Mumbai, July 6 (PTI) Activist Sudha Bharadwaj, an accused in the Elgar Parishad-Maoists links case, told the Bombay High Court through her lawyer on Tuesday that the judge who remanded her to custody following her arrest in 2018 had 'pretended' to be a designated special judge and orders issued by him were responsible for a longer stay in jail for herself and other co-accused.
Senior counsel Yug Chaudhry, who appeared for Bharadwaj, made final arguments on the plea before a bench of Justices SS Shinde and NJ Jamadar.
Meanwhile, in an affidavit filed in the HC, the National Investigating Agency (NIA) urged the bench to dismiss the default bail application filed by Bharadwaj, saying she was on a 'spree' of filing one bail application after another. The premier investigating agency further said Bharadwaj's plea was not maintainable and urged the HC to impose a cost on her. Chaudhary told the high court that KD Vadane, an additional sessions judge in Pune, had remanded Bharadwaj and eight other activists to the Pune Police's custody in 2018.
Vadane subsequently granted an extension of time to the Pune Police to file a chargesheet in the case, taken cognisance of the chargesheet, and in October 2018 denied bail to Bahardwaj and three other co-accused. While passing orders on all of the above-mentioned proceedings, Vadane had claimed to be a 'special UAPA judge', and had signed the orders as the special UAPA judge, Chaudhry told the HC.
Chaudhry said he had replies given by the Maharashtra government and the high court to RTI queries filed by Bharadwaj that said Vadane had never been designated as a special judge under any legal provision.
In her plea, Bharadwaj also sought to quash and setting aside of the order passed by judge Vadane extending the time for filing of chargesheet and issuing process.
'The applicant (Bharadwaj) is on a spree of filing proceedings after proceedings for the purpose of obtaining bail,' the NIA stated.
'She was arrested on August 28, 2018 and immediately after, she filed a bail application on 5th October 2018. She was taken in physical custody on October 27, 2018. In addition to this she has filed three more bail applications so far,' it said, adding that all the above bail pleas have been rejected by various courts.
Chaudhry had told the bench that as per the CrPC, UAPA Offences were scheduled offences. The state police, as per CrPC, is permitted to continue probing the case so long as the NIA does not take over. However, the cognisance of such a case can be taken only by a special court, he said.
'Records show that ADJ Vadane pretended to be a special judge. If our argument is correct prima facie, then his orders rejecting bail, extending time, accepting chargesheet, and the chargesheet itself will be wrong in law,' Chaudhry said.
'It will then follow that these people (Bharadwaj and her co-accused) have been in illegal detention,' he said.
Chaudhry told the bench that the Maharashtra government had failed to file its reply to his plea despite orders of the high court asking for the same.
The NIA, the current prosecuting agency in the case, had filed a reply affidavit, but it was silent on the allegations against Judge Vadane.
'With utmost humility, I say that the bedrock of judiciary is shaken when a non-designated judge calls himself a designate judge and people languish in jail due to his orders,' Chaudhry said.
He further said that the Pune Police had erred in taking the case before judge Vadane since all cases pertaining to the Unlawful Activities Prevention Act are to be heard by a special court only and not by the sessions court.
The NIA, however, said in its reply that since it took over the case only in January 2020, the Pune Police were right in probing the case until then.
It further said the NIA Act did not prohibit police of any state from carrying on a probe until such time that the NIA takes over. And a special court designated by the state government then has the jurisdiction to take cognisance of such case.
However, the trouble in the present case, Chaudhry said, was that the Pune court that ended up taking cognisance of the case before the NIA took over was not a special court and that judge Vadane wasn't a special judge.
The high court bench said that while it did not doubt the RTI replies that Chaudhry had produced in court, it wished to independently verify the claims against judge Vadane.
The bench then directed the high court registry to place original records on Vadane's appointment, designation etc., before the bench.
The high court also said that since the state had failed to file a reply so far, it couldn't be permitted to file any replies now. However, the state could produce original records on Vadane's appointment if it wished to, it said.
The HC is likely to continue hearing the arguments on Bharadwaj's plea on July 8.
The other activists, affected by Vadane's orders are Vernon Gonsalves, Varavara Rao, Arun Ferreira, Sudhir Dhawale, Rona Wilson, Shoma Sen, Mahesh Raut, and Surendra Gadling.
Gadling has filed a plea seeking default bail on similar grounds.
On Tuesday, the high court also tagged pleas for bail filed last year by Bharadwaj's co-accused in the case, activists Arun Ferreira and Anand Teltumbde, after their counsel advocate R Satyanarayan said that their pleas had also raised objections to the Pune court's jurisdiction. PTI AYA NSK NSK