[BREAKING] Sudha Bharadwaj bail: Supreme Court rejects NIA appeal against default bail granted by Bombay High Court

The Supreme Court on Tuesday rejected the appeal filed by National Investigation Agency (NIA) challenging the Bombay High Court order granting default bail to lawyer activist Sudha Bharadwaj in the 2018 Bhima Koregaon case [National Investigation Agency v. Sudha Bharadwaj].

. The order was passed by a Bench of Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi.

The top court said that extension of time for investigation and detention under provisions of Section 43D(2) of the Unlawful Activities Prevention Act (UAPA) and Section 167(2) of the Code of Criminal Procedure could have only been done by the special court hearing NIA cases.

"When there is a separate special court then it will only hear this," remarked Justice Bhat.

"When special courts manned by special judges was in existence then why did you make this application for extension before a magisterial court," the Bench further queried.

. Additional Solicitor General Aman Lekhi appearing for NIA argued that Section 43D of the NIA Act had not brought any changes in the Section 167 of CrPC.

Lekhi also pointed out that the definition of court under Section 2 of UAPA had not been interpreted correctly and "context otherwise requires" had been ignored.

He argued that the moot question was of the competency of the court which granted extension of time to file chargesheet.

He submitted that under Section 2 of the UAPA, Special Courts are supposed to conduct only trials and all pre-trial hearings could be conducted before other Sessions judges.

He clarified that extension of chargesheet filing was a stage of investigation and that was distinct from stage of trial.

He pointed out that the Special Court assumed jurisdiction over the trial of a case only after the NIA took over investigation of that case. Before NIA took over, the investigation was being carried out by the State police.

. The Court however could not accept the ASG's submissions. The Bench mused what would happen if a court not competent to take up the plea sets an applicant free.

They reasoned that "designated courts" was not an expression present in the CrPC and hence special legislations were made.

. The Bombay High Court had on December 1 allowed default bail to Bharadwaj in the Bhima Koregaon case.

The High Court had granted bail to Bharadwaj on the ground that the extension of time for investigation and detention under provisions of Section 43D(2) of the Unlawful Activities Prevention Act (UAPA) and Section 167(2) of the Code of Criminal Procedure had not been done by a court of competent jurisdiction.

The High Court had held that given the existence of a special court at Pune, the chargesheet should have been lodged at Pune.

It had relied on several decisions to hold that the right of an accused to be released on default bail is indefeasible, and associated with the fundamental right flowing from ‘the procedure established by law’ under Article 21 of the Constitution of India.

. The Bhima Koregaon case stems from an event known as Elgar Parishad event organised on December 31, 2017, by a group of persons including activists and retired Supreme Court judge Justice PB Sawant and retired Bombay High Court judge Justice BG Kolse-Patil.

The event marked the 200th anniversary of the victory of Dalit soldiers in a battle against a local Brahmin Peshwa ruler.

The 2017 event was marred by violent clashes between Dalit and Maratha groups which led to at least one death and injuries to several others. Consequently, three First Information Reports (FIRs) were filed in the case.

The FIR of January 8, 2018 registered against Leftist groups with Maoist links was the one vigorously pursued by the authorities. It forms the basis of the entire Bhima Koregaon case which led to arrest of 16 accused and 3 chargesheets.

The trial in the case is yet to begin.

Eight other accused had also applied for bail along with Bharadwaj but their pleas were rejected .

[BREAKING] Sudha Bharadwaj bail: Supreme Court rejects NIA appeal against default bail granted by Bombay High Court

Debayan Roy

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