New Delhi: Six months after the National Investigative Agency (NIA) took over the probe in the Bhima-Koregaon violence, it does not seem to have made much headway in its investigation.
The federal probe agency’s affidavits filed recently before the special NIA court in Bombay and in the High Court reveal the status quo as far as the inquiry is concerned. The documents were handed over to the courts in response to bail petitions moved by three of the 11 human rights activists arrested in the case.
ThePrint accessed copies of the NIA affidavits filed to oppose bail petitions of Sudha Bharadwaj (59), Varavara Roa (81) and Shoma Sen (62). Contents of NIA affidavits are similar to Pune Police’s findings disclosed in their chargesheet filed before a city court on 15 November 2018, and 21 February 2019, and also replies resisting the activists’ bail petitions dismissed last year by both the Pune city court and the high court.
The three have now asked for interim release in view of the recommendations of the Bombay High Court’s high-powered committee (HPC) to decongest jails amid the Covid pandemic. One of the recommendations suggests interim bail for inmates aged more than 60 years and with underlying medical conditions.
The central agency — which also chose to oppose the bail on merits — maintained the activists had conspired to mobilise masses and spread hatred against the state, through provocative speeches, songs, plays etc. In this context, it said, they were not entitled to bail even on health grounds and that the accused were taking undue benefit of the pandemic. HPC’s recommendations were not applicable to them, the NIA claimed.
Bhardwaj, Rao and Sen have been charged with inciting riots during a celebratory gathering organised in January 2018 to mark 200 years of the Bhima Koregaon battle. The other activists arrested are Vernon Gonsalves, Arun Ferreira, Sudhir Prahlad Dhawale, Rona Jacob Wilson, Surendra Pundalik Gandling, Mahesh Sitaram Raut, Gautam Navlakha and Anand Teltumbde.
All have been booked under various sections of the Indian Penal Code (IPC), besides the stringent anti-terror law UAPA that has strict conditions for bail. According to UAPA provisions, the court has to come to a prima facie conclusion that the accused is innocent.
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Advocates for the activists, however, argue the law does not bar bail. Meanwhile, in a related matter, the High Court is hearing a petition challenging the probe’s handover from the Pune police to the NIA on the ground that the impugned transfer order is a “fraud on the Constitution”.
An NIA official told ThePrint, on condition of anonymity, that its probe in the case is still on. The accused, he said, were earlier denied regular bail due to strong evidence against them. “The fresh pleas filed on medical grounds were opposed as it did not hold any water. The matter is sub judice and the court shall decide further course,” he added.
In jail for over 700 days
In Bharadwaj’s case, the agency furnished its affidavit last week before the High Court that is hearing her appeal against Mumbai’s special NIA court order of 29 May, declining her bail.
Rao and Sen’s petitions were contested by the NIA before the same special court that on 26 June refused to grant them relief too. Both have moved the high court in appeal, which is likely to be heard this week.
While Bharadwaj and Rao were arrested along with Gonsalves and Fereira on 26 August 2018, Sen was taken into custody on 6 June, 2018 with Dhawale, Wilson, Gadling and Raut. Except Navalakha and Teltumbde – who surrendered on 14 April, 2020 – all have remained in custody, including the mandatory 14-day police custody, for over 700 days now.
Their lawyers say the time period spent in jail by them is much more than what a prosecuting agency has under the law to file its chargesheet, which is 180 days.
Before the case was transferred to the NIA, Bhardwaj, Gonsalves and Ferreira had sought bail from a Pune court, which dismissed their plea with a common order on 26 October, 2018. This finding was upheld by the Bombay High Court in October 2019 that took into account details of investigation disclosed in Pune Police’s chargesheet.
Similarly, the Pune court on 6 November, 2019 rejected the plea of Sen, Dhawale, Wilson, Gadling, Raut and Rao to enlarge them on bail. According to the court’s finding, the activists as members of a banned organisation – CPI(Maoist) – hatched a serious conspiracy to create unrest in the entire country. An appeal against this order is still pending before the High Court.
Special NIA court relies on Pune court’s order
Dismissing Bharadwaj’s fresh bail plea on medical grounds, the special NIA court in Mumbai relied heavily on the Pune court’s orders of 26 October 2018 and the Bombay High Court’s 2019 orders. It said in view of the observations made in the 2019 judgment, Bhardwaj is not entitled to temporary bail.
With regard to her claim that she suffered from type 2 mellitus diabetes as well as hypertension, the judge, on the basis of a medical report from Byculla jail, opined that she was being treated for diabetes with mild depression in line with the guidelines of an expert from J.J. Hospital in Mumbai. “The most important finding that has been recorded by the medical officer is that her health is stable,” the judge said.
The same court on 26 June declined to entertain Rao and Sen’s request for relief in view of HPC’s recommendation, once again quoting the Pune court order, this time the one given in November 2019. It said there are reasonable grounds for believing the accusation against the applicants is true. On their medical condition, the judge said, the jail medical officer’s report stated “their vital parameters were in normal unit”.
In both cases, the NIA referred to the Pune Police’s chargesheet failing to produce any fresh evidence against them.
According to Bharadwaj’s lawyer, Yug Chaudhary, the NIA preferred to respond to the lawyer-cum-activist’s bail plea on merits, though it was not required. However, NIA has failed to state any new fact before the court with regard to her alleged role, almost six months after they took over the probe, he said.
‘Transfer to NIA to ensure accused continue to languish in jail’
Chaudhary further said bail can primarily be opposed on four grounds. First, if the investigation is on. Second, that there is a prima facie case of a heinous offence. However, this ground has limited utility and cannot survive beyond filing of the chargesheet. Third, if there is apprehension that the accused will flee and fourth is a perceived apprehension of the accused tampering with evidence.
“The chargesheet was filed a long time ago, and yet the existence of a prima facie case is the only ground argued by the prosecution. NIA has failed to invoke any of the other three grounds to oppose the bail petition,” Chaudhary said.
Rao and Sen’s advocate Nilesh Ukey echoes similar views. “UAPA does not bar a judge from granting interim bail on humanitarian grounds or medical exigencies,” he said. “The pandemic is continuing to impact the global population in drastic ways and older people are facing the most serious threats and challenges.”
Also, he says, a change in investigating agency cannot be a ground to reject a bail petition, particularly when two chargesheets have been filed in the case.
According to the petition challenging the NIA probe, the direction to transfer the investigation was to ensure the trial does not proceed and accused continue to languish under the pretext that the investigation is on. It claimed the proceedings before the special court and thereafter the NIA judge have been adjourned on almost 60 occasions, just on the framing of charges.
“If a fresh de novo investigation has to be completed by the NIA, it will take 2-3 years and then another 2-3 years to complete the trial,” it said.
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