New Delhi: Trial in the Elgar Parishad or Bhima Koregaon violence case is not likely to end soon, given that the prosecution has named 363 persons as its witnesses. With this crucial observation and noting that charges have not yet been framed in the case filed under the Unlawful Activities (Prevention) Act, the Bombay High Court last week granted bail to researcher Rona Wilson and activist Sudhir Dhawale.
Observing that the accused had been in jail since 2018, a bench of Justices Ajay S. Gadkari and Kamal Khata ruled, “It is thus by now a settled and recognised principle of law that the prolonged incarceration without trial amounts to infringement or violation of Article 21 of the Constitution of India of an accused.”
There are strict provisions for the grant of bail in UAPA cases. However, to grant bail to Wilson and Dhawale, the court relied on a 2021 Supreme Court ruling, which allowed bail in UAPA cases if there is an inordinate or unreasonable delay, “with little possibility of early completion of trial”.
The court noted in its order that Wilson and Dhawale had remained in jail for nearly six years. Considering that Section 13 of the UAPA—which pertains to punishment for unlawful activities—prescribes a maximum sentence of seven years, the court order said that Wilson and Dhawale had already undergone a “significant period of incarceration”.
Though the bail order was pronounced on 8 January, it was officially uploaded on the Bombay HC website Tuesday evening. There are two separately authored orders, each nine pages long, stipulating similar bail conditions for Wilson and Dhawale.
Some of those initially arrested in the Elgar Parishad case were activists Mahesh Raut, Sudha Bhardwaj, Vernon Gonsalves, Arun Ferreira and Varavara Rao. However, all were granted bail in some form or the other. Besides them, scholar Anand Teltumbde had been behind bars for nearly two-and-a-half years before he was granted bail.
Conditions for bail
The Bombay HC said the long period of incarceration and the unlikelihood of the trial being completed soon necessitated the consequential release of Wilson and Dhawale on bail.
“Admittedly, till date the charge has not been framed, rather it is yet to be framed and the chances of completing the trial in near future are bleak,” the court pointed out, noting that this was despite 363 witnesses supporting the case of the prosecution, according to the charge sheet.
However, the bench specified that it, at this stage, would not make any observations on the merits of the case. Bail was granted by the two-judge bench “only on the ground of prolonged incarceration without trial and not on merits involved in the appeal”.
Granting bail to Wilson and Dhawale, the court directed them to pay a surety of Rs one lakh to the court, besides directing them to appear before the special National Investigation Agency (NIA) court. It also directed the NIA court to expedite the trial and complete the framing of the charges within the next nine months.
Additionally, the accused have to share their contact details, including mobile phone and landline numbers, with the NIA. The court has also directed them to surrender their passports before the trial court before their release from jail and not to tamper with evidence in any manner.
What the case was
The case originates from a 31 December 2017 programme at Shaniwar Wada, Pune. The event, Elgar Parishad, was held to commemorate the 200th anniversary of the Battle of Koregaon Bhima and witnessed participation of nearly 35,000 people. Activists of Kabir Kala Manch, a cultural organisation, organised the programme.
In its case, the prosecution argued that various events, provocative in nature, occurred at the programme and had the effect of creating enmity between caste groups, leading to violence, loss of life and a state-wide agitation. It also alleged that the venue showcased certain “provocative” books. Moreover, it said there were incidents of violence, arson, and stone-pelting near Bhima-Koregaon, accusing six members of Kabir Kala Manch, along with other associates, in the FIR.
After beginning its investigation, Pune Police, in April 2018, started searching the residences of eight persons, including activists Rona Wilson from Delhi and Sudhir Dhawale from Mumbai.
Subsequently, the NIA argued that during the search, it recovered electronic devices and documents, apart from other materials, and sent those seized articles to the Forensic Science Laboratory for analysis, followed by the detention of Wilson and Dhawale.
According to the NIA, it recovered certain letters, along with other materials, from Wilson, showing his involvement with the Communist Party of India (Maoist)—classified as a terrorist outfit under a notification issued under Section 2(m) of the Unlawful Activities (Prevention) Act, 1967.
The provision describes a “terrorist organisation” as an organisation listed in the Schedule or one operating under the same name as a listed organisation.
Moreover, the NIA alleged that the accused played an “active role” in recruiting and training the cadre of the CPI(Maoist).
What the 2021 ruling was
In 2021, a three-judge bench led by then CJI N.V. Ramana, in the Union of India vs. K.A. Najeeb case, ruled in favour of the grant of bail in UAPA cases where there is an inordinate or unreasonable delay, “with little possibility of early completion of trial”.
That case originated from a 2010 incident in which the NIA arrested K.A Najeeb in connection with the incident for encouraging an unlawful act against a professor in Kerala due to his framing of “objectionable questions” in the exam.
The unlawful act allegedly included cutting the professor’s hand off and hurling bombs at bystanders. That, and Najeeb’s membership of the Popular Front of India (PFI), specified as a fundamentalist group under the UAPA now, led to Najeeb’s arrest.
For four years, between 2015 and 2019, Najeeb applied for bail before an NIA special court six times, only to be repeatedly rejected on the grounds of the UAPA Section 43D (5), which makes it difficult to grant bail in the UAPA cases.
The provision prevents the grant of bail to a UAPA accused unless the public prosecutor gets an opportunity to be heard in the court. Bail can also be denied if there are reasonable grounds to believe that the accusation is prima facie, that is, on the face of it, true.
(Edited by Madhurita Goswami)
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