Pique and petulance: On Sudha Bharadwaj’s bail and NIA’s appeal

In filing a quick appeal against the grant of statutory bail to lawyer-activist Sudha Bharadwaj , the NIA has displayed nothing but pique and petulance over a well-reasoned order of the Bombay High Court. The bail order itself is a much-delayed relief, considering that the right to 'default bail' had accrued to her as early as January 2019, on completing 90 days in prison and when there was neither a charge sheet nor a lawful order extending the time limit for filing it from 90 to 180 days. The High Court is right in concluding that the Sessions Court had no jurisdiction to grant such an extension, and subsequently take cognisance of the charge sheet filed in February 2019, when a duly constituted Special Court under the NIA Act was already functioning in Pune. Further, the court has given the benefit of default bail — an indefeasible right under Section 167(2) Cr.P.C. that arises when the investigating agency fails to submit its final report within the stipulated period — only to Ms. Bharadwaj, as only her application was pending at that time; while eight others had not specifically sought bail on that ground, even though they had questioned the legality of the manner in which the court had taken cognisance of the case against them. On this, case law favours the view that if one fails to seek statutory bail at the appropriate time, and a charge sheet is laid subsequently, the right to default bail is extinguished.

The NIA's appeal exemplifies the hard-line approach of the Union government in prosecuting the Bhima Koregaon case under the Unlawful Activities (Prevention) Act based on a dubious premise that some violent incidents that occurred in the aftermath of the Elgaar Parishad event, on December 31, 2017, were part of a sinister Maoist conspiracy. A local investigation against the attack on a commemoration event organised by Dalits transmogrified into an anti-terrorism probe. After convincing the Supreme Court that it was not a case of suppression of political dissent, the Centre pursued the probe vigorously, and got bail denied to everyone — save for a temporary respite on medical grounds to Telugu poet-activist Varavara Rao. There is also no sign of an early trial. One of those held, Father Stan Swamy, succumbed to illness exacerbated by prison conditions. There are reports that some of purported evidence in this case may have been planted remotely on their devices. It is unfortunate that courts seem to be considering bail only on medical grounds, and in this one case, on the ground of default. It is time they examined the merit behind the sweeping claims in the charge sheet and also took heed of Supreme Court judgments that have granted bail even under UAPA if the trial is unlikely to be completed in the foreseeable future.