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On the sixth day of the bail hearing in Bhima-Koregaon case, counsel for accused civil rights activist and lawyer Sudha Bharadwaj asserted before the Bombay High Court that the documents relied upon by the Pune Police did not implicate his client and that she deserved to be released on the bail.
In this regard, Advocate Yug Mohit Chaudhry submitted that the Pune Police had failed to produce any material to establish her involvement in the Bhima Koregaon case, even though it has been over a year since Bharadwaj was jailed. Bharadwaj was arrested in August, last year.
On Friday, Chaudhry replied to a query posed by the Justice Kotwal on admissibility and authorship of the letters recovered from the computers of co-accused Surendra Gadling and Rona Wilson. According to the charge-sheet filed by Police, six letters recovered from co-accused which name Sudha Bharadwaj were sufficient to incriminate her.
Chaudhry submitted that as per the Indian Evidence Act, the documents could be admissible against the two co-accused if the said letters were written or typed by them or recovered from their possession and verified as per provisions of Criminal Procedure Code. However, in this case, he argued that they cannot be used against Bharadwaj, since none of these letters had been written by her, or were addressed to her or even recovered from her.
Chaudhry further argued,
“Proof of authorship of letters precedes question of nature of evidence. In this case, the documents cannot implicate my client and there is no use of adducing unsigned, unverified documents against her.”
He went on to submit,
“In support of the alleged six letters, not a single entry in Call Data Records (CDRs) of accused has been used by Police to book her. The investigation failed to prove the material under Section 161 of the Criminal Procedure Code ( CrPC) wherein Police can examine witnesses. In fact, the Investigation Officer (IO) is an only witness in this case.”
In support of his arguments on proof of authorship, Chaudhry referred to various British-Raj era cases, wherein the then government had filed cases of conspiracy against revolutionaries who had issued recruitment documents. The outcome of these court cases, Chaudhry highlighted, was that the courts had rejected allegations against revolutionaries as the authorship of the documents could not be established and evidence therein was insufficient.
“Had the court admitted unverified documents to implicate them, it would have paved the way for the government to book political rivals,” Chaudhry said.
Chaudhry went on to argue,
“Similarly, the documents on which the prosecution relies to implicate Bharadwaj, may be admissible against the authors from whose possession the documents were recovered but not my client.”
While arguing on one of the documents mentioned in the affidavit filed by Pune Police, he pointed out that prosecution claims that Bharadwaj, along with co-accused persons, constituted an ‘All India Anti-Fascist Front’ through which they planned to topple the government, assassinate important political leaders, among other charges. In this backdrop, he remarked,
“However, none of the six letters naming Bharadwaj suggest such conspiracies. Besides, last I heard; fascism is a very bad thing. So, to be anti-fascist, I hope, should be duty for all of us.”
Pressing for grant of bail to Bharadwaj, Chaudhry argued that there is no scope of his client failing bail conditions such as tampering of evidence or threatening the witnesses or remain absconding.
“Bharadwaj is a renowned professor at National Law University, Delhi and has a young daughter. Also, it is not a case of prosecution that she is not cooperating with the investigation and therefore it is a valid ground for the bail,” Chaudhry urged.
Closing his arguments for the day, Chaudhry informed the Court that he would be referring to past judgments, which elaborate on the need to prove authorship of accused in documents recovered during the next hearing.
Chaudhry will continue his arguments on behalf of Bharadwaj on September 19, followed by arguments for Arun Ferreira. Additional Public Prosecutor Aruna Pai will reply thereafter.
A Single Bench of Justice Sarang Kotwal has been hearing the bail applications filed by accused activists Sudha Bharadwaj, Vernon Gonsalves and Arun Ferreira on a regular basis.
The three activists 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 accused were booked under Unlawful Activities (Prevention) Act and other penal provisions.