Video Editor: Mohd. Irshad Alam
On Wednesday, 1 December, the Bombay High Court held that lawyer and long-time workers' rights activist Sudha Bharadwaj was entitled to default bail in the Bhima Koregaon case.
She is now to be produced in the special NIA court in Mumbai on 8 December, which will decide the bail conditions to be followed by her.
Bharadwaj was granted default bail as the Pune Police had not submitted a charge sheet against her within 90 days of her arrest – and the order granting the police an extension of time for filing their charge sheet had not been passed by a designated NIA court as required by the law.
A request for bail on the same grounds was also made by eight of the other accused in the Bhima Koregaon case: Sudhir Dhawale, Varavara Rao, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira.
However, the high court dismissed their pleas.
But why?
It all came down to a matter of timing.
The Right to Default Bail
A person cannot be kept in jail (ie judicial custody) indefinitely while the police conduct an investigation into a crime.
Under Section 167(2) of the Code of Criminal Procedure, if the police fail to file a charge sheet against an accused person within a stipulated period of time, then the person is entitled to be released on bail, provided they are willing to furnish a bail amount and follow any conditions the court sets for them.
This is what is known as 'default bail'.
The deadline for filing a charge sheet for regular offences is 60 days, and goes up to 90 days if the offence in question is punishable with the death penalty, life imprisonment, or imprisonment for not less than 10 years.
In UAPA cases, the investigating agency can get extra time to investigate and file a charge sheet. Under Section 43D(2) of the Unlawful Activities (Prevention) Act, the deadline can be extended to 180 days for cases involving serious offences.
However, an extension has to be granted by a valid court order. If the extension was not granted in time, or was not granted by the right court, then an accused person will still be entitled to be released on default bail.
Under the provisions of the UAPA, only a court which has jurisdiction to try offences under the UAPA can grant an extension to the deadline for filing a charge sheet.
When Did the 8 Accused File for Default Bail?
Not all the Bhima Koregaon accused were arrested at the same time, and there are different charge sheets against different batches of them, depending on when they were taken into custody.
Among the eight accused whose bail pleas were rejected by the Bombay High Court on Wednesday, there are two different groups:
Accused 1-5: Sudhir Dhawale, Rona Wilson, Surendra Gadling, Shoma Sen and Mahesh Raut. They were arrested on 6 June 2018.
Accused 6-8: Varavara Rao, Vernon Gonsalves and Arun Ferreira. They were arrested on 28 August 2018, along with Sudha Bharadwaj.
As regards Accused 1-5, the Maharashtra Police's Anti-Terror Squad (ATS) filed a charge sheet against them on 15 November 2018.
For Accused 6-8, as with Bharadwaj, a supplementary charge sheet was filed against them on 21 February 2019.
The charge sheets were therefore filed after they had been in custody for more than 90 days – which means that all of the accused could have potentially filed applications for default bail. Of course, since the police had applied for and been granted extensions by judges of the Pune sessions court, they would have to show somehow that the orders for extension were invalid.
While Sudha Bharadwaj filed an application for default bail on 26 November 2018, the other eight accused only filed their applications after the charge sheets had been filed. Accused 6-8 filed their first such application on 17 May 2019, while Accused 1-5 filed their first such application on 21 June 2019.
All these requests for default bail were rejected by the Pune sessions court on 5 September 2019 and 6 November 2019, which was why the high court was now hearing them, along with a fresh plea by Bharadwaj.
Why Does the Timing Matter?
The timing of the pleas matters because even though default bail is a matter of right, it has to be exercised within the right time, otherwise it is lost.
This was clarified by the Supreme Court on 26 October 2020, in the case of M Ravindran vs Intelligence Officer.
To exercise the right to default bail, the apex court said that an accused only has to file an application seeking it. Once that is done, the courts will consider their applications even if a charge sheet is subsequently filed, or a valid extension of time is granted to the police.
But if they don't file the application in time, the right is extinguished.
"However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished."Supreme Court judgment in M Ravindran case
The extension of time granted for the charge sheet for Accused 6-8 was invalid, because it had been passed by a judge who had not been designated as a special court under the NIA Act.
The orders taking cognisance of the offences against all the accused were also passed by judges whose courts hadn't been designated as special courts.
From July 2017 onwards, the State of Maharashtra had been designating certain judges as special judges under the NIA Act. Therefore, according to another Supreme Court order, the requests for extension of the charge sheet deadline and for cognisance of the charge sheets should only have gone to those special judges, not the sessions court.
Unfortunately for all eight accused, as mentioned earlier, their pleas for default bail were filed after charge sheets had already been filed by the police.
Accused 1-5 had raised questions over the jurisdiction of the sessions judge at the time they were remanded into custody, but they only filed an actual application for default bail much later.
As a result, even though there were valid questions about the extensions to the charge sheet deadline (and indeed the judges had expressly said there was no jurisdiction for the extension of the charge sheet for Accused 6-8), the high court's hands were tied.
The high court also held that even though the orders taking cognisance of the charges had been passed by courts without jurisdiction, this did not invalidate the case and become grounds to grant the accused default bail.
Only Sudha Bharadwaj was entitled for release on default bail, the high court found, because she had made an application for default bail before the supplementary charge sheet was filed against her on 21 February 2019.
Although her application had been filed before the expiry of 90 days from the time she'd been in judicial custody, the judges held it would be too formalistic to deny her right to liberty on this technicality.
For the other eight accused, they will need to try filing an appeal in the Supreme Court. However, unless the apex court is willing to reconsider its decision in the M Ravindran case, their appeals are unlikely to succeed, at least when it comes to the issue of default bail.
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