SC rejects NIA plea against bail to Sudha Bharadwaj

SC on Tuesday dismissed the NIA’s petition against the bail granted by Bombay high court to activist Sudha Bharadwaj, an accused in the Bhima Koregaon violence case.

The Supreme Court on Tuesday dismissed the National Investigation Agency (NIA)’s petition against the bail granted by the Bombay high court to activist Sudha Bharadwaj, an accused in the Bhima Koregaon violence case, as it affirmed that only a special court was competent to give more time to the agency to complete its investigation in the 2018 case.

SC has dimissed NIA’s petition against the bail granted by Bombay high court to activist Sudha Bharadwaj in Bhima Koregaon violence case.

A bench, headed by justice Uday U Lalit, held that there was no infirmity in the December 1 high court order granting default bail to Bhardwaj on account of the legal lacuna in the investigating agency seeking time beyond 90 days in filing a charge sheet in the case.

“The moot question is whether the court was a competent court to grant extension of time beyond the stipulated 90 days for filing of the charge sheet. If the competence was lacking, there was no valid extension of period and the lady had already moved for bail. So, she was entitled to statutory bail...we see no reason to interfere with the Bombay high court order,” observed the bench, which also comprised justices S Ravindra Bhat and Bela M Trivedi.

The court warned NIA against making any extraordinary arguments in its appeal against Bhardwaj’s bail order that may cast a shadow of doubt over validity of proceedings in several other cases lodged under the Unlawful Activities (Prevention) Act (UAPA).

“Your argument has to be in the context of whole universe of criminal case. You cannot make an argument in this case and leave it,” commented the bench, as additional solicitor general Aman Lekhi, representing NIA, sought to argue that states cannot constitute courts under the NIA Act until the central government approves transfer of investigations to them.

Lekhi had made this argument to buttress the point that not only a special court but even a sessions court was entitled to extend the time for filing the charge sheet. NIA took over the probe only in January 2020 while the 90 days expired on January 25, 2019.

“How many such cases have you transferred? That means state which have constituted courts under NIA are without jurisdiction. That cannot be...you will be rendering your law redundant. You cannot make this argument for only this case and leave it at that. You are unduly restricting Section 22 of NIA Act (on power of states to constitute special courts). Otherwise also, you are denuding the state of its normal powers,” said the bench, rejecting Lekhi’s submissions.

Several activists, lawyers and authors are facing charges under UAPA for participating in an alleged Maoist conspiracy to trigger violence on January 1, 2018, in the Bhima Koregaon village of Maharashtra’s Pune district.

On December 1, the high court allowed default bail to Bharadwaj, underlining that a Pune sessions judge, who granted police a 90-day extension on November 26, 2018, to file the charge sheet, did not have jurisdiction to do so, as only a special NIA court could hear UAPA cases. The high court pointed out that the Pune sessions court was not notified as a special court under the NIA Act. There was already a special NIA court in existence in Pune at the relevant time, it had noted.

Bhardwaj, who had filed application for default bail when 90 days expired, was thus granted bail by the court, which asked the activist to approach a special NIA court on December 8 for bail conditions to be set. She is currently lodged at Byculla women’s prison. But the applications of eight co-accused facing terrorism and conspiracy charges for allegedly fomenting violence in Bhima Koregaon were rejected since they had not moved for bail immediately after the expiry of 90 days.

NIA moved the top court soon after the high court allowed default bail to Bharadwaj, contending that the high court failed to appreciate that all sessions courts were competent to examine the matters relating to remand and extension of time in filing the charge sheet.

On Monday, solicitor general Tushar Mehta mentioned the matter before Chief Justice of India NV Ramana, requesting an urgent listing. He informed the court that the matter required to be heard before Wednesday, when the bail order will take effect.

When the matter came up before the bench led by justice Lalit on Tuesday, Lekhi pressed that jurisdiction of the court is irrelevant for the purpose of remand. “Competence of a court is relevant only for the purpose of trial. Remand is distinct from trial and enquiry,” argued Lekhi, citing Section 167 of the Criminal Procedure Code that talks about remand and extension of remand.

However, referring to Section 167, the bench pointed out that while the provision lays down that an accused has to be produced before a nearest magistrate within 24 hours of his or her arrest, it mentions that a court has to apply its mind in giving extra time to an investigating agency to complete its probe and file the charge sheet by keeping the accused in custody.

“If the word used in proviso to Section 167 is ‘court’ and ‘not magistrate’, there has to be a legislative intent behind it. Why should we now read a ‘court’ as a ‘magistrate’? There is a hierarchy of courts under the NIA Act. If there were no intervening steps and no special courts, you, perhaps arguably, have been correct. But if there are special courts, your argument doesn’t augur well,” the bench told Lekhi.

“Also, imagine a situation where a magistrate, who is not competent to try a case, refuses to grant extension of time and sets free the accused, what will you do? This would create a very inconvenient situation...A court which otherwise isn’t competent to go into a matter will be making a ruling of such a nature. Will that not do a violence to the scheme of your Act that only a competent court should go into merits of a case? That’s why it has to be construed as a special court,” the bench observed.