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A Pune Sessions Court yesterday dismissed the bail pleas filed by Rona Wilson, Shoma Sen, Surendra Gadling, Mahesh Raut, Varavara Rao and Sudhir Dhavale in the Bhima Koregaon case. Additional Sessions Judge, SR Navandar dismissed all pleas in a common order, upon finding that a prima facie case had been made out against the accused. As stated in his order,
“… from the material on record, what can be prima facie gathered is that accused Nos.1 to 4 and 6 were in the management of the banned organisation (CPI (M)) and they were managing affairs of funds, recruitments and deciding policies, which were anti government or more particularly dangerous to the democracy of the country. Accused No.5 (Mahesh Raut) was actively involved and dealing with the funds of the banned organisation. Prima facie it is seen that all the applicants/accused were instrumental in organizing Elgar Parishad and further in carrying out riots and attacks at different places, including at Bhima Koregaon.”
The Court also opined that the prosecution’s contention that there was a larger conspiracy at play, beyond the Bhima Koregaon violence could not be ruled out.
“With the progress of investigation the deep rooted conspiracy came to be revealed. The informant cannot be expected to have knowledge of all these facts. Considering the secrecy maintained in conspiracy, a common man of the country is not expected to know or even have an idea of the destructive activities planned as such. It is the settle principle of Law that the scope of investigation cannot be restricted to the allegations made in the FIR. On the other hand, it is for investigating agency to dig out the true facts in the interest of the society. Therefore, the arguments advanced on behalf of the accused in respect of scope of investigation cannot be accepted.”
The judge based his verdict on the materials collected by the Pune police following raids conducted in the houses of the accused in June and August last year.
The accused were implicated after an Elgar Parishad meeting held on December 31, 2017 allegedly provoked violence at the Koregaon-Bhima village in Pune the next day. The raids and arrests followed an FIR lodged by one, Tushar Ramesh Damgude, in January 2018.
On why possession of the “Strategy and Tactics of The Indian Revolution” may be incriminating
The Court placed reliance on such materials as a document titled “Strategy and Tactics of The Indian Revolution” recovered from the computer of Varavara Rao, documents recovered from Rona Wilson’s laptop concerning distribution of funds and “incriminating” letters exchanged between the accused and one, “Comrade Prakash”.
The judge also placed substantial reliance on the statement made by a witness, said to have been the Secretary of Gondiya Rajnandgaon and Balaghat Division of the CPI (M). The witness has alleged that Varavara Rao, Sudhir Dhavale, Rona Wilson, Gautam Navlakha, Anant Teltumbade, Sudha Bharadwaj and Harshali Potdar were all working with the banned organisation.
The witness statement in turn was also cited, apart from the letters, to reject arguments made that the mere possession of the “Strategy and Tactics of The Indian Revolution” could not be construed as sufficient for incrimination of the accused.
Countering a contention that the “Strategy and Tactics of The Indian Revolution” (CPI (M) literature) was easily available online to anyone, the judge remarked,
“The submissions as above are attractive but cannot be accepted for the simple reason that apart from custody of above literature there is other material on record to show that accused No.1 (Sudhir Dhavale) was not only actively involved but was managing the affairs of the banned organization.”
Incriminating letters, CPI (M) literature seized from the accused points to prima facie guilt
Several letters recovered from the houses of the accused also served to bolster the judge’s prima facie conclusion that the accused appeared guilty as charged.
“… it appears from the documents that the banned organization was operating in different ways to achieve its objects. Different members were entrusted with different activities, which was part of the larger conspiracy ... From the house search of accused persons, some incriminating letters have been seized, from which it can prima facie be gathered that there was deep rooted conspiracy of extremely serious repercussions.”
The Court proceeded to note that it is “mindful of the fact that this is pretrial stage and therefore detail scrutiny of record is not expected.” All the same, the judge opined that it would be proper to cite some of the letters produced by the Pune Police in support of their case against the accused for their alleged roles in the CPI (M)
Notable among the documents cited is a letter recovered by the police from Rona Wilson’s residence, addressed to “Comrade Prakash”, which the Judge found showed a clear reference to the Bhima Koregaon incident.
“On bare perusal of the above said letter, the horizon of the banned organization and the role played by accused in activities of the organization can easily be noted. There is reference of accused Surendra Gadling, Sudha Bharadwaj, Mahesh Raut and Sudhir Dhavale. What is more important to note is that there is clear reference of Bhima Koregaon incident and the addressee i.e. accused Rona Wilson was instructed to instigate and provoke the activists to aggravate agitations and processions. There is also reference of recruitment of students for training purpose. There is reference of terrorist activities in Gadchiroli and Surjagad. The letter gives an idea of the objective of banned organization to spread unrest amongst the people and to achieve the goal of political revolution by overthrowing the Government, which has been established by democratic process. It is nothing but a serious threat to the democracy of the nation.”
Another set of letters cited were recovered from the house of Rona Wilson, with Anant Teltumbade and Prakash as recipients. These letters are also said to have contained information concerning the Bhima Koregaon violence. In this regard, the judge observed,
“From these letters, it can be gathered that the Dalit leaders in Maharashtra including Anant Teltumbade were instigated for exploring more opportunities viz. Bhima Koregaon, frequent protest and chaos, which would gradually lead to breakdown of law and order leading to political ramifications. The intellectual comrades were directed to keep the fire ablaze. In the letter at page No.297 accused Rona Wilson even disclosed the strategy of Rajiv Gandhi type suicidal incident by targeting road shows of the Prime Minister. It also includes the supply of arms and ammunitions for waging war against Government…
… From this letter communication, what can be gathered is that the applicants/accused alongwith other members of the banned organization hatched a serious conspiracy to create unrest in the entire country and to overpower the Government, politically and by using muscle power. This is a very serious form of sedition which can be noted at this prima facie stage.”
IAPL appears to be a frontal organisation of CPI (M)
The Court also made observations concurring with the prosecution contention that the Indian Association of Peoples Lawyers (IAPL), in which some of the accused in the Bhima Koregaon case are members, appeared to be a frontal organisation of the banned CPI (M).
In particular, the judge took note of communication said to have been exchanged between Prakash (absconding, according to the Police chargesheet) and Surendra Gadling, who is the secretary of the IAPL.
The communication pertained to a UAPA case filed against CPI (M) leader Saibaba and the strategy to defend him in court. However, the letter sent by Gadling also congratulated Prakash for “killing 25 enemies (policemen)” and made references to political and military strategies of the CPI (M). On a perusal of the same, the Court observed,
“Representing a Naxalist, terrorist or Maoist in any criminal case is certainily not an offence However, what appears from the documents is that accused Surendra was an active member of banned organization and he was managing the affairs of the organization to achieve its objective i.e. destruction and creating unrest in the country … If really the accused No.3 was only representing CPI (Maoist) members as an Advocate, there was no reason for him to have such communication with the members of central committee of the organisation This shows the connection between banned organisation, accused No.3 and IAPL.“
In view of this, the judge proceeded to remark,
“Prima facie what appears is that IAPL is a frontal organisation of banned organisation of CPI (Maoist).”
Question of admissibility of documents should be decided at trial stage
The above observations were made bearing in view of the Supreme Court’s judgment in National Investigation Agency v. Zahoor Ahmad Shah Watali, on the factors that would guide the grant of bail in UAPA cases. Inter alia, the Suprmee Court had observed that the “totality of the material gathered by the investigating agency” must be considered to decide on whether there is a prima facie case, rather than analysing individual pieces of evidence.
Notably, the Supreme Court had also observed that questions concerning the admissibility of documents should be decided in trial, and not at the stage of bail. As noted by the Judge Navander,
“… it is clearly observed that the question of discarding a document at the stage of bail on the ground of that document being inadmissible in evidence is not permissible. The issue of admissibility of the document or evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as it is. The degree of satisfaction is lighter when the Court has to opine that the accusation is prima facie true“
Therefore, he concluded,
“Having regard to the observations of Hon’ble Apex Court, I am considering the totality of the material produced alongwith the charge-sheet for deciding bail applications of the accused. The electronic data and documents filed by the prosecution have to be considered and the question of admissibility of those documents will be decided at trial.“
The Court, thus proceeded to reject the bail applications filed by the six accused under Section 439 of the Code of Criminal Procedure, observing that,
“The material placed on record thus prima facie denote that accused persons were not only the members of banned organization CPI (Maoist) but they were carrying out activities further in the objective of the organization which is nothing but to overthrow the democracy of the nation. The argument advanced on behalf of the accused that only because of membership of banned organisation they cannot be detained in jail, is not acceptable.
… there is sufficient material in the chargesheet against the applicants/accused. The arguments of accused about fabrication of evidence by prosecution has no sound basis. It is hardly possible for an Investigating Officer to manipulate the facts or forged the documents as noted above. There are reasonable grounds for believing that the accusation of commission of the offences punishable under Chapters IV and VI of the UAPA against the applicants is prima facie true. Considering the express bar imposed by Section 43D(5) of the UAPA, the applicants cannot be released on bail.
The other arguments regarding the social status of the accused persons, their achievements in different fields and their continued detention in jail for a long period cannot be aground to release them on bail considering the danger to the democratic setup of the country and to the safety of the citizens.“
Advocates SD Patil, RV Nahar, RT Deshmukh and Shahid Akhtar appeared for the accused. Advocate Surendra Gadling made arguments for himself. District government pleader Ujjwala Pawar made arguments for the State.
Last month, a single judge of the Bombay High Court rejected the bail pleas filed by Vernon Gonsalves, Sudha Bharadwaj, and Arun Ferreira, who have also been accused in the case. In September, the Bombay High Court turned down a plea to quash the FIR filed against co-accused Gautam Navlakha in the case.
Navlakha was eventually granted interim protection from arrest by the Supreme Court, which (after extension) was set to expire on November 12. Last week, the Bombay High Court directed Navlakha to approach the Pune Special Court for anticipatory bail in the matter and also directed the lower court to dispose of the application in an expedited manner. The sessions court today reserved orders on this plea. Notably, Navlakha’s name has not been added to the charge-sheet filed in the case.
[Read the Orders dated November 6, 2019]