The Supreme Court on Wednesday granted permanent medical bail to 82-year-old P Varavara Rao in the Bhima Koregaon case, rejecting the National Investigation Agency (NIA)’s argument that an accused booked under the Unlawful Activities (Prevention) Act (UAPA) cannot be let out on bail on grounds of old age or medical condition.

Noting that the octogenarian has spent two and a half years behind bars as an under-trial and was never accused of misusing the liberty of interim bail, a bench led by justice Uday U Lalit granted regular bail to Rao with usual conditions such as not leaving the jurisdiction of the trial court in Mumbai and not contacting witnesses in the case. Rao shall be free to avail medical attention of his choice, directed the court, adding that he should keep NIA apprised of his treatment.

The bench, which included justices Aniruddha Bose and Sudhanshu Dhulia, further recorded in its order, the sluggish pace of the 2018 case, underlining that not only are certain accused yet to be arrested, charges have not been framed against those who were arrested and jailed four years ago.

Rao is among the activists, lawyers, poets and scholars arrested by NIA in connection with alleged inflammatory speeches made at the Elgar Parishad conclave held in Pune on December 31, 2017. This, the police claimed, triggered violence the next day near the Koregaon Bhima war memorial located on the outskirts of the western Maharashtra city, leading to death of one person and injuries to several others. NIA claims the accused have Maoist links and indulged in anti-national activities.

The 90-minute proceedings on Wednesday saw NIA unsuccessfully trying to link Rao with killings of members of the security forces by Maoists in Chhattisgarh, Maharashtra, Telangana and Andhra Pradesh over the last few years; projecting him as a “threat to the entire nation”; and relying upon a top court order denying bail to self-styled spiritual saint Asaram in a minor’s rape case although he was 81.

To oppose the grant of bail, additional solicitor general SV Raju, representing NIA, called Rao a “very shrewd” person who would deliberately “lie low” during the interim bail period, “surreptitiously waiting for an opportunity to strike again” against the nation.

But the bench questioned Raju if NIA’s charge sheet in the Bhima Koregaon case mentioned the Maoist attacks on security forces at all, making Rao culpable for the deaths of the soldiers.

“According to your charge sheet, one person died, that too, during protests at Bhima Koregaon in Pune. But the documents you are showing to us relate to Chhattisgarh, Maharashtra, Andhra and Telangana. Did any person die there because of this man (Rao)? Has your charge sheet said anything? How do we implant something in this case which is not even a part of your charge sheet?” the bench asked the ASG, who tried to cite some media reports on Rao’s association with Maoists.

About the alleged dangers posed to the country if Rao is granted regular bail, the court questioned Raju why NIA chose not to file an appeal against the February 2021 Bombay high court order giving him interim medical bail for six months if the agency felt so strongly about Rao’s complicity.

“We will take it that the alleged offences are very serious. As you say, the trial in the case will take one-and-half years to complete. But the fact remains that you have not challenged the six-month medical bail given by the high court. Further, there is nothing on record to say he misused his liberty which now stands extended to one-and-half years...You cite some emails to us which means you have been keeping a watch, tailing him. But it is not your argument that he abused his medical bail. You have also not requisitioned the trial court to go to his residence or that you have any other apprehension,” it added.

At this point, the ASG cited Asaram’s example, saying the man was 81 but the Supreme Court denied him bail in a rape case. Raju claimed that in a UAPA case, old age or medical ailment cannot secure reprieve for an accused, especially when the offence alleged can be punished with a maximum penalty of death sentence.

The court was, however, unmoved. “If you say that age or medical ailment is not a factor, why did you not challenge the high court order? Today, you aren’t seriously disputing that he is suffering from several ailments. Look at the age as well. He is 82. If a man suffers from ailments at this age, he doesn’t start recuperating. It can only aggravate and not improve at this age,” it added.

Another submission by NIA that Rao’s custodial interrogation may still be required was also not appreciated much by the bench. It asked the ASG why there was a delay of more than a year in NIA taking over the investigation into the case when the legal regime obligates a state to send a report immediately to the central government as soon as a case under UAPA is registered.

“Why so much delay? The moment there is a charge under UAPA, the state is obliged to send a report to the Centre...we are trying to see whether you proceeded with diligence or not. He was arrested in August 2018 by the state police. You took over in February 2019. So, we take it that the requirement of law is fulfilled as far as his custodial interrogation is concerned,” it told Raju.

On his part, the ASG then read out emails purportedly written by Rao to two persons, conspiring to lead an armed rebellion against the country. But the court noted that one of the recipients of the alleged mail is dead while another is yet to be arrested by NIA. “How will you prove this document if you don’t have custody of the other person?” it asked Raju.

Senior advocate Anand Grover, appearing for Rao, denied the veracity of these emails, submitting that he could prove that such emails were planted into the devices of various accused in the case. “We have a serious dispute regarding how these emails were planted. We will prove it during the trial. But do I have to be in custody till the trial is over? I am a poet and a writer in Telugu literature. Is it in their interest that I die in jail like Stan Swamy? I am ready to stand trial but why should I die in jail just because they have invoked UAPA,” Grover argued.

To this, the bench said: “Right now, the question of death doesn’t arise. We wish you good health. Every citizen should have good health and there is no exception to that.”

Eighty-four-year-old tribal rights activist Stan Swamy, also named in the same case, died in judicial custody in Mumbai on July 5 last year , even as his bail application remained pending before the high court since April 2021 while his health deteriorated. NIA had opposed his bail contending there was no “conclusive proof” of his medical ailments.

Grover, at this point, submitted that Rao should be allowed to go to his home town, Hyderabad in Telangana, where his wife and his children reside. The senior lawyer said his client could get affordable treatment for his ailments, including the onset of Parkinson’s disease, in Hyderabad. The bench, however, pointed out that Rao will have to make a separate application in this regard.

It then passed the order granting permanent medical bail to Rao, referring to his advanced age; period of custody as an under-trial; delay in framing of charges in the case ; and the fact that his medical condition has not improved since he was given interim bail in 2021.

On April 13, the Bombay high court rejected Rao’s plea for permanent medical bail and permission to shift to Hyderabad citing high expenses in Mumbai. However, the high court extended the interim bail, earlier granted to Rao in February, by another three months to undergo cataract surgery.

Rao had submitted in the high court that his condition was worsening due to Parkinson’s disease. As he had already spent over two-and-a-half years in custody as an under-trial, his plea maintained, he deserved to be released on permanent medical bail. Rao added that he could stay with his family in Hyderabad where he could receive good medical facilities and the treatment is also free for government officials.

Even as it rejected Rao’s request for a permanent medical bail, the high court found substance in his contentions regarding poor medical facilities and other conditions at Taloja central prison and issued certain directives to improve the facilities. The high court in April also directed the special NIA court to expedite the trial and conduct it preferably on a day-to-day basis.

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