SC rejects NIA's plea against bail to Sudha Bharadwaj

The Supreme Court Tuesday dismissed the National Investigation Agency's appeal challenging the Bombay High Court order granting default bail to lawyer-activist Sudha Bharadwaj in the Elgar Parishad-Maoist links case.

"We see no reason to interfere with the high court order. Dismissed," said a bench of Justices U U lalit, S Ravindra Bhat and Bela M Trivedi, refusing to consider the submissions raised by the NIA which had moved the apex court against the December 1 order.

Bharadwaj was arrested in the Elgar Parishad-Maoist links case in August 2018 under the provisions of the stringent Unlawful Activities (Prevention) Act.

The top court had agreed on Monday to accord urgent hearing to the NIA plea challenging the Bombay High Court order granting default bail to Bharadwaj.

The activist lawyer, accused of hatching conspiracy to overthrow the Union government, was entitled to bail and its denial would be in breach of her fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution, the high court had said.

It had directed that Bharadwaj, lodged in the Byculla women's prison, be produced before the Mumbai special NIA court on December 8, and conditions of her bail and date of release be decided.

The high court, while granting default bail, had held that the additional sessions judge of Pune, which had extended the time period beyond 90 days for filing charge sheet to the NIA, was not competent to do so as it was not notified as a Special Court under a provision of the NIA Act.

At the outset of the hearing on Tuesday, Additional Solicitor General Aman Lekhi, appearing for the NIA, said the high court wrongly interpreted the law in granting default bail to the accused.

Under a provision of the Code of Criminal Procedure (CrPC), if an investigating agency does not file the charge sheet within 90 days, the accused becomes entitled for grant of statutory bail by default.

Lekhi referred to the chronology of the case and said the 90-day period for filing the charge sheet as regard to Bharadwaj had expired on January 25, 2019.

The application for extension of time was however filed on November 22, 2018, he said, adding that the probe agency was under the belief that the period of house-arrest of the accused was needed to be included.

The lower court had allowed the NIA's pleas for extension of time on November 26, 2018 and on the same day the accused had filed plea seeking grant of default bail, he said.

"So the moot question is whether the court was competent. If the competence was lacking there was no valid extension of period and the lady was entitled to statutory bail," the bench said.

The counsel for the NIA argued to establish that the extension of time granted for filing the charge sheet was valid as section 22 of the NIA Act refers to the competence of court to ‘try' and the extension of time is different and distinct and hence the high court's decision to discard the extension was wrong.

The bench then asked whether the response of the NIA would be same if the same sessions court, which is not a special court designated under the law, denies the plea of extension of time for filing the charge sheet.

"It is not your case that there is no Special Court in Maharashtra. There are Special Courts in Maharashtra. So why did you prefer this application before the other court," the bench asked.

The bench dismissed the plea without hearing the counsel representing Bhardwaj.

Bharadwaj is the first among 16 activists and academicians arrested in the case to have been granted default bail.

Poet-activist Varavara Rao is currently on medical bail.

Jesuit priest Stan Swamy died in a private hospital here on July 5 this year while waiting for medical bail. The others are in custody as undertrials.

The high court had rejected the default bail plea filed by eight other co-accused in the case -- Sudhir Dhawale, Varavara Rao, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira.

The case relates to alleged inflammatory speeches delivered at the Elgar Parishad conclave, held at Shaniwarwada in Pune on December 31, 2017, which the police claimed triggered violence the next day near the Koregaon-Bhima war memorial located on the city's outskirts.

The Pune police had claimed the conclave was backed by Maoists. The probe in the case was later transferred to the NIA.