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Bombay HC Accepts Sudha Bharadwaj Bail Plea, NIA Court to Order Release on 8 Dec

Bhima Koregaon Case: The 8 other accused who had sought bail on similar grounds have been denied relief.

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The Bombay High Court on Wednesday, 1 December, accepted the bail plea filed by activist and lawyer Sudha Bharadwaj, one of the accused in the Bhima Koregaon case.

"It is declared that Sudha Bharadwaj ... is entitled to be released on default bail under section 167(2) read with section 43-D(2) of UAPA," the high court's order reads.

Bharadwaj, who was arrested on 28 August 2018, was initially kept under house arrest and has been in custody for over three years.

The high court has ordered that she is to be produced in the special NIA court on 8 December. The NIA court has been directed to release her on default bail after setting relevant bail conditions.

Bharadwaj's Request for Default Bail

Bharadwaj had filed a plea in the high court arguing that she should be granted default bail as the judge who had taken cognisance of the case against her was not designated to hear cases under the Unlawful Activities (Prevention) Act (UAPA).

Pune additional sessions court judge KD Vadane had passed several orders in the case (when the case was still being investigated by the Pune Police), granting an extension to file a charge sheet in 2018 and taking cognisance of the supplementary charge sheet filed by the Pune Police against Bharadwaj (among others) in 2019.

It was argued 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, Bharadwaj had argued, supported by documents obtained through RTI applications.

The Supreme Court in the 2020 Bikramjit Singh case had held that once a state government had designated certain courts as special courts under the NIA Act, all offences under the UAPA had to be tried exclusively by those special courts, whether they were being investigated by state police or the NIA. Only these courts would then have the power to extend the time for filing charge sheets and taking cognisance of them.

The High Court Accepts Bharadwaj's Argument

The bench of Justices SS Shinde and NJ Jamadar had reserved Bhardwaj's plea for orders on 4 August.

In their judgment, the judges agreed with the argument that the special NIA court designated by the State of Maharashtra was supposed to hear the matters related to the case, including extension of time to file the charge sheet, as well as taking cognisance of the charge sheet.

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With regards to Bharadwaj, the Pune Police did not file their supplementary charge sheet against her till 21 February 2019, which was after 90 days from when she had been arrested. This meant that she was entitled to default bail under the Code of Criminal Procedure – unless the Pune Police had obtained a valid extension of time to file their charge sheet.

As the extension had been granted on 26 November 2018 by judge Vadane – NOT the special NIA court – the high court found that the extension order was not valid. As a result, Bharadwaj was entitled to default bail.

"Once, the twin conditions of default in fling the charge-sheet, within the prescribed period, and the action on the part of the accused to avail the right are satisfed, 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."
Bombay High Court order granting bail to Sudha Bharadwaj

Commenting on the decision by the high court judges, Dr Chaudhry said:

"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."

The NIA had asked the high court for a stay on execution of its order as it "may have repercussions on the other cases" but the high court did not grant any such stay.

The NIA has already said it will be filing an appeal against the high court decision in the Supreme Court – it is possible that the apex court may stay the order before Bharadwaj is produced in the NIA court on 8 December.

Bail Pleas of 8 Other Accused Rejected

Eight other accused persons in the case – Sudhir Dhawale, Varavara Rao, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira – had also filed bail pleas in the high court on similar grounds.

The same bench had heard their pleas and reserved them for judgment on 1 September.

The applications by the other eight accused, however, were rejected by the Bombay High Court. The NIA's counsel had argued that they had not filed a plea regarding this issue of default bail at the correct time.

The court agreed, noting that they had not filed their applications requesting default bail till after the charge sheets against them had been filed.

The Supreme Court in an October 2020 judgment (M Ravindran vs Intelligence Officer) had held that if an accused fails to apply for default bail when the right accrues to him, and then a charge sheet is filed in the case or a valid extension of time is filed by the police, then the right to default bail is extinguished.

As a result, the high court could not grant the other eight accused default bail.

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