Bombay HC grants bail to activist Sudha Bharadwaj, rejects pleas of others

The Bombay High Court on Wednesday granted default bail to lawyer-activist Sudha Bharadwaj, an accused in the Elgar Parishad-Maoist links case, but rejected the pleas of eight other co-accused, including Varavara Rao Sudhir Dhawale and Vernon Gonsalves.

A bench of Justices S S Shinde and N J Jamadar directed that Bharadwaj, who is currently lodged in the Byculla women's prison here, be produced before the Mumbai special NIA court on December 8, and the conditions of her bail and date of release be then decided by the special court.

Bharadwaj is the first among 16 activists and academicians arrested in the case to have been granted default bail. Poet-activist Varavara Rao is currently out on medical bail. Jesuit priest Stan Swamy died in a private hospital in the city on July 5 this year, while waiting for medical bail.

The others are all in custody as undertrials.

The HC on Wednesday rejected the default bail pleas filed by eight other co-accused in the case - Sudhir Dhawale, Varavara Rao, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira.

A detailed order of the court is awaited.

The HC bench also refused the request of NIA counsel, Additional Solicitor General Anil Singh, for a stay on its order.

Just as the bench was about to pronounce its order on two pleas - one filed by Bharadwaj, the other by Dhawale and others - ASG Singh intervened, saying he wished to bring to the court's notice a recent judgement of the Supreme Court, which held that an error in taking cognisance of a case did not automatically make the accused person entitled to default bail.

The bench, however, said once it had reserved orders in a case, there was no question of the parties citing new judgements.

"We are aware of the SC judgement that you (NIA) are talking about. That is why we have rejected the second petition (Dhawale and others)," the HC said.

"Also, in default bail, there can't be any stay granted. Let the special court decide on her (Bharadwaj's) bail conditions now," it said.

During the arguments in the case, Bharadwaj's counsel Yug Chaudhry had said that the judge, who had remanded Bharadwaj and her co-accused to custody following their arrest in September 2018, had "pretended" to be a designated special judge.

Chaudhry earlier said that K D Vadane, an additional sessions judge in Pune, had also granted extension of time to the Pune police to file their charge sheet in the case. Judge Vadane had then taken cognisance of the charge sheet, and in October 2018 denied bail to Bharadwaj and three other co-accused.

The counsel had argued that the order passed by the Pune court, extending the time for filing of charge sheet after the 90 days of Bharadwaj's custody were over, could not be considered as valid or lawful and hence, Bharadwaj was entitled to default bail.

The National Investigation Agency, which is conducting the probe into the Elgar Parishad-Maoist links case, had opposed both the pleas and argued that the NIA Act did not prohibit a state police from carrying on a probe until such time that the NIA takes over.

A special court designated by the state government then has the jurisdiction, the NIA said.

It had further urged the HC to reject Bharadwaj's default bail, saying in an affidavit that she was on a bail plea filing spree on one ground or another.

In the other plea filed through advocate R Sathyanarayanan, Dhawale and others had pointed out three notifications issued by the Maharashtra government which said a special court had been constituted for Pune city.

As per the notification, judge Vadane had not been designated as special judge, Sathyanarayanan had argued.

Bharadwaj was arrested in the case by the Pune police on August 28, 2018. She was then placed under house arrest and was taken into custody on October 27, 2018.

She has been in custody since then, except for two days in August 2019 when she was granted bail by another bench of the Bombay HC to attend her father's last rites.

The case relates to alleged inflammatory speeches delivered at the Elgar Parishad conclave, held at Shaniwarwada in Pune on December 31, 2017, which the police claimed triggered violence the next day near the Koregaon-Bhima war memorial located on the city's outskirts.

The Pune police had claimed the conclave was backed by Maoists. The probe in the case was later transferred to the NIA.