Why was Dr. Anand Teltumbde denied bail by the NIA court?

Image Courtesy:freepressjournal.in

Dr. Anand Teltumbde, who is booked under the Unlawful Activities (Prevention) Act in the Bhima Koregaon case, will continue to remain in Taloja jail after the Special NIA court rejected his bail plea on July 12. He was arrested on April 14, last year. On July 15, the jailed Dalit scholar turned 70.

Judge D.E. Kothalikar said, “The courts considering the bail application are required to maintain fine balance between the societal interest vis-à-vis personal liberty of the accused, by adhering to the fundamental principle of Criminal Jurisprudence”.

The same Special NIA judge had rejected Father Stan’s bail on medical grounds in March this year. Ignoring his deteriorating health conditions and advanced Parkinson’s Disease, Judge Kothalikar had held that, “The collective interest of the community outweighs his personal liberty and also the alleged sickness he suffers”.

Elgar Parishad violence

The NIA court in Mumbai held that even though Anand Teltumbde was invited for a wedding on December 31, 2017, one day before the Elgar parishad event at Bhima Koregaon, “Considering the fact that the name of the applicant appeared in the invitation card and that the applicant had gone to Shaniwar Wada, the place at which the event of Elgar Parishad was organised, goes to prima facie suggest that the applicant was also connected with the Elgar Parishad.”

Further, the court also said, “Upon perusal of the documents, including the exchange of emails and the statements of the witnesses relied upon by the prosecution, and after cross-checking the truthfulness of the allegations made against the applicant, this court does not find that the accusations are inherently improbable or wholly unbelievable.”

Educational qualifications

Dr. Teltumbde relied heavily on his academic qualifications while arguing for bail. He holds the qualification of B.E. in Mechanical Engineering from VNIT, Nagpur, MBA from IIM Ahmedabad, and D. Litt from Karnataka State University, Mysore. He was also the Executive Director of Bharat Petroleum, and Managing Director and CEO of Petronet India Limited up to 2010. He has also been invited as a Professor of Management by IIT, Kharagpur.

The order recorded that, “He has written extensively in all leading newspapers, magazines, organizational pamphlets and booklets and lectured widely in India. He has authored several books. He was associated with the People’s struggle, particularly labour class. He has contributed to the respected social science journal, Economic and Political Weekly and written columns. Presently, he is a senior professor, Big Data Analytics, Goa Institute of Management.”

But the court refused arguments of him being widely respected in his field. Since the court ruled that there was prime facie evidence against him, the order read, “the contention of the applicant that his educational qualification and social background, needs to be considered while deciding bail application, is liable to be discarded.”

Material against Dr. Teltumbde

The National Investigation Agency alleged that the material from Dr. Anand’s laptop, computers, pen drives, memory cards were “shocking” and implicates him to an extent that establishes that he was not only an active member of the banned organisation CPI (Maoist), but clearly reflected the ongoing sinister design of committing an offence that would destabilise the society.

The NIA submitted that the investigation revealed a “deep rooted conspiracy” to create disharmony to strike terror in people’s minds with the intent to threaten the unity and integrity of India. Hence, sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy), 18B (punishment for recruiting a person for a terrorist act), 20 (punishment for being a member of a banned organisation), 38 (offence related to being a member of a banned organisation), 39 (offence related to giving support to a terrorist organisation) and 40 (offence of raising fund for a terrorist organisation) of the UAPA were added against him.

The documents on record included a letter allegedly written by one ‘Prakash’ to ‘Anand’, that was recovered from co-accused Rona Wilson’s laptop. The letter mentions “Anand’s visit to Paris for Human Rights Convention to be held on April 9 and 10, 2018 and lectures on Dalit issues in order to give traction to domestic chaos.” The prosecution claimed that the letter mentioned to “keep the fire ablaze”.

Judge Kothalikar noted that the prosecution had claimed that during the said period of domestic chaos related to the Dalit issue, was only the incident relating to the Bhima Koregaon incident. “The very statement made in the letter that all PM’s and intellectual comrades must strive to keep the fire ablaze, goes to prima facie indicate that the applicant was involved in furthering activities of the banned organisation”, alleged the prosecution.

The court relied heavily on the documents/letters recovered from Rona Wilson’s laptop to accept the prosecution’s argument that prima facie Teltumbde was an active member of the banned CPI (Maoist) organisation. It is noteworthy that an American Consultancy firm had released a report stating that the alleged incriminating material found on Rona Wilson and most recently co-accused Surendra Gadling’s laptop, was planted. It has unearthed evidence that 14 key files mentioned in the chargesheet against activist and lawyer 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. Wilson has approached the Bombay High Court seeking formation of an SIT to investigate the planting of these documents on his laptop.

The court also ruled that Anand was not only prima facie involved in activities of a banned organisation but also assisted his own brother Milind Teltumbde, who is a wanted Maoist leader and the Secretary of the Maharashtra State Committee of CPI (Maoist).

Allegations in the chargesheet

Furthermore, the Special NIA court also noted the chargesheet filed against Teltumbde and 13 other accused in the case. The chargesheet states that they conspired to mobilise masses to spread disaffection against the government through provocative speeches, plays, songs, and that they had incited feelings of hatred among communities that led to the violence in Bhima Koregaon on January 1, 2018.

The court further perused the chargesheet and recorded in its order that the Bhima Koregaon incident was just a part of the larger conspiracy and that the NIA’s investigation has revealed that “funds were provided by the banned organization through their members and that the students from eminent educational institutes were taken to forest area occupied by Maoist guerrilla and were given training for terrorist activities.”

The court thus held, “I do not find merit in the contention raised by the learned advocate of the applicant (Anand Teltumbde) that the material placed on record does not prima facie make out a case for the offences punishable under UAPA.”

The restriction on bail provisions under Section 43 D (5) of the UAPA makes it impossible for any person seeking regular bail to do so before or even after the chargesheet is filed. This section existed before as Section 20 (8) under TADA and then Section 49(7) in POTA.

Under the UAPA, despite provisions for bail that exist in Indian criminal law, an exception is made under Section 43 D (5): bail is an impossibility unless “the public prosecutor is heard” and if “the court, after perusal of the case diary, is of the opinion that there are reasonable grounds for believing the accusation against person is prima facie true”. This section, which turns Indian criminal law on its head, received the untenable judicial stamp of approval in April 2019 in National Investigation Agency vs Zahoor Ahmad Shah Watali, which has adversely impacted the accepted doctrine on bail, holding essentially that the accused must remain in custody throughout the period of the trial because the courts must assume every allegation made in the first information report (FIR) to be correct.

The same Watali judgment was relied upon by Judge Kothalikar, who looked at the available documents against Dr. Teltumbde and took its contents into account “as it is” without opining on the admissibility of the materials at the stage of granting bail. Out of the 16 accused and jailed in this case, Father Stan Swamy died awaiting bail on July 5 and Dr. Varavara Rao is currently out on medical bail.

The judgment may be read here: