NIA court failed to take humanitarian approach: Bom HC grants temporary bail to Surendra Gadling

Bombay HC Image Courtesy:barandbench.com

The Bombay High Court has granted temporary bail to Surendra Gadling, a lawyer and accused in the Bhima Koregaon case, on humanitarian grounds to complete rituals related to his deceased mother. Gadling’s mother died in August 2020 but his plea for bail was denied then by the Special NIA court and the last rites and other rituals could not be conducted due to the Covid-19 pandemic.

The bench of Justices SS Shinde and NJ Jamadar held that the Special court had not taken a humanitarian approach towards Gadling’s plea for bail last year and had merely denied him bail on merits under section 43D of the Unlawful Activities (Prevention) Act (UAPA). Gadling has been in prison since June 2018 in the Bhima Koregaon case, the trial for which is still pending. He submitted to the high court that the family had decided to carry out the last rites and other rituals on his mother’s first death anniversary and hence, prayed that he be granted temporary bail.

Gadling had filed this appeal against the September 11, 2020 order by the special NIA court whereby temporary bail was denied to him to join his family members in performing the last rites of his mother. His bail request was rejected by the special court as the court was of the opinion that as his regular bail had been rejected “the prayer for temporary bail also deserved to be negatived as the considerations for grant of temporary bail and regular bail are one and the same”. Further, the fact that at the time of the consideration of the prayer for bail, three weeks’ time had already elapsed from the date of death, also became a ground for rejecting his temporary bail.

Hence, this appeal was filed by Gadling asserting that in view of the adverse circumstances, in which his mother died, funeral, rites, rituals and condolence meeting etc. could not be held and remained pending till date. Thus the family has decided to hold funeral rituals on the first death anniversary, i.e. August 15, 2021.

Arguments

This plea was also opposed by NIA while pointing to the seriousness of the allegations and the role attributed to the appellant. NIA also assailed the tenability of the prayer as the very reason for which the grant of temporary bail was sought, does not survive any more. NIA also contended that the new reasons cited by the appellant are untenable as the rites and rituals can be performed by any other family member.

Senior Advocate Indira Jaising appeared for Gadling and argued that the NIA Special Court approached the prayer of the appellant for release on temporary bail from a completely incorrect perspective. She contended that in the impugned order, the special court judge “committed a manifest error in importing the considerations which weigh in granting the bail on merits, to an application for grant of bail to participate in the funeral and last rites of the mother of the appellant”.

She further argued that since the appellant has explained in the affidavit filed before the high court “the onerous circumstances which prevented the family from performing the last rites and rituals of the deceased mother, the prayer of the appellant to release him on temporary bail to participate in the rituals proposed to be held on the first death anniversary of his mother, cannot be resisted”.

Jaising also cited cases where temporary bail was granted on humanitarian grounds to Sudha Bhardwaj, one of the many accused in the Bhima Koregaon case to attend her father’s final rites in 2019.

She also argued that the appellant was not a “flight risk” as the Pune Police had raided his home on April 17, 2018 and yet the appellant did not avoid to co-operate in the investigation and was arrested 40 days later during which period he did not make himself scarce.

Sandesh Patil appearing for NIA contended that the appellant cannot be permitted to urge a new ground for release on temporary bail.

Court’s findings

The court found NIA’s objection that the bail ought to be rejected since due to passage of time the cause does not survive, to be untenable on a humane consideration. The claim of the appellant that the rites, rituals and condolence meeting, which have been kept in abeyance, are to be performed and held on the first death anniversary of his mother, cannot be said to be impracticable or untenable, the court observed.

The court pointed out that the special court had denied the bail in the impugned order under section 43D of the UAPA and the issue was not approached from the perspective of humanitarian consideration.

“In our view, the NIA Court misdirected itself in importing the considerations which bear upon grant of regular bail to a prayer for release on humanitarian ground. Reliance placed on behalf of the respondent-NIA on the judgment in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali, which governs the grant of a regular bail, therefore, does not seem well founded in the context of the consideration of the prayer for temporary bail to participate in the last rites/rituals of the deceased mother of the appellant,” the court observed.

The court held that the judgement in the Watali case governs regular bail and cannot be applied for a circumstance such as the appellant’s who wished to participate in the last rites and rituals of his mother. In Watali, the apex court had delved into the expression ‘prima facie true’ as part of section 43D (5) of the UAPA and held that ‘prima facie true’ would mean that the materials/evidence collated by the investigating agency must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, revealed the complicity of such accused.

The court took into consideration the nature of the prayer and peculiar facts of the case and decided to take cautious cognizance of the developments in the intervening period.

“In the prevailing social construct, the first death anniversary of an immediate family member has an element of religious, personal and emotional significance. Admittedly, the appellant has not been able to participate in any of the rites/rituals in connection with the death of his mother. Viewed through this prism, we do not find the prayer of the appellant unjustifiable,” the court held.

The court also observed that Jaising’s argument about the appellant not being a flight risk, also carried substance and said, “Having regard to the situation in life of the appellant, as borne out by the record, we do not find that there is a reasonable ground to believe that the appellant may abscond.”

The court thus granted temporary bail to Gadling from August 13 to August 21 purely on humanitarian grounds, to attend the last rites/rituals and family condolence gathering of his deceased mother, on furnishing a PR bond in the sum of Rs. 50,000/-, with one or two sureties in the like amount. The court also directed that upon release Gadling must inform Nagpur police of his whereabouts and made it clear that no prayer of extension of bail beyond August 21 will be entertained on any count whatsoever.

Background of the arrest

Gadling was arrested 3 years ago on June 6, 2018, and was charged under various Indian Penal Code sections for hate speech and sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy), 18-B (punishment for recruiting people for terrorist act), 20 (punishment for being member of a terrorist gang) of the UAPA.

He along with 15 other activists have been arrested in this alleged conspiracy case. The 16th person to be arrested in this case was Father Stan Swamy, who passed away on July 5, awaiting medical bail. The NIA has accused them of plotting to overthrow the Government, and being active members of the banned CPI (Maoists).

A recent report by American digital forensics firm Arsenal, has unearthed evidence that 14 key files mentioned in the chargesheet against lawyer-activist Surendra Gadling were planted on his hard drive using Netwire, the very same malware that was used to plant false evidence on a laptop belonging to Rona Wilson, another accused in the case.

The complete judgment may be read here: