The accused say that the sessions court had no jurisdiction to take cognizance of the chargesheet against them.Elgar Parishad Case: Eight Accused Move Bombay HC, Seek Default Bail

Eight of the accused in Elgar Parishad case. Clockwise from top left: Vernon Gonsalves, Sudhir Dhawale, Mahesh Raut, Shoma Sen, Arun Ferreira, Rona Wilson, Varavara Rao and Surendra Gadling.

New Delhi: Eight activists and academics who are accused in the Elgar Parishad case told the Bombay high court on Monday that the Pune sessions court, which remanded them to custody following their arrest and also took cognisance of the police’s chargesheet in 2019, had no jurisdiction to do so and sought default bail.

The petitioners are Sudhir Dhawale, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, Varavara Rao, Vernon Gonsalves and Arun Ferreira.

According to Bar and Bench, the petitioners challenged a September 5, 2019 order rejecting the default bail application under Section 167(2) of the Code of Criminal Procedure, read with Section 43-D (2) of Unlawful Activities (Prevention) Act (UAPA).

The counsel for the petitioners, senior advocate Sudeep Pasbola, told the high court that since all the accused persons in the case had been charged for scheduled offences under UAPA, besides sections of the Indian Penal Code, only a designated special court could have taken cognisance of the case. Instead, they were produced before sessions judge R.M. Pande.

Pasbola told a bench of Justices S.S. Shinde and N.J. Jamadar that when the accused petitioners were first produced before the Pune court for remand following their arrests in June 2018, they had objected to the court’s jurisdiction. Yet, the sessions court had gone ahead with hearing the matter, he said.

“At the time when the first chargesheet was filed in the case, designated special courts were functional in Pune. Besides, even if there hadn’t been any functional special court at the time, the case, since it was dealing with scheduled offences under the UAPA, should have gone to a magistrate’s court who would, in turn, have designated the sessions court to take cognisance as per law,” he said.

According to Bar and Bench, in their earlier default bail application filed before the sessions judge, the accused had pointed out three notifications issued by the Maharashtra government, which said that a special court had been constituted for Pune.

The notification shows that Judge Pande had not been designated as a special judge under the NIA.

Pasbola added:

“If a court has no jurisdiction then the order in remand or even for custody are in nullity. Only to defeat the right of the accused for bail, these chargesheets came to be filed in haste to make the right infructuous.”

Pasbola told the bench that while the National Investigation Agency (NIA) had maintained that only after it took over the case in January 2020, the case would go before a special court, “but that was not what the law mandated”.

He said “once a scheduled offence was disclosed,” the case must go before a special court.

Earlier this month, the bench of Justices Shinde and Jamadar had reserved its verdict on a plea seeking default bail filed by lawyer and activist Sudha Bharadwaj on similar grounds.

The bench will hear the NIA on the activists’ plea on Tuesday.

The NIA had submitted its draft charges before a special court here in the Elgar Parishad case earlier this month and claimed the accused persons wanted to establish their government and “wage a war against the nation”.

In total, 16 activists, academics and lawyers have been arrested by the Pune Police and the NIA in the case. The oldest of them, Stan Swamy, died in July this year. He had contracted COVID-19 while in custody.

Critics of the government have rejected the claims made by the NIA in the Elgar Parishad case, describing the investigation as a witchhunt against dissenters and rights activists.

(With PTI inputs)