Mumbai: The Maharashtra government and the Union government have opposed default bail sought by Sudha Bharadwaj and others arrested in the Elgar Parishad case, stating that default bail can be sought 90 days after arrest when the chargesheet is not filed in the case. The arguments were made before the division bench of Justices S Shinde and NJ Jamdar in separate bail applications filed by Sudha Bharadwaj and Sudhir Dhawale and others.
On Friday, advocate general Ashutosh Kumbhkoni, while arguing for the state government, contended that the sessions court will be the magistrate court in light of 43D of the Unlawful Activities (Prevention) Act [UAPA Act]. Section 43D of the Act empowers the sessions court to take cognisance of the charge sheet u/s 167(2) of the Code of Criminal Procedure.
Kumbhkoni argued that exclusivity cannot be given to a court for the scheduled offences under the National Investigation Agency (NIA) Act. He submitted judgments of other high courts which had taken different opinions for cases under the UAPA – one which held that a magistrate is a special court and the other which said that the matter ought to be heard by the sessions court and not the magistrate.
“Assuming that they are right, that the sessions court could not have taken cognisance, this aspect cannot entitle them to default bail,” argued Kumbhkoni.
Additional solicitor general Anil Singh, arguing for the Union government, contended that if the contentions of the applications were assumed to be true, they (accused) have to file a separate application for default bail. The factual right in default bail accrues after completion of 90 days, added Singh. Singh also pointed out that other default bail applications were filed in May and June 2019 which was after the chargesheet was filed February 21, 2019. Echoing Kumbhkoni’s arguments, Singh said there was no restriction for sessions court to hear a matter in pre-trial stage.
“The special court can hear cases from the trial stage as is stated in Section 22 of the NIA Act,” argued Singh adding that once the chargesheet is filed, then the right to default bail goes away.
The HC has kept the matter for hearing on August 2, when counsels for Bharadwaj and others, Yug Chaudhary and Sudeep Pasbola will argue.
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