MUMBAI: The Bombay high court on Tuesday directed the Maharashtra government to produce relevant records of the 2018 Pune trial court proceedings in relation to the chargesheet filed in the Elgar Parishad case against activist-lawyer Sudha Bharadwaj.
Her case is that the Pune trial court judge, K D Vadane, was “not a designated special court judge” and hence his order was not valid and she was entitled to default bail under law. Default bail is granted when chargesheet is not filed within the statutory period — in this case, 90 days —under the Criminal Procedure Code, unless an extension is granted by court.
At a virtual hearing on Tuesday before a bench of Justices S S Shinde and N J Jamadar, Bharadwaj’s counsel Yug Chaudhry and Payoshi Roy said an RTI reply by the HC registry had disclosed that judge Vadane was a district and additional sessions judge and not appointed as special judge by the state government under Section 22 of the National Investigation Agency (NIA) Act for the period between January 2018 and July 2019.
The HC said, “We will not allow the respondent-state to file reply, since we have heard substantially.”
In its reply, the NIA said Bharadwaj was “rightly produced before judge Vadane and he rightly remanded the accused to police custody initially and then to judicial custody… and rightly rejected’’ her bail plea. The agency opposed her petition saying her contention would lead to “absurd interpretations of the law”. It said the case was initially registered only under Indian Penal Code (IPC), and the Unlawful Activities (Prevention) Act (UAPA) was invoked only on May 17, 2018. However, Bharadwaj said she was arrested on August 28, 2018, after the UAPA was invoked.
Chaudhry submitted that if the RTI information was found correct, then not only would Bharadwaj’s detention, but those of the eight other co-accused in the Elgar Parishad case, would also be deemed illegal. The state has not filed its reply yet.
Section 11 of the NIA Act is at the “heart of argument’’, said Chaudhry. It provides that a special court shall be constituted by notification and be presided over by a judge appointed by the Centre as recommended by the HC chief justice. “It cannot be said that a special judge and a sessions judge are the same,’’ he added.
Section 22 of the Act empowers the state to constitute special courts for trial of offences, in case one has not been appointed. So, said Chaudhry, there are two questions: One whether the Pune judge was appointed under the NIA Act either by the state or the Centre; second, whether or not the state had appointed any special judge under Section 22?’’
The HC will hear the matter on July 8.