Bombay High Court on Wednesday granted default bail to human rights lawyer and activist Sudha Bhardwaj who was arrested in 2018 in connection to the Bhima Koregaon Caste Violence Case. However, the court has rejected the default bail to eight other accused.
The court has directed her to approach the special National Investigation Agency court. Sudha Bhardwaj is currently lodged in the Byculla women’s prison and will be produced before Mumbai special NIA court on December 8 to decide the conditions for her bail and also the date of her release.
She is the first to get a default bail among all 16 activists and academicians who were arrested in connection to the case. Poet-activist Varavara Rao is out on medical bail and another accused, Jesuit Stan Swamy died in a private hospital on July 5 this year after a long wait for medical bail.
The Division Bench of Justice S.S. Shinde and Justice N.J. Jamadar stated that Mrs. Bhardwaj is entitled to bail. The petitioner had sought bail under the Code of Criminal Procedure citing the grounds that Pune Session Court judges KD Vadane and RM Pande had no jurisdiction in the case.
The petition submitted through Advocate Yug Chaudhary pointed out that judge KD Vadane, who had remanded Bharadwaj and her co-accused to custody following their arrest in September 2018, had pretended to be a designated special judge.
Advocate Chaudhary mentioned the two significant orders in the matter which were passed by Judge KD Vadane.
One on November 26, 2018, where judge Vadane granted the extension of 180 days for filing the charge sheet as opposed to 90 days as per the Criminal Code of Procedure.
The other one was on December 21, 2019, when he received the charge sheet, took cognizance of it, and issued processes.
As per the submissions, the orders signatures of Mr. Wadane read ‘special judge’ in one order and ‘special Unlawful Activities Prevention Act (UAPA) judge’ in the other order.
Counsel Chaudhary also mentioned about the Right To Information replies by the High Court which revealed that Mr. Wadane was an additional judge and not a special judge. He added that the UAPA did not have special courts, nor did it have special judges.
It was submitted that only a special court designated under the NIA Act could deal with cases involving UAPA offences, as these are ‘scheduled offences’ under the NIA Act. Although the State of Maharashtra had designated certain courts under Section 22 of the NIA Act, Vadane’s court was not one of these, added Chaudhary.
“Once, the twin conditions of default in filing the charge-sheet, within the prescribed period, and the action on the part of the accused to avail the right are satisfied, the statutory right under section 167(2) of the Code catapults into a fundamental right as the further detention falls foul of the personal liberty guaranteed under Article 21 of the Constitution,” said the High Court while granting her bail.
“This is a large crack made in the prosecution’s case, and we hope it becomes wide enough to completely splinter and completely demolish the matter,” remarked Advocate Chaudhary.
Sudha Bhardwaj was arrested on August 28, 2018, and then placed under house arrest. She was taken into custody on October 27, 2018, and has been in jail since then except for two days in August 2019 when she had got bail to attend the final rites of her father.
Sudha Bhardwaj is a human rights lawyer, professor, and trade unionist. She gave up her American citizenship to live in Chhattisgarh to serve iron ore workers and tribal people. Sudha practices public interest law. She was living in a slum with her adopted Chhattisgarhi daughter. She has spent her four birthdays in jail.
All other accused are in custody as undertrials waiting for a formal trial.
Default Bail Rejected To 8 Other Elgar Parishad Case Accused
The bail pleas of eight other accused in the case – Sudhir Dhawale, Varavara Rao, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, Vernon Gonsalves, and Arun Ferreira – has been rejected by the Bombay High Court.
Agreeing to the NIA’s submission that they had not filed the default bail pleas on time, the court noted that they had not filed their applications requesting default bail till after the charge sheets against them had been filed.
The pleas were filed under Section 439, Section 193, Section 482 and Section 167(2)(a)(i) of the Criminal Procedure Code read with Section 43D(2) of the Unlawful Activities Prevention Act.
Chargesheet Not non-est
The petitioners had submitted that Pune Session Court didn’t have the authority to take cognizance of the case, therefore an 1800 page supplementary charge sheet filed in 2019 would be null and void.
However, the court noted, “Without material to show “failure of justice”, an Additional Sessions Judge taking cognizance of a scheduled offence like UAPA, cannot be exalted to such a pedestal as to hold that the very presentment of the charge-sheet by the investigating agency is non-est in the eye of law.”
Thus, the submission that KD Vadane’s taking cognizance would entail the consequence of no charge-sheet at all having been filed, was rejected by the High Court.
What is Bhima Koregaon Case?
The matter was related to alleged inflammatory speeches delivered during a yearly event at the Elgar Parishad conclave, held at Shaniwarwada in Pune on December 31, 2017. The speeches allegedly led to the caste violence at the Koregaon-Bhima war memorial located on the city’s outskirts the next day. All activists and academicians are accused of having Maoist links.
