Mumbai: Prima facie there is no material to infer that human rights activist and journalist Gautam Navlakha, an accused in the 2018 Elgar Parishad-Bhima Koregaon case, had conspired to or committed any terrorist act, observed the Bombay High Court while granting him bail.
Navlakha was granted bail by a division bench of Justices Ajay Gadkari and SG Dige on Tuesday against surety of Rs 1 lakh. The court, however, stayed the bail order for three weeks following a request by the National Investigation Agency (NIA) to allow it to approach the Supreme Court.
'No covert or overt terrorist act'
In a detailed 39-page judgment made available on Wednesday, the high court said that the “incriminating material” relied upon by the prosecution does not prima facie draw an inference that Navlakha has committed or indulged in a terrorist act. “From the material on record, it appears to us that no covert or overt terrorist act has been attributed to the appellant (Navlakha),” the bench said.
Navlakha was arrested in August 2018. Following Supreme Court order on November 10, 2022, he has been placed under house arrest in Navi Mumbai.
“According to us, the record prima facie indicates that it was at the most the intention of the Appellant (Navlakha) to commit the alleged crime and not more than it. The said intention has not been further transformed into preparation or attempt to commit a terrorist act,” the bench added.
Witness statements at the most indicate Navlakha was a CPI (Maoist) member
It further said that the witnesses statements at the most indicate that Navlakha was a member of banned CPI (Maoist) and therefore it would attract only the provisions of sections 13 (participating in an unlawful activity) and 38 (membership of a terrorist organisation) of the UAPA. The maximum punishment under both the sections is 10 years in prison.
All the documents, the court said, which has not been recovered from Navlakha but mention his name, have “weak probative value or quality”. The NIA recovered documents from co-accused which mention Gautam @ Kosa @ Gopanna @ Sadha, who is the Central Committee Member of the CPI (Maoist). “… Therefore it cannot be safely inferred that, it is the Appellant only who has been referred to in those documents. According to us, the identity of the Appellant being the same person ‘Gautam’ is in doubt as far as those documents are concerned,” the bench emphasised.
'Hearsay evidence'
Further, the content of these letters/documents through which Navlakha is sought to be implicated are in the form of “hearsay evidence”, as they are recovered from co-accused, it added.
The judges said, “The actual involvement of the appellant in any terrorist act cannot be even inferred from any of the communications and or statements of the witnesses. According to us, there is no material to infer conspiracy to commit an offence as contemplated under Chapter IV of the UAPA (punishment for terrorist activities).”
The court opined that at this stage it cannot be said that the provisions of sections 15 (terrorist act), 18 (conspiracy) or 20 (being member of a terrorist organization) can be prima facie applied to Navlakha.
Judges rely on SC verdict in granting bail to Vernon Gonsalves
The judges relied on the apex court’s judgment granting bail to co-accused Vernon Gonsalves, in which it observed that mere possession of literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any offence under the provisions of the Unlawful Activities Prevention Act (UAPA).
In the documents seized by the NIA, the persons have expressed their intention to cause fatality to politically influential persons or cause tremendous disturbance in the society at large. The court said Navlakha “only being a member of the party cannot be prima facie held to be a co-conspirator to it”.
It dismissed NIA’s contention that Navlakha had connection with the Pakistan Inter-Services Intelligence (ISI) since he had written a letter to a US court judge seeking clemency to Ghulam Fai. The court reasoned that this had no correlation with the present case and it appears that Navlakha had written the letter in his individual capacity and at the most it can be said, being a member of his party.
Also, Navlakha has been in jail for three years and seven months and the charges are yet to be framed in the case. The charge-sheet consists of about 20,000 pages in 54 Volumes and the prosecution has cited 370 witnesses in it. Hence, the possibility of trial being concluded “in the near future is very bleak”, court added.
The case relates to alleged inflammatory speeches made at the Elgar Parishad conclave held in Pune on December 31, 2017. The police claimed that it triggered violence the next day near the Koregaon-Bhima war memorial in Pune district. It is also alleged that the conclave was backed by Maoists.
Sixteen persons were arrested for their alleged conspiracy in the case. Others to be released on bail are – Sudha Bharadwaj, Varavara Rao, Anand Teltumbde, Vernon Gonsalves, Arun Ferreira and Mahesh Raut. Rao is out on medical bail.
