[Bhima Koregaon] Why the Bombay High Court granted default bail to Sudha Bharadwaj and not to others

While granting default bail to lawyer and activist Sudha Bharadwaj on Wednesday, the Bombay High Court refused bail to eight other co-accused in the Bhima Koregaon case..The Bench of Justices SS Shinde and NJ Jamadar made certain interesting observations in the 120-page order while deciding the pleas filed by Bharadwaj and 8 others challenging orders of the Pune Sessions Judges..Before proceeding to why default bail was granted or rejected, it is important to know what the Bench held about the judicial competence of the Pune Sessions Judges. .Judicial competence of the Pune Sessions Judge.At the outset, the Bench concluded that the extension of time for investigation and detention under provisions of Section 43D(2) of the Unlawful Activities Prevention Act (UAPA) and Section 167(2) of the Code of Criminal Procedure had not been done by a court of competent jurisdiction..Citing Bikramjit Singh’s judgment, the Court held that given the existence of a Special Court at Pune, the chargesheet should have been lodged at Pune. Nevertheless, the Bench held that the act of Additional Sessions Judge KD Vadane taking cognizance of the matter did not vitiate the entire proceedings. Referring to provisions of the Code of Criminal Procedure (CrPC), the Court held,"To begin with, the Code declares it to be an irregularity which does not vitiate the proceedings. Clause (e) of section 460 of the Code, declares that if any Magistrate, not empowered by law, erroneously in good faith, takes cognizance under clause (a) or clause (b) of sub-section (1) of section 190, his proceedings shall not be set aside merely on the ground of his not being so empowered...".The Bench reasoned that a judge not having judicial competence to take cognizance of scheduled offences “cannot be exalted to such a pedestal as to hold that the very presentment of the charge-sheet by the investigating agency is non-est in the eye of law.”.Why was Sudha Bharadwaj granted bail?.The Bench noted that the challenge to Bharadwaj’s bail application was on the ground that it was presented prematurely, that is before the completion of 90 days. However, Bharadwaj’s application for default bail was pending on the date the application for extension of time to file chargesheet was made.The order stated,"...what is of critical signifcance is the fact that the application for default bail, preferred by the applicant (Exh.43) on 26th November 2018 was not decided alongwith the report (Exh.33) filed by the Public Prosecutor. The said application was very much pending on the day, the period of 90 days, excluding the duration for which the applicant was under house arrest, expired on 25th January, 2019 and eventually came to be dismissed by the learned Additional Sessions Judge on 6th November 2019...".In light of Supreme Court orders in the case of M Ravindran and Bikramjit Singh, the High Court observed that once the twin conditions of default in fling the chargesheet within the prescribed period, and the action on the part of the accused to avail the right are satisfied, the statutory right under Section 167(2) of the Code becomes a fundamental right as further detention would fall foul of the personal liberty guaranteed under Article 21 of the Constitution..Having held that the Sessions Judge had no judicial competence to extend the period of detention under Section 43-D(2)(b) of UAPA, the Court was left with four aspects to consider:That the period of detention of 90 days (excluding the period of house arrest) expired on January 25, 2019;No chargesheet was lodged;There was no lawful order of extension of period of detention; andAn application preferred by Sudha Bharadwaj for default bail awaited adjudication..The Bench relied on a catena of decisions which held that right of the accused to be released on default bail is indefeasible and is also associated with the fundamental right flowing from ‘the procedure established by law’ under Article 21 of the Constitution of India.The aspect of competence to take cognizance, on the other hand, is a matter which does not necessarily entail the consequence on personal liberty, the Bench highlighted.“On the touchstone of the guarantee of personal liberty under Article 21 of the Constitution, in our view, to deprive the applicant-Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26th November 2018 was premature, would be taking a too technical and formalistic view of the matter. In our view, all the requisite conditions to release the applicant-Sudha Bharadwaj on default bail stood fully satisfied,” the order stated..Why was bail rejected for the others?.The Court noted that accused Sudhir Dhawale, Rona Wilson, Surendra Gadling, Dr. Shoma Sen and Mahesh Raut never claimed to have filed an application for default bail after the expiry of initial period of 90 days from the date of their production till the fling of the chargesheet on November 15, 2018.Co-accused P Varavara Rao, Vernon Gonsalves and Arun Ferreira also did not prefer such an application till the fling of the supplementary chargesheet..The Bench observed that "where the accused fails to apply for default bail when the right accrues to him and subsequently a chargesheet is filed before the Court, the right to default bail would get extinguished as it cannot be said that the accused ‘availed of’ his right to be released on default bail."For this reason, the the other accused were not entitled for bail, the High Court held..[Read order]