04, Dec 2021 | CJP Team
On December 1, the Bombay High Court granted bail to lawyer-activist Sudha Bharadwaj vide a detailed order and in the same order denied bail to other eight co-accused in the Bhima Koregaon case, purely on technicality. Since the grounds raised by Bharadwaj were different from those raised by the eight others, her contention was accepted and agreeable to the bench of Justices SS Shinde and NJ Jamadar.
The bench denied bail to Rona Wilson, Surendra Gadling, Sudhir Dhawale, Dr. Shoma Sen, Mahesh Raut, Dr. Varavara Rao, Vernon Gonsalves and Arun Ferreira on the basic premise that they had failed to apply for default bail before filing of chargesheet and after expiry of 90 days detention period. Bharadwaj on the other hand had applied for bail much before and the court refused to accede to National Investigation Agency’s (NIA) contention that her bail was filed prematurely.
The FIR in this case was lodged by one Tushar Damgude on January 8, 2018 in connection with the Elgar Parishad programme held on December 31, 2017. In the course of investigation, searches were conducted and on August 28, 2018, Sudha Bharadwaj, P.Varavara Rao, Gautam Navlakha, Vernon Gonsalves and Arun Ferreira were arrested by Pune Police. On January 24, 2020 the central government handed over the investigation in the case to the NIA. On October 9, 2020, the NIA filed a chargesheet in the case under various sections of IPC as well as the Unlawful Activities (Prevention) Act (UAPA).
Bharadwaj filed an application seeking default bail while contending that the judge extending the period for investigation under section 43-D(2) of UAPA was not legally empowered to grant such extension and take cognizance of the charges against them.
Bharadwaj’s application for default bail states that K.D.Vadane, Additional Sessions Judge, Pune, who passed order on the prosecutor’s report under section 43-D(2) of the UAPA extending her detention by 90 days and took cognisance of the offences by an order dated February 21, 2019, was not competent to do so as he was not designated as a Special Judge either under section 11 or section 22 of the NIA Act.
Other accused and their plea
The other eight co-accused who have been denied bail had contended that the order passed on September 5, 2019, denying them bail is bad in law since the judge had no jurisdiction to take cognisance as a Court of original jurisdiction, since the case was not committed by the learned Magistrate. They had asserted that the UAPA does not contain any provision for the appointment of a Special Judge or for constitution of Special Courts. Thus, the assumption of the jurisdiction by the learned Additional Sessions Judges, under a misnomer of Special Judge, was wholly illegal.
NIA contended that Bharadwaj’s application is based on mis-reading of the NIA Act and UAPA, since UAPA does not contemplate any special procedure for the offences defined therein, much less creation of Special Courts, the jurisdiction of ordinary criminal courts functioning under the Code is kept intact and the procedure prescribed therein is required to be followed. It stated that since no Court was constituted by the Central Government under section 11 of the NIA Act at Pune, there was no legal impediment for the Sessions Judge to entertain the remand and authorize detention.
The questions framed by the court for consideration were as follows:
(i) Whether the extension of period for investigation and detention, by invoking the first proviso in the provisions of section 43-D(2) of the UAPA read with section 167(2) of the Code, was by a competent Court?
(ii) Whether the charge-sheet was lodged before, and the cognisance was taken by, the competent Court?
(iii) Whether the applicants are now entitled to default bail, if the answer to the aforesaid questions is in the negative?
Meaning of court under UAPA and NIA Act
The court analysed the definition of “court” under UAPA and also the provisions of “scheduled offences” under the NIA Act. The court, upon conjoint reading of section 6 and 10 of NIA Act concluded that till Agency takes up the investigation of the case, the police must continue to investigate and prosecute any Scheduled Offence and once the agency takes on the investigation, the power of the police ceases. However, the court refused to accept the argument of the NIA that the provisions contained in NIA Act come into play only when the NIA takes up the investigation.
The court, after relying upon certain judgements, observed that the special courts stipulated under NIA Act do not get jurisdiction to try the Scheduled Offences, and until the NIA takes over the investigation. The court also observed that the Criminal Courts having jurisdiction under the Code, to try the offences are competent to extend the period of detention under UAPA.
Court’s main observations
The court made the following observations:
1. Every Scheduled Offence investigated by the State Investigation Agency, shall be tried by the Special Courts set up by the State Government
2. Non-obstante clause applies to Court constituted by the State Government as it does to courts under central government.
3. Under section 22(3) of NIA Act, until a Special Court is designated by the State Government the jurisdiction conferred on a Special Court shall be exercised by the jurisdictional Court of Session.
4. Once a Special Court is constituted by the State Government under section 22(1) of the NIA Act, the trial of nay offence investigated by the State Investigation Agency under the provisions of the NIA Act, shall stand transferred to the Special Courts
5. Once such special court is set up, ‘Court’ defined under section 2(1)(d) of the UAPA now refers to the Special Court which has exclusive jurisdiction to try offences under UAPA.
6. All Scheduled Offences are to be tried exclusively by the Special Courts under the NIA Act and no restriction of offences punishable up to 7 years.
7. The Magistrate has no jurisdiction to extend the period of detention for any offence under UAPA. The only competent court is either the special court or in its absence, any Sessions Court
The court reiterated that in the absence of special court, the fall back is upon the Court of Sessions alone, and not Magistrate Court. It said:
“In this view of the matter, the submission that the Special Courts to be constituted by the State Government under section 22(1) of the NIA Act were conceived as “transferee” Court only, to take up the trial of the cases only when the investigation was transferred by the National Investigation Agency to the State Government, does not appear to be in consonance with law.”
The respondents, namely, the state and the NIA had argued that the special courts are not meant for conduct of pre-trial proceedings and only for trial. The court held that the distinction sought to be drawn between “pre-trial” and “trial” proceedings is not of much assistance here since UAPA confers the power to extend the period of detention upon the “court”. This means the legislature has vested the authority to extend the period of detention in the Court which is competent to try the offences under UAPA.
Power to extend detention
The next factum considered by the court was that since special courts were constituted in Pune under section 22 of NIA Act, whether the Sessions Court still had the power to extend detention under UAPA.
The court emphasised that power to extend the period of detention upto 180 days can be exercised only when the Court is satisfed with the report of Public Prosecutor indicating the progress of the investigation and the specific reasons for the further detention beyond 90 days. It said:
“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.”
The court said, “Had the Special Court under section 22 of the NIA Act been not constituted at Pune, totally different consideration would have come into play,” however, since there was a special court in Pune at that time, “the extension of period of detention by the Additional Sessions Judge, can only be said to be without jurisdiction.”
The court cited Fatema Bibi Ahmed Patel Vs. State of Gujarat & Anr. To hold that where the actions taken by the Court were without jurisdiction, those actions were nullities.
The court also considered the question whether the act of taking cognisance by a Judge who is not legally empowered to do so, vitiates the entire proceedings? The court at the outset held that the Code declares it to be an irregularity which does not vitiate the proceedings.
“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, cannot 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.”
Whether applicant entitled to bail
The court considered that Bharadwaj’s bail plea was filed before completion of period of 90 days of detention and of the rest of the 8 applicants was presented after the supplementary charge-sheet came to be filed. “Thus, none of the applications were presented after the expiry of initial period of 90 days and before lodging of the chargesheet,” thus the court held that the consideration of entitlement to default bail is eschewed.
However, the court refused to accede to the respondents contention that Bharadwaj’s plea was pre mature and, thus, could not form the basis of accrual of right of default bail; even if time period of house arrest was not to be considered as period of detention.
Right to default bail
The court noted 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. It said:
“By a catena of decisions, it has been held that the right of the accused to be released on bail, if the investigation is not completed and charge-sheet is not fled within the period prescribed under section 167 of the Code and as extended by special enactments, is indefeasible and also partakes the character of fundamental right flowing from ‘the procedure established by law’ under Article 21 of the Constitution of India.”
The court firmly observed thus,
“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.”
The court reiterated that the Sessions Judge in Bharadwaj’s case had no jurisdictional competence to extend the period of detention under section 43-D(2)(b) of UAPA. It said:
As the period of detention was extended by the learned Additional Sessions Judge by 90 days, the applicant- Sudha Bharadwaj could not have applied for default bail after 25th January 2019 till the fling of the charge-sheet. Therefore, it cannot be urged that the applicant-Sudha Bharadwaj did not make an application during the said period and thus she did not avail the right of default bail.
The court thus held that her filing of bail in November 2018 cannot be deemed to be ‘pre mature’ as that would be like taking a very technical and formalistic view. “In our view, all the requisite conditions to release the applicant-Sudha Bharadwaj on default bail stood fully satisfied,” said the court.
Why the rest were denied bail
In respect of the rest of the applicants, the court observed that they had not filed application for default bail before filing of chargesheet and after expiry of 90 days detention. But another contention raised by them was that they were detained beyond the period of 180 days without the cognisance of the offences having been taken by the competent Court. They contended that the Sessions judge could not have taken cognisance without the case having been committed by the learned Magistrate.
The court however held that where the accused fails to apply for default bail, when the right accrues to him and subsequently a charge-sheet is filed before the Magistrate, the right to default bail would get extinguished as it cannot be said that the accused ‘availed of’ his right to be released on default bail. It said:
“Resultantly, a crucial condition of ‘availing of’ the right so as to cement it as an indefeasible right, has not been fulfilled and the right stood extinguished by the fling of the charge-sheet on 21st February 2019. 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.”
The court thus granted bail to Bharadwaj, and directed that she be produced before Special NIA Court, Mumbai on December 8 so it can pass order to release her on certain terms and conditions.
The complete judgement may be read here: