“No prima facie case,” says Bom HC granting bail to Anand Teltumbde on merits

Image: Bar and Bench

The Bombay High Court, on November 18, granted bail to Prof. Anand Teltumbde, accused in the Bhima Koregaon case, making it the first judgement, among 16 accused, to be granted on merits. The bench comprising Justices AS Gadkari and Milind Jadhav held that no prima facie case was made out against Teltumbde to establish that he was involved in any terrorist acts. Charges had been invoked against him under the Unlawful Activities (Prevention) Act. The court held that offences under section 13 (unlawful activities), 16 (terrorist act) and 18 (conspiracy) of the UAPA are not made out against him.

Dr Anand Teltumbde (appellant), a Dalit scholar and former IIT professor, was in appeal before the court against the order passed by the Special NIA court on July 12, 2021, whereby the trial court had denied him regular bail.

However, the path-breaking bail order of the Bombay High Court, has been stayed by the court for a week as the NIA sought time to move the Supreme Court in appeal against the order. This means the appellant will not be released from prison until the outcome of the NIA’s appeal against bail. He is currently lodged at the Taloja Prison, Navi Mumbai.

The Case

The case against Teltumbde is that he was the convener of Elgar Parishad conference held on December 31, 2017 which led to clashes in Bhima Koregaon resulting in one person’s death. When the police probed further and the NIA took over the case, it was alleged that there was a conspiracy to assassinate the Prime Minister. The NIA also alleges that Teltumbde is an active member of CPI (Maoists) and also linked him to his late brother, Milind, who was the Secretary of the (Maharashtra-Madhya Pradesh-Chhattisgarh) unit of the banned CPI(M). He was shot  at last year by security forces. Teltumbde asserted that he is critical of Maoist ideology and that he had broken contact with his late brother for 25 years.

Senior Advocate Mihir Desai appeared and argued for the appellant, assisted by advocate Ms Devyani Kulkarni, while Special Public Prosecutor Sandesh Patil appeared for the National investigating Agency (NIA) and J.S. Lohakare, APP for the State of Maharashtra.

Findings 

• Association with the CPI(Maoist) organization:

The court carefully perused through documents submitted by the NIA to ascertain whether a prima facie case can be made out against the appellant or not. Amongst the documents submitted were the NIA’s compilation of the letters addressed to the appellant by one Prakash and the other one by the Director of the Institute where the appellant is employed. The former letter states that the Central Committee (CC) is pleased with the progress that (Comrade Anand) has made on the Dalit campaign and it calls upon to explore more opportunities to propagate the issue on the international front. The latter letter contains the details of all the appellant’s travel itinerary and expenses which are reimbursed by the Institute. The court held that Prima facie reading of both the letters reveal that Appellant has travelled extensively from 11.07.2016 to 05.03.2020 while on leave and being out of office on his own expenses or on the expenses of his employer institute on at least 64 occasions. (Para 18.1.1)

The NIA had also submitted letters where the appellant is referred to as Comrade Anand, and letters that have been shared by other accused wherein the appellant is referred to, before and after the Bhima Koregaon incident. (Para 18.2)

In pursuance to this line of argument, the court observed that the Appellant is a man of intellectual prominence in the field of Dalit ideology / movement and merely because he is the elder brother of wanted accused Milind Teltumbde who had gone underground 30 years ago to espouse the cause of CPI(Maoist) cannot be a sole ground to indict the Appellant and link him to the activities of CPI(Maoist). On reading the letters as it is we cannot presume that Appellant is an active member of CPI(Maoist) without there been any other material to corroborate and support such a theory. Thus, the prima facie role of the Professor could not be established before the court.

In regards to the accounts statements submitted by the NIA, the court held that those statements were unsigned, and proofs of certain transactions were missing. Hence, again, a prima facie case court not be established. (Para 18.5)

• Association with the Elgar Parishad programme:

The NIA had submitted to the court that the invite for the Elgar Parishad programme had the name of the appellant. On this particular accusation, the court observed that there were more than 100 names mentioned as ‘Nimantrak’ i.e. inviter. The court then found that, NIA had indicted the role of Appellant and some others as accused whose names appear in the pamphlet but not all inviters who are facing similar allegations as that of Appellant, on the basis of this document.(Para 18.4.1)

• Association with younger brother, Milind Teltumbde

The NIA had referred to three statements of witnesses recorded in support of its case and show that the appellant were in constant touch with his younger brother. After perusal of the three statements, the court had observed that there is lack of concrete evidence to show the same. Through the statement, it could only be proved that the appellant was a participant with the CPI(Maoist), which would attract the provisions of Sections 38 and 39 and not Section 15 of the UAP Act.(Para 19)

The bail plea

According to the bail petition, the prosecution claimed that it was found during the Swargate Police Station, Pune investigation, the appellant and other accused individuals planned the Elgar Parishad meeting in Pune on December 31, 2017, using the Bhima Koregaon Shauryadin Prerna Abhiyan (or “BKSPA”), to advance the goals of the outlawed group of Communist Party of India (Maoist)[1]. However, the prosecution claimed that the Elgar Parishad was organized by Dalit and human rights organizations, where the appellant and other accused persons attempted to gather a crowd in order to “foster animosity” against the government, after the case was turned over to the National Investigation Agency (or “NIA”), according to the petition.

The petition drew attention to the inconsistency by pointing out that the chargesheet submitted by the NIA does not identify BKSPA as a frontal organization of the CPI (Maoist), and yet the Elgar Parishad was established per the CPI(Maoist)’s instructions.

Further, the petition highlighted that the statements of persons recorded under Section 161 (examination of witnesses by police) of the Criminal Procedure Code and named in the list of prosecution witnesses provided that the donations for the Elgar Parishad were made by volunteers and individuals from the public. The prosecution’s claim that the program was supported by the CPI (Maoist) to pursue its own objective is refuted by the witness statements, according to the petition. The appellant refuted the prosecution’s assertion that he served as the Elgar Parishad convener in his petition. In the petition, it was said that he disapproved of the pamphlets and goals of the Elgar Parishad and that he had written an article demonstrating his intellectual independence and separation from either Bhima Koregaon or the Elgar Parishad. The petition further alleged that there was no proof or witness testimony demonstrating his participation as a convener or in the Elgar Parishad’s planning.

The prosecution’s claim that the appellant attended an Elgar Parishad gathering on December 31, 2017, was vigorously refuted in the bail motion. The petition claims that the appellant left Pune, where the event was held, before it even started. The appeal petition emphasized that none of the witnesses corroborated the prosecution’s assertions that any of the artists at Elgar Parishad uttered hateful or inflammatory remarks.

The petition noted that the NIA used lengthy quotations from documents, books, and articles explaining the operation of the CPI (Maoist) that were freely available online in the second supplementary chargesheet, alleging that these materials were incriminating and had been taken from co-accused researcher and activist Rona Wilson. The appeal petition, however, remarked that the prosecution fails to specify any act or omission that can be attributed to the appellant or other co-accused persons in formulating, directing, participating, or implementing the policy of CPI (Maoist).

The petition provides an in-depth explanation refuting the prosecution’s allegations of the appellant’s role in propagating the agenda of CPI (Maoist) through international conferences, communication with other co-accused persons, receiving funds from the CPI (Maoist) and conducting fact-finding missions as a part of frontal organisations of the CPI (Maoist).

The decision of the Court:

At the outset, the court noted that as per section 43-D(5) of UAPA, it cannot grant bail, “if, on a perusal of the case diary, or the charge-sheet, it is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

After perusing the material placed on record and the chargesheet, the Bombay High Court noted that prima facie the five letters cited against the appellant, allegedly recovered from co-accused Rona Wilson’s laptop would fall under the “realm of presumption” which would need “further corroboration.” The court reached the prima facie opinion that, on the basis of material placed before us by NIA, it cannot be concluded that Appellant has indulged into a terrorist act. Thus, the material placed on record prima facie did not inspire lead to the court prescribing the punishment for the appellant under Sections 16, 18 and 20 of the UAPA. The court also observed that the case of the appellant was not identical to that of Jyoti Jagtap or Hany Babu, as contended by the NIA, since only 5 documents (letters) and 3 key witness statement are used against the appellant.

“25. In view of the above discussion and findings, we are of the prima facie opinion that on the basis of material placed before us by NIA which has been looked into by us, it cannot be concluded that Appellant has indulged into a terrorist act. The material placed on record prima facie does not inspire confidence to bring the Appellant’s act as alleged for the punishment prescribed under Sections 16, 18and 20 of the UAP Act as they read,” the court held. (Para 25)

The Court quashed the impugned order of July 12, 2021 of the Special Court denying bail to the appellant. The Court ordered that the appellant be granted bail on his executing PR bond of Rs.1,00,000/-with one or more solvent local sureties in the like amount and imposed the following conditions for bail:

1. Appellant shall not tamper with the evidence of prosecution nor influence the prosecution witnesses;
2. Before his actual release from jail Appellant shall furnish his contact numbers, both-mobile and landline and permanent residential address to the Investigating Officer and the learned Special Court before which the case of Appellant is pending
3. Appellant shall attend the concerned police station where he resides, initially for a period of one year, once in a fortnight and thereafter on every first Monday, till conclusion of trial
4. Appellant shall not leave the jurisdiction of State of Goa and if he desires to travel within India he shall seek prior leave and permission of the Trial Court;
5. Appellant shall deposit his passport held by him before his actual release from jail, with the designated Special Court.

It will be three days before Dr Anand Teltumbde, a renowned academic will know his fate. On November 25, the Supreme Court of India will hear the NIA appeal against the Bombay High Court order.

The order of the Bombay High Court may be read here.