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On February 14, a Mumbai Court denied bail to Delhi University professor Hany Babu and Kabir Kala Manch members Sagar Gorkhe, Ramesh Gaichor and Jyoti Jagtap, accused in the Bhima Koregaon violence case. As per the Special Court Judge Dinesh E Kothalikar, there were reasonable grounds for believing that the accusations were prima facie true and hence the bail was denied.
Brief background of the case
Kabir Kala Manch was one of the 250 Dalit and human rights organisations that participated in the Elgar Parishad, an event that took place in Pune city on December 31, 2017, a day before violent clashes broke out between Maratha and Dalit groups near the village of Bhima Koregaon.
On July 28, 2020, Hany Babu , Associate Professor at Delhi University (accused no.12) was arrested on the accusation for commission of offences punishable under Sections 121, (waging, attempting or abetting waging of war against the Government of India) 121A (conspiracy to commit offences punishable U/S 121), 124A (Sedition), 153A ( promoting enmity between different groups on grounds of religion, place of birth, race, language etc) , 505(1) (b) (statements conducing to public mischief) 115 (Abetment of offences punishable with death or imprisonment for life- if not committed), 120B (criminal conspiracy) , 201 (causing disappearance of evidence or giving false information) read with 34 (common intention) of Indian Penal Code, 1872 and Sections 13 (punishment for unlawful activities), 16 (punishment fo terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy), 18A (organising of terrorist camps), 18B (recruiting of any person/s for terrorist act), 20 (being member of terrorist gang or organisation), 38 (membership of terrorist organisation) and 39 (support given to terrorist organisation) of the Unlawful Activities (Prevention) Act, 1967. He was alleged to be the member of the CPI (Maoist) deemed a terrorist organisation under the first schedule of Unlawful Activities (Prevention) Act (UAPA), and that he was in correspondence with the members of CPI (Maoist).
Further it was also alleged that he had organised and participated in a committee that was constituted to provide legal defence to members of CPI(Maoist), helped in raising funds in order to help persons who were charged with membership of CPI (Maoist) after they were released from prison, and inculcated Maoist sympathies amongst students and other people.
Pune Police filed charge-sheet and a supplementary charge-sheet in this case on November 15, 2018, and February 21, 2019, respectively against the accused Gorkhe (accused no. 13) Gaichor (accused no. 14) and Jyoti Jagtap (accused no. 15) are all members of Kabir Kala Manch.
On September 7, 2020,Gorkhe and Gaichor were arrested by the National Investigation Agency (NIA) in connection with the Bhima Koregaon violence. The following day, Jagtap was also taken into NIA custody on the accusation for the commission of offences punishable under Sections 121, 121A, 124A, 153A, 505(1) (b), 115, 120B, 201 read with 34 of the Indian Penal Code, 1872 and Sections 13, 16, 17, 18, 18A, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967.
All the arrests in what came to be known as the ‘Bhima Koregaon case’ can be traced back to an FIR dated January 8, 2018, filed by Tushar Ramesh Damgude under Section 153A, 505(1)(b), and 117 of the Indian Penal Code (IPC) that was originally registered by the Pune police for “inciting people and giving provocative speeches during Elgar Parishad organised at Shaniwarwada in Pune by the activists of Kabir Kala Manch on December 31, 2017, which promoted enmity between various caste groups and led to violence, resulting in loss of life and property and State-wide agitation in Maharashtra.”
On January 24, 2020, the NIA took over the investigation of the case and stated that it was revealed during the investigation that the organizers of Elgar Parishad were in contact with the senior leaders of CPI (Maoist).
Background of the accused
Hany Babuis a professor of language and linguistics at the Department of English at the Delhi University. He has published various articles such as: “Converging struggles and diverging interests: A look at the recent unrest in universities.”, “Unequal rights: Freedom, equality, life and liberty of citizens”, and so on.
Sagar TatyaramaGorkhe belongs to a Dalit family who had an unstable childhood in Pune. His parents moved from suburb to suburb taking up jobs as construction workers, security guards and domestic workers. In 2004 he joined the Kabir Kala Manch. As a student, he worked as a sweeper and a car cleaner to be able to pay for college, but later he worked full-time with Kabir Kala Manch.
Ramesh Gaichor is the son of MurlidharGaichor, andhails from the Maratha community. But he had friends from Dalit groups through whom he was introduced to the message of Babasaheb Ambedkar. When he joined Kabir Kala Manch in 2002, he was a commerce student at Wadia College, but spent more of his time writing plays and participating in cultural activities.He was good in studies in school, liked to write poetry and perform in plays. He was also interested in social work, and doing good for the poor. Since the Manch did not make too much money through their performances, Gaichor also worked part-time jobs as a hospital clerk and a lecturer over the years.
Jyoti Jagtapwas a fiery social activist in Seva Dal, a socialist youth group in Pune district’s Saswad towneven before she joined Kabir Kala Manch in 2007. She was a psychology student at Saswad’sWaghire College at the time, and took up a range of women’s issues in her activism. In 2007, Jagtap moved to Pune to pursue a Master’s degree in psychology from SP College, and soon got involved with Kabir Kala Manch. Her role mostly involved planning dharnas and protests. She worked full-time at Kabir Kala Manch till 2017, after which she along with her colleague Jadhav began working with a non-profit organisation working with teenagers.
Application for bail of Hany Babu
Reliance was placed by the court on the judgment of Hon’ble Supreme Court in the case of
ThwahaFasal Vs Union of India (2021 SCC Online 1000) which lays down the law as to what should be the approach of the Court in deciding bail applications involving offences underChapters IV and VI of the UAP Act.
Keeping in mind the above judgement the Court considered the totality of the material produced along with the charge sheet for deciding the application.
The learned advocate for the applicant Mr. Gaikawad, prayed to exercise discretion in favour of the applicant and release him on bail as according to him even if the allegations made against the applicant is considered it only amounts to an offence punishable under Sections 38 and 39 of the UAP Act
To this the Special Public Prosecutor Mr. Shetty submitted the existence of sufficient material against the applicant and the co accused showing their involvement in the activities of banned organisation and their involvement in the larger conspiracy. Reference was made to certain letters seized from the computers and electronic devices of the applicant and the co-accused during search, which showed how they were involved in the functioning of the banned organisation, and the severity of the conspiracy. Therefore, he prayed to reject the application.
The learned SPP has also drew attention to a pamphlet which ends with thename of the committee for the defence and release of GN Saibaba, and was sufficient to prima facie establish that the applicant was instrumental for the release of the convict GN Saibaba,who was convicted for the activities of the CPI (Maoist).
In addition to this there was also a statement of the witness that corroborated with the contents of the documentary evidence. Another witness stated that theapplicant was a Maoist sympathiser. The prosecution further claimed that the applicant and the co accused have conspired with each other and the other accused to further ideology of the CPI(Maoist) and that they had abetted the act of waging war against the Government of India, brought into hatred and excited disaffection towards the Government and promoted enmity between different groups on the ground of religion, caste or community and committed acts prejudicial to maintenance of harmony.
Considering the circumstances along with the subject of law, the Court concluded that theapplicant has failed to make out a case for grant of bail.
Gorkhe, Gaichor and Jagtap’s case
A report lodged at Vishrambaug Police Station on January 08, 2018, under Section 154 of the Code of Criminal Procedure, claimed that a program was organized at Shaniwar Wada, Pune on December 12, 2017 by an Elgar Parishad wherein some performers enacted short plays, performed dances and sang songs which were provocative in nature and had effect of creating communal disharmony. It further added that the members of Kabir Kala Manch spread hatred through their songs, plays and speeches which caused enmity between different communities and resulted in the incidents of violence, arson and stone pelting near Bhima Koregaon.
Arguments
The Counsel for accused Nos.13 and 14, Mr. Rathod, submitted that it is required to consider whether there are reasonable grounds for believing that the accusation against the accused, are prima facie true. In support of the submission reliance was placed on the judgment in the case of ThwahaFasal Vs Union of India (2021 SCC Online SC 1000).
The counsel for accused No.15 Mr. Shaikh has relied upon the judgment in the case of Jayanta Kumar Ghosh Vs State of Assam {(2010) 6 GLR 727}, in which the word ‘prima facie’ coupled with the word ‘true’, implied an exercise of crosschecking the truthfulness of the allegations, made in the complaint, on the basis of the materials on record.
Rathod submitted that the accused have already prosecuted for the offences under the UAPA and they were released on bail in C.R. No.19 of 2011 by ATS Mumbai therefore on the basis of the similar allegations they cannot be prosecuted, hence prayed to release the accused on bail.
In response SPP Mr. Shetty brought attention to the copy of supplementary Chargesheet and submitted that in the said case the accused were arrested for the offences punishable under Sections 387, 465, 467, 468, 471 read with 120B of the IP Code and Sections 18, 18A,18B, 20, 38 and 39 of the UAP Act, whereas in this case they have been arrested for commission of the offences punishable under Sections121, 121A, 124A, 153A, 505(1)(b), 115, 120B, 201 read with 34 of the Indian Penal Code, 1872 and Sections 13, 16, 17, 18, 18A,18B, 20, 38 and 39 of the UAP Act, therefore, it cannot be claimed that it cannot the accused have been prosecuted twice for the same offence.
It was further submitted that the material placed on record indicates that after their releaseon bail the accused were involved in furthering unlawful activities of the banned organisation.
Counsels for the accused submitted that the prosecution failed to place on record material to state that the accused were the members of the Kabir Kala Manch and it cannot be inferred that the Kabir Kala Manch was the frontal organisation of the CPI (Maoist), the Terrorist Organisation and claimed the absence of prima facie evidence against the accused persons.
Shetty stated that the Central Government passed an order to add the Communist Party of India (Maoist) and all its formations and frontal organisations as terrorist organisation in the Schedule to the UAP Act by making corresponding amendment and further submitted that the existence of sufficient material against the applicants and the co accused that showed their involvement in the activities of banned organisation by being its active members.
The prosecution also placed on record certain documents recovered from the pen drive of accused P. Varavara Rao issued by the Central Committee of Communist Party of India (Maoist) and divided into different Parts and Chapters.
The prosecution further claimed that another document was recovered from the pen drive of accused P. Varavara Rao, which deals with the work in urban areas which is also a literature of the banned organisation.
To this Shaikh submitted that the applicants were only the part of the group of performers and were not assigned with specific role in the Parishad and even if it is said that they were members of banned organisation, that itself is not a crime and to substantiate his contention he relied upon few judgments which had common held that “mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence”
It was also submitted that the Elgaar Parishad was organised by Kishor Kamble and the
report of the same was submitted to the Deputy Commissioner of Police, Special Branch1,
Pune City, which contains the script of the speeches given by all the performers which reveals that there is no incriminating material against the applicants.
Grounds for denying bail to Hany Babu
In Hany Babu’s case, the court held that there was every scope to prima facie conclude that the applicant was having knowledge in respect of the conspiracy behind the violence. While the applicant had submitted that bail be granted since trial is yet to begin, the prosecution said that the same was halted for framing of charges since many applications are being moved.
The court denied bail saying, “Upon cumulative consideration of all the aforesaid circumstances as well as law on the subject, I conclude that the applicant has failed to make out a case for grant of bail”.
Grounds for denying bail to other accused
The court noted, “It is material to note that the material placed on record prima facie establishes that the applicants were actively involved in the organisation of Elgaar Parishad.”
The court, after perusal of material held that,
“Prima facie it can be gathered that the applicants along with other members of the banned organisation hatched a serious conspiracy to create unrest in the entire country and to overpower the Government, politically. The material placed on record thus prima facie denote that the applicants were not only the members of banned organisation CPI (Maoist), but they were carrying out activities further in the objective of the organisation which is nothing but to overthrow the democracy of the nation. Therefore, I do not find merit in the submissions made by the learned advocate for the applicants that only because of membership of banned organisation the applicant cannot be detained in jail, is not acceptable.”
The court also pointed out that the mere fact that the applicant was not present in Pune at the time of the Elgaar Parishad and that he has not been named in the FIR would not take his defence further.
The counsel for the applicant had brought the court’s attention to the proceeding ofthe Maharashtra Legislative Assembly wherein then Chief Minister Mr. Devendra Fadnavis, had informed the house that 1,100 to 1,200 persons holding saffron flags were assembled at village Wadu near the Samadhi of Chhatrapati Sambhaji.
However, the court refused to take the same on record while stating that,
“In view Section 43D(5) of the Act as the court is required to form the opinion on perusal of the case diary or the report made under section 173 of the Code that there are reasonable grounds for believing that the accusation against such person is prima facie true. Therefore, it can be said that the court in order to form the opinion is required to peruse the case diary or the report under Section 173 of the Code. Thus, I do not find merit in the submissions made by the learned advocate for the applicants.”
The court 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,” and thus denied bail to the three accused.
Bail orders may be read here:
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