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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 

https://www.livelaw.in/news-updates/sudha-bharadwaj-bail-conditions-special-nia-court-bhima-koregaon-elgar-parishad-case-187189 

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?

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.,,

As far as the other 8 applicants are concerned, 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 on the basis of the principle that mere irregularity in taking cognizance will not vitiate the proceedings.

Full Judgement https://www.livelaw.in/pdf_upload/sudha-bharadwaj-v-nia-405097.pdf 

An open letter from Sahba Husain

Gautam Navlakha, nearly 70, is one of the oldest of the Bhima Koregaon arrestees, who was shifted to the “Anda Circle” (high security) from the barracks on October 12, 2021. Additionally, his telephone calls to me and his lawyers, his lifeline to the outside world, have been discontinued on the pretext that physical mulaquats have resumed in jail.

I, his partner, Sahba Husain, am over 70, and I live in Delhi. Travelling to Taloja Jail in Navi Mumbai frequently to meet him for the alloted ten minutes is difficult and Gautam’s only contact with me is through the two calls he was allowed every week to me that enabled me to send him articles of need, including medicines, books etc. With discontinuance of phone calls, all this will now depend on letters that take a minimum of two weeks to reach me.

Apart from the calls to me, regular access to lawyers through phone calls is an essential facility for undertrial prisoners. To deprive any undertrial prisoner of this effective and efficient mode of securing legal advice and help, or access to family, is the height of unfairness.

Gautam’s fragile health and well being will be further jeopardised by this withdrawal of the phone call facility to his family and lawyers. Already, in the Anda Circle, he is deprived of daily walks in the jail’s non-concreted greener areas and fresh air, and his health has deteriorated further, making specialised medical care an absolute necessity, if he is to live to fight this unjust and false case foisted on him. Without the weekly calls to me in Delhi, and to his lawyers, his life and his defence will be severely compromised.
Gautam writes, “confinement in Anda Circle means denial of fresh air/oxygen as there is not a single tree or plant in the open space of the Circle. And we are forbidden to step outside of the Anda Circle.... In other words, we spend 16 hours out of 24 cooped inside our cell and the 8 hours we are let out we are confined to a corridor 71/2’ x 72’ for our daily walk on cemented floor surrounded by high walls all around.”
Not long ago, Stan Swamy passed away in tragic circumstances. Stan, severely debilitated by Parkinson’s Disease, had to fight for such basic needs as a straw to drink, help to move to the toilet, and medical attention. His simple desire was that in his declining state of health he should be allowed to die at home in Ranchi. Even as his prayer before the court was pending, Stan Swamy passed away in a Mumbai hospital, indeed after once telling the court that he would rather be simply left to die in jail than be taken to the hospital.

These are prisoners of conscience, who have had to face indignities and humiliation for the smallest needs, and wage court battles for basic dignities in prison. In the past, when Navlakha’s original pair of spectacles went missing, it was difficult for the replacement spectacles to reach him in time.
It is not too much to ask for these simple facilities, phone access to his lawyers and family, and some fresh air to walk in once or twice a day.

Gautam has faced his unjustified incarceration with courage and spirit. How much longer is he going to be persecuted for his views, and to what extent will the authorities go to break his spirit?

Sahba Husain