The Supreme Court on Monday rejected pleas made by activists Anand Teltumbde and Gautam Navlakha for pre-arrest bail in the Bhima Koregaon case .
A Bench of Justices Arun Mishra and M.R. Shah invoked Section 43D (4) of Unlawful Activities (Prevention) Act (UAPA) and held that the provision “bars” the relief of anticipatory bail to those accused of offences under the UAPA.
The Bench, during the arguments, made it clear that there seemed to be “ prima facie evidence” under the UAPA against the activists. Justice Shah repeatedly told senior advocates Kapil Sibal and A.M. Singhvi, for the activists, that the High Court had earlier concluded the existence of prima facie material against the duo.
Section 43D (4) of UAPA mandates that “nothing in Section 438 CrPC (anticipatory or pre-arrest bail) shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act (UAPA)”.
The court gave Navlakha and Teltumbde three weeks to surrender. It directed them to surrender their passports immediately.
“We give them [Teltumbde and Navlakha] three weeks to surrender as they have enjoyed protection from arrest since January 21, 2018, appropriately one-and-a-half years,” Justice Mishra said.
Navlakha statement
Thanking the Supreme Court for giving him three weeks to surrender, Navlakha, in a statement, said, “Now that I have to surrender within three weeks I ask myself - dare I hope to be freed from the burden of being accused in what appears to me, to be yet another conspiracy trial, one more in the long list of such trials? Will the co-accused and others like them get their freedom back? These questions creep in because of the times we live in where civil liberties are getting progressively squeezed, and where only one narrative dominates, backed by crassness in public life… The dreadful act - the Unlawful Activities Prevention Act - allows for banning of an organisation and outlaws its ideology. As a result, the most innocuous and legitimate of engagement and interaction can become criminal in the eyes of the State. It is a law that makes the very process an instrument of punishment, without even waiting for the trial and its outcome”.
The order came after a lengthy hearing. The court decided to pass a short order after considering the uncertainty surrounding its functioning in the wake of the COVID infection spread.
“I am not a violent reactionary of any sort. I have an intellectual approach which may on some issues be against the State. I have been used a mediator to urge people who use violence to turn away from it... But now they call me violent?" Mr. Singhvi, assisted by advocate Shadan Farasat, argued.
Also read | Understanding Bhima Koregaon
Mr. Sibal, for Teltumbde, said the probe agencies have not received any material or communication from his client or his house. Whatever they were using to build a case against his client was found in a computer.
Solicitor General Tushar Mehta countered that all others in the Bhima Koregaon case have been arrested, except Teltumbde and Navlakha. “We need their custodial interrogation. We have questions,” Mr. Mehta submitted.
At one point, Mr. Mehta referred to Varavara Rao, who is also an accused in the case, saying he was “supposed to be a poet” but there was evidence associating him with rocket launchers and grenades. Mr. Mehta said all the accused, including well-known lawyer, Sudha Bhardwaj, were “all acting in tandem”.
“This is not an offence against individuals but against the nation. It is for a reason that we are seeking custodial interrogation,” Mr. Mehta pressed his case. He said the “Maoist activities” of the two men was quite apparent. He claimed that there was enough evidence of involvement with separatists, which they happen to call “Liberation Struggle” in Kashmir. “They have consistently lost pleas for quashing the case against them. This shows prima facie that there is a case against them,” he argued.
In his rebuttal, Mr. Sibal challenged the prosecution to show if there was any direct evidence to show the direct involvement of the two activists. “Somebody may have written something referring to my name. But that does not implicate me,” he argued.
Justice Shah responded, “If this court has refused to interfere earlier and there is evidence that there have been references to you, is it not correct that there is a prima facie case against you?”
In September 2018, a majority judgment of the Supreme Court held that arrests made in the Bhima Koregaon case were not an attempt to silence dissenting voices in the country. It had given the go-ahead to the Maharashtra police to pursue the case under the draconian UAPA. Nationwide raids preceded the arrests of some of the accused persons.
