‘Beyond jurisdiction of special court, agency should move HC with plea’

By: EPune | Published: February 7, 2020 7:25:00 am

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The Elgaar Parishad case, probed by Pune City Police for over a year, was transferred to the NIA in January.

Defence lawyers on Thursday asked a special court in Pune to reject the application filed by the National Investigation Agency (NIA) seeking transfer of all the court documents and seized objects in the Elgaar Parishad case to the NIA special court in Mumbai.

Defence lawyers argued that the special court in Pune was not competent to hear the NIA application and the application should be filed in the high court.

District Government Pleader Ujjwala Pawar is expected to file the state government’s response to the application on Friday morning. Pawar told the court on Thursday that she needed time to go through the citations and judgments submitted by the defence lawyers and NIA, and only then would she be able to put forward her arguments. Special Judge S R Navandar then adjourned the matter till Friday.

The Elgaar Parishad case, probed by Pune City Police for over a year, was transferred to the NIA in January. The NIA lodged a separate first information report (FIR) in this case in Mumbai on January 24. Agency officials visited Pune police commissionerate on January 27 and officially communicated that they were taking over the probe in the case.

On January 29, Superintendent of Police of NIA-Mumbai, Vikram Khalate, had moved an application before the special court in Pune requesting for orders to send “all court records, seized articles from this court” to the NIA special court in Mumbai “in the interest of justice”.

During Thursday’s hearing, NIA’s lawyer Namdev Taralgatti submitted provisions of the NIA Act and sought transfer of the court records. He argued that re-registration and re-numbering of the case has been done for administrative purposes and it does not amount to lodging a second FIR in the same case.

Defence lawyers Rohan Nahar, Siddharth Patil and Shahid Akhtar demanded that NIA’s application be rejected. They argued that the special court in Pune didn’t have the jurisdiction to decide NIA’s application and the agency should have moved the High Court.

Lawyer Surendra Gadling, one of the nine arrested accused in the Elgaar Parishad case, submitted that the High Court and Supreme Court, under Section 406 of CrPC, were the appropriate courts to consider applications for transfer of cases outside a sessions division in Maharashtra and Goa.

Gadling cited the probe in a case lodged by state Anti-Terrorism Squad (ATS) in Nanded, where the ATS had submitted a chargesheet in the case before a Nanded court, and the NIA had approached the High Court to seek the transfer of the sessions case.

Citing a Bombay High Court order, Gadling argued that the NIA Act comes into the picture only when the agency starts its investigation. “Just passing of an order by the central government or re-registration of FIR by NIA is not investigation… investigation includes taking records and documents, arresting suspects etc, which the NIA has not done yet… In the present case, where investigation and case records are yet to be handed over by the Pune police and taken over by NIA, the special court in Pune cannot entertain an application for transfer of case records and properties… The NIA has not mentioned any provision in law that empowers the special court in Pune to entertain their application…,” Gadling submitted.

The Pune City Police has, so far, booked 23 persons in connection with the Elgaar Parishad case for their alleged links with the banned CPI-Maoist, under sections of Indian Penal Code and UAPA. The NIA FIR has named 11 of the 23 accused, including Sudhir Dhawale, Shoma Sen, Mahesh Raut, Rona Wilson, lawyer Surendra Gadling, P Varavara Rao, Sudha Bharadwaj, Arun Ferriera, Vernon Gonsalves, Anand Teltumbde and Gautam Navlakha.

Except Teltumbde and Navlakha, all the other accused were arrested in 2018 and have been in prison for almost one-and-a-half years.

Elgaar Parishad was an evening event organised at Shaniwar Wada on December 31, 2017, a day before the 200th anniversary of the Battle of Bhima Koregaon. Police have alleged that Elgaar Parishad was organised as per the plans of the CPI-Maoist, and with the banned outfit’s funds.

Last month, NCP chief Sharad Pawar had raised questions about the arrest of several prominent activists in the Elgaar Parishad case over their alleged links with the banned CPI-Maoist. He had also demanded a probe by the special investigation team into the action taken by Pune City Police in the case.

Deputy Chief Minister Ajit Pawar and state Home Minister Anil Deshmukh, both NCP leaders, held “review” meetings with police officials who were handling the Elgaar Pa