Section 22 of the NIA Act talks about the competence of the Court to “try” and it is distinct from the competence of a Court to deal with the matters like remand at the stage of an investigation. The “context” here is the investigation, which is distinct from “trial”. For “remand”, jurisdiction is irrelevant as the accused has to be brought to the Court.
The ASG further argued that the Bikramjit Singh decision of the Supreme Court, which held that the Magistrate was not competent to remand an accused under UAPA, had failed to deal with Section 10 of the NIA Act. Section 10 of the NIA Act saves the right of the state to investigate UAPA offence, the ASG stressed. The concept of Special Court under Section 22 of the NIA Act will only come when the NIA takes over the investigation, he argued. ASG highlighted that the NIA took over the investigation in January 2020.
Justice Lalit pointed out the proviso to Section 167(2) uses the word “Court” instead of “Magistrate” when it talks about the extension of the period of remand beyond 90 days. “The context of the matter is that it is only the Special Court which can take cognizance of the matter because it is the Special Court which is aware of the intricacies of the matter. These are the factors which weighed with Justice Nariman (in Bikramjit decision)”, Justice Lalit observed while asking the ASG if there are any factors to take a view different from Bikramjit case.
“If there’s a special court that’d be the only court which can hear this”, Justice Bhat added.
Justice Lalit remarked that there can be a reverse situation of an ordinary court refusing extension for time and if the ASG’s argument is accepted, it can lead to such “inconvenient situations”.
“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.
The ASG again relied on Section 10 of the NIA Act to advance the argument that the Special Court comes into picture only after the NIA takes over.
“What I am saying that UAPA offence may or may not come under the NIA Act. A UAPA offence may be investigated by the state police. It is saved by Section 10”, ASG submitted.
“The root is very clear. The UAPA Act defines “court” in Section 2 which is the Section 11 or 22(NIA Act) Court”, Justice Lalit interjected. The judge pointed out that as per Section 2(d) of UAPA “court” means a criminal court having jurisdiction and includes a Special Court constituted under section 11 or section 21 of the National Investigation Agency Act, 2008. Section 11 talks about Special Courts created by the Central Government and Section 22 about the Special Courts created by the State Governments.
The bench asked if the ASG’s argument that the Special Court will come into the picture only at the stage of the trial. The ASG answered in the affirmative.
“Then there will be a dichotomy. Because there will be two different Courts at pre-trial and trial stage. This will be doing violence to the entire scheme of Special Courts”, Justice Lalit remarked.
The ASG then raised the point that at the stage when the case is not transferred to the NIA, the matter will be dealt with by the Special Court under the UAPA Act and not the Special Court under the NIA Act.
The bench pointed out that there is no Special Court under the UAPA Act. The bench said that if the ASG’s argument is accepted, it would mean that the State Governments can create Special Courts under Section 22 NIA Act only if they transfer the investigation to the Central Agency under Section 7. That will be denuding the powers of the State Government, the bench pointed out.
The bench then proceeded to dismiss the petition.
“Heard ASG Aman Lekhi. We see no reason to interfere. Dismissed” – this was the short order dictated by the bench.
High Court’s reasoning
The High Court granted bail on the following grounds:
Pune Court was not competent to extend time of detention under UAPA as it was not notified as a Special NIA Court.
The High Court accepted the petitioners’ argument that the Additional Sessions Court, Pune, which took cognizance of the chargesheet filed by the NIA and also extended the period of detention of the accused beyond 90 days as per Section 43D(2) of the UAPA, was not competent to do so. Because the Pune Sessions Court was not notified as a Special Court under the NIA Act. Also, there was another Special NIA Court in existence in Pune at the relevant time.
Sudha Bharadwaj had filed application for default bail when the 90 days period expired; other 8 accused had not.
The High Court noted that Sudha Bharadwaj had filed an application seeking default bail on November 26, 2018. This was filed on the understanding that the period of 90 days will include her period underwent house arrest from 28th August 2018 to 27th October 2018. Later, in the case of Guatam Navlkakha, the High Court and the Supreme Court observed that the period of house-arrest cannot be included in the 90-day period for the purpose of Section 43D(2) of UAPA.
In any case, the period of 90 days, as far as Sudha Bharadwaj is concerned, expired on January 25, 2019, excluding the period of her house arrest. On that day, the application filed by her seeking default bail was pending. The supplementary charge-sheet against the applicant-Sudha Bharadwaj was fled on 21st February 2019.
In this backdrop, the High Court observed that the right of Sudha Bharadwaj to seek default bail had crystallized on January 25, 2019, on which date her earlier application was pending. The High Court rejected the NIA’s argument that her application, which was filed on November 26, 2018, was premature.
While granting bail to Bhardwaj, the High Court refused default bail to the other 8 accused in the case, after observing that they had not applied for default bail when that right had accrued to them. The High Court noted that none of them had filed an application seeking default bail at the time of expiry of 90 days of their detention.
Their case was premised on the argument that the cognizance of the chargesheet itself is vitiated, as the Court had no competence, and hence it should be presumed that no chargesheet has been filed as regards them. This was not accepted by the High Court based on the principle that mere irregularity in taking cognizance will not vitiate the proceedings.
About the Case: Bharadwaj was arrested on August 28, 2018 in connection with the Bhima Koregaon/Elgar Parishad case by the Maharashtra Police, which was then investigating the Bhima Koregaon case. The case was initially investigated by the Pune police, however, the NIA took over the probe in January 2020.
The Pune police’s charge sheet, claims that some documents were recovered from her co-accused which mention her activities and prove that she is an ‘active member’ of the banned organisation CPI (Maoist).
One of the documents is that of a Special Women’s Meeting held on January 2, 2018, of which Bharadwaj was allegedly a part, and five other documents include alleged meetings of Indian Association of Peoples’ Lawyers, of which Bharadwaj is a Vice-President, documents claiming discussions about funds in the banned organisation, discussions of activities of CPI (Maoists) in Chhattisgarh and Maharashtra, and a seminar in Delhi on Unlawful Activities Prevention Act (UAPA) and. The Bombay High Court rejected her bail application in October 2019, observing that these documents showed a prima-facie case against her.