The Bombay High Court on Wednesday granted default bail to lawyer-activist Sudha 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”.
However, the HC bench of Justices SS Shinde and NJ Jamadar rejected the default bail pleas of eight other accused on the ground that they had failed to apply for such a default bail prior to the filing of charge-sheet in the case.
The two-member HC bench directed Bharadwaj, who is lodged in Mumbai’s Byculla women’s prison, be produced before the Special NIA Court here on December 8 to decide on the conditions of her bail and date of her release.
The HC bench refused to entertain a request by NIA counsel, Additional Solicitor General Anil Singh, for a stay on its order.
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”.