19, Oct 2019 | CJP Team
The Bombay High Court, on October 15, 2019 rejected the bail pleas of all three activists who have been held accused of “links with banned Maoist organisations” in the Bhima-Koregaon case. The Bail Applications were decided upon by Justice Sarang V. Kotwal and the verdict pronounced on October 15, 2019. We break down the orders, the reasoning behind the court’s decision and examine what lies ahead.
Background of the complaint
The informant had stated in his FIR that the performances of the Kabir Kala Manch at the Elgar Parishad were provocative in nature and had the effect of spreading communal disharmony. It is their case that not only were provocative speeches were delivered but a few objectionable and provocative books were kept for sale at the venue. It was this, according to the prosecution that resulted in the incidents of violence at Bhima Koregaon.[i] A special judge in Pune had rejected the bail applications of all three in a common order dated October 26, 2018 after which bail applications were submitted before the Bombay High Court.
Before their bail please were rejected by the Pune Special Court, a writ petition filed by Romila Thaper and others was also dismissed by the Supreme Court vide its judgement dated September 28, 2019 stating thus, “Upon perusal of the said material, we are of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of the banned organisation and its activities. This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor is it possible to enquire into whether the same is genuine or fabricated.”
Among the long list of allegations made by the Investigating agency in its charge sheet, a crucial one related to the fact that, in the prosecution’s view, the three accused (Ferreira, Bharadwaj and Gonsalves) had been enrolled as members for the banned organization CPI (Maoist); that an organization known as Indian Association of Peoples Lawyers (for short, ‘IAPL’) was a frontal organization of CPI(Maoist) and that these three accused were working through this frontal organization to accomplish the objects of the banned organization CPI (Maoist).
The sections invoked by the investigating agency against the three activists include charges from the IPC (Indian Penal Code) relating to waging war against the Government of India (s.121);conspiring (s.121A)to wage war against the government, sedition (124A), promoting enmity(153A), performing acts prejudicial to harmony(s.153A), making statements conducing to public mischief (s.505(1)(b)), abetting commission of offence(s) by more than 10 persons (s.117) and criminal conspiracy (s.120B).
Moreover, sections of the draconian UAPA have also been invoked to colour the case as being one that threatens national security and constituting terrorist activities. The sections of the UAPA pertaining to unlawful activities, terrorist acts, raising funds for terrorist acts, conspiracy, recruiting persons for and being member of terrorist organization, providing support to and funding terrorist organizations have been invoked by the prosecution.
The UAPA (with its 2008 amendments) in its entirety was and is a law that signals a death knell to human rights, giving unbridled powers to the government and its agencies, the chances of misuse are aplenty and one such misuse already seems to be in play; whereby social activists with years of good humanitarian work are being touted as being involved in all possible ways in “terrorist activities”. Bail under this law is hardly ever given by the courts as the prosecution heavily loads arguments towards the “protection of national security.” Worse, investigations prolong endlessly making freedom for those incarcerated even more difficult to obtain.
Submissions of counsel for Arun Ferreira
Among the crucial submissions made by the counsel for activist turned lawyer, Arun Ferreira were, that there is no material to show that applicant was part of the larger conspiracy, he was not present at the Elgar parishad and neither is there anything that shows his connection with the Parishad. None of the documents relied upon by the prosecution were admissible as evidence; the letters which were given as evidence were vague, whereby the identities of the sender, writer and recipient could not be established. Hence, there is nothing to show that the applicant actually recruited any members for the banned organization. Though the name “Arun” is mentioned in letters and it does not necessarily mean that the reference is being made to Arun Ferreira. It was also argued that the sections and charges invoked against the applicant under the UAPA (Unlawful Activities (Prevention) Act) are not applicable to him as he has not engaged in any terrorist activity.
The counsel also submitted that the books recovered from the applicant do not constitute banned literature and hence cannot be held to be incriminating evidence and the applicant’s academic interest in the field does not conclude that he is an active member of any banned organization. The counsel also submitted that the only basis for implicating the applicant was because, being an advocate, he was giving legal assistance to another accused in this case, Surendra Gadling.
The counsel for the applicant submitted that the statements of the witnesses are not corroborated by any other evidence. They are unreliable and they have nothing to show that the applicant was involved in creating any war-like situation.
Submissions of the counsel for Sudha Bharadwaj
Advocate, Sudha Bharadwaj’s ounsel made some very pertinent submissions before the Court. It was submitted that the entire evidence against the applicant consists of letters and documents recovered from some other accused and that nothing objectionable was recovered from her possession. There are also no statements of witnesses recorded that reveal material or allegations against her. It was further submitted that the documents submitted as evidence were inadmissible as both primary and secondary evidence as the requirements under the Indian Evidence Act were not fulfilled. The documents recovered were not originals and cannot even be termed as an electronic record as envisaged under Section 65-B of the Evidence Act since documents are not generated in the devices from where they were recovered. It was also submitted that the letters do not bear any signature; the authorship cannot be established and hence are unreliable documents which cannot be considered even at such a preliminary stage.
The counsel also relied upon the judgement, Dipakbhai Jagdishchandra Patel Vs. State of Gujarat and another which, inter alia stated that any ‘strong suspicion’ must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The counsel also cited a case where the Supreme Court had left out a document from consideration as it did not bear any date and was unsigned. Few other cases were relied upon to show that if authorship of the document could not be established it was deemed inadmissible as evidence.
Submissions on behalf of Vernon Gonsalves
The counsel for the applicant, Vernon, submitted that the documents relied upon were not found with the applicant, neither were they addressed to him or written by him and they contained vague references of the name “Vernon” which do not necessarily refer to the applicant. None of the articles seized from the applicant’s home was found to be incriminating in any way. The counsel also pointed out that the applicant was “shown as an accused in eighteen cases, out of which in sixteen cases he is either acquitted or discharged, which shows that the investigating agency is holding grudge against him and is targeting him.”
The counsel, among many other cases, relied upon a judgment of the Gujarat High Court, Vishvanath @ Vishnu Vardhrajan Aaiyar Vs. State of Gujarat wherein it was observed that seizure of incriminating material by itself in absence of any contact or connection with banned terrorist outfit cannot be said to be an activity prohibited by any law. It was further observed that possession of such material without there being any overt act or actual execution of such ideas by itself would not form or constitute any offence. Another case, decided by the Bombay High Court, was relied upon, Ms. Jyoti Babasaheb Chorge Vs. State of Maharashtra in which reference was made to another case of Gujarat High Court wherein said High Court in dealing with a case under the UAPA in which the applicants’ involvement in Naxal movement was alleged, held thus,
“Certain documents such as agenda of a meeting, in which one of the items was to pay homage to a dead Naxalvadi who was killed in encounter and some literature about revolution and lessons of Communist Party of India (Maoists / Leninists) containing, inter alia, features of Guerrilla Warfare etc.was seized from the applicants. While releasing the applicants on bail, the High court observed that the seizure of the so called incriminating material, by itself, cannot show participation in an activity prohibited by law. It was held that mere possession of such literature, without actual execution of the ideas contained therein, would not amount to any offence.”
The Counsel, further relied upon a judgment emphasizing on the applicant’s freedom of speech, in Shreya Singhal Vs. Union of India, which held thus,
“13…Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, etc. …..”
An inference has been with respect to an unaddressed letter which makes mention of “radical Student Union Initiative” and this has been connected, by the prosecution , and the Court is satisfied, with literature concerning “Radical Study Circle” which was discovered at the applicant’s home.
Submissions of the prosecution
The prosecution submitted and spoke at length about a document of the banned organization which was found in the pen drive of another accused, Mr. Rao and its contents. The prosecution made a connection of all the contents of the said document with the applicant which seems more like a conjecture, than anything.
Decision of the High Court
The Bombay High Court, it made its decision basis the guidelines laid down by a judgement of the Supreme Court, National Investigation Agency Vs. Zahoor Ahmad Shah Watali in which the following principles were laid down:
- whether there was any prima facie or reasonable ground to believe that the accused had committed the offence;
- nature and gravity of the charge;
- severity of the possible punishment in the event of conviction;
- danger of the accused not being available for trial;
- character, behaviour, means, position and standing of the accused;
- likelihood of repetition of the offence;
- possibility of tampering with the evidence; and
- possibility of justice being thwarted by grant of bail.
The Court has quoted elaborately from several parts of the Zahoor Watali judgment, within which few other judgements have also been relied upon by the Supreme Court as well. Since some pertinent points have been made in each of these judgements, those portions and paras are being reproduced here for clarity.
- National Investigation Agency Vs. Zahoor Ahmad Shah Watali
“23…There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is “not guilty” of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is ” prima facie ” true. By its very nature, the expression ” prima facie true ” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence.”
“24. A priori, the exercise to be undertaken by the Court at this stage – of giving reasons for grant or non-grant of bail – is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.”
“26. …the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true.”
“27. …the totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.”
- Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra (for scope of power of the Court to grant bail)
“38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence….The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea.”
“44. ….Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.”
“45….although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.”
“46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities….”
- Kalyan Chandra Sarkar v. Rajesh Ranjan
“18….8. …At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken.”
The Court concluded that it would analyse the evidence in totality however, analysed each document submitted by the prosecution since arguments were advanced in respect of the documents.
Arun Ferreira (Cri. B.A. 3006/18)
The documents (in evidence) were not recovered from the applicant’s home and the counsel for the applicant repeatedly questioned the veracity of such documents and the corroboration of the same and how none of this can be connected with the Elgar Parishad, which is the core of the complaint on which this case is based. The documents thus analysed were just letters sent by certain persons, none of the letters were addressed to the applicant and most of them only mentioned “Arun” in some places. On the basis of these letters, the Court reached a concrete conclusion that “the applicant was involved in recruiting cadres”.
The Court also refused to take into account the applicant’s “achievements in the field of legal profession and social activities and his continued detention in jail for a long period.”
The bail order may be read here:
Vernon Gonsalves (Cri. B.A. 3007/18)
The Court held that there is prima facie case that the applicant was involved in recruiting cadres for the banned organization and that he was its senior active member. The Court did not take into account the applicant’s achievements in the field of academics and his continued detention in jail for a long period.
The bail order may be read here:
Sudha Bharadwaj (Cri. B.A. 428/19)
Significantly, while the Court, albeit keeps mentioning that it will not analyse the documents in detail, it does however delve some such details: the court makes observations, for examples in the rejection of bail order in the Sudha Bharadwaj case, where the Judge affirms the prosecution’s specific submission with respect to an email, which stood to invalidate documentary evidence of the prosecution stating that the email “does not refer to IAPL meeting specifically but refers to a discussion among a few of them named in the email.” The court even invalidated one of the documents of the prosecution as it was not corroborated and was in fact in contradiction to its own evidence. The court even concluded that it was on the basis of an unaddressed letter that the applicant was being held guilty of being involved in guiding new recruits.
Still, the Court concluded that the applicant was involved in recruiting members and was active member of the banned organization. The Court refused to take into account “her academic record, achievements, social work, family background, health issues and her continued detention in jail for a long period”
The bail order may be read here:
Common conclusion in all orders
The Court itself stated that the main offences invoked in the charge sheet can be attributed to the banned organization and also concluded that the three activists were part of the larger conspiracy as they were abetting commission of such offences. The Court also concluded that the applicant was a member of the banned organization and denied bail to the three activists based on the bar imposed by Section 43D(5) of the UAPA.
This particular case has garnered a lot of attention as it has incarcerated some prominent social activists on accusations of being involved in a war against the State and a large conspiracy. The High Court, while stating that it is only drawing prima facie conclusions , has in fact taken into account detailed submissions from either side with respect to the evidence submitted by the prosecution; and has, despite having taken cognizance of factors that were in favour of the applicants, not based its final decision on any such factors. The documents relied upon were not found in the possession of any of the applicants and many were held to be unreliable even in the technical sense. Despite apprising itself of the many preceding judgments in various aspects in the defence of the applicants, the same have been given little regard to by the Court in its final decisions.
What is particularly appalling is that the Court has also reached some conclusions in its orders that will undoubtedly prove prejudicial and seriously detrimental for the applicants during their trial, given the superiority and eminence of the High Court.
*Compiled by Sanchita Kadam
 Decided on 24.4.2019 in Criminal Appeal No.714/2019 (Hon’ble Supreme Court).
 State of Madras Vs. Govindarajulu Naidu, AIR 1966 SC 969
 Decided on 18.11.2010 in Criminal Misc. Application No.12435/2010 along with other companion matters (Gujarat High Court
 Decided on 3.10.2012 in Criminal Bail Application No.1020/2012 a/w Criminal Bail Application No.1066/2012 (Bombay High Court)
 (Criminal Miscellaneous Application Nos.12435 to 12437 and other connected applications, decided on 18.11.2010)
 (2015) 5 SCC 1
 (2019) 5 SCC 1
 (2019) 5 SCC 1
 (2005) 5 SCC 294
 (2004) 7 SCC 528
 …Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
[i] The Elgar parishad meeting held the day before the incidents at Bhima Koregaon took place a day before in Pune city. Bhima Koregaon is way out of the city where, in fact members of the Hindutva brigade have been caught on video behaving provocatively.