Bail for Bhima Koregaon accused highlights extraordinary delay in trial

Activists Rona Wilson and Sudhir Dhawale walked out of prison on Friday after being under incarceration for six and a half years in the Bhima Koregaon case.

The Bombay High Court granted them bail on January 8 on grounds that they had spent a long period in jail without trial or even charges being framed against them. Prolonged detention without trial is violative of the rights of an accused under Article 21 of the Constitution.

Wilson and Dhawale are among the 16 academicians, activists and lawyers who were charged under the Unlawful Activities Prevention Act for their alleged role in instigating caste violence at Bhima Koregaon near Pune in January 2018. They were also accused of having links with the banned Communist Party of India (Maoist).

While seven other accused have previously been granted bail by the court, Wilson and Dhawale are the first to receive bail on grounds of delayed trial, shining a spotlight on the extraordinary lag in the case.

Proceedings in the case so far indicate that the prosecution is responsible for the delay. It has filed several chargesheets in the case and failed to provide the defence lawyers with replicas of digital devices used as evidence against the accused. This has slowed down the process of the accused challenging the charges. Such challenges must first be decided before courts can frame charges and then commence trial.

Courts have also played a role in the long incarceration of Wilson and Dhawale. Both of them had the opportunity to be released on bail in 2018 and 2021 due to procedural improprieties by the prosecution – but controversial court orders kept them in jail.

Protracted filing of chargesheets

Accused persons in the case filed discharge applications only in 2022, two to four years after being arrested. A discharge is the dismissal of charges in a criminal case before trial. A discharge application may be filed by an accused to argue that no sufficient evidence exists to proceed with the case. The court will move to framing charges and trial only after deciding on the discharge applications. If these applications succeed, there will be no charges or trial.

The delay in filing of discharge applications was due to the prosecution filling multiple voluminous chargesheets spanning thousands of pages in the case as well as not providing cloned copies of the digital devices alleged to carry the evidence to the accused.

Ordinarily, police in cases under the Unlawful Activities (Prevention) Act must file the chargesheet within 90 days of the arrest of the accused. However, in this case, since multiple arrests were made in 2018 and 2020, there were two supplementary chargesheets filed, in addition to the main one. The last supplementary chargesheet was filed by the police in October 2020.

Senior advocate Mihir Desai, representing Dhawale in the matter, said that this periodic filing of chargesheets prevented the accused from being able to file discharge applications. “You never know what will come in the next chargesheet against you,” he said. “Only when the chargesheets were filed in 2020 did the matter become ripe for filing discharge applications.”

Moreover, several additional bundles of evidence running into thousands of pages were filed later and added to the chargesheet, according to advocate Susan Abraham, who is legal counsel for several accused persons in the case, including Wilson. “Over 1,100 pages were filed on November 26, 2021, 2,300 pages were filed on March 29, 2022 and other bundles of evidence were filed as late as September 5, 2023,” she said. “Due to this piecemeal and protracted process of filing the chargesheet the accused have been constrained to wait for process to substantially be completed before filing for discharge.”

Notably, the trial court is yet to pronounce verdict on the discharge applications. These have been pending adjudication for over two years now due to multiple adjournments and change of judges in the trial court, lawyers involved in the case confirmed to Scroll.

Cloned copies yet to be provided

The prosecution’s case is almost entirely centred on digital evidence – documents allegedly recovered from the phones and computers of Wilson, alongside some other accused persons in the case.

However, the accused in the Bhima Koregaon case are yet to be provided cloned copies of the digital devices that were seized by the police and are being used as evidence against them. This, in spite of the prosecution having told a court in 2023 that it had provided cloned copies to the accused. A cloned copy of a digital device is an exact replica of its data, settings and software.

The lack of cloned copies delayed the accused in filing discharge applications, which in turn pushed back the trial. Without these copies, they could not effectively challenge the evidence in the charge sheet.

As per Section 207 of Criminal Procedure Code, the accused must be provided a copy of all the case documents that the prosecution uses against them once criminal proceedings are initiated against them. These include the first information report, the chargesheet and copies of all the evidence furnished against them. This is so that the accused is aware of the case being made against them and can challenge it in court.

A court had noted last year that the prosecution has not complied with section 207 in the preceding four years by not providing the accused with the cloned copies, despite several court orders.

Independent digital forensics analysis has alleged that key evidence used by the prosecution in the case was planted on the digital devices of some of the accused. A United States-based firm, Arsenal Consulting, found that incriminating letters were placed on Wilson’s laptop over 20 months before his arrest and that Surendra Gadling’s computer had also been compromised. Additionally, Arsenal’s analysis showed that Stan Swamy’s computer was hacked, while Amnesty International found Wilson’s phone was infected with Pegasus spyware before his arrest. A report in Wired magazine confirmed that Pune police hacked the devices of Wilson, Varavara Rao and Hany Babu. All this raised serious questions about the integrity of the evidence.

Without access to cloned copies of the devices, the accused persons are hamstrung in their ability to challenge their usage as evidence in court, according to Abraham. “Since the entire case is based on electronic evidence, the only way that the accused can validate their defence that the electronic evidence is fabricated and planted is by a forensic analysis of the electronic evidence that will show it to be fabricated and show how it was planted,” she said. “For this, the cloned copies of the digital devices are essential.”

Denial of default bail

It’s not only the prosecuction that bears blame for the delay in getting bail – the courts do too. On at least two previous occasions in 2018 and 2021, Wilson and Dhawale were denied default bail by courts on questionable grounds.

Default bail is the right to bail granted to an accused when the investigating agency fails to file a chargesheet within the prescribed time.

Wilson and Dhawale were among the five activists first arrested in the case in June 2018. On September 2, 2018, two days before the statutory period of 90 days for filing of chargesheet was to expire, a special court in Pune had granted an extension of another 90 days to the Pune police to file the chargesheet.

On October 24, 2018, this order was quashed by the Bombay High Court due to the extension being given on an improper basis. However, only five days later, the Supreme Court stayed the High Court’s order, restoring the 90 days-extension.

The Pune police ended up filing the chargesheet in November 2018. If it had not been granted the extension and it would not have been able to file the chargesheet within the original timeline, all five arrestees would have been eligible for default bail.

On November 30, 2021, the High Court granted default bail to one of the accused in the case, Sudha Bharadwaj, while rejecting the default bail applications of Wilson, Dhawale and six of their co-accused in the case. The High Court held that the Pune court that took cognisance of the National Investigation Agency’s chargesheet in the case and extended the period of detention of the accused was not legally competent to do so.

It granted bail to Bharadwaj because she had filed her default bail application within 90 days of her detention. However, even then it rejected bail to Wilson, Dhawale and six others since they had not filed their default bail applications within 90 days of their arrests. This denial of bail was criticised by legal scholars for taking a restrictively pedantic view and discounting the link between default bail and personal liberty that it used to grant bail to Bharadwaj.

Status of accused in case

Of the 16 persons who have been arrested in the case, Jesuit priest Stan Swamy died in custody at a Mumbai hospital on July 5, 2021, nearly nine months after he was arrested. The 84-year-old suffered from several ailments including Parkinson’s disease and contracted Covid-19 while being held at a Mumbai prison.

Seven others who have been accused in the case had previously secured bail over the last six years, namely Gautam Navlakha, Sudha Bharadwaj, Anand Teltumbde, Vernon Gonsalves, Arun Ferreira, Varavara Rao and Shoma Sen.