New Delhi: A special NIA court Monday rejected the bail application filed by Stan Swamy, the 83-year-old Jharkhand-based Jesuit priest and tribal rights activist arrested in the Bhima Koregaon case. Rejecting his application, the court in Mumbai observed that “the collective interest of the community would outweigh the right of personal liberty of the applicant”.
Special National Investigation Agency (NIA) judge Dinesh E. Kothalikar observed, “If seriousness of the allegations made against the applicant are considered in proper perspective, in that case there will be no hesitation to conclude that the collective interest of the community would outweigh the right of personal liberty of the applicant and as such the old age and or alleged sickness of the applicant would not go in his favour, so that the discretion to release the applicant can be exercised in his favour.”
The court also concluded that there is sufficient material against Swamy and his co-accused and that there are reasonable grounds for believing that the accusations against them are prima facie true.
It asserted that the letters and documents submitted as evidence show that prima facie Swamy and others “hatched a serious conspiracy to create unrest in the entire country and to overpower the Government, politically and by using muscle power”.
“The material placed on record thus prima facie denotes that the applicant was not only the member of banned organisation CPI (Maoist) but he was carrying out activities further in the objective of the organisation which is nothing but to overthrow the democracy of the nation,” the court added.
During the hearing, Swamy’s lawyer had attempted to rely on news magazine Caravan’s article which claimed that another accused, Rona Wilson’s hard disk contained malware that can be used to remotely access the computer and plant files.
The court said that since the proceeding is sub-judice, “making any comments as to the evidence to be placed before the Court would amount to interference in the administration of justice”.
The prosecution then demanded that contempt of court proceedings should be initiated against the author and publisher of the article. While the court did assert that “such act is required to be deprecated”, it stopped short of initiating contempt proceedings against Caravan.
40 CPI(M)-related documents, 140 emails
The authorities had submitted that a hard disk had been seized from Swamy in June 2019, containing 40 documents and 140 emails exchanged between the accused and the co-accused. The documents, they said, included CPI(M) press releases, Constitution of CPI(M), document on strategy and tactics of Indian Revolution etc. In its judgment, the court discussed these letters and emails in detail.
Among other things, the prosecution had demanded that Swamy’s bail application should be rejected since the investigation regarding financial transactions is still in progress. It said that according to the information received, Swamy had received large amounts of money and that they were looking into the number of people involved in disbursing and receiving such amounts.
They had also contended that Bagaicha — the Jesuit social research and training centre founded by Swamy in Ranchi — has been “deeply involved in facilitating the interest/furtherance of CPI(M) activities by its deep rooted association with VVJVA (Visthapan Virodhi Jan Vikas Andolan), PPSC (Pidit Bandi Sahyog Samiti), IAPL (Indian Association of People’s Lawyers)”. All these organisations have been alleged to be “frontal organisations” of CPI(M).
While Swamy’s lawyers had contended that the evidence placed against him would actually be inadmissible during the trial, the court rejected these contentions relying on the Supreme Court’s Zahoor Watali judgment.
The Supreme Court had, in the 2019 Zahoor Watali case, ruled that at the stage of bail in Unlawful Activities (Prevention) Act (UAPA) cases, the court wasn’t required to weigh the evidence against an accused, it was only supposed to look at the material provided by the investigation in its entirety and see if there was a prima facie case. This has made getting bail under UAPA extremely difficult.
Case against Swamy
Swamy was arrested on 8 October last year from Ranchi by the NIA in the Bhima Koregaon case. He was brought to Mumbai the next day and has been lodged in Taloja Central Prison since.
The NIA’s charge sheet, filed soon after, had named Swamy, along with Anand Teltumbde, Gautam Navlakha, Hany Babu, Sagar Gorkhe, Ramesh Gaichor, Jyoti Jagtap and Milind Teltumbde.
In its charge sheet, the NIA claimed that Swamy was in communication with other CPI(M) cadres and had propagated that the arrest of cadres from different parts of country, particularly in Maharashtra, caused a “huge irrevocable damage to CPI (Maoist)”.
The NIA has also alleged that Swamy received funds from other Maoist cadres for the furtherance of the activities of CPI (Maoist).
Swamy has been charged under various provisions of the Indian Penal Code (IPC) including Sections 121 (waging or attempting to wage war or abetting waging of war against Government of India), 124A (sedition), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, etc), 505 (statements conducing public mischief) and 120B (criminal conspiracy), along with unlawful activities and terrorism related provisions of the Unlawful Activities (Prevention) Act 1967.
On 22 October 2020, his interim bail application on medical grounds — citing his age and prevailing health conditions — was rejected by special judge Kothalikar.
Swamy’s lawyer had then argued that the activist has Parkinson’s disease and was not able to even sign the vakalatnama when he was produced before court by the NIA. The legal team then took his thumb impression and the vakalatnama was submitted.
(Edited by Neha Mahajan)