Elgar Parishad case: HC questions Gadling’s plea, says accused can’t choose probe agency

On June 6, 2018, Gadling and Dhawale were arrested under stringent sections of the Unlawful Activities Prevention Act (UAPA), for their alleged links with the Maoists and the conspiracy to incite violence in Bhima Koregaon

MUMBAI: The Bombay High Court on Thursday questioned the maintainability of a petition filed by Bhima Koregaon conspiracy case accused Surendra Gadling and Sudhir Dhawale, contending the transfer of the case from the Pune police to the National Investigation Agency (NIA) in January 2020 was politically motivated.

File photo of lawyer Surendra Gadling (HT PHOTO)

The Pune police had already filed a charge sheet and a supplementary charge sheet by then, whereas the NIA Act, 2008, had no provision empowering the central government to transfer an investigation after it had been completed, Gadling and Dhawale contended in their petition, filed shortly after the case was transferred to the NIA.

On Thursday, the division bench of justices AS Gadkari and Ranjitsinha Raja Bhonsale said the prayers were maintainable, but not at the behest of an accused in the case.

“The accused has no right to choose the investigating agency…You cannot question the transfer of investigation,” the judges said, asking Gadling’s counsel, advocate Satish Talekar, to justify the reliefs sought.

The bench adjourned the matter for further hearing on October 9 after Talekar sought time to respond to the court’s query,

The Bhima Koregaon conspiracy case stemmed from a first information report (FIR) registered by the Vishrambag police station in Pune on January 8, 2018, based on a complaint by Tushar Damgude, a local builder.

Damgude alleged that songs, plays and speeches delivered at the Elgar Parishad – an event commemorating 200 years of the battle of Bhima Koregaon in which a small Mahar regiment defeated a much larger Peshwa army – on December 31, 2017 in Pune incited widespread hatred and violence, leading to the death of one person at Bhima Koregaon the following day. The programme was organised by frontal organisations of the banned Communist Party of India (Maoist), Damgude alleged.

On June 6, 2018, Gadling and Dhawale were arrested under stringent sections of the Unlawful Activities Prevention Act (UAPA), for their alleged links with the Maoists and the conspiracy to incite violence in Bhima Koregaon.

After the Ministry of Home Affairs transferred the Bhima Koregaon case to the NIA on January 24, 2020, Gadling and Dhawale filed a petition questioning the transfer and seeking an interim order restraining the NIA from carrying out further investigation. The Pune police had already completed the probe and filed a charge sheet against a limited number of accused persons, whereas the NIA Act, 2008 did not contain any provision empowering the central government to transfer the investigation after it had already been completed, particularly when there were no compelling circumstances necessitating such transfer, the duo contended.

“The order to transfer the investigation to the NIA after completion of the investigation (by Pune Police) amounts to re-investigation, which is impermissible under law,” they said in the petition.

Gadling and Dhawale claimed that Hindu fundamentalists had conspired to spark communal violence at Bhima Koregaon and defame the Elgar Parishad as an anti-national event.

“The outbreak of communal tension and violence at Bhima Koregaon was pre-planned by Hindutva organisations and was watched in silence by the governments,” they said. After the BJP failed to form a majority government in Maharashtra in 2019, it transferred the probe to the NIA in order to avoid being exposed for its role in inciting violence and subsequently ordered the arrest of the accused, they alleged.

“The central government had an apprehension of being exposed. The earlier investigation was manipulated by the state police due to the interference of Devendra Fadnavis (during his first term as chief minister from 2014 till 2019). Therefore, it issued the transfer order without giving any reason,” the petition said.

The NIA, in response, filed an affidavit in 2021, expressing displeasure over Gadling and Dhawale’s opposition to the investigation.

“The petitioners have gone to the extent of scandalising and questioning the credibility of the NIA…The petitioners and other accused in this case have made it a tradition to file writ petitions and public interest litigations directly or through others, particularly when the investigation is in progress,” NIA’s affidavit said. Such exercise was nothing but “sheer abuse of due process of law”, the NIA contended.