The Bombay high court on Wednesday reserved order in plea by human rights lawyer Sudha Bhardwaj and accused in Bhima Koregoan case seeking default bail stating that the Pune sessions court had no jurisdiction to take cognisance of chargesheet filed against them.
A division bench of Justices SS Shinde and NJ Jamdar reserved the order on the petition by Bhardwaj stating that the Pune Sessions Judge KD Vadane was not notified as special judge under the National Investigation Agency (NIA) Act.
Yug Chaudhary, Bhardwaj’s counsel, argued that Pune sessions judge’s order granting extension to Pune police to file chargesheet and subsequent taking cognisance of this chargesheet was illegal as the sessions court was not notified as special court under the NIA Act.
Chaudhary further argued that they were not talking about illegal remand but were talking about lack of jurisdiction of the sessions judge.
Advocate General Ashutosh Kumbhkoni reiterated his earlier argument that the special NIA court would hear a case only after a case is taken over by the NIA and not before that. Till then the sessions court has the jurisdiction to pass necessary orders, argued Kumbhkoni. Hence, act of approaching the Sessions Court was the only option remaining with the State government, added Kumbhkoni.
The stringent UAPA was invoked in the case on May 17 2018. Advocate General Ashutosh Kumbhkoni had earlier argued that “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, when there was handover.”
Additional Solicitor General Anil Singh argued that there was no valid default bail application as the period of house arrest of the accused cannot be included while calculating the chargesheet. The default bail application was not valid as it was not filed after the 90 days of the actual arrest, argued Singh.
Singh even read out a judgement of the Patna HC which has ruled that NIA Court came into the picture only after NIA takes over investigation.
Bhardwaj and other arrested are accused of being active members of the CPI (Maoist) and propagating Maoist ideology and inciting violence. They have been booked under the provisions of the stringent Unlawful Activities (Prevention) Act, apart from various sections of the Indian Penal Code (IPC).
The Elgar Parishad case is related to inflammatory speeches made at a conclave held in Pune on December 31, 2017, which, the police claimed, triggered violence the next day near the Bhima-Koregaon war memorial located on the outskirts of the western Maharashtra city. The police had claimed the conclave was organised by people with alleged Maoist links.
On 1 January , 2018, the violence at Bhima Koregaon village left one dead and injured several others, including 10 policemen. Violence erupted after some people, reportedly with saffron flags, pelted stones at cars heading towards the village for the commemoration of the 200 years of Bhima-Koregaon war on New Year's Day.
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