[Elgar Parishad Case] Bombay High Court grants default bail to activist Sudha Bhardwaj 

Bombay High Court: The Division Bench of S.S. Shinde and N. J. Jamadar, JJ., granted bail to activist Sudha Bhardwaj after three years detention in Elgar Parishad case. The Bench expressed,

“Once the period of detention expired and the accused manifested the intent to avail the right by making an application, no subterfuge to defeat the said indefeasible right can be countenanced. The factors like the bail application was not decided, or wrongly decided, or subsequently charge-sheet came to be fled, or a report seeking extension of period of detention came to be fled and allowed, are of no significance.”

Factual Backdrop

The applications for bail were filed under section 167(2) of the CrPC read with section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) in National Investigation Agency (NIA) Special Case, arising out of FIR in connection with a programme organized by the members of Kabir Kala Manch under the banner “Elgar Parishad” at  Shanivar Wada, Pune on 31-12-2017. The complainant alleged that the speeches and performances were provocative and had the effect of creating communal disharmony. It was further alleged that the said programme provoked the incidents of violence near Bhima Koregaon, Pune on 01-01-2018, resulting in the loss of life and property and creation of social disharmony. Resultantly, a case was filed against the applicants under sections 120B, 121, 121(A), 124(A), 153A, 505(1)(b), 117, 23 of Penal Code, 1860 and sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of UAPA.

The applicants had approached the Court seeking bail on the ground that the Judge, who extended the period for investigation under section 43-D(2) of UAPA and took cognizance of the offences was not legally empowered to grant such extension and take cognizance as he was not designated as a Special Judge either under section 11 or section 22 of the NIA Act.

Series of Events

Initially, the applicant, Ms. Sudha Bhardwaj was directed to be kept under house arrest by the order of Punjab & Haryana High Court. Later on the applicant was remanded to police custody. On 22-11-2018 the Public Prosecutor filed a report seeking extension of period for investigation. On 26-11-2018, the applicant filed an application for bail as 90 days period from the date of applicant’s arrest and production before the Magistrate had expired. The Sessions Judge passed an order on the report of the Public Prosecutor and extended the period of detention by 90 days.

Criminal Application No. 1458 of 2019

Similarly, the applicant 1 to 8 asserted that the UAPA does not contain any provision for the appointment of a Special Judge or for constitution of Special Courts. Thus, the usurpation of the jurisdiction by the Additional Sessions Judges, under a misnomer of Special Judge, was wholly illegal. The applicants contended that once the Special Court was constituted at Pune under section 22 of the NIA Act, only the said Special Court had jurisdiction to extend the period of detention under section 43-D(2) of the UAPA and no other.

Whether the Additional Sessions Judge had the jurisdictional competence?

Noticing that a conjoint reading and harmonious construction of the provisions contained in section 6 and section 10 of the NIA Act lead to a legitimate inference that till the NIA takes up the investigation of the case (necessarily involving a Scheduled Offence), the State Government is not divested of the authority to investigate and prosecute any Scheduled Offence, the Bench opined that in view of the provisions contained in section 13(1) of the NIA Act, if the Scheduled Offence is investigated by the NI Agency, it must be tried only by the Special Court set up by the Central Government under section 11 of the NIA Act. Similarly, even in case where the investigation is carried out by the State Investigation Agency into a Scheduled Offence, the trial shall be held by the Special Court constituted by the State Government under section 22(1) of the NIA Act, if available; and in the absence of such Special Court constituted under section 22(1) of the NIA Act, the trial shall be held before a Court of Session under section 22(3) of the NIA Act. Relying on the Supreme Court’s decision in Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616, the Bench stated,

“So far as all offences under the UAPA are concerned, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D (2)(b) is non- existent”.

Consequently, it was held that so far “extension of time to complete investigation” was concerned, the Magistrate would not be competent to consider the request and the only competent authority to consider such request would be “the Court”, as specified in the proviso in Section 43-D(2)(b) of the UAPA. Resultantly, it was held that the Additional Sessions Judge had no jurisdiction to deal with the case at hand.

Pre-trial and Trial Proceedings

Rejecting the submission of the respondents that under section 11 of the NIA Act, the Special Courts are to be constituted for the trial of Scheduled Offences as the Special Courts so constituted are not meant for conduct of pre-trial proceedings; and since the extension of period of detention, pending completion of investigation, is squarely in the realm of investigation, the ordinary criminal Courts are not divested of the jurisdiction to deal with pre-trial proceedings, including the extension of period of detention, the Bench observed, the first proviso in section 43-D(2)(b) expressly confers the power to extend the period of detention of the accused up to 180 days upon the ‘Court’, which in turn is defined in section 2(d) as ‘a criminal court having jurisdiction to try offences’ under the said Act. Hence, the Bench clarified, the legislature has vested the authority to extend the period of detention in the Court which is competent to try the offences under UAPA. The Bench reminded,

“The exercise of the power to extend the period of detention is thus not envisaged as a matter of routine. The Court is expected to apply its mind to the necessity of further detention and extension of period of investigation. This implies that the said power shall be exercised only by the Court which is vested with special jurisdiction by the statute.”

Consequence of order passed by the Court sans Jurisdictional Competence

Having held that the Additional Sessions Judge had no jurisdiction to deal with the instant case, the next question before the Bench was whether the act of taking cognizance of the Scheduled Offences by the Additional Sessions Judge when a Special Court under S. 22 of NIA Act was in existence at Pune entailed the consequence of nullifying the whole proceeding? The Bench stated, Clause (e) of section 460 of the CrPC declares that if any Magistrate, not empowered by law, erroneously in good faith, takes cognizance under clause (a) or clause (b) of sub-section (1) of section 190, his proceedings shall not be set aside merely on the ground of his not being so empowered. In other words,

“The fact that the Additional Sessions Judge took cognizance of the Scheduled Offences, despite the existence of a Special Court at Pune, in the absence of material to demonstrate that there was resultant failure of justice, could not 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.”

Hence, the Bench held that the act of taking of cognizance, by the Additional Sessions Judge did not entail the consequence of the vitiation of the entire proceedings as, failure to take cognizance or defect in jurisdiction in taking cognizance, once the charge-sheet was laid, does not entail the consequence of default bail.

Findings of the Court

In M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485, it was held that from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency, “the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent fling of the charge sheet or a report seeking extension of time by the prosecution before the Court; or fling of the charge sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty.” The Bench observed,

“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 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.”

Accordingly, the Bench opined that once the period of detention expired and the accused manifested the intent to avail the right by making an application, no subterfuge to defeat the said indefeasible right can be countenanced. The factors like the bail application was not decided, or wrongly decided, or subsequently charge-sheet came to be fled, or a report seeking extension of period of detention came to be fled and allowed, are of no significance.

Decision

Considering the hard facts with regard to the application of Sudha Bharadwaj were: (i) that the period of detention of 90 days (excluding the period of house arrest) expired on 25-01-2019; (ii) no charge-sheet was lodged; (iii) there was no lawful order of extension of period of detention; and (iv) an application preferred by Sudha Bharadwaj for default bail awaited adjudication; the Bench opined that to deprive the applicant-Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26-11-2018 was premature, would be taking a too technical and formalistic view of the matter. Accordingly, the Bench held that all the requisite conditions to release the applicant-Sudha Bharadwaj on default bail stood fully satisfied.

However, since neither applicants 1 to 5 claimed to have fled an application for default bail under section 167(2) of the Code, after the expiry of initial period of 90 days from the date of their production before the Additional Sessions Judge till the fling of the charge-sheet nor did applicants 6 60 8 availed the right of default bail, by fling an application, within the meaning of section 167(2) of the Code; the Bench held that the those applicants failed to apply for default bail when the right accrued to them.

In the light of the above, the bail application of applicants 1 to 8 was rejected whereas the application preferred by Sudha Bharadwaj was allowed. [Sudha Bharadwaj v. National Investigation Agency, 2021 SCC OnLine Bom 4568, decided on 01-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Dr.Yug Mohit Chaudhary a/w. Ms. Payoshi Roy and Ms. Chandni Chawla for applicant in BA/2024/2021.

Mr.Anil C. Singh, ASG a/w. Mr. Sandesh Patil, Mr. Aditya Thakkar, Mr. Chintan Shah, Ms. Smita Thakur, Mr. Pranav Thakur and Mr. Vishal Gautam for respondent- NIA in APL/2024/2019.

Mr.Sudeep Pasbola a/w. Mr.Barun Kumar, Mr. Karl Rustomkhan and Ms. Susan Abraham i/b Mr. R. Sathyanarayanan for applicants in APL No.1458/2019 and IA/376/2020.

Mr.A.A. Kumbhakoni, Advocate General a/w. Smt. A.S. Pai, PP, Mrs. S.D. Shinde, APP and Mr. Akshay Shinde, “B” Panel Counsel for respondent-State.

Mr.Anil C. Singh, ASG a/w. Mr. Sandesh Patil, Mr. Aditya Thakkar, Mr. Chintan Shah and Mr. Pranav Thakur for respondent-NIA in APL/1458/2019.

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