Two days after the Supreme Court dismissed the NIA’s appeal challenging the default bail granted to her by the Bombay High Court in the Elgar Parishad-cum-Bhima-Koregaon riots case, lawyer-activist Sudha Bharadwaj walked out of the Byculla women’s jail on Thursday, after three years of incarceration.
In line with the order passed by a special National Investigation Agency (NIA) court on Wednesday, Bharadwaj was released from the jail on a provisional cash bail and a personal bond with directions to furnish sureties worth Rs 50,000 within three months.
Apart from the cash bail and 15 other conditions listed in her bail orders were: that she will not leave jurisdiction of the Mumbai court without the court’s permission, that will give details of her place of residence in Mumbai and her contact numbers, the contact numbers and addresses of her relatives residing with her and three of her blood relatives, that she would attend the proceedings of the trial and that she would report to the nearest police station through WhatsApp video call fortnightly.
In its bail order, the NIA court has also refrained Bhardwaj from making any statement regarding the proceedings pending before the court before any form of media — print, electronic or social, indulging in any activity similar to the activities on the basis of which the present FIR was registered against her for offences under the Indian Penal Code and Unlawful Activities (Prevention) Act and trying to establish to establish communication with co-accused or any other person involved directly or indirectly in similar activities or make any international call to any person indulging in similar activities.
It may be recalled that on December 1, the Bombay High Court had granted default bail to Bharadwaj --who is one of 16 accused in the Elgar Parishad-cum-Bhima-Koregaon riots case -- after holding that “to deprive her indefeasible right on the premise that the application preferred on 26th November 2018 was premature would be taking a too technical and formalistic view of the matter”.
Bharadwaj is the first among 16 activists and academicians arrested in the case to have been granted default bail. While Jesuit priest Stan Swamy died in a private hospital on July 5 this year while waiting for medical bail, Poet-activist Varavara Rao is currently out on medical bail.
The eight accused whose default bail pleas were rejected were: Varavara Rao, Sudhir Dhawale, Vernon Gonsalves, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut and Arun Ferreira.
Holding that the Pune Sessions Judge was not competent enough -- in terms of jurisdiction -- to extend time for investigation and detention under provisions of Section 43D(2) of the Unlawful Activities Prevention Act (UAPA) and Section 167(2) of the Cr.PC, the HC bench observed that the Sessions Judge had no judicial competence to extend the period of detention under Section 43-D(2)(b) of UAPA and considered four other aspects – the period of 90 days of her detention expired on January 25, 2019, no charge-sheet was filed, there was no lawful order of extension of period of detention and the Bhardwaj’s bail plea awaiting adjudication.
Relying on a catena of decisions which held that the right of the accused to be released on default bail is indefeasible and is also associated with the fundamental right flowing from ‘the procedure established by law’ under Article 21 of the Constitution of India, the HC bench granted Bhardwaj default bail.
In their order, the two Judges noted: “On the touchstone of the guarantee of personal liberty under Article 21 of the Constitution, in our view, to deprive the applicant-Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26th November 2018 was premature, would be taking a too technical and formalistic view of the matter. In our view, all the requisite conditions to release the applicant-Sudha Bharadwaj on default bail stood fully satisfied”.
While rejecting default bail pleas by eight other accused, the HC bench noted that accused Sudhir Dhawale, Rona Wilson, Surendra Gadling, Dr. Shoma Sen and Mahesh Raut had never claimed to have filed an application for default bail after the expiry of initial period of 90 days from the date of their production till the fling of the chargesheet on November 15, 2018. The three other P Varavara Rao, Vernon Gonsalves and Arun Ferreira had not preferred to file such an application till the filing of the supplementary charge-sheet.
The arrests of “Maoist-linked” activists were made under the FIR registered on January 8, 2018 at the Pune’s Vishram Baug Police Station in connection with the Elgar Parishad organised on December 31, 2017 by the leftist outfit Kabir Kala Manch (KKM) and Republican Panthers Party ahead of the January 1, 2018 Bhima-Koregaon riots.
It may be recalled that the scanned copies of 10 “incriminating” letters were among the virtual and physical documents recovered by the investigators during their simultaneous raids conducted by the investigators on April 17 2018 ahead of the arrest of Wilson and other accused in the case.
Among other things, the NIA has charged the accused with promoting the activities and ideologies of the banned outfits, mobilising people and students, training in handling sophisticated arms and explosives.
The NIA’s draft charges said the larger objective was to conspire against and destabilise the governments of India and Maharashtra, threaten their sovereignty with large-scale violence, strike terror in the people, as per the draft charges.
The NIA said that to achieve their objectives, the accused - through a banned Leftist organisation and its frontal outfits - had arranged to raise Rs 8 crore for annual supplies of sophisticated weapons, the NIA said.
The arrested accused in the cases are: Sudhir P. Dhawale, Vernon S. Gonsalves (both of Mumbai), Arun T. Fereira of Thane, Sagar Gorkhe of Ahmednagar, Ramesh Gaichor of Pune, Surendra P. Gadling, Shoma K. Sen, Mahesh S. Raut (all of Nagpur), Anand B. Teltumbde of Yavatmal, all in Maharashtra.
The absconding-accused are: Milind Teltumbde aliases Dipak and Sahyadri of Yavatmal, Prakash Goswami aliases Navin and Ritupan Goswami of Assam, Kishan Bose aliases Prashanto of Kolkata, Mupalla Laxman Rao, alias Ganpati, Chandrashekhar, Manglu, and Deepu.