Thread by @barandbench

#BombayHighCourt to continue hearing the application filed by #ElgarParishad accused Sudha Bharadwaj seeking default bail.

Hearing before Justices SS Shinde and NJ Jamadar.

#ElgarParishadcase

Advocate General Ashutosh Kumbhakoni appearing for Maharashtra government submits that exclusivity cannot be given to a court for the scheduled offences under the NIA Act.

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AG: Can we read the magistrate as ‘Court’ as mentioned under the UAPA Act?
The section 43D does not say that Court can be read in the place of magistrate as it does for the other terms.

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AG: So the question is can I read the terms Magistrate under Section 167 of the CrPC as Court under Section 43D(2). I am submitting that I can.

He refers to the General Clauses Act - Section 3(32) which defines magistrate.

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AG submits a judgment where the Court held that magistrate is a special court. He also showed a judgement which pointed out that the matter ought to be have heard by the sessions court and not the magistrate. Both for offences under the UAPA.

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AG: I will also show a judgment which clearly holds that the NIA court could hear the matter only after the NIA takes over the investigation.

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AG is now submitting on the order in which the Judge KD Vadane signed as Special Judge, Pune.

AG: Assuming that they are right, that the sessions court could not have taken cognizance, this aspect cannot entitle them to default bail.

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AG: In the entire petition, there is no whisper in the petition about failure of justice.

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AG concludes his submission.

Additional Solicitor General Anil Singh commences his submissions.

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ASG refers to the prayers in the petitionn.

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ASG: The third relief they are seeking today is the one of concern - bail under Section 167(2) CrPC.
Basically what the petitioners are seeking is default bail.

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ASG: Going by their application, assuming whatever they have submitted is correct, then there has to be an application for default bail, when factual right in the default bail accrues after the completion of 90 days.

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ASG is pointing out to the timeline for filing of default bail applications before the Sessions Court.

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ASG is submitting that the orders which is impugned in the present petition are valid order.

ASG: There is no restriction for sessions court to hear a matter in pre-trial stage.

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ASG states that the special court can hear cases from trial stage as is stated in the Section 22 of the NIA Act.

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ASG submits that the right to default bail accrues after 90 days but before chargesheet is filed.

ASG: Once chargesheet is filed, then the right to default bail goes away.

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ASG: Whether cognizance is taken or not is not material to the chargesheet haven been filed.

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Court adjourns the hearing of the matter to August 2, 2021.

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