The Bombay High Court on Thursday directed the Maharashtra government to produce documents or records to show that sessions judge KD Vadane, who took cognisance of a chargesheet filed by the Pune Police against lawyer Sudha Bharadwaj and some of her co-accused in the Elgar-Parishad case, had the jurisdiction to do so.
A bench of Justices SS Shinde and NJ Jamadar gave the direction after noting that the records produced by the High Court registry "matched" with the claim made by Sudha Bharadwaj that Judge KD Vadane was not a designated special judge.
The bench was referring to the claim made by Sudha Bharadwaj through her counsel, senior advocate Yug Chaudhry, in her plea filed in the High Court seeking default bail.
Earlier this week, Yug Chaudhry had told the High Court that Judge Vadane was an additional sessions judge, but he had "pretended" to be a "special judge" and remanded Sudha Bharadwaj and eight others to Pune police's custody in 2018.
Judge Vadane had also taken cognisance of the chargesheet filed by the police in the case even though he had no jurisdiction to do so, Mr Chaudhry had said.
He had placed replies that Sudha Bharadwaj had received from the High Court and the Maharashtra government authorities showing that Judge Vadane had never been designated as a special judge.
At the time, the High Court had said it wished to confirm the same with the records of the High Court registry.
On Thursday, the bench said the registry "record matches with what is submitted in the petition".
Mr Chaudhry then said that since Sudha Bharadwaj and others had been charged under the Unlawful Activities Prevention Act (UAPA), only a designated special court could have taken cognisance of their case.
He said in cases of scheduled offences such as those under the UAPA, a sessions judge has the power to take cognisance only if there exist specific instructions from the "Principal District Judge (PDJ)".
At this, the bench asked the Maharashtra government's chief public prosecutor Aruna Pai to show if such an order existed.
"Show us any document through which PDJ gave powers to KD Vadane to hear the matter," the bench said.
The bench said there were documents to show that while the Pune Police took the case and the chargesheet before Judge Vadane, designated special judges were officiating in special courts in Pune at the time.
Aruna Pai sought time and said she will provide an answer to the court after taking instructions from relevant authorities.
"There is no explanation coming from the government. The IO (investigative officer) should have explained why he didn't go to a special judge," Mr Chaudhry maintained.
The court also asked Additional Solicitor General (ASG) Anil Singh, who appeared for the National Investigating Agency (NIA), to respond to the claims made by Yug Chaudhry.
The Elgar Parishad case of 2017-2018, which was earlier handled by the Pune Police, was later handed over to the NIA and its trial was shifted to Mumbai.
Sudha Bharadwaj was arrested in August 2018 and placed under house arrest. She was taken into physical custody by the Pune Police in September 2018. The NIA took over the investigation in January 2020.
On Thursday, ASG Anil Singh told the High Court that he did not agree with Mr Chaudhry's submission that only a special judge could have taken cognisance of the case.
He said offences under UAPA were serious and hence, the focus must be on their early disposal.
"The purpose of this Act (UAPA) is to punish the offender. There has to be expeditious and early disposal of cases. Nothing is above national security," Anil Singh said.
"Special judges are not different from sessions judges. It is a sessions judge, who is appointed as a special judge. So, he is not, not competent to handle such cases," he said.
The High Court further adjourned the hearing on the plea to July 15.
Sudha Bharadwaj has said in her plea that since Judge Vadane had no jurisdiction over the case, he couldn't have remanded her and her co-accused to the Pune Police's custody, taken cognisance of the chargesheet, and denied them bail.
The High Court has tagged similar pleas filed by Sudha Bharadwaj's co-accused Arun Ferreira, Anand Teltumbde and Sudhir Dhawale, through advocate R Sathyanarayan, raising objections to Judge Vadane's jurisdiction.
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