On Friday, the Supreme Court upheld Bombay High Court’s November 18 order granting bail to Anand Teltumbde, an accused in the Bhima Koregaon case. Teltumbde is the first person accused in the matter to be granted bail on the merits of the case. Previously, others in the case have got bail only on medical grounds or due to procedural lapses by the investigating agency.

Legal experts believe that this order opens doors for some of the other people accused in the Bhima Koregaon case. This bail order does not immediately mean they will necessarily get bail, the experts say, but will help them on specific points where the findings of the Bombay High Court overlap with allegations against them.

Bhima Koregaon case

Teltumbde, the author of several books on caste, is among 16 activists, academics and lawyers who were arrested in relation to caste violence that broke out on January 1, 2018, in Bhima Koregaon village near Pune. The police claim that these people were involved in organising an event called the Elgar Parishad event on December 31, 2017, to commemorate the 200th anniversary of the battle of Bhima Koregaon. Provocative speeches at this event, the police claimed, led to large-scale violence the next day.

These 16 people have also been accused of plotting to kill Prime Minister Narendra Modi and of having links with the banned Communist Party of India (Maoist).

Among the laws under which the Bhima Koregaon accused have been charged is the Unlawful Activities (Prevention) Act, 1967 – an anti-terror law that makes bail virtually impossible. Under Section 43-D(5), a court cannot give bail if there are “reasonable grounds for believing that the accusation against such person is prima facie true”.

Making the standard for bail more stringent under the Unlawful Activities (Prevention) Act, the Supreme Court has said that a court deciding a bail application cannot go consider the evidence in depth but has to only arrive at a conclusion based on a broad assessment. This effectively means that the prosecution’s case is to be taken at face value.

As a result, the bail pleas of those accused in Bhima Koregaon case, except Teltumbde’s, have been denied on merits. Some have got relief, though on other grounds. One accused person, Sudha Bharadwaj, got “default bail” in December since the investigating agency did not file the chargesheet in time. Another, Varava Rao, got bail on medical grounds this year.

Almost four years after the event, the trial has not commenced in the case. In the meantime, one accused person, Stan Swamy, died last year.

Forensic experts have claimed that the evidence against the activists might have been planted on their electronic devices using a malware. A cybersecurity company has claimed that the Pune Police hacked devices and planted evidence.

Teltumbde’s bail order

The court looked that the evidence presented against Teltumbde – five documents seized from co-accused Rona Wilson’s computer and three witness statements – and said that a “prima facie” reading of it does not show that Teltumbde had engaged in a terrorist act, as alleged by the National Investigation Agency.

The agency had claimed that Teltumbde was an active member of the banned Communist Party of India (Maoist) and was “deeply involved” in efforts to further its agenda. It had argued that Teltumbde, along with the Communist Party of India (Maoist), used the Elgar Parishad event to further the party’s “larger conspiracy”.

However, the court said that the prosecution had failed to establish this. The court looked at several documents that were submitted by the agency. These documents referred to “Anand”, “Comrade Anand”, “Anand T” and “brother Anand” in relation to activities involving the Communist Party of India (Maoist) and Bhima Koregaon. But the court said this does not conclusively show that these referred to Teltumbde. Using these documents, the court said, it “cannot presume” that Teltumbde was an “active member” of the Communist Party of India (Maoist).

When talking about one of the letters where a “brother Anand” was mentioned in context of the Bhima Koregaon violence, the court said that even if this referred to Teltumbde, the agency has to “show the nexus and link of Appellant [Teltumbde] with the present crime”. However, it held that the prosecution did not do so.

Other cases

The investigative agency had also referred to the case of two other people accused in the Bhima Koregaon case, Delhi University professor Hanu Babu and Jyoti Jagtap, a member of the Kabir Kala Manch cultural organisation, who were recently denied bail by the Bombay High Court. It had argued that the same yardstick should apply to reject Teltumbde’s bail.

However, the court distinguished between Teltumbde’s case and the earlier ones.

It said that 64 documents were seized from Babu which explained his links with the Communist Party of India (Maoist) and 14 documents that were seized from the co-accused also referred to Babu. But this was not the case with Teltumbde.

Next, for Jagtap, the court said that the considerations in Jagtap’s case were “entirely different” and that it did not want to repeat its observations. In that case, the same bench of the Bombay High Court that gave bail to Teltumbde had said that the Jagtap was central in organising the Elgar Parishad event and had performed a “highly provocative” play there which aimed to ridicule and overthrow the government.

It said that there were witness statements that Jagtap had met Communist Party of India (Maoist) leaders and undergone military training. “There is thus definitely a larger conspiracy within the Elgar Parishad conspiracy by KKM [Kabir Kala Manch] and CPI(M),” the court had noted.

Protests in Thane following clashes between Dalit and Maratha groups in Bhima Koregaon near Pune on January 1, 2018. Credit: PTI

Impact on future bail cases?

Lawyers who are involved in the Bhima Koregaon cases believe that while this bail is significant, being the first on merits, decisions on the other cases will depend on facts.

“The giving of bail to a co-accused opens up a right to apply for bail again,” said advocate Yug Mohit Chaudhry, a Mumbai-based criminal lawyer who represented Babu and another Bhima Koregaon accused Bharadwaj. Since a co-accused getting bail is a change of circumstance, he explained, that entitles an accused person to renew their bail application.

“But thereafter you will have to see if this bail order leads to any benefit,” he added. Only if there was a piece of overlapping evidence that was debunked in this case or a finding that will apply to other cases, Chaudhry said, will this bail decision benefit other applications.

While there are some overlappings between Teltumbde’s case and the other accused, he said, “cases are all quite different”.

Said Mihir Desai, a senior advocate from Mumbai, who represented Teltumbde, “We will have to see each case separately. And those who are similarly situated like him, there will be some assistance [by this order] definitely.”

There are some accused people who have overlaps with Teltumbde’s case. “At least the accused from whose computer nothing has been found,” Desai said. For instance, he said, Shoma Sen and Mahesh Raut were two such examples.

These people will be better placed to get bail after this order, Desai said. “But whether they will definitely get [bail] or not is difficult to predict,” he said.

Legal commentator Gautam Bhatia wrote that the same bench of the Bombay High Court applied different standards of judicial review in the cases involving Teltumbde and Jagtap. “I respectfully submit that these two judgments cannot stand together,” he stated. “Jyoti Jagtap’s judgment remains problematic, and it is to be hoped that it will be corrected on appeal.”