The Maharashtra government has opposed the petition filed by human rights activist Sudha Bharadwaj in Bhima Koregaon violence case seeking default bail stating that the special judge under the National Investigation Agency (NIA) Act comes into the picture only after the probe is transferred to the central agency.
The division bench of Justices SS Shinde and N J Jamadar was hearing a petition filed by Bharadwaj contesting that sessions judge KD Vadane had no jurisdiction to hear her case since he was not designated special NIA judge while granting extra time to the police. She had contended that once Unlawful Activities (Prevention) Act (UAPA) is added case has to be heard by the Special Court.
In 2018, judge Vadane had granted additional time to Pune police to file chargesheet in the Bhima-Koregaon violence case, and later in 2019 the sessions judge had taken cognisance of the chargesheet.
Advocate General Ashutosh Kumbhkoni argued that, in 2018 and 2019, there was no need to take the matter with regard to extension of time and taking cognisance of the chargesheet before the special NIA judge since the central agency was not probing the case. Till the time the probe is transferred to the NIA, the special court does not come into the picture to try offences under UAPA, argued Kumbhkoni.
The stringent UAPA was invoked in the case on May 17, 2018. “On January 24, 2020, the Union government passed order to transfer the investigation to NIA. Whereas, the state government passed an order to transfer the probe to NIA on February 12, 2020. Our contention is that the NIA Act will apply from Jan 24, 2020 and from Feb 12, 2020 when the case was handed over,” argued Kumbhkoni.
Besides the state government has also contended that the special NIA court, under section 13 of the NIA Act, is empowered to conduct trial in an offence and not undertake pre-trial proceedings. Kumbhkoni argued, “A Special Court has no jurisdiction to try and decide any pre-trial proceedings. It is there to conduct the trial.”
According to Bharadwaj’s petition, the concerned judge was not appointed as a “special judge” to hear matters pertaining to matters of UAPA. Bharadwaj’s counsel Yug Chaudhry had argued that in cases of scheduled offences such as those under the UAPA, a sessions judge has the power to take cognizance only if there exist specific instructions from the Principal District Judge. Bharadwaj was arrested in September 2018 and is presently lodged at the Byculla womens’ prison in Mumbai. The HC has kept the petition for further hearing July 23, 2021.
