Elgar Parishad case: HC directs state to produce Sudha Bharadwaj default bail plea records

The Bombay High Court Tuesday directed the Maharashtra government to produce relevant records in the default bail plea of activist and lawyer Sudha Bharadwaj, currently lodged in Byculla women’s prison, Mumbai, in connection with the Elgar Parishad case. Bharadwaj was arrested in August 2018.

The court adjourned the hearing on Bharadwaj’s petition, to enable it to verify the information provided by her counsel pertaining to the sessions judge who gave extension to the Pune Police to file the chargesheet “without being competent to do so”. Bharadwaj’s counsel informed the HC that if the information was found correct, not only would Bharadwaj’s detention, but that of eight other accused in the case, be deemed illegal.

A division bench of Justice SS Shinde and Justice NJ Jamadar was hearing Bharadwaj’s default bail plea, wherein it was submitted that extension of custody granted by a trial court to Pune Police in 2018 was not valid, as the judge who allowed it was “not designated to hear” matters pertaining to scheduled offences under the Unlawful Activities (Prevention) Act (UAPA).

Advocate Yug Mohit Chaudhry for Bharadwaj alleged that the judge who passed the order on extension of custody was, at that time, not designated as a special judge under the National Investigation Act (NIA) to hear matters pertaining to the UAPA.

Chaudhry relied on responses received under the Right to Information (RTI) Act from the HC registry, and claimed that sessions judge KD Vadane, who had granted 90-day extension of Bharadwaj’s detention as sought by Pune Police on November 26, 2018, was only a district and additional sessions judge at Pune.
Vadane was not appointed as the Special Judge by the state government under section 22 of the NIA Act, 2008 for the period between January, 2018 and July, 2019, Chaudhry claimed. The lawyer further referred to RTI replies and alleged the judge was also not authorised as ‘special judge’ to take cognisance of supplementary chargesheet filed by Pune Police in February 2019.

Chaudhry went on to argue that despite there being other NIA judges at the Sessions Court in Pune, the matter was taken up by Judge Vadane. He alleged, “These RTI replies show that the special judges had been appointed, but the then Maharashtra government chose not to go to those judges and Judge KD Vadane claimed to be a special judge?”

Chaudhry claimed, “This goes to the very heart of the judicial system. With utmost humility, the bedrock of judiciary is shaken when a non-designate judge calls himself a designated judge. And people are languishing in custody under his orders…”

He added, “While this petition is being filed only on behalf of Sudha Bharadwaj, it will affect eight other accused in the Elgar Parishad case who had been remanded by Judge Vadane. If our petition is allowed, then the orders of extension of time, the acceptance of chargesheet, and the chargesheet in its entirety will be rendered null and void. And that would mean that these eight people were illegally detained.”

The eight other ‘illegally detained’ accused persons, as per Chaudhry, would include Mahesh Raut, Vernon Gonsalves, Arun Ferreira, Sudhir Dhawale, Rona Wilson, Shoma Sen, Surendra Gadling and Varavara Rao.
After Bharadwaj’s counsel submitted that the ‘burden lies on the state government’ and it has failed to file the reply despite granting enough time, the bench said, “We will not allow the state government to file an affidavit in reply since we have heard the matter substantially.”

The court asked Public Prosecutor Deepak Thakare for the state to ‘produce the relevant records in relation to the subject matter of petition’.

Stating that it will verify the information provided by the petitioner from the High Court registry, the bench posted further hearing to July 8.

Meanwhile, the HC issued notice and directed NIA to file an affidavit in reply to appeal by co-accused Surendra Gadling, against rejection of his temporary bail plea by special NIA Court in September last year, wherein he had sought to join his family to conduct the last rites of his mother. Senior Counsel Indira Jaising for Gadling said his mother passed away in August last year, and urged the court to grant temporary bail before August 13, her first death anniversary. The HC will hear the appeal on July 22.