The Bombay High Court on Tuesday directed the National Investigation Agency and the Maharashtra government to file their replies to lawyer-activist Sudha Bharadwaj’s default bail plea by July 2, reported Live Law. Bharadwaj is in jail in connection with the Bhima Koregaon case.

The activist had moved the High Court for default bail on June 11. Bharadwaj sought bail on the grounds that the Pune Police did not file a chargesheet against her within 90 days, as required under Section 167(2) of the Code of Criminal Procedure. The inquiry in the case was later taken over by the National Investigation Agency.

In November 2020, the Supreme Court had said that an accused person has an “indefeasible right” to default bail in case the agency handling their case fails to complete its investigation within a set time period.

During the hearing on Tuesday, advocates Yug Chaudhry and Payoshi Roy, appearing for Bharadwaj, said that Additional Sessions Judge Kishor Vadane had allowed the Pune Police 90 days extension to file their chargesheet in the case in 2018. The advocates submitted that Vadane was not designated as a special judge either under sections 11 or 22 of the National Investigation Agency Act. The sections relate to the power of central or state governments to constitute special courts.

They argued that the additional judge was hence not authorised to take cognisance of the 1,800-page supplementary chargesheet filed by the police in February 2019.

Bharadwaj had written to the deputy registrar of the High Court under the Right to Information Act, asking whether Judge Vadane was appointed as a special judge or an additional special judge in compliance with the NIA Act, reported Bar and Bench.

After receiving the replies, the activist found out that Vadane was not a special judge. In her application for default bail, Bharadwaj had contended that as Vadane was not a special judge, he had no jurisdiction to deal with any scheduled offences under NIA Act.

Besides the default bail, Bharadwaj has also sought to quash and set aside Judge Vadane’s order of extending the time for filing the chargesheet. The High Court has clarified that it will not grant any extra time to file the replies and posted the matter for hearing on July 3.

Bharadwaj, who is imprisoned in the Byculla women’s jail in Mumbai, suffers from diabetes and heart disease and has a history of tuberculosis. In May, her daughter Maaysha Singh had urged a vacation bench of the Bombay High Court to grant her interim bail on medical grounds, considering her comorbidities and the risk of contracting Covid-19 in jail.

The High Court had disposed the plea after being informed that Bharadwaj had received medical treatment.

The Bhima Koregaon case

Bharadwaj is among the 16 activists and academicians jailed in connection with the Bhima Koregaon case. The case relates to the allegedly inflammatory speeches made at the Elgar Parishad conclave held at Shaniwar Wada in Pune on December 31, 2017, which the authorities claim triggered the violence at Bhima-Koregaon war memorial on the next day.

The first chargesheet in the case was filed by the Pune Police in November 2018, which ran to over 5,000 pages. It named activists Sudhir Dhawale, Rona Wilson, Surendra Gadling and Shoma Sen, all of whom were arrested in June 2018. The police claimed that they had “active links” with the banned Communist Party of India (Maoist), and accused the activists of plotting to kill Prime Minister Narendra Modi.

A supplementary chargesheet was filed later in February 2019, against Bharadwaj, poet Varavara Rao, activists Arun Ferreira and Vernon Gonsalves and banned Communist Party of India (Maoist) leader Ganapathy. The accused were charged with “waging war against the nation” and spreading the ideology of the CPI (Maoist), besides creating caste conflicts and hatred in the society.

The Centre transferred the case to the National Investigation Agency in January 2020 after the Bharatiya Janata Party government in Maharashtra, led by Devendra Fadnavis, was defeated.

The activists’ continued detention in crowded prisons amid the Covid-19 crisis has triggered outrage from several quarters.

Swamy and Babu had tested positive for Covid-19 in May. They were moved to hospitals. Three other accused in the Bhima Koregaon case – Mahesh Raut, Sagar Gorkhe and Ramesh Gaichor – had also contracted the infection.

Only Rao was granted bail on medical grounds for six months in February by the Bombay High Court.