Bombay High Court Grants Default Bail To Sudha Bharadwaj In Bhima Koregaon Case; Refuses Bail To 8 Other Accused By - Sharmeen Hakim 2021-12-01 https://www.livelaw.in/amp/top-stories/bombay-high-court-grants-default-bail-to-sudha-bharadwaj-in-bhima-koregaon-case-refuses-bail-to-8-other-accused-186679 The High Court accepted the petitioners' argument that the Additional Sessions Court, Pune, which took cognizance of the chargesheet filed by the NIA and also extended the period of detention of accused beyond 90 days as per Section 43D(2) of the UAPA, was not competent to do so. Because, the Pune Sessions Court was not notified as a Special Court under the NIA Act. Also, there was another Special NIA Court in existence in Pune at the relevant time... However, the High Court added that this irregularity will not result in vitiation of the cognizance taken on the chargesheet.
"...so far as the applicant Nos.1 to 5 in Application No.1458 of 2019, the aspect of legality or otherwise of the extension of period of detention is of no relevance as the applicants did not avail of the said right to be released on default bail before the charge-sheet was fled against them on 15th November 2018. In the case of applicant Nos. 6 to 8, though wehave held that the order passed by the learned Additional Sessions Judge on the report (Exh.33) on 26th November 2018 was without jurisdiction, yet the said declaration is of no assistance to the applicant Nos.6 to 8 as they did not avail of the right to be released on default bail by fling an application, after the expiry of the initial period of 90 days and before the lodging of the charge-sheet on 21st February 2019
Will the Sudha Bharadwaj Bail Order Affect the Bhima Koregaon Case as a Whole? https://www.thequint.com/news/law/impact-of-sudha-bharadwaj-bail-order-bhima-koregaon-case Vakasha Sachdev Published: 04 Dec 2021, 9:56 AM IST
The Bombay HC's order may not affect the merits of the case, but the issues raised could have major consequences. On argument was .. It was not just the extension issue that had been heard and decided by a court which didn't have jurisdiction – the charge sheets against them all had also been filed before judges who didn't have the jurisdiction to deal with the matter... These same judges had then taken cognizance of the matter (on 15 November 2018 for Accused 1-5, and on 21 February 2019 for Bharadwaj and Accused 6-8), and allowed the case to proceed. .. It was therefore argued by the accused that because the charge sheets were filed before the wrong judge, and this wrong judge then took cognizance of them, everything that followed in the case stands vitiated (and hence they were entitled to default bail).
Supreme Court Dismisses NIA's Plea Challenging Default Bail To Sudha Bharadwaj In Bhima Koregaon Case Srishti Ojha 2021-12-07 https://www.livelaw.in/amp/top-stories/supreme-court-sudha-bharadwaj-default-bail-bhima-koregaon-nia-bombay-high-court-187093
Justice Lalit pointed out the proviso to Section 167(2) uses the word "Court" instead of "Magistrate" when it talks about the extension of the period of remand beyond 90 days. "The context of the matter is that it is only the Special Court which can take cognizance of the matter because it is the Special Court which is aware of the intricacies of the matter. These are the factors which weighed with Justice Nariman (in Bikramjit decision)", Justice Lalit observed while asking the ASG if there are any factors to take a view different from Bikramjit case. "If there's a special court that'd be the only court which can hear this", Justice Bhat added.
While granting bail to Bhardwaj, the High Court refused default bail to the other 8 accused in the case, after observing that they had not applied for default bail when that right had accrued to them. The High Court noted that none of them had filed an application seeking default bail at the time of expiry of 90 days of their detention.
Their case was premised on the argument that the cognizance of the chargesheet itself is vitiated, as the Court had no competence, and hence it should be presumed that no chargesheet has been filed as regards them. This was not accepted by the High Court based on the principle that mere irregularity in taking cognizance will not vitiate the proceedings.
Special NIA Court Paves Way For Sudha Bharadwaj's Release in Bhima Koregaon Case, Sets Bail Conditions Sharmeen Hakim 8 Dec 2021
Bharadwaj has been directed to reside in Mumbai, within the Special Court's jurisdiction, and disallowed from making any public statements. The court rejected her plea to travel between Chattisgarh, Mumbai and Delhi. Advocate Yug Chaudhry for Bharadwaj said she was a practising advocate and needed to earn her livelihood.
Comment: What about the rights of her clients to representation by a lawyer of their choice?