Case BriefsHigh Courts

   

Bombay High Court: While granting bail to the Bhima Koregaon accused, Dr. Anand Teltumbde, the Division Bench comprising Milind N. Jadhav, A.S. Gadkari, JJ., held that NIA could not establish reasonable grounds for the Court to believe that the allegations and accusations against the accused are prima facie true. The Court observed,

“There is no material save and except calling upon us to presume that the word ‘brother Anand’ is a reference to the appellant and as such he is directly involved with the activities of CPI(M).”

The appellant, Dr. Anand Teltumbde was arraigned as accused No.10 in an FIR registered by National Investigation Agency (NIA) under Sections 120-B, 115, 121, 121-A, 124-A, 153, 201, 505(1)(b) and 34 of the Penal Code, 1860 (IPC) and under Sections 13, 16, 17, 18, 18-B, 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 (UAPA) regarding Bhima Koregaon incident.

Pertinently, the appellant is a renowned scholar, writer, and civil rights activist who has authored 26 books published nationally and internationally and pioneered a theoretical critique on Neoliberal Globalization vis-a-vis Dalits and other oppressed masses. At the time of his arrest, he was working at the Goa Institute of Management, as a Senior Professor.

What Happened in Bhima Koregaon?

On 31-12-2017, Bhima Koregaon Shaurya Din Prerana Abhiyan organised an event called ‘Elgaar Parishad’ in Shaniwarwada, Pune to celebrate 200th anniversary of the historic battle of Bhima Koregaon on 01-01-2018. More than 200- 250 Social organisations joined the program. During the event, mobs bearing saffron flags attacked persons travelling to and returning from Shaniwarwada Pune which resulted in large-scale violence including arson, stone pelting and it even caused death of an innocent person near Bhima Koregaon, Pune.

Allegations against the Accused

NIA alleged that the appellant is the think tank of the banned activities of the Communist Party of India (Maoist), hereinafter CPI(M), and is intellectually and ideologically connected with CPI(M). A gist of specific charges against the appellant are as follows:

a. In 2012, the appellant had attended a meet organised by Revolutionary Democratic Front (RDF), a banned organisation, and vehemently espoused the cause of reinvention of Dalit Militancy as well revolutionary resurgence under the flag of CPI(M);

b. The appellant was the General Secretary of the Committee for Protection of Democratic Rights (CPDR) and a member of Anuradha Ghandy Memorial Committee, both front organisations of CPI(M);

c. He was one of the convenors of Elgar Parishad Program and was present at the venue;

d. He attended International Conferences under the guise of academic visits to Canada, Pakistan, USA, France etc. That he used to exchange literature on ideology, training, and work strategy of CPI(M) with International Communist Organisations.

e. That he is the real elder brother of wanted accused Milind Teltumbde, CCM and Secretary of Maharashtra – Madhya Pradesh – Chhattisgarh (MMC) Zone of CPI(M). That he met his brother during his urban area visits and shared literature of Maoist ideology collected by him during International Conferences;

f. He took efforts to release one Murugan, a CPI(M) cadre from jail as well as for release of G.N. Saibaba, another convicted accused in a CPI(M) related case.

Analysis of Evidence

NIA had provided five documents and three witnesses to buttress the charges levelled against the appellant. The Court has examined each document meticulously to reach the following findings:

1st document: This letter states that the Central Committee (CC) is pleased with the progress that (Comrade Anand) has made on the Dalit campaign and it has agreed to allocate him additional funds (10L yearly) to organise International Seminars and lectures on Dalit issues. That CC has sent funds for (Comrade Anand’s) upcoming Human Rights convention in Paris while calling upon coordination with friends in America and France and reiterates to keep the fire ablaze. NIA contended that the term ‘dear Comrade Anand’ has been used for the appellant which establishes that he is an active member of CPI(M). NIA further pressed that so far as Appellant’s visit to Paris and Budapest on 09-04-2018 is concerned, he was on leave, and expenses were not incurred by the Institute and hence it is to be deduced that the expenses were borne by CPI(M).

Opinion of the Court: After reading of aforesaid letter along with the letter dated 10-08-2020 issued by the Goa Institute of Management, the Court opined that prima facie, the appellant had travelled extensively from 11-07-2016 to 05-03-2020 while on leave and being out of office on his own expenses on at least 64 occasions. Submission of NIA that contents of 1st document prima facie invoke provisions of Section 15 of the UAP Act is not acceptable and palatable when the letter is read as it is unless there is any other material to corroborate and support such a theory. The Court noted that,

“It is seen that appellant is a man of intellectual prominence in the field of Dalit ideology/movement and merely because he is the elder brother of wanted accused Milind Teltumbde who had gone underground 30 years ago to espouse the cause of CPI(M) cannot be a sole ground to indict the Appellant and link him to the activities of CPI(M).”

2nd document: The second letter is addressed by Comrade M to Comrade Surendra, which refers to ‘Comrade Anand’. The letter which is typed on the letterhead of CPI(M), Central Committee, states that ‘Comrade Anand’ has made a few good suggestions.

Opinion of the Court: There is nothing more in the letter to suggest complicity of the appellant, provided taken at the highest that the word ‘Comrade Anand’ refers to him, which is vehemently denied by the appellant. Hence, the Court held on reading the letter prima facie it cannot be presumed that the appellant is actively involved in the work of the CIP(M).

3rd document: The letter relating to fact-finding team to gauge the truth about fake encounters in Gadchiroli which is addressed by one ‘R’ to ‘Comrade Prakash’, states that “Anand has agreed to co-ordinate the whole thing”. According to NIA “Anand” denotes the involvement of the appellant which squarely falls within the provisions of Section 15 of the UPA Act.

Opinion of the Court: Prima facie reading of the letter does not establish any case against the appellant unless there is other material to show his nexus to the alleged activity.

4th document: The name ‘Anand’ appears in the letter addressed by ‘Comrade M’ to ‘Comrade Rona’ also. The relevant portion reads thus: “.……. please speak with brother Anand, inform him to send reports through Comrade Manoj………” NIA emphasized that ‘brother Anand’ appearing in this letter addressed by ‘Comrade M’ (Milind Teltumbde, the wanted accused and younger brother of Appellant) clearly drives home the point that it is none other than Appellant.

Opinion of the Court: The Court opined that prima facie, reading of the letter, does not indicate any role of the appellant, especially when the letter has not been recovered and seized from him. The Court observed that even assuming at the highest that reference in this letter i.e., ‘brother Anand’ is to the appellant himself, the prosecution still has to show the nexus and link of the appellant with the present crime or any specific overt act. The Court expressed,

This letter refers to names of 17 persons in all, including “brother Anand”. Some names are also with their phone numbers. Not all of these 17 persons have been indicted in the present crime. If NIA’s argument is to be accepted, then the statement/sentence referring to some of the said names appears to be more serious.”

5th document: The last document referred to and relied upon by NIA is an “account statement” which bears the heading—”Accounts2k17 PARTY FUND RECEIVED IN LAST YEAR FROM C.C.” NIA has particularly emphasised on “Anand T. === R === 90 T from Surendra (Though Milind)” part of the document. According to NIA the name Anand T. is a reference to the appellant having received Rs.90,000 from Surendra (Surendra Gadling, Accused No.3) through Milind (wanted accused and younger brother of Appellant).

Opinion of the Court: Noting the fallacy in the argument of NIA, the Court expressed that if Anand T. is the appellant himself and he received Rs.90,000, even in that case it cannot be linked to the statement in the earlier letter dated 02-01-2018 since the account statement pertains to the year 2016 and or 2017. Further, the document is unsigned and has been recovered from the laptop of one of the co-accused. Hence, at this prima facie stage, the Court cannot presume that the appellant received Rs.90,000.

Additionally, the Court observed that one such seized document which contained the list of Central Committee Members of CPI(M) group along with their details and photographs for the year 2017, suggests that the appellant is not a member of this C.C. However, at Serial No.4 one Katkam Sudarshan @ Anand @ Mahesh @ Bhaskar appears as Central Committee and Polit Bureau Member of CPI(M). Hence, the Court opined that the reference to the name ‘Anand’ can also be to this member as argued by Appellant; and prima facie, such a probability cannot be ruled out, unless there is material shown to the contrary.

Findings and Conclusion

After appreciating the material on record as well as the statements of three key witness against the appellant, the Court held that prima facie, the prosecution was unable to establish that provisions of Sections 16 and 18 can be invoked at this stage against the appellant. Hence, the Court held that on reading the chargesheet and other material on record, prima facie, it could not be inferred that the appellant has involved himself in a ‘terrorist act’. Additionally, the Court remarked,

“In the present case the offence and crime related to the Bhima Koregaon incident resulted in the death of one person. On reading the draft charges and the chargesheet qua the Appellant, we prima facie find that NIA has not investigated or made any investigation in respect of this aspect. However, it is their case that the banned terrorist organization CPI(M) used the Elgar Parishad.”

Further, considering that the appellant has no criminal antecedents, and he has been behind bars for more than two years and half, the Court opined that a case for grant of bail has been made out. Hence, the impugned order of the Special Judge, Greater Bombay dismissing the bail application of the appellant has been set aside and the appellant was directed to be released on bail on the following conditions:

a. The appellant to execute a PR bond of Rs.1,00,000 with one or more solvent local sureties in the like amount.

b. He shall not tamper with the evidence of prosecution nor influence the prosecution witnesses;

c. He shall furnish his contact numbers, both mobile and landline, and permanent residential address, before his actual release from jail, to the Investigating Officer and the Special Court before which his case is pending;

d. He shall attend the concerned police station where he resides, initially for a period of one year, once in a fortnight i.e., on every 1st and 16th of each English Calendar month and thereafter on every first Monday of the month between 10:00 a.m. to 12:00 noon the till the conclusion of trial;

e. He shall not leave the jurisdiction of the State of Maharashtra and if he desires to travel within India, he shall seek prior leave and permission of the Trial Court;

f. He shall deposit his passport held by him before his actual release from jail, with the designated Special Court.

Pertinently, on the request of the prosecution to stay the operation and implementation of this order to enable NIA to challenge it before the Supreme Court, the Court had directed that the order granting bail to the appellant will remain stayed for a period of one week.

[Anand Teltumbde v. National Investigation Agency, 2022 SCC OnLine Bom 5174, decided on 18-11-2022]


Advocates who appeared in this case :

Mr. Mihir Desai, Senior Advocate i/by Ms. Devyani Kulkarni for Appellant;

Mr. Sandesh Patil a/w. Mr. Chintan Shah, Mr. Shrikant Sonakawade and Mr. Prithviraj Gole;

Advocate for Respondent No.1 – NIA;

Ms. J.S. Lohakare, APP for Respondent No.2 – State;

Mr. Pradip Bhale, Dy. S.P. NIA present;


*Kamini Sharma, Editorial Assistant has put this report together.

medical grounds
Case BriefsSupreme Court

Supreme Court: Adopting a humanitarian approach, the 3-judges Bench comprising Uday Umesh Lalit, Aniruddha Bose, and Sudhanshu Dhulia, JJ., had granted permanent bail to Bhima Koregaon accused, Dr. P. Varavara Rao solely on medical grounds.

The appellant, Dr. P. Varavara Rao, presently 82 years of age, was kept in house arrest on 28-08-2018, whereafter he was taken into regular custody on 17-11-2018 in connection with Bhima Koregaon violence.

What Happened in Bhima Koregaon?

On January 1, 1818, a Dalit-dominated British Army defeated a Peshwa army, led by Peshwa Bajirao II, in Koregaon. The battle attained a legendary stature for Dalits, who consider the win as a victory of the Dalits against the injustices perpetuated by the Peshwas.

2018 marked the 200th year of battle and hence there was a larger gathering at Bhima Koregaon. During the celebrations there were violent clashes between Dalit and Maratha groups, resulting in the death of at least one person and injuries to several others.

Tensions had started simmering on December 29, 2017, the day Govind Gopal Mahar’s memorial was found desecrated. The incident found mention in the Elgar Parishad, a big public conference organised by Dalit and Bahujan groups on December 31, 2017. Police had alleged that inflammatory speeches were made in the event and that led to the violence the next day.1

Earlier Bail Orders

Earlier, by the order in P. Varavara Rao v. National Investigation Agency (Cr. A. No.52 of 2021), dated 22-02-2021, the Bombay High Court had released the appellant on bail for a period of six months on the medical condition. However, liberty was granted to apply for extension depending upon his health condition supported by medical reports. Subsequently, the appellant had preferred Interim Application No.2018 of 2021 seeking an extension of the facility of bail granted earlier on the medical condition.

By the impugned order in P. Varavara Rao v. National Investigation Agency (W.P. No. 461 of 2022), dated 13-04-2022, the Bombay High Court had extended the period only for three months on the same terms and conditions as were set out in the earlier order. That extended period came to an end on or about 12-07-2022.

Meanwhile, the appellant preferred the instant special leave to appeal on 20-06-2022, wherein the Supreme Court had, by an ad-interim order, extended the period of bail which continued on the date of instant order.

Medical Complications

The Court noted the observations made by the Bombay High Court on its order dated 22-02-2021, wherein the certain medical condition of the appellant were culled out in paragraph 72 of the order:

  • “The undertrial is aged 82 years and he suffers from pre-existing health ailments i.e. piles, prostate enlargement, coronary artery disease, Oedema/Ansarca (swelling of feet), Hypertension, Sinusitis, Migraine and Vertigo.

  • The medical papers pertaining to the stay of the undertrial in the J.J. Hospital in July 2020 show that he had to be admitted due to deterioration of health, electrolyte imbalance as a result which he was showing signs of delirium. He was bleeding from rectum and he had Urinary Tract Infection (UTI) causing urinary inconvenience and loss of control of urination.

  • The undertrial suffered a fall from bed due to which he suffered a cut on his forehead, which had to be stitched/sutured. He had difficulty in walking and he was disoriented.

  • The undertrial was found to be Covid-19 positive due to which he was shifted to the St. George’s Hospital, wherein it was recorded that the undertrial was suffering from delirium and perhaps dementia, requiring treatment for electrolyte imbalance and other ailments noted above.

  • The medical reports between 19-07-2020 and 27-08-2020 consistently showed that he was talking in an irrelevant manner and was showing signs of delirium and suffering from tremors.

  • That there were only three Ayurvedic Practitioners in the Taloja Central Prison Hospital with no nursing staff and that the undertrial prisoners were being asked to perform the task of attendants in respect of ailing inmates like the undertrial before this Court.

  • That due to UTI, the catheter had to be used which was not removed for about three months, leading to complications.”

The Court further recorded that medical data revealed that the appellant is suffering from brain atrophy, age-related cerebral cortical atrophy along with hypertension with BPH with recurrent hyponatremia, and recurrent urinary tract infection.

Rival Contentions of the Parties

Mr. Anand Grover, Senior Advocate for the appellant submitted that considering the age of the appellant and the ailments he suffered from; and the fact that his condition had not improved but had deteriorated to a certain extent, the condition regarding surrender be deleted and permanent bail be granted to the appellant. He further contended that the release of the appellant on bail ought not to be limited in point of time but may be granted permanently without fixing any such condition.

Contesting the permanent grant of bail, the National Investigation Agency submitted that the material on record showed the involvement of the appellant in a deep-rooted conspiracy and as such, going by the letter and spirit of Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967 the appellant should not be entitled to the relief of bail.

Relying on Union of India v. K.A. Najeeb, (2021) 3 SCC 713, the counsel for the appellant contended that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.

Observations and Directions

Considering the aforesaid, the Court culled out the following factual aspects:

  • “The appellant is 82 years of age.

  • He was taken in custody initially on 28-08-2018 and has actually spent 2½ years of custody, leaving aside the period for which benefit of bail was granted pursuant to the order dated 22.02.2021.

  • Though the charge-sheet has been filed, some of the accused are still not apprehended and the matter has not even been taken up for consideration whether the charges need to be framed against the accused who are presently before the Trial Court or not.

  • Various applications preferred by the accused seeking discharge are still pending consideration.

  • The medical condition of the appellant has not improved to such an extent, over a period of time, that the facility of bail which was granted earlier be withdrawn.”

Hence, the Court held that the appellant was entitled to the relief of permanent bail on medical grounds. Therefore, the Court granted bail to the appellant by deleting the condition placed in the Order dated 22-02-2021 limiting the relief in terms of time. The Bail is subject to the following conditions:

  • The appellant shall not leave the area of Greater Mumbai without express permission from the Trial Court.

  • The appellant shall not in any way misuse his liberty nor shall he get in touch with any of the witnesses or try to influence the course the of investigation.

  • Any infraction of the conditions shall entail in cancellation of bail granted to the appellant.

  • The appellant shall be entitled to have the medical attention of his choice but shall keep the respondent authorities in touch with any such development including the medical attention received by him.

  • It is made clear that the benefit of bail is extended to the appellant only on his medical condition.

Lastly, the Court directed the appellant to approach the Trial Court within seven days with advance intimation to the Public Prosecutor. On such representation, the Trial Court was asked to release of the appellant on permanent bail, on medical grounds, subject to such conditions as the Trial Court may deem appropriate to impose.

[P. Varavara Rao v. National Investigation Agency, 2022 SCC OnLine SC 1004, decided on 10-08-2022]


Advocates who appeared in this case :

Anand Grover, Senior Advocate, for the Appellant;

S.V. Raju, Additional Solicitor General, Advocate, for the Respondents.


*Kamini Sharma, Editorial Assistant has put this report together.


1. https://www.business-standard.com/about/what-is-bhima-koregaon-case

Case BriefsHigh Courts

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.

Hot Off The PressNews

Supreme Court: The Court has extended the interim protection from arrest to activist Gautam Navlakha by four more weeks in Bhima Koregaon case. The two-judge bench headed by Justice Arun Mishra allowed him to approach trial court for pre-arrest bail. Navlakha has to apply for pre-arrest bail in the meantime. The lawyer appearing for Maharashtra government, however, objected to granting of any interim protection from arrest to Navlakha.

The Court had, on October 4, extended the interim protection from arrest to Gautam Navlakha till October 15 in the matter.
Chief Justice Ranjan Gogoi, Justice S Ravindra Bhat and a bench of Justices NVmRamana, R Subhash Reddy, and BR Gavai had earlier recused themselves from hearing Navlakha’s plea seeking quashing of an FIR registered against him in the case.

Navlakha was booked under provisions of the Unlawful Activities (Prevention) Act (UAPA) and various sections of the Indian Penal Code (IPC), including waging a war and sedition. He is accused of having links with banned Naxal  groups.

By its recent judgment, the Bombay High Court had arrived at the prima facie conclusion that there is sufficient material for the investigation to continue against Navlakha. The High Court had, however, said that the observations made in its order are only prima facie in nature and that they should not influence the trial court’s decision in the matter.

The High Court had also extended the interim protection from arrest given to Navlakha giving time to him to approach the Supreme Court.
The Maharashtra government has also filed a caveat petition in the matter seeking to be heard before any orders are passed by the apex court.

(Source: ANI)

Case BriefsHigh Courts

Bombay High Court: The Division Bench comprising of Ranjit More and Bharati H. Dangre, JJ. addressed a petition filed by Gautam Navlakha an accused in the Bhima – Koregaon Case, in order to quash the proceedings of FIR registered on 08-01-2018 qua him.

Sequence of events

The FIR was registered pertaining to a complaint, initially, for the offence punishable under Sections 153 A, 505(l) (b), 117 read with Section 34 of Penal Code, 1860. FIR proceeds on the lines that fist informant came to know through social networking sites that there is a programme at Shaniwarwada organised by Elgar Parishad and he attended the same.

Further, he stated that some of the performers at the programme enacted shot-plays, dances and songs which were provocative in nature and had the effect of creating communal disharmony. Few objectionable books and other literature were kept at the venue for sale. In the FIR it was also alleged that the banned organisation CO (Maoist) was inciting violence.

Adding to the stated, the allegation that members of Kabir-Kala Manch spread hatred through their songs, plays and speeches causing enmity between different communities and as a result thereof, there were incidents of violence, arson and stone pelting near Bhima – Koregaon causing loss of lives and public money.

January 1st 2018 – Events occurring at Bhima – Koregaon had wide repercussions throughout the State of Maharashtra, law and order was affected. The investigation revealed that there was deep-rooted conspiracy to create communal disharmony and accordingly Section 120-B was added.

May 17th 2018 – Provisions of Unlawful Activities (Prevention) Act, 1967 were invoked. Sections 13, 16, 17, 18, 18 B, 20, 38, 39 and 40 of the said Act were added to the subject FIR.

August 28th 2018 – Petitioner along with four others came to be arrested from their houses in Delhi and was immediately taken to the Court of CJM, Delhi, who granted two days transit remand to Pune police. On the very same day, a habeas corpus petition was filed on behalf of the petitioner in the Delhi High Court and the Court directed that the petitioner will not be moved from Delhi till further orders. In the evening of the same day, Delhi High Court stayed the mentioned order and directed the house arrest.

August 29th 2018 – Five academicians filed a PIL in the Supreme Court praying for Court-monitored SIT. Supreme Court extended the interim protection granted to the petitioner by Delhi High Court from 28-08-2018.

September 28th 2018 – Supreme Court by majority of 2:1 declined to order a Court-monitored investigation but extended the house arrest.

October 1st 2018 – Delhi High Court quashed the petitioner’s arrest and ordered his release from the house arrest. In pursuance to the liberty granted by the Supreme Court to the petitioner, the present petition is filed. Petition was finally heard on 26-07-2019 and the order was reserved.

Background of the facts

Petitioner claims to be the human right activist for decades and his outspoken views on political issues are claimed to be well within the constitutional guarantee of free speech. He was called upon by the State to assist in securing the release of officials abducted by left-wing extremists in 2011. Petitioner adds that he has been an open critic of left-wing extremist violence.

Contentions

Counsel for the petitioner, Dr Choudhary submitted that the FIR does not disclose any offence under the provisions of UAPA Act. Petitioner had nothing to do with either Elgar Parishad or the organisation of the event as mentioned above, either as the member of the said Parishad or as a participant in the event. Neither the petitioner was present nor involved in the violence of Bhima-Koregaon, therefore, subject FIR is manifestly unjust and is liable to be quashed.

References in the computer of a third party are being used against the petitioner, which is not legally permissible. Mere references by name is insufficient for adding someone in the FIR. Counsel also added to his submissions that even if the allegations made in the FIR are taken at face value, they do not make out a case against the petitioner and therefore the subject FIR deserves to be quashed qua the petitioner.

Learned APP, Mrs Pai submitted that the petitioner is found to be working and is an active member of a banned terrorist organisation, namely, Communist Party of India (Moist). Petitioner was also found providing strategic inputs in furtherance of the objective of armed rebellion as per the strategic document of the banned terrorist organisation.

Conclusion

The High Court on perusal of the material filed, contentions, facts and the documents recovered from the electronic devices of the petitioner and others relied upon by the prosecution as disclosed in the charge-sheet, are satisfied that the investigating agency has material to connect the petitioner in the subject crime.

Court stated that in respect to the nature and magnitude of the conspiracy, the investigating agency is required to be given sufficient time to unearth the evidence against the petitioner, especially when the scope of investigation is not restricted to Bhima-Koregaon incident but activities leading to the incident and subsequent activities as well are the subject matter of investigation.

Therefore, the present petition in view of the above is without any merit and the same is accordingly dismissed. [Gautam P. Navlakha v. State of Maharashtra, 2019 SCC OnLine Bom 1866, decided on 13-09-2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and Sanjay Kishan Kaul, JJ has set aside the Bombay High Court decision refusing the Maharashtra Police a ninety-day extension to file the charge-sheet under the Unlawful Activities Prevention Act, 1967 against the human rights activists in Bhima Koregaon violence case.

Background of the case:

The activists Surendra Gadling, Mahesh Raut, Rona Wilson, Professor Shoma Sen and Sudhir Dhawale were arrested after an FIR was lodged alleging that members of the ‘Kabir Kala Manch’, under the head ‘Bhima Koregaon Shouryadin Prerna Abhiyan’, held a meeting of the Elgar Parishad, where active members of CPI (Maoist) supposedly raised inflammatory slogans and engaged in certain other allied activities, with the intention to conspire, incite and abet the commission of terrorist acts and other unlawful activities by using violent means, thus, promoting enmity between different groups, which ultimately culminated 2 in the break-out of violent riots on 1.1.2018, at a place popularly known as Bhima Koregaon, where a large population of people was said to have gathered to celebrate the 200th anniversary of the battle at Bhima Koregaon.

Alleged non-compliance of the proviso to Section 43D(2)(b) of the Unlawful Activities Prevention Act, 1967:

On the question that whether the necessary ingredients of the proviso to Section 43D(2)(b) of the said Act were set out in the application for extension of a period of 90 days, for further investigation and filing of charge-sheet in the said crime, the Court explained that there are certain requirements that need to be fulfilled, for its proper application of the proviso to Section 43D(2)(b). These are as under:

  1. It has not been possible to complete the investigation within the period of 90 days.
  2. A report to be submitted by the Public Prosecutor.
  3. Said report indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 90 days.
  4. Satisfaction of the Court in respect of the report of the Public Prosecutor.

After perusing the material placed before it, the Court said that it cannot accept the argument that the material set out in the document does not meet with the requirements of the proviso, insofar as the reasons for seeking extension for the period of investigation are concerned. It, however, said that there is no doubt that the report/application of the public prosecutor, setting out the reasons for extension of 90 days of custody to complete investigation leaves something to be desired.

It was, however, noticed:

“The first document, purporting to be the application of the IO, contains the reasons for such extended period of investigation but the second document details out the grounds in extenso and cannot be said to be only a mere reproduction of what is stated in the first document. It cannot, thus, be said that there has been complete absence of application of mind by the public prosecutor. Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind.”

Ruling:

The Court, hence, set aside the Bombay High Court order and held that the respondents would not be entitled to the benefit of default bail. The Court, however, clarified that since charge-sheet has been filed, the observations made in the present order wouldn’t affect the right of accused to seek regular bail.

[State of Maharashtra v. Surendra Pundlik Gadling, 2019 SCC OnLine SC 188, decided on 13.02.2019]