Thread by @barandbench

#BombayHighCourt to hear application filed by #ElgarParishad accused Sudha Bharadwaj seeking default bail.

Hearing before Justices SS Shinde and NJ Jamadar.

#ElgarParishadcase

The Court had sought responses from the National investigation Agency (NIA) and the State of Maharashtra.

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Hearing begins.

#ElgarParishad #BombayHighCourt

Chief Public Prosecutor Deepak Thakare seeks for 2 more weeks to file the reply.

PP: Since earlier IO was transferred. There is some difficulty.

#ElgarParishad #BombayHighCourt

ASG Anil Singh appearing for NIA submits that the issue which has been raised in the petition is being dealt with by the Supreme Court and it is kept on July 8, 2021.

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Court: Let Mr. Chaudhry argue and then we will see.

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Court (asks Chaudhry): Do you want to proceed?

Chaudhry: They do not deserve any further indulgence. NIA has filed reply, State has not yet filed reply despite many opportunities.

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Chaudhry: The challenge is to two orders passed by Sessions Judge KD Vadane who calls himself a special NIA judge.

The first order was passed extending the time to file chargesheet.
The second order is taking cognizance of the chargesheet.

#BombayHighCourt #ElgarParishad

Chaudhry: Main ground is that under the NIA Act, these two actions performed by Vadane could have been performed only by judge designated special judge.
Vadane claiming to be special judge was not special judge.

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Chaudhry: We have RTI responses to that effect from the High Court.

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Chaudhry: We also received information from the RTI that special judges had been appointed no doubt, but they were different judges. They were sitting in Pune Court, but despite this the Pune Police went to Vadane for orders.

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Chaudhry: January 24, 2020 is the date when NIA enters the picture. So these two actions that are impugned in the present case, are actions performed by the Maharashtra police (Pune Police).

#BombayHighCourt #ElgarParishad

Chaudhry: This petition was served on State by June 4, 2021 after it was filed on June 2, 2021.
The Single judge recommended that this be heard by the DB. Notice was issued on June 22, 2021.

#BombayHighCourt #ElgarParishad

Chaudhry: Your lordships had explained then categorically, that most actions are done by Pune police, they have to file the reply.

On July 2, I personally called Mr Thakare for a reply. They did not file a reply.

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Chaudhry: The IO also sought for a copy of the petition. Which I gave.
They have still not filed their reply as on date.
Because of this, I am entitled to relief.

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Chaudhry shows the Court the signatures of the Judge KD Vadane to the court as annexed to the petition.

He is also showing the Court the RTI replies received by them.

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Chaudhry: So these RTI replies show that the special judges had been appointed but the Maharashtra govt chose not to go those judges and Judge KD Vadane claimed to be special judge.

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Chaudhry shows the notifications issued by the Maharashtra government appointing special judges.

Chaudhry: It may be noted that the dates in this reply match with the dates on the impugned order.

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Chaudhry: He was not even a special judge even under the MCOC Act. He was not a special judge under any act.

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Chaudhry: ON this point, about whether.. Our claim is he was not a special judge and therefore had no business dealing with this, or even touching this case.

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Chaudhry: When we asked from the State and the Central government, they did not deny that Judge Vadane was not special judge.

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Chaudhry: I may point out at the outset, that while this petition is being filed only on behalf of Sudha Bharadwaj, it will affect 8 prisoners in the #ElgarParishad who had been remanded by Judge Vadane.
This affects all 8.

#BombayHighCourt #ElgarParishadcase

Chaudhry: If our petition is allowed, then the orders of extension of time, the acceptance of chargesheet, and the chargesheet in its entirety is null and void. And that would imply that they have been illegally detained.

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Chaudhry: I will take your lordship through the list of dates quickly.
And these facts are same for the other 8 people as well.

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Chaudhry: As soon as they were arrested, the #SupremeCourtofIndia passed an order of house arrest.
Then after serving house arrest, she was produced before Judge Vadane by the Pune police.

#BombayHighCourt #ElgarParishad

Chaudhry: In October 2018, her first bail application was rejected.
Then she was remanded to police custody for 10 days.
Then she was remanded to judicial custody.

#BombayHighCourt #ElgarParishad

Chaudhry: In November the Prosecution sought for time to file chargesheet which was granted.
Bharadwaj applied for default bail.
Then in December 21, 2019 a chargesheet was filed before Judge Vadane.

#BombayHighCourt #ElgarParishad

Chaudhry: Bharadwaj filed for bail twice, both rejected.
After Vadane, the successor was Session Judge SR Navandar.
To his credit, he never called himself a special judge, only addl. sessions judge.

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Chaudhry: With utmost humility the bedrock of judiciary is shaken when a non-designate judge calls himself a designate judge...
And people languish in jail due to his orders…

#BombayHighCourt #ElgarParishad

Chaudhry: Now I have shown facts, I will show law.

Chaudhry starts with Sections of the Code of Criminal Procedure - Sections 4, 5, 6 and 9.

#BombayHighCourt #ElgarParishad

Chaudhry: The principal and addl sessions judge are to be appointed by HC.
For NIA, the appointing authority is different.
So it cannot be said, that it makes no difference between the two judges.

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Chaudhry: Section 167 applies unless the special law specifically precludes it.

Chaudhry is reading out Section 167.

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Chaudhry: UAPA modifies CrPC for time period, but it does not modify the judge (magistrate only).
Once NIA comes into force, only special judges have the power, no other judge can come into the picture. Not principal judge, not additional judges.

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Chaudhry shows Section 193.

Chaudhry: the title of the chapter is conditions requisite for initiation of proceedings. So unless this is not fulfilled, the proceeding cannot be initiated.

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Chaudhry: The UAPA Act does not change this scheme. It does not create special judge. It only increases the time line. The UAPA does not session judge or addl sessions judge the power to commit to a case, unless specifically provided.

#BombayHighCourt #ElgarParishad

Chaudhry: This is modified by NIA by bringing in special judges.
The express provision giving power to take cognizance is provided by NIA.
Sec. 193 will bar Judge Vadane from taken cognizance of the case.

#BombayHighCourt #ElgarParishad

Chaudhry: An additional sessions judge has no power to deal with cases being dealt with unless provided by the session judge.

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Chaudhry: The original jurisdiction and power of cognizance in the prosecution for defamation under Section 199. Only in that case and no other case.

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Chaudhry: Now please see Section 209.

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Chaudhry: these are legal provisions in CrPC under which Magistrate and Sessions judge operate.

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Chaudhry: The UAPA does not create any special Judges. Neither does it create any special judges.

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Chaudhry: The UAPA act creates no provision for special judges. The chapters prima facie show. How can Judge Vadane claim to be a special judge under UAPA?

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Chaudhry: Section 2(d) prior to NIA amendment was ““court” means a criminal court having jurisdiction, under the Code, to try offences under this Act”

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Chaudhry: After NIA comes into force, the definition is amended to add that “court includes a Special Court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008”

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Chaudhry: So before UAPA, the offences were triable as per CrPC, subject to modifications made by UAPA.
The modifications made by the UAPA Act were very minimal.

He shows section 43C of the UAPA Act.

#BombayHighCourt #ElgarParishad

Chaudhry: Section 43D provided for the modification to be applied to the CrPC.
There were modifications to theSection 167 of CrPC.

#BombayHighCourt #ElgarParishad

Chaudhry: What is modified in Section 167 is the time limit. It still remains with the Magistrate. Nobody else but the Magistrate can extend the remand.
Even extension of time for investigation is not given to any other judge.

#BombayHighCourt #ElgarParishad

Chaudhry: Only after the NIA Act was brought into the picture, the definition of court changes. And the extension of time is by the court defined under Section 11 and 12 of NIA Act and the magistrate has been excluded.

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Chaudhry: IN our case, the extension of matter is neither by the special judge, it is not by the magistrate.

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Court: Have you read the order of the #SupremeCourt?

Chaudhry: No I do not have this. If Mr Singh could read it for others’ benefit.

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Chaudhry: The power of the sessions judge just does not enter into the picture.
He has no power to deal with the extension of time.
I am not concerned with the magistrate.

#BombayHighCourt #ElgarParishad

Chaudhry: I am only saying that this gentleman (Judge Vadane) had no power. And if that is true, then he has no power and it all goes.
There is no denial that Judge KD Vadane is not a special judge.

#BombayHighCourt #ElgarParishad

Chaudhry: UAPA creates offences under Section 20-23 of which I am charged along with IPC offences.

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Chaudhry now refers to NIA Act.

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Chaudhry shows the provisions of appointment of public prosecutor under CrPC versus what is mentioned in the NIA Act.

He also shows about provisions pertaining to appointment of special judges and the role of the investigating agency.

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Chaudhry: the burden of their affidavit is based on Section 7 of the NIA Act, which has no bearing on my case.

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Chaudhry: NIA says they take over investigation under Section 7. If NIA has no jursidiction then, good for me. But how does the Addl Sessions Judge come into the picture.

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Chaudhry: NIA is not denying that the IO of Maharashtra police was legally empowered to take up the investigations. They did not take up the investigation, so State police continued.

#BombayHighCourt #ElgarParishad

Chaudhry is now reading Section 11 and 22 of the NIA Act.

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Chaudhry now reads section 13 of the NIA Act.

Chaudhry: This section leaves no ambiguity that no other court can try matters under the Act except the Special Court.

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Court: Sub section 3 and 4 of Section 22 seems to bear the controversy.

Chaudhry: I will read it again.

#BombayHighCourt #ElgarParishad

Chaudhry reads out Section 22.

Chaudhry: This mentions that until Special Court is constituted.
This does not apply in the present case, as from our RTI replies it can be seen that the judges had been appointed.

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Chaudhry shows the RTI applications again.

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Chaudhry: On the date the order was passed by Judge Vadane, the special judges has ben appointed. Under no stretch of imagination can there be an explanation for Judge Vadane to execute that power.

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Chaudhry: On and from the date of the constitution of a court, all cases pending in other courts are transferred to NIA Courts.

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Chaudhry: Even before the Pune police took my client to Pune, the special courts existed. The Maharashtra govt has to be explain why they chose to go to Judge Vadane.

#BombayHighCourt #ElgarParishad

Court: Only we wish to verify from the High Court record.

Chaudhry: Yes, it is important to not just rely on the RTI reply. It is not been denied at all.

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Court: Reply is not filed by State and NIA’s reply is silent.

Chaudhry: To be fair to Mr. Singh, his officers were not present during that time, so he couldn’t have known.
As for State, they have been given time.

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Court: Subject to what you have to say, we will post this on Wednesday at 3.30 pm for checking the records.

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Chaudhry: Milords may also ask to check if Mr Vadane was appointed as special judge ever in any other act?
Also had the state appointed special judges in that period?

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Court: What we propose to do is if the information by the petitioner is correct, then we will ask the State to explain their stand day after tomorrow.
If it is inconsistent, then we will have to check.

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Chaudhry: Please do not allow them to say anything after I have made my submissions.
They are not willing to file a reply. Enough opportunity has been given.
Please do not coerce them to file a reply.

#BombayHighCourt #ElgarParishad

Court: We are not on reply. What their office record shows...

Chaudhry: Whatever office record should have been placed on record, should have been so, long before. That is all I am saying, I hope milords understands.

#BombayHighCourt #ElgarParishad

Adv R Satyanarayanan submits that he also has a similar application pending and requests the matter to be tagged along.

#BombayHighCourt #ElgarParishad

Court agrees.

Order: We will not allow the state to file reply since we have heard the matter substantially.
However we allow the State govt to produce the relevant record in relation to subject matter of petition.

#BombayHighCourt #ElgarParishad

Chaudhry: If in the interest of justice, if milords deem it fit be pleased to hear the matter physically..?

Court: Subject to clearance by CJ Dipankar Datta, we will list the matter. We will let you know by evening.

#BombayHighCourt #ElgarParishad

Court: Matter to be listed on July 8, 2021 at 3.30 pm.

#BombayHighCourt #ElgarParishad