Swamy has been undergoing treatment at the Holy Family Hospital here, following a court order on May 28.
Tag: Elgar Parishad case
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Stan Swamy challenges stringent UAPA provision, says it violates fundamental right
By PTI
MUMBAI: Tribal rights activist Stan Swamy, an accused in the Elgar Parishad-Maoists links case, has challenged in the Bombay High Court a provision of the stringent Unlawful Activities Prevention Act (UAPA) dealing with grant of bail, contending it has created an “insurmountable hurdle” for those seeking relief.Swamy said section 43D(5) of the UAPA was violative of the accused person’s fundamental right to life and liberty as guaranteed by the Constitution even as the High Court on Saturday extended the stay of the 84-year-old Jesuit priest at a private hospital in Mumbai till July 6.
Senior counsel Mihir Desai told a bench of Justices SS Shinde and NJ Jamadar that Swamy was still undergoing treatment at the intensive care unit of the Holy Family Hospital, where he was shifted from the Taloja prison in Navi Mumbai following the HC’s order on May 28 this year.
Swamy filed his fresh plea challenging section 43D(5) of the UAPA on Friday.
In his plea filed through advocate Desai, Swamy said the above section created an “insurmountable hurdle” for the accused to get bail and, thus, was violative of the accused person’s fundamental right to life and liberty as guaranteed by the Constitution.
The common practice under the criminal justice system is to presume an accused person’s innocence unless charges against him or her are proven by the prosecution.
Section 43D (5) of the UAPA, however, mandates that if a court has reasonable grounds to believe that the accusation against someone charges under the Act is prima facie true, then the accused shall not be released on bail.
Swamy’s plea stated that presumption of innocence is a fundamental tenet of criminal jurisprudence and when a harsh condition, such as that mentioned above is imposed on grant of bail, even before the trial is conducted, the same “inverts on its head, the principle of presumption of innocence.”
Desai said the plea also stated that the provision under the UAPA to brand certain organisations as a front for banned or terrorist organisations was bad in law.
The UAPA provides for the declaration of an association as unlawful and for the listing of organisations in the first schedule of the Act as “terrorist organisations”.
Prosecuting agencies often charge accused persons under the Act of being members of organisations working as a front for banned ones.
In the Elgar-Parishad case, Swamy and his co-accused have been charged by the National Investigating Agency (NIA) as being members of frontal organisations working on behalf of the banned CPI (Maoists).
Last month, the NIA had filed an affidavit before the HC opposing Swamy’s bail plea.
It had said that there did not exist “conclusive proof” of his medical ailments.
It alleged that Swamy was a Maoist, who had hatched a conspiracy to create unrest in the country.
The Elgar Parishad case is related to inflammatory speeches made at a conclave held in Pune on December 31, 2017, which, the police claimed, triggered violence the next day near the Koregaon-Bhima war memorial located on the outskirts of the western Maharashtra city.
The police had claimed the conclave was organised by people with alleged Maoist links.
Swamy, who claims to be suffering from several ailments, including the Parkinson’s disease, had moved the high court earlier this year through advocate Desai, seeking medical treatment and interim bail on health grounds.
He had tested positive for coronavirus at a private hospital last month and was subsequently shifted to the ICU.
His plea for medical bail and bail on merits was listed for hearing in the high court on Friday but could not be taken up due to paucity of time.
The bench adjourned the hearing to Tuesday and extended his hospital stay till then.
“Till the next hearing, our interim order on his (Swamy’s) treatment at the private hospital will continue,” it said.
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Elgar Parishad case: HC directs NIA to file reply on Sudha Bharadwaj’s bail plea
By PTI
MUMBAI: The Bombay High Court on Tuesday directed the National Investigation Agency to file its affidavit by July 3 in response to the bail petition of activist Sudha Bharadwaj, an accused in the Elgar Parishad-Maoist links case.Bharadwaj was arrested on August 28, 2018 and has been in jail since then.
The case was registered against her and some other activists under provisions of the stringent Unlawful Activities (Prevention) Act (UAPA).
Bharadwaj had sought default bail, contending the trial judge was not authorised to take cognisance of the 2019 charge sheet filed against her, as the judge was at that time not designated as special judge under the NIA Act to hear matters pertaining to the UAPA.
A division bench of Justices S S Shinde and N J Jamadar on Tuesday directed NIA’s advocate Sandesh Patil to file an affidavit in response to the petition and posted the matter for further hearing on July 3.
In her petition, Bharadwaj relied on documents received from the high court under the Right to Information (RTI) Act to demonstrate that the court of Additional Sessions Judge Kishor Vadane in Pune was not authorised to take cognisance of the 1,800-page supplementary charge sheet filed by the Pune police in February 2019.
“This judge was not designated as a special NIA judge at the time and hence, could not have taken cognisance of the charge sheet. We are also challenging an earlier order passed by this judge in November 2018 granting the police time to file the charge sheet,” Bharadwaj’s counsel Yug Chaudhry argued.
The case relates to alleged inflammatory speeches delivered at the ”Elgar Parishad” conclave, held at Shaniwarwada in Pune on December 31, 2017, which the police claimed triggered violence the next day near the Koregaon-Bhima war memorial located on the city”s outskirts.
The Pune police claimed the conclave was backed by Maoists.
The National Investigation Agency (NIA) later took over the probe into the case.
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Elgar case: Pleas filed by accused based Arsenal report not maintainable, says NIA
By PTI
MUMBAI: The National Investigation Agency (NIA) told the Bombay high court Thursday that the agency has denied the claims of tampering of electronic evidence in the Elgar Parishad-Maoists Links case that were made by a US-based forensic firm.The agency made the submission while opposing the plea filed by Nagpur university professor Shoma Sen, an accused in the case, seeking quashing of the charges against her.
Additional Solicitor General Anil Singh, who appeared for the NIA, told the high court that the agency was opposing the reliefs sought by Sen.
He said that the NIA had also filed an affidavit opposing the plea.
In the affidavit that was filed on Wednesday, the NIA said that Sen’s plea was not maintainable and it was a tactic to delay the trial in the case.
It said that Sen’s plea was not maintainable since charge sheets had already been filed in the case and the special court had already taken cognisance of the charge sheets.
The central agency said that Sen could instead file a separate writ petition seeking discharge from the case in accordance with the CrPC norms.
It further opposed Sen’s reliance upon the reports of the US forensic firm Arsenal Consulting, which had earlier this year said that electronic evidence in the Elgar case had been tampered with and that evidence had been planted on the devices of several accused persons in the case.
The central agency said in its affidavit that Arsenal had no locus standi in the case.
It further said that the NIA had already disputed the said report and it could not be admitted as evidence.
“I stoutly deny the Arsenal report. Since the contentions made in the report are not accepted (by the NIA) as they are disputed questions of facts and hence, cannot be entertained in the present petition,” the affidavit reads.
“It is contended that the present petition is not maintainable. Since charge sheets are already filed, these contentions by the petitioner can be raised at the time of the trial,” it reads.
The submissions were made before a bench of Justices S S Shinde and N J Jamdar that was presiding over the pleas filed by Sen and her co-accused Rona Wilson, seeking interim bail and quashing of the FIR against them.
The accused persons also questioned the legality of the sanction granted by the Maharashtra government authorities to prosecute them under the Unlawful Activities (Prevention) Act (UAPA) considering that the sanctioning authority did not take into account the possibility of tampering of electronic evidence.
The NIA, however, said that the question of tampering of evidence could be dealt with at the stage of trial.
During the day’s hearing, Chief Public Prosecutor Deepak Thakare, who appeared for the Maharashtra government, sought two weeks to file affidavit on behalf of the Pune police to respond to the questions raised by Sen and Wilson on the issue of sanction.
Senior advocate Indira Jaising, who appeared for Sen, told the bench that if the state’s request for time was being considered, then the entire file pertaining to the sanction is required be placed before the court since the main issue in the petitions pertained to the sanction.
“This is an issue of liberty. The court may grant or deny bail, but I have to be heard. This petition has been pending for hearing for over three months now,” she said.
Jaising further said that she will be referring to the judgment of the Delhi High Court delivered earlier this week while granting bail to some student activists, accused in the anti-CAA protests in the national capital.
The HC then said that it will give one last opportunity to the state to file the reply.
It directed that all replies be filed by July 9 and scheduled further hearing on the pleas on July 13.
In April this year, the NIA had filed an affidavit on similar grounds, opposing the plea filed by Wilson and disputing the Arsenal report.
The NIA had opposed the plea, contending that since the Arsenal Consulting report was not part of the charge sheet, it could not be be relied upon by Wilson to seek quashing of the charges.
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Elgar Parishad case: Bombay HC extends activist Stan Swamy’s stay at private hospital till July 5
By PTI
MUMBAI: The Bombay High Court on Thursday extended the stay of Jesuit priest and activist Stan Swamy, an accused in the Elgar Parishad-Maoist links case, at a private hospital in the city till July 5 after the medical facility submitted a report saying his health condition remains “critical”.Swamy (84) was shifted to the Holy Family Hospital in suburban Bandra for medical treatment from Navi Mumbai’s Taloja prison, where he was lodged as an undertrial, following HC’s order on May 28.
Swamy, who suffers from several ailments, including Parkinson’s disease ( a brain disorder) had moved the HC earlier this year through his counsel, senior advocate Mihir Desai, seeking treatment and interim bail on health grounds.
He had tested positive for COVID-19 at the private hospital and was shifted to the ICU.
A bench of Justices SS Shinde and NJ Jamdar said on Thursday that Swamy’s latest medical report submitted by the private hospital said while he had recovered from COVID-19, his health condition continued to be “critical” and he “required continued intensive care.”
“As per the report, there are serious medical issues. In view of aforesaid report, we deem it appropriate to extend the stay of appellant till July 5,” the HC said.
It directed that the National Investigation Agency (NIA), the prosecuting agency in the case, be given a copy of the medical report.
The bench directed the NIA to go through the report and make its submissions on Swamy’s plea on July 3, the next date of hearing.
The octogenarian tribal rights activist, who hails from Jharkhand, was arrested in October 2020 and has been in jail since then.
The Elgar Parishad case relates to alleged inflammatory speeches delivered at a conclave held at Shaniwarwada in Pune on December 31, 2017, which the police claimed triggered violence the next day near the Koregaon-Bhima war memorial on the western Maharashtra city’s outskirts.
The Pune Police had claimed the conclave was backed by Maoists.
The NIA later took over the probe into the case in which several activists and academicians have been named as accused.
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Three accused in Elgar-Maoist links case contract COVID-19 in jail
By PTI
MUMBAI: Three out of 10 accused in the Elgar Parishad-Maoist links case who are lodged at Taloja Central Prison near Mumbai have tested positive for coronavirus infection, an official said on Thursday.RT-PCR tests of 57 inmates of the jail, located in Navi Mumbai, were conducted recently, he said.
Mahesh Raut, Sagar Gorkhe and Ramesh Gaichor, all accused in the Elgar case, tested positive, while other 54 were negative.
The reports were received on Wednesday, the prison official said.
Those whose reports were negative included activists Gautam Navlakha, Anand Teltumbde, Rona Wilson, Vernon Gonsalves, Surendra Gadling, Sudhir Dhawle and Arun Farreira, all accused in the Elgar Parishad case.
Of total 13 accused in the case, Varavara Rao, Stan Swamy and Hany Babu are currently out of the prison.
Rao is on bail, whereas Swamy (84) and Babu are hospitalised.
Swamy and Babu had tested positive for the virus at hospital.
Sudha Bharadwaj, another accused, is lodged in Byculla jail in Mumbai.
Taloja prison officials conducted RT-PCR tests of 556 inmates in April and May this year as a precautionary measure, and a total of 14 persons tested positive, the official said.
The prison currently houses 2,972 inmates.
The Elgar case relates to the Elgar Parishad conclave held in Pune on December 31, 2017.
Pune Police had claimed that it was backed by Maoists and the speeches made there triggered caste violence at Bhima-Koregaon war memorial in the district the next day.
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Elgar Parishad case: Bombay HC permits Hany Babu to be shifted to Breach Candy Hospital
By PTI
MUMBAI: The Bombay High Court on Wednesday permitted Delhi University’s associate professor Hany Babu, an accused in the Elgar Parishad-Maoist links case, to be shifted to the private Breach Candy Hospital here for medical treatment.Hany Babu moved the HC on Wednesday morning seeking medical aid for an eye infection that he developed after contracting COVID-19.
The HC said Babu should be shifted to the Breach Candy Hospital on Thursday under police protection, and charges for his treatment there and medicines prescribed will be borne by him and his family.
Hany Babu tested positive for coronavirus earlier this month and is currently undergoing treatment at the state-run G T Hospital in Mumbai.
Last week, authorities of the Taloja prison in neighbouring Navi Mumbai brought him to the J J Hospital here, from where he was shifted to the G T Hospital.
His wife Jenny Rowena moved the HC on Wednesday morning, seeking interim bail and medical aid for him.
ALSO READ | Bombay HC asks JJ Hospital to form panel to examine Elgar Parishad-accused Stan Swamy
Her counsel, senior advocate Yug Chaudhry, approached a vacation bench of Justices S J Kathawalla and S P Tavade, seeking an urgent hearing on the ground that besides testing positive for coronavirus, Babu had also developed a severe eye infection and ran the risk of losing vision in his left eye.
Chaudhry said Babu must be checked to rule out the possibility of black fungus.
Mucormycosis, or black fungus, is a rare but serious infection which has been found in several COVID-19 patients.
The bench, accordingly, summoned the G T Hospital’s Dean Dr B G Chikhalkar, who appeared with other doctors via video-conferencing and told the bench that Babu was being provided adequate treatment.
The court then asked for a video call to be arranged between the bench and Hany Babu.
When Babu came on the line, he told the HC that he was satisfied with the treatment at the G T Hospital.
“My eye is a little better now. I am satisfied,” he said.
The hospital authorities told the HC that they were not equipped to carry out an MRI angio test that had been recommended for Babu’s brain by the J J Hospital.
Advocate Chaudhry told the HC that Babu also needed several other specialised tests to be conducted and sought interim bail.
“If the state can’t take care of me, let me take care of myself and my life,” Chaudhry argued.
The HC said while it won’t grant bail to Babu, it could allow him to be shifted to a hospital of his choice.
The NIA’s counsel, Additional Solicitor General Anil Singh, opposed it and said the city-based J J Hospital, KEM Hospital, Nair Hospital were all equipped to treat Babu.
“Otherwise, this will become a precedent and all prisoners will want to be shifted to private hospitals,” Singh said. The HC, however, refused to accept the submission.
“Let the family get psychological satisfaction at least that he is being treated at a hospital of their choice, especially if they are footing the bill,” the court said.
The HC said there is nothing wrong in making this a precedent, especially in the current situation.
“That’s why we are asking him to pay the bill.
We haven’t taken the Nanavati precedent and asked state to pay the bill,” the HC said.
It was referring to a previous HC order that had directed the private Nanavati Hospital here to bear the treatment cost of activist Varavara Rao, who is also an accused in the Elgar Parishad-Maoist links case.
The HC directed the Breach Candy Hospital to submit Babu’s medical report in court by June 9, the next date of hearing, or whenever Babu is discharged from the hospital.
As per his family and lawyer, Babu developed an acute eye infection on May 3, and is yet to receive appropriate medical care.
Last week, Babu’s wife Jenny Rowena, said in a press conference that his family was struggling to get information from prison authorities and the NIA, which is conducting a probe into the case, on his health condition.
Babu was arrested by the National Investigation Agency (NIA) in July 2020.
The Elgar Parishad case relates to alleged inflammatory speeches made at a conclave held in Pune on December 31, 2017, which police claimed triggered violence the next day near the Koregaon-Bhima war memorial in the district.
The Pune police claimed the conclave was backed by Maoists. The case was later taken over by the NIA. Several other activists, including Sudha Bharadwaj and Varavara Rao, had been arrested in the case.
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Bombay HC asks JJ Hospital to form panel to examine Elgar Parishad-accused Stan Swamy
By PTI
MUMBAI: The Bombay High Court directed the Taloja prison authorities on Wednesday to take Jesuit priest Stan Swamy, an accused in the Elgar Parishad-Maoist links case, to the JJ Hospital here for a medical examination.Swamy, 84, must be examined at the state-run medical facility at 10.30 am on Thursday, it said.
A vacation bench of Justices S J Kathawalla and S P Tavade directed the hospital’s dean to form a committee of expert doctors, including a neuro-physician, an ENT specialist, an orthopaedic, a general physician, and other doctor required, to examine Swamy.
The bench also directed the state government to submit a report of the medical examination before the HC by May 21.
The court asked authorities of the Taloja prison in neighbouring Navi Mumbai, where Swamy is lodged, to arrange for him to be produced before the HC via video-conferencing at 4 pm on May 21, if the prison has such facilities.
Swamy had approached the HC earlier this year through senior counsel Mihir Desai, challenging a special court’s decision in March wherein the latter rejected his bail sought on medical grounds and on merits.
During the last hearing in the HC on May 4, a bench led by Justice Shinde directed the state authorities to file a report on Swamy’s current health condition by May 15.
Advocate Desai had then told the bench that Swamy was arrested in October 2020 and since his arrest, he has remained in the Taloja prison hospital.
Swamy is in the advanced stage of Parkinson’s disease, Desai had said.
He has lost the ability to hear, and given the raging COVID-19 pandemic, the court must at least grant Swamy temporary bail, the advocate had said.
On Thursday, the state and the National Investigation Agency (NIA), which is conducting a probe into the Elgar Parishad-Maoist links case, opposed Swamy’s bail plea.
The state’s counsel, Y P Yagnik, told the HC that Swamy was being taken care of in the prison.
He said Swamy was being provided hot water for bathing, a sipper cup, hearing aid and two attendants to assist him in the prison.
Yagnik also said Swamy was taken to the JJ Hospital on Tuesday evening and given the first dose of vaccine against COVID-19.
Advocate Desai, however, pointed out that inmates were being administered the vaccine in the prison itself and not in hospitals.
The NIA’s counsel, Additional Solicitor General Anil Singh, told the HC that in the past, Swamy himself had expressed satisfaction with the facilities provided to him in the Taloja prison.
But, advocate Desai said Swamy suffered from various medical ailments and his health had further deteriorated in the past few weeks. On May 17, Desai filed a note in the HC, stating that Swamy’s health condition was further deteriorating. As per the note, Swamy complained of fever and weakness.
He was taking several allopathic medicines, including anti-biotics prescribed by the Taloja hospital’s Ayurveda doctors, it said.
The note reiterated that given his ill-health and severe co-morbidities, Swamy was at the risk of contracting coronavirus infection and his life was under “imminent threat due to his medical condition, advanced age, and lack of medical facilities at the Taloja prison”.
The HC will hear the plea further on May 21.
The case relates to alleged inflammatory speeches made at a conclave held in Pune on December 31, 2017, which the police claimed triggered violence the next day near the Koregaon-Bhima war memorial in the district.
The Pune police claimed the conclave was backed by Maoists. The case was later taken over by the NIA. Several other activists, including Sudha Bharadwaj and Varavara Rao, had been arrested in the case.
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Elgar Parishad case: Kin seek jailed activists’ release in view of COVID, write to Maharashtra CM
By PTI
MUMBAI: The family members of jailed activists, accused in Elgar Parishad-Maoist links case, on Wednesday wrote a letter to Maharashtra Chief Minister Udhav Thackeray, seeking their release from prisons in view of the second wave of coronavirus.The letter was signed by the family members of 15 activists, including Anand Teltumbde, Gautam Navlakha, Stan Swamy, Sudha Bharadwaj and Rona Wilson.
The male accused in the case are currently lodged in Taloja jail in neighbouring Navi Mumbai, while the women undertrials are in Byculla prison in central Mumbai.
The letter said that the activists were suffering from multiple health issues and that one of them, Jyoti Jagtap, has tested positive for COVID-19.
Due to the pandemic, there has also been adisruption of usual communication channels, it said.
“The Supreme Court has empowered the state governments to form high-powered committees, which could then decide upon the release of prisoners in each state. We urge you to recommend to the committee to release the undertrials on interim bail at least,” the letter said.
“We are all worried about their safety in these desperate circumstances, where everyone is at risk. Thus, we sincerely appeal to you to take timely and necessary measures for the release of our family members,” it added.
Meanwhile,Delhi University assistant professor Hany Babu, one of the accused in the Elgar Parishad case, was taken to a hospital by prison authorities for his eye check-up on Wednesday.
His family members had said in a statement on Tuesday that he was suffering from acute eye infection, and had sought proper medical treatment for him.
The Elgar Parishad case relates to alleged inflammatory speeches delivered at a conclave held in Pune city on December 31, 2017, which the police claimed triggered violence the next day near the Koregaon- Bhima war memorial.
Pune Police claimed that the conclave was backed by Maoists.
The case was later taken over by the National Investigation Agency (NIA).
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Elgar Parishad-Maoist link case: NIA disputes US firm’s report
By PTI
MUMBAI: The National Investigation Agency has disputed a forensic report by a US firm which suggested that electronic evidence had been planted on the computer device belonging to activist Rona Wilson, an accused in the Elgar Parishad-Maoist links case.In an affidavit filed in Bombay High Court on Friday, the NIA said it “stoutly” denied the contents of the US firm’s report, adding that Wilson’s allegations of fabrication of evidence and planting of electronic evidence could not be accepted.
The central agency said Wilson’s plea based on the US firm’s report was not maintainable and urged HC to dismiss it as well as impose cost on the activist for filing such a plea.
In an affidavit filed through its officer Vikram Jhakate, the NIA said, “I stoutly deny the report.
I say since the contention made in the petition regarding the aforesaid facts are not admitted by me, they are disputed questions of fact and hence cannot be entertained in the present writ petition,” the affidavit reads.
The NIA further said the firm’s report and a news story carried in a magazine were not part of the charge sheet, and Wilson could not rely on them to seek quashing of charges.
It further said that since the US firm’s report itself claimed it was difficult to identify the person who allegedly planted such evidence, it was on Wilson to prove allegations of fabrication of evidence at the time of trial.
The NIA said the onus of explaining and identifying when and how evidence was planted was on Wilson himself since the alleged planting of electronic evidence took place before the FIR in the case was registered.
“As far as the contention of the petitioner that there is fabrication of documents, planting of false evidence and scant regards to procedure established by law is concerned, the same is uncalled for at this stage,” the affidavit stated.
It said Wilson’s plea was vague and based on “ifs and buts” and he himself was not sure of the person who allegedly planted the document.
The NIA said Wilson had an alternate remedy of filing an application for discharge under Section 227 or 239 of the Code of Criminal Procedure Code (CrPC).
It also said the US firm had no business giving such an opinion without the permission of the court at a time when the trial was pending and the issue was sub-juice.
The central agency also said the purpose of Wilson’s plea was to delay the trial.
Wilson approached HC earlier this year seeking quashing of charges as well as directions to appoint a Special Investigation Team, headed by a retired Supreme Court or High Court judge and consisting of digital forensic analysis experts, to probe the planting of documents on his computer by using malware.