New Delhi: Finding that “there has been no credible evidence” against Vernon Gonsalves and Arun Ferreira to show they committed any terrorist act or entered into a conspiracy to do so, the Supreme Court Friday granted bail to the two, who were arrested five years ago for their alleged involvement in the Elgar Parishad case or the Bhima Koregaon violence.
A bench of justices Aniruddha Bose and Sudhanshu Dhulia gave its prima facie opinion while ruling on the bail petitions of Gonsalves and Ferreira. The two had challenged a December 2021 order by the Bombay High Court that denied them the relief.
Since the charges levelled against the two are “serious,” the Supreme Court bench imposed stringent bail conditions on them, but said, “The same cannot be the only reason to deny them bail…the two have been in jail for almost five years.”
Ferreira and Gonsalves face charges under the Unlawful Activities (Prevention) Act for their alleged membership of the banned CPI (Maoist) and for raising funds for terror activities.
They are among 16 people who were arrested by the Maharashtra Police in connection with the violence that broke out in Bhima Koregaon near Pune on January 1, 2018 — a day after the Elgar Parishad meeting held on December 31, 2017. The case was later transferred to the National Investigation Agency (NIA).
The others accused in the case are Gautam Navlakha, Sudha Bharadwaj, Varavara Rao, Anand Teltumbde, Sudhir Dhawale, Rona Wilson, Surendra Gadling, Shoma Sen and Mahesh Raut.
While the Bombay High Court granted Bharadwaj bail in December 2021, a similar relief was not extended to Gonsalves and Ferreira, who subsequently moved the Supreme Court. The SC granted bail to Rao in August 2022 and to Teltumbde in November the same year.
Last year, the apex court also allowed Navlakha’s request to be moved to house arrest from the Taloja jail on health grounds.
Meanwhile, on an assessment of the material produced before the court by the NIA Friday, the SC bench concluded that the documents, — which include letters allegedly exchanged between the accused as well as witness statements — do not justify the continued detention of the appellants at this stage while the final outcome of the case is pending.
‘Nothing against appellants’
The prosecution has invoked section 15 (1)(b) of UAPA against the two, which contains one of the definitions of a terrorist act under the said law. Section 15 (1)(b) says a terrorist act is committed when someone “overawes by means of criminal force or the show of criminal force or attempts to do so or causes the death of any public functionary or attempts to cause the death of any public functionary.”
Friday’s judgement on Gonsalves and Ferreira observed that the prosecution had produced only literature propagating violent acts, which would not “ipso facto” attract the provisions of Section 15 (1)(b).
“There is nothing against the appellants to prima facie establish that they had indulged in the activities, which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts by the appellants to do so,” the bench said.
Moreover, there is no allegation against the two for causing or attempting to cause the death of any public functionary, the court added.
The NIA was also unable to support the charge that the accused were members of the banned CPI (Maoist), the bench found.
The judges observed that the chargesheet seeks to establish Ferreira’s involvement with the Indian Association of People’s Lawyers (IAPL), an alleged frontal organisation of the CPI (Maoist).
“But the link between IAPL and the CPI (Maoist) has not been clearly demonstrated through any material,” the bench said. It added that references to the two being members of CPI (Maoist) were based on a statement by protected witnesses.
However, that link is made in relation to events between the years 2002 and 2007, when the organisation was not banned, the bench observed. The UPA government banned the CPI (Maoist) under the UAPA as a terrorist organisation on 22 June 2009.
“No evidence of continued membership after the party was classified as a terrorist organisation has been brought to our notice,” the bench added.
Link to ‘banned organisation’
On the letters and other documentary material produced by the NIA to establish the appellants’ alleged links to the banned organisation, the court said they are in the “nature of hearsay evidence, recovered from co-accused”.
“No covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of the records of these two appeals. References to the activities of the accused are in the nature of ideological propagation and allegations of recruitment,” the court said.
The court said the NIA had not produced any evidence of “any persons who are alleged to have been recruited or have joined the struggle inspired” by Gonsalves and Ferreira. It, therefore, rejected the NIA’s contention that the two had given support to a terrorist organisation.
In the absence of “better evidence” the court did not accept the NIA’s allegation that the two had raised funds for terror activities and that this was “credible enough to justify invoking the bail-restricting clause” under the law, which is section 40 of UAPA.
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Strict bail conditions
In view of Gonsalves’s conviction in a previous case, also under UAPA, the bench imposed strict bail conditions on the two. They have been directed to remain in Maharashtra and told not to leave the state without the trial court’s permission where the case is pending.
The two would have to surrender their passports to the NIA and provide their addresses and mobile phone numbers to the Investigating Officer (IO).
According to the order, they can use only one mobile phone, which should be charged and kept active at all times to remain constantly accessible throughout the period they remain on bail.
Furthermore, the court said the two shall keep the location status of their mobile phones active and pair them with that of the investigating officer of the NIA to enable him to identify their exact location. Moreover, the two also have to report to the investigating officer once a week.
The court gave the prosecution liberty to move for the cancellation of bail if there is a breach of these bail conditions or any others the trial court may impose, or if the two threaten or influence any witnesses.
(Edited by Richa Mishra)
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