After the Special Court in Pune rejected the bail applications of Arun Ferreira, Sudha Bharadwaj and Vernon Gonsalves, the Bombay High Court upheld the same and rejected their bail pleas, giving a major blow to the case of social activists, who have argued that they had no direct connection with the Elgar Parishad which took place in Pune in January 2018. While the perpetrators of the violence remain at large, the apparent “instigators” of the attack languish in jails.
The Bombay High Court today rejected the bail pleas of lawyer activists, Sudha Bharadwaj, Vernon Gonsalves and Arun Feriera in the famed Bhima Koregaon case. They were arrested on charges of “arrested for allegedly inciting caste-based violence at Bhima Koregaon in Pune and having links with Maoists.” Justice Sarang Kotwal rejected the bail pleas filed by the three activists.
In three separate orders passed today, October 15, 2019, the three ‘accused’ in the Bhima Koregaon case, namely, Arun Ferreira and Vernon Gonsalves who are Mumbai based social activists and Sudha Bharadwaj, an advocate, based in Faridabad have been condemned to further incarceration.
The accused were initially placed under house arrest in August last year by the Pune Police in Maharashtra and were later taken into custody on October 26, after a sessions court in Pune rejected their bail pleas.
The activists, who have been in jail since then, approached the high court last year.The police have booked the three accused and several other activists under provisions of the stringent Unlawful Activities (Prevention) Act and the Indian Penal Code.The case was lodged against them in January 2018 after the Elgar Parishad, held on December 31, 2017, that allegedly triggered violence at Koregaon-Bhima village in Pune the next day. The three accused, however, claimed there was no evidence to support the police case that they and other activists were creating a ‘war-like’ situation against the government
The three orders may be read here.
Orders of Bombay High Court rejecting Bail, in brief
The Court has held that in the Zahoor Watali case, certain guiding principles were laid out by the Supreme Court which directed the Courts to consider the totality of the material gathered by the investigating agency and the Court was not expected to analyze individual piece of evidence or circumstance. The Court stated that in deciding the bail application it was considering the totality of the material gathered by the investigating agency against the applicant, keeping in mind the above principles. The Court admitted that as per the Supreme Court’s guidelines, it was not necessary to analyse every single piece of evidence against the applicant but the Court still resorted to it and based its decision entirely on the submissions of both parties with regards to the evidence put forth by the investigating agency.
In conclusion, the Court held that prima facie, the Applicant was involved in activities such as recruiting for the banned organization and that he is a member of the said organization. The Court also held that there are reasonable grounds for believing that the accusation of commission of the offences punishable under Chapters IV and VI of the UAPA against the applicant is prima facie true.
In all the three orders, the Court has made similar observations and gave reasonings which ultimately mean that the accused person were members of banned organization and involved in fulfilling its activities, all based on the evidence submitted by the investigating agency. This was strongly refuted by the accused activists.
The counsel for Ferreira stated that he was not a part of any larger conspiracy, neither was he present at the time of the incident nor is there anything that proves that he was connected to Elgar Parishad. The letters produced as evidence are vague and the identity of the sender cannot be established. The counsel also submitted that re is nothing to show that a War like situation is created and that the applicant, Ferreira was in any manner connected with such activities and that there is nothing to show that the applicant had either instigated or inspired others to join the banned organization. It was also submitted that his association with other members will not mean that he is an active member of the banned organization.
Reliance was placed on National Investigation Agency Vs. Zahoor Ahmad Shah Watali by the counsel for the Applicant, Ferreira as well as by the Judge in deciding on the Bail Application as it lays down the approach of the Court in deciding bail applications involving offences under Chapters IV and VI of the Unlawful Activities (Prevention) Act, 1967 (UAPA), which are among the many sections under which the Applicant, Ferreira and the aforementioned co-accused were charged.
As mentioned allegations made against the activists in custody, have been elaborately detailed in the chargesheet and supplementary chargesheet filed by the investigating agency. The chargesheet, inter alia, mentions that Arun Ferreira, along with the co accused Vernon Gonsalves and Sudha Bharadwaj had enrolled members for the banned organization CPI(Maoist). It was also mentioned that an organization known as Indian Association of Peoples Lawyers (for short, ‘IAPL’) was a frontal organization of CPI(Maoist) and Arun Ferreira was working through this frontal organization to accomplish the objects of the banned organization CPI(Maoist) i.e. destabilizing the country.
One of the many social activist accused, is Arun Ferreira, who has previously had to fight to clear his name when he was falsely accused of being a Maoist. He had to spend five years in jail despite being innocent of all crimes! Advocate Sudha Bharadwaj has been associated with the forest rights movement in Chhattisgarh for close to three decades.
The activists were charged under the Unlawful Prevention Activities Act by a trial court and later the police filed a charge sheet containing more than 5000 pages claiming that these activists were involved in Maoist activities under the banned party Communist Party of India ( Maoist) and that they were planning the assassination of Prime Minister Modi.However, reportedly, the police have not provided any evidence despite their claims of having concrete evidence against these activists. On the contrary, there are allegations that they have kept delaying the trial on one pretext or the other.
Background of Complaint
The informant had stated in his FIR that the performances of Kabir Kala Manch at the Elgar Parishad were provocative in nature and had effect of creating communal disharmony, provocative speeches were delivered and a few objectionable and provocative books were kept for sale at the venue. As a result of which there were incidents of violence at Bhima Koregaon.A special judge in Pune had rejected the bail applications of all three in a common order dated October 26, 2018 after which bail applications were submitted before the Bombay High Court.
The Council of Bars and Law Societies of Europe (CCBE), which represents the Bars of 45 countries, and, through them, around one million European lawyers, has written to Prime Minister Narendra Modi regarding the arrest lawyers Arun Ferreira and Sudha Bharadwaj. The letter, penned by CCBE President Antonín Mokry, notes that the CCBE “places great emphasis on respect for human rights and the Rule of Law, and is particularly concerned with the situation of human rights defenders around the world.”
A collection of academics, experts and activists, few of them even from Canada, wrote to President of India Ram Nath Kovind and Prime Minister Narendra Modi, calling for the charges against academic and activist Dr. Anand Teltumbde to be dropped, and seeking the release of human rights activists.
The social activists have only garnered support from the civil society and also have gathered sympathy of the masses who believe that justice has been miscarried for the culprits of the violent attack which took the life on person have still not been put behind bars and the “instigators” who were not even part of the meeting are being kept in judicial custody and the motive of such a wide scale raid and attack on social activists suggests a looming conspiracy.
On January 1, 2018, thousands of Dalit families that had gathered at Bhima Koregaon to pay homage to the Dalit Mahar martyrs of the Anglo-Maratha war of 1818. They were targeted and attacked by members of extreme right-wing Hindutva groups; they not only pelted the Dalit gathering, where there were thousands of women and children, with large stones, but also set their cars and buses on fire.
While the perpetrators of the attack on the gathering remain at large, a different story has emerged from this incident which paints a very vague picture bringing forth terms like “urban naxals” trying to wage a war against the nation, also terming the peaceful gathering as a gathering of members of a banned organization propagating activities which posed a threat to the national security.A hostile state machinery had started targeting Dalits across Maharashtra instead of promptly arresting Milind Ekbote, Bhide’s co-accused in the case. Ekbote was arrested only in March, 2018 and then let off on bail a few weeks later.
This FIR was filed by one Tushar Ramesh Damgude on basis of which a nationwide search was conducted by the police in the homes of many human rights activists, lawyers among others, who were not even present at the time of the incident but are being portrayed as being a part of an insidious plan of inciting the Bhima Koregaon violence and as posing a threat to national security and integrity!A belated version of the Pune police, constructs the event as organised by members of the banned Communist Party of India (Maoist), with the aim of “spreading rebellious thoughts”, instigating violence at Bhima Koregaon and establishing a nationwide “anti-fascist front” to “wage war against the government”.
The organisers of the ‘Elgar Parishad’ two reputed judges in Pune, retired Justices BG Kolse-Patil and PB Sawant said that they organised Elgaar Parishad with the simple motive of spreading the message of fighting communal forces.
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(2019) 5 SCC 1