The Supreme Court on Tuesday, 7 December, dismissed the appeal filed by the NIA against the decision of the Bombay High Court which held that lawyer and activist Sudha Bharadwaj was "entitled to be released on default bail" in the Bhima Koregaon case.
The National Investigation Agency (NIA), represented by Additional Solicitor General Aman Lekhi, argued that the high court was wrong in holding that Bharadwaj was entitled to default bail, and contested a Supreme Court ruling from 2020 which had led to this conclusion.
However, the Supreme Court bench of Justices UU Lalit, S Ravindra Bhat and Bela Bhatia found no merit in the NIA's arguments and dismissed the appeal, saying they saw no reason to interfere with the Bombay High Court's order.
As a result, Bharadwaj will now need to be produced before the special NIA court in Mumbai on Wednesday, 8 December, as directed by the Bombay High Court in its order. The NIA court will then release her on default bail after setting relevant bail conditions.
Bharadwaj, a longstanding activist for workers' rights and lawyer for tribal rights activists, was arrested on 28 August 2018 in connection with the Bhima Koregaon case, along with several other well-known activists and human rights defenders. She has been in custody for over three years awaiting trial.
The high court had, while accepting her bail plea, rejected similar pleas filed by eight other accused in the case: Shoma Sen, Rona Wilson, Surendra Gadling, Sudhir Dhawale, Mahesh Raut (who had been arrested in June 2018), as well as Varavara Rao, Vernon Gonsalves and Arun Ferreira (who had been arrested along with Bharadwaj in August 2018).
WHY THE BOMBAY HC ACCEPTED SUDHA BHARADWAJ'S BAIL PLEA
The high court had held that the additional sessions judge who had extended the Pune Police's (who were initially investigating the Bhima Koregaon case) time to file a charge sheet against Bharadwaj in November 2018 did not have the authority to do so.
This was because Maharashtra had designated specific courts as special courts under the NIA Act in 2017.
Once these special courts are set up, cases involving scheduled offences under the NIA Act, such as UAPA cases, can only be tried in these special courts, as clarified by the Supreme Court in the Bikramjit Singh case in October 2020. This rule applies even when the matter is not being investigated by the NIA.
Since the judge who granted the extension had no jurisdiction to do so, there had been no valid extension of time to file the charge sheet. As a result, Bharadwaj was entitled to default bail under Section 167(2) of the Code of Criminal Procedure.
The eight other accused in the Bhima Koregaon case had also filed applications for default bail on similar grounds. However, the Bombay High Court rejected their pleas as they had not filed these applications in time.
Once the police file a charge sheet in a case, the right to default bail is lost; only Bharadwaj had filed her application for default bail before the charge sheet against her had been filed.