Elghar Parishad: HC reserves orders on Sudha Bharadwaj’s default bail plea

Bharadwaj had sought default bail in light of the fact that the November 2018 order authorising the charge sheet and extension was illegal

The Bombay high court (HC) has concluded hearing the petition of Elgar Parishad accused Sudha Bharadwaj and reserved its order. Bharadwaj had sought default bail in light of the fact that the November 2018 order authorising the charge sheet and extension was illegal, as the judge who signed the orders was not competent and only a special judge under the National Investigation Agency (NIA) Act could have heard the same as she was booked under a scheduled offence under the Unlawful Activities (Prevention) Act (UAPA). The state and NIA, however, refuted the claims and stated that though the offences were under the UAPA till the investigation was taken over by NIA pre-trial procedures could be heard and decided by the sessions court.

Sudha Bharadwaj.

The division bench of justice SS Shinde and justice NJ Jamadar, while hearing the bail application of Sudha Bharadwaj and the appeals by eight other Elgar Parishad accused, was informed by advocate Dr Yug Choudhry that the default bail application was in light of the fact that the charge sheet authorisation and extension in November 2018 were granted by sessions judge KD Vadane who was merely an additional sessions judge, but claimed and signed as a special judge.

Choudhry had submitted that the information had been received through multiple queries under the Right to Information Act from the HC registry which showed that at the time of passing the orders Vadane was not a special judge. Choudhry had submitted that apart from the orders of Bharadwaj, orders for eight other Elgar Parishad accused were also signed similarly, hence there was illegality in the orders and Bharadwaj was eligible for default bail. He submitted that as per the NIA Act only a special judge could preside and decide on proceedings for offences under the UAPA.

After the bench verified the submissions, the state had argued that while there was an irregularity in Vadane passing the orders, there was no illegality as claimed by Bharadwaj and submitted that as per rules the application filed by Pune police for authorising the charge sheet and extension could be heard by a sessions judge or even a magistrate though the offences may be under UAPA.

The NIA through additional solicitor general Anil Singh had argued that the question of a special judge presiding over hearings would be applicable only after the NIA took over the investigation or the trial had commenced. He supported the state argument and said that there was no illegality in Vadane signing the orders. He also submitted that the application for default bail was not valid till 90 days for applying, as the same had not expired since Bharadwaj was arrested as she had been kept under house arrest for a few days. Those days could not be taken into consideration while calculating the days of arrest.

The arguments concluded on Wednesday and the bench reserved its orders, which will be passed in due course.