As soon as the Bombay High Court held on 1 December that Sudha Bharadwaj, the reputed activist and lawyer who is an accused in the Bhima Koregaon case, was entitled to be released on default bail, certain questions became inevitable.
First, how quickly would the NIA file an appeal against the judgment in the Supreme Court? (Answer: Very quickly, by the evening of 2 December)
Secondly, will the Supreme Court stay the high court's order before Bharadwaj is produced in the special NIA court in Mumbai for release on 8 December? (Answer: We don't know yet, but will know soon enough)
And thirdly, does this decision – particularly its finding that the judges who passed various pre-trial orders in the case did not have the authority to do so – affect the Bhima Koregaon case as a whole, going forward?
The answer to this third question initially seems like a straightforward 'No'. But when we delve into it a bit further, we find that the issues raised in this order could impact the fate of this controversial case.
Key Finding That Led to Default Bail for Sudha Bharadwaj Won't Affect Main Case
The last question was sort of raised during the proceedings in the Bombay High Court – and was even addressed by the judges in their order.
The case in the high court was basically about whether Sudha Bharadwaj, and eight other accused in the case, were entitled to default bail. Default bail is a right of every accused person to be released from jail if the police fail to file a charge sheet against them in time.
The arguments for default bail were along two lines.
Bharadwaj was arguing that the supplementary charge sheet against her (as well as Varavara Rao, Arun Ferreira and Vernon Gonsalves) was filed on 21 February 2019 – which was after the 90-day time limit prescribed by law.
The time limit can be extended to 180 days in UAPA cases, and the state police (who handled the investigation of the Bhima Koregaon case till the NIA took over in early 2020) had filed a request for extension of time in November 2018.
However, Bharadwaj successfully showed that the judge who granted the extension didn't have the authority to do so. As a result, the extension passed by him could not be taken into account when seeing whether she was entitled to default bail – hence her release.
Rao, Ferreira and Gonsalves (Accused 6-8) should have been able to claim the same relief, but they filed their default bail applications too late, which, according to Supreme Court precedent, meant that their right to default bail was lost.
This argument over the extension order was a limited procedural point only, and so cannot affect the Bhima Koregaon case as a whole.
Bombay HC Says Irregularities Don't Vitiate Proceedings...
However, there was another argument raised in the case, particularly by the other five accused: Shoma Sen, Surendra Gadling, Sudhir Dhawale, Rona Wilson and Mahesh Raut (Accused 1-5).
It was not just the extension issue that had been heard and decided by a court which didn't have jurisdiction – the charge sheets against them all had also been filed before judges who didn't have the jurisdiction to deal with the matter.
These same judges had then taken cognizance of the matter (on 15 November 2018 for Accused 1-5, and on 21 February 2019 for Bharadwaj and Accused 6-8), and allowed the case to proceed.
It was therefore argued by the accused that because the charge sheets were filed before the wrong judge, and this wrong judge then took cognizance of them, everything that followed in the case stands vitiated (and hence they were entitled to default bail).
This is potentially an argument that could have larger ramifications for the Bhima Koregaon case as a whole, as it could perhaps be used to try and derail the case – if not on merits, but in a significant way.
As it happens, the Bombay High Court rejected the argument, holding that if the wrong court takes cognizance of the matter, this doesn't lead to a 'failure of justice' which would allow the proceedings to be vitiated.
There might, however, be some scope to argue around the Bombay High Court's view, at the Supreme Court.
... But is This Correct?
The Code of Criminal Procedure specifies which decisions by a Magistrate can be vitiated on grounds of irregularity (Section 461) and which cannot (Section 460).
When it comes to decisions of other courts which deal with more complex legal issues, like the courts of session, there is a general rule laid down in Section 465 of the Code, that those decisions cannot be reversed or altered because of any "error, omission or irregularity" in the proceedings.
Unless "a failure of justice" has been caused by the irregularity.
The Bombay High Court, as noted above, held that there was no 'failure of justice' in this case just because the wrong court took cognisance – the judges were of the opinion that there was no 'prejudice' caused to the accused by this. However, there was very little analysis by the courts of why exactly that was the case.
The high court relied on a judgment of the Supreme Court in the Rattiram case to arrive at its conclusion, but there is a significant factual difference between that case and the Bhima Koregaon one. In Rattiram, the wrong judge had taken cognizance of the offences, but then the case had gone to trial, and the accused persons were convicted.
The accused in Rattiram only raised the issue of an irregularity after conviction, and did not make the argument at any point before the trial. The Bhima Koregaon case has not yet gone to trial, and while this argument wasn't raised immediately after the wrong judge took cognizance, it was raised quite soon thereafter.
When do Procedural Irregularities Lead to a 'Failure of Justice'?
The stage at which the argument of 'failure of justice' is raised is relevant, according to Section 465(2) of the Code of Criminal Procedure.
The Supreme Court just days ago, on 29 November 2021, had to deal with the question of what amounts to a failure of justice in a case regarding cognizance, in Pradeep Wodeyar vs State of Karnataka. In his judgment for the court, Justice DY Chandrachud reviewed the law on 'failure of justice' in the decision.
As the Bombay High Court observed, the test is whether 'prejudice' has been caused to the accused because of the irregularity in question. What amounts to prejudice or not cannot be put into a straitjacket formula, the court held.
"However, while determining if there was a failure of justice, the Courts could decide with reference to inter alia the stage of challenge, the seriousness of the offence charged, and apparent intention to prolong proceedings. It must be determined if the failure of justice would override the concern of delay in the conclusion of the proceedings and the objective of the provision to curb the menace of frivolous litigation."Supreme Court judgment in Pradeep Wodeyar case
Going by these standards, there is no guarantee that it could be said the Bhima Koregaon accused suffered from prejudice. The offences they have been charged with are UAPA terror offences, so they are quite serious, which would go against them.
On the other hand, the objection has been raised at a reasonably early stage, and there is certainly no intention to prolong the proceedings. While looking into this issue could delay the conclusion of the proceedings, there is a clear merit to this.
Unlike basic committal proceedings by a magistrate to a more senior court, in this case the issue raised was about cognizance of the charge sheet. That is not something which a court is to do mechanically. There has to be a careful appreciation of the claims of the investigating agency and the materials they have placed before the court.
The whole point of having special judges to hear these cases is that they would be better placed to hear and deal with these matters. Yes, the special judges designated under the NIA Act are also picked from sessions court judges, but they are the ones who are chosen for the position, and they do have greater experience in UAPA matters.
It cannot be said with any certainty that if the Bhima Koregaon charge sheets had been placed before a designated special judge, they would have rejected them, but there is certainly a possibility.
If this had happened, the accused would have been at liberty for the last two years or more. Even if the case weren't dropped as a whole, they might have been able to secure release on bail more easily from a court which was better placed to assess the allegations against them, which would have benefited their legal defence, among other benefits.
Several leading criminal law and human rights law experts who spoke to The Quint, including senior advocate Mihir Desai, agree that a case for prejudice and failure of justice can be made out here, and that the Bombay High Court did not fully examine this issue in the depth that they could have.
So What Happens Next? Could the Whole Case Come Crashing Down?
Even if the Supreme Court were to reconsider this particular question and hold that the cognizance irregularity did amount to a 'failure of justice', this wouldn't exactly result in an acquittal of the accused and an end to the Bhima Koregaon case.
However, it would mean that the charge sheets would have to be submitted all over again, potentially allowing all the accused to apply for default bail (or at least those arrested and charged before the NIA took over).
As they would be putting in the applications before the charge sheets were filed, those applications couldn't be rejected for the same reasons as those that the high court had rejected earlier.
This would not in itself affect the merits of the case, but it would certainly be interesting to see how some of the accused like Bharadwaj and Gadling – who are lawyers who have fought similar cases in the past – might be able to assist the legal strategy followed by the defence. This is the view taken by senior advocate Dr Yug Mohit Chaudhry, who represented Sudha Bharadwaj in the Bombay High Court.
Their release might also help with discovering more issues which could be used to target the evidence being relied on by the NIA in the case.
As we have learnt over the last few months, malware appears to have been used to plant incriminating evidence that is central to the case on the computers of Rona Wilson and Surendra Gadling. Several of the accused as well as their lawyers and family members also appear on the lists of those potentially targeted by the Pegasus spyware.
And of course, from the start, there have been glaring issues with the case, several of which were noted by Justice DY Chandrachud back in September 2018, when he dissented with the Supreme Court's decision to not have a judicially monitored probe into the case.
Much will depend on the appeals filed by the NIA and (when they are filed) by the eight accused whose bail applications were rejected. It will also have to be seen how the Supreme Court approaches the matter, whether purely from a technical point of view, or being willing to more openly consider the deprivation of personal liberty that has taken place here.
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