Senior Advocate Rebecca John told the Supreme Court division bench led by Justices Aniruddha Bose and Sudhanshu Dhulia on January 16 while appearing for activist and Bhima Koregaon accused Vernon Gonsalves, who has been imprisoned since August 2018 on charges under the Unlawful Activities (Prevention) Act, 1967. “We are in 2023 now and still, charges have not yet been filed,” The division bench was hearing the bail applications of Gonsalves and a co-accused, Arun Ferreira, who were arrested for alleged links to the 2018 caste-based violence in Pune, as well as far-left militants. The bench decided to post the matter on a 'non-miscellaneous' day in the week beginning January 30 in order to hear the arguments in depth.

In her brief submissions today, John informed the court that, with the exception of the first case, Gonsalves had been acquitted in all other cases in which he was involved. In the first case, he was convicted of being a member of a 'unlawful association' under Clause I of Sub-section (a) of Section 10 and sentenced to three years in prison, and he was sentenced to five years in prison for 'advocating, abetting, advising, or inciting' the commission of a 'unlawful activity' under Clause (b) of Sub-section (1) of Section 13.

Justice Dhulia referred to the decision in National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, in which the top court dealt extensively with Sub-section (5) of Section 43D of the anti-terror statute and laid down the guidelines for dealing with bail petitions under this provision, “Isn’t the Watali verdict against you?” However, John pointed out that because the petitioner's alleged offences corresponded to the description provided in Clause I of Sub-section (a) of Section 10 and Clause (b) of Sub-section (1) of Section 13, the rigours of Sub-section (5) of Section 43D, which prohibited a court from discharging an accused on bail unless it found no reasonable grounds to believe that the allegations were prima facie true, would not apply. To bolster her case, she cited Supreme Court orders granting bail to Thwaha Fasal and K.A. Najeeb, as well as confirming Anil Teltumbde's bail. In particular, the senior counsel cited Union of India v. K.A. Najeeb, (2021) 3 SCC 713, which held that constitutional courts had the authority to grant bail to people accused of anti-terrorist statute offences, despite Sub-section (5) of Section 43D, to safeguard the right to a speedy trial ensured by Article 21.

John said, “What additional material pertaining to events taking place after 2005 have they placed on record? The two witnesses that the state has relied upon only spoke about things prior to 2005. So far, even charges have not been framed…What is the nature of the evidence against the petitioner? Apart from only one case, in all other cases, he has already been acquitted. Even in the case in which he has been convicted, the petitioner has served his sentence.” Justice Bose pronounced, “List both the matters on a non-miscellaneous day in the week starting on January 30, 2023. Learned counsel for all sides shall be permitted to file additional affidavit setting out the judgements they seek to rely on.”

Case Title: Vernon v. State of Maharashtra & Arun v. State of Maharashtra 
Citation: Special Leave Petition (Criminal) No. 5432 of 2022 & Diary No. 24825 of 2022