On Wednesday, a two-judge bench of the Bombay High Court granted bail to Sudha Bharadwaj, an activist-lawyer who has been jailed since August 2018 in connection with the Bhima Koregaon case.

However, she will have to wait for a week until December 8 to appear before a special judge of the National Investigation Agency Court in Mumbai, who will decide the terms of the bail.

At the same time, the High Court rejected the bail pleas of eight other activists who were also arrested in relation to the same case on the grounds that they had not filed the application for “default bail” that Bharadwaj had filed.

These were Sudhir Dawale, Shoma Sen, Surendra Gadling, Maheash Raut, Rona Wilson, P Varavara Rao, Vernon Gonsalves and Arun Ferreira.

These activists, academics and lawyers were arrested for allegedly conspiring to spark the caste conflict that broke out at the
Bhima-Koregaon memorial near Pune on January 1, 2018. They have also been accused of having links with the banned Communist Party of India (Maoist) and of plotting to kill Prime Minister Narendra Modi.

Under Section 167(2) of the Code of Criminal Procedure 1973, the accused can only be detained up to a particular time. This, in the Bhima Koregaon case, would be 90 days. After this period, they have to be given bail if the police do not file a chargesheet. Bail under this section is referred to as “default bail” or “compulsory bail”.

The Supreme Court has also held that if the investigation agency does not complete its investigation within the prescribed time, the accused has to be given bail. This ensures that the investigating officers act swiftly and efficiently.

Not a competent court

The applicants argued that the court of the additional sessions judges in Pune that had extended their period of detention in November 2018 did not have the competence to do so. Rather, as per law, this should have been done by a judge of a special court constituted under the National Investigation Agency Act 2008.

The applicants relied on the judgment in the Bikramjit Singh vs. State of Punjab case in 2020, where the Supreme Court held that only such a special National Investigation Agency court can extend detention – up to 180 days – under the provisions of the Unlawful Activities (Prevention) Act 1967.

The High Court agreed with this proposition, saying: “Extension of period of investigation and detention of the applicants...by the learned Additional Sessions Judge was not by a Court of competent jurisdiction.” It said that since Pune had a special court set up under the National Investigation Agency Act, that was the competent court as per law:

“The Court is expected to apply its mind to the necessity of further detention and extension of period of investigation. This implies that the said power shall be exercised only by the Court which is vested with special jurisdiction by the statute.”

Bhima Koregaon village near Pune, Maharashtra. Credit: Vijayta Lalwani.

Trial will go on

The applicants also argued that since the National Investigation Agency special court had not taken up the matter, the entire case should be scrapped.

While the court agreed that the competent court did not take up the case, it held that this would not render the entire proceedings void.

The High Court relied on Section 460 of the Code of Criminal Procedure 1973, which deals with “irregularities which do not vitiate proceedings”. The High Court said that under this section, “if any Magistrate, not empowered by law, erroneously in good faith, takes cognisance” of offences, then “his proceedings shall not be set aside merely on the ground of his not being so empowered”.

Therefore, the court said that in the absence of material to demonstrate that there was a resultant “failure of justice”, simply the fact that the case was not taken up by the competent judge “does not entail the consequence of the vitiation of the entire proceedings”.

Others bail rejected

The other eight with Bharadwaj sought default bail on the grounds that the cognisance of offences against them was defective. However, even where the High Court agreed that the court extending their detention did not have the jurisdiction, it held that the logic of default bail applied to Bhardwaj was invalid for the others.

“The applicants...did not ‘avail of’ the right of default bail...,” the High Court said. “We have seen that where the accused fails to apply for default bail when the right accrues to him and subsequently a charge-sheet is filed before the magistrate, the right to default bail would get extinguished as it cannot be said that the accused ‘availed of’ his right to be released on default bail.”

Vernon Gonsalves, Arun Ferreira, Gautam Navlakha, Sudha Bharadwaj, Varavara Rao.

Demanding bail

The nine applicants were divided into three groups. First was Sudha Bharadwaj who had filed an application for default bail on November 26, 2018, while chargesheet against her was filed on February 21, 2019.

The second group consisted of five applicants (Sudhir Dhawale, Rona Wilson, Surendra Gadling, Shoma Sen and Mahesh Raut) who did not file an application for default bail in the required time. The chargesheet against them was filed on November 15, 2018.

The third group consisted of three applicants (Varavara Rao, Vernon Gonsalves and Arun Ferreira) who filed an application for default bail on May 17, 2019 – only after the chargesheet had been filed (on February 21, 2019).

Bharadwaj bail

The reason only Sudha Bharadwaj got bail amongst all the nine applicants, is because her application fulfilled the conditions required for default bail: that is, filing an application when her detention period was over – 90 days in this case – and the chargesheet had also not been filed.

Sudha Bharadwaj had filed an application for default bail on November 26, 2018, which the public prosecutor contested as being premature since it was filed before her 90 days of detention was over. However, the Court said that depriving her of bail because her application was premature, would be “taking a too technical and formalistic view of the matter”. Her default bail application would be considered to be pending when the maximum detention period (90 days) got over and the police did not file the chargesheet.

The High Court in its bail order acknowledged that this bail provision “is indefeasible and also partakes the character of fundamental right” flowing from Article 21 of the Constitution, which relates to the protection of life and personal liberty, as has been held in multiple Supreme Court decisions.

No immediate release

However, the court also ruled that Bharadwaj would only be released after a week. Initially, the High Court said that Bharadwaj has to be produced before the National Investigation Agency Special Court in Mumbai on December 6 where the judge will pass an order stipulating the terms and conditions of the bail.

But at this point, the lawyer for the National Investigation Agency, Additional Solicitor General Anil Singh, asked for a stay on the execution of this bail order since “a pure question of law arose in this matter and the decision in this case may have repercussions on the other cases”.

Rather than staying the order, the High Court “consider[ed] it appropriate” that Bharadwaj be produced before the Special Court on December 8 instead of December 6.

The activists, lawyers and academics arrested in the Bhima Koregaon case have now been in jail for almost three years and the trial has not commenced yet. The incarceration of the accused has been especially contentious since forensic experts have claimed that the evidence against the activists might have been planted on their computers using malware.