Mumbai: Over a year since the nine arrested lawyers and activists in the Bhima Koregaon case filed for bail, and after 60-odd hearings on their applications, the court has now stalled the hearings for an indefinite time. The proceedings will resume only after the prosecution hands over electronic evidence, which they have been relying on all along, to the accused persons.

The defence lawyers, however, are afraid that this will lead to “an unjustified delay” in the bail hearing and that this is yet another ploy by the prosecution to keep the accused behind bars. “The accused persons can’t be paying for the delay tactics played by the police,” defence lawyer Nihalsing Rathod told The Wire.

The court has ordered that a mirror image of the electronic evidence, available in over 23 hard disks, be transferred in the presence of a nazir (custodian of court property) within court premises. Since each copy takes over 6-7 hours to make and in all 230 copies are needed – copies of 23 hard disks for nine accused and the judge – defence lawyers say the entire process will take months. And to make things more complicated, the case is being scheduled for this process only once every two weeks.

The prosecution last year filed an over 7,500-page chargesheet in two phases, charging all nine arrested with serious crimes like plotting to kill Prime Minister Narendra Modi and conspiring to cause mayhem in the country. The allegations levelled are primarily based on alleged letters and other documents procured from the laptops of those arrested. But the prosecution did not annexe the ‘evidence’ in the chargesheets, nor did they provide it to the accused during the course of bail arguments.

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The state has branded these arrested persons as “urban Naxals” and accused them of spreading Naxal ideology in urban spaces including educational institutes. Those arrested include Sudhir Dhawale, a writer and Mumbai-based Dalit rights activist, Surendra Gadling, an Unlawful Activities (Prevention) Act expert and lawyer from Nagpur, Mahesh Raut, a young activist who works on on displacement issues from Gadchiroli, Shoma Sen, a retired university professor and head of the English literature department at Nagpur University, Rona Wilson, a Delhi-based prisoners’ rights activist, advocate Arun Ferreira, advocate Sudha Bharadwaj, writer Varavara Rao and Vernon Gonsalves. While the first five were arrested on June 6, others’ arrests followed.

Human rights activist Gautam Navlakha, academic Anand Teltumbde and several other “absconding accused” are also named in the police complaint for aiding and furthering the rebellious Naxal movement in the country. Navlakha and Teltumbde, who were briefly taken into police custody last year, had to approach the high court against their arrest and were soon released. Since then, the police has been making efforts to secure their custody too.

In June last year, when the Pune police began its first round of arrests in the Bhima Koregaon case, it selectively leaked “evidence” obtained from the computers of the arrested lawyers and claimed that prime accused Wilson had been in touch with the other co-accused and was plotting attacks. They have also been accused of playing an active role in the violence that was unleashed on people from the Dalit community who had participated in the 200th commemorative event at the memorial pillar of Bhima Koregaon, in the outskirts of Pune.

The inordinate delay

The defence lawyers had on several occasions sought mirror images of the evidence and had argued that the prosecution cannot rely on the evidence that the accused don’t have an access to and therefore can’t defend against in the court. The police had opposed this on the ground that several accused are still absconding in the case and “the possibility of misuse of copies of annexure, hard disks and Forensic images cannot be ruled out in the light of highly sensitive data regarding Naxal activities where the accused persons conspired a plot against constitutional authority of India”.

Special public prosecutor Ujjwala Pawar had also argued that Teltumbde and Navlakha, whose petitions are pending before the Bombay high court, could misuse the electronic evidence. After several rounds of arguments, Pune sessions judge K.D. Vadane on May 17, 2019 ordered that the mirror image of evidence stored in 23 hard disks should be made available to all nine accused.

“We had urged the court to get this processed on a daily basis but our prayers weren’t considered. The police have intentionally got an old, rundown machine which takes an entire day to copy just one hard disk. The order was passed on May 17 and since then, till date only four copies of one hard disk have been made. There are 23 hard disks in all and 10 copies of each have to be made,” said advocate Rathod.

He further added that at this pace, the copies would take more than 2-3 years. “Imagine, we have spent two months to only get four copies of one hard disk. The court gives us time only once every fortnight and the police is doing nothing to expedite the matter. In fact, we consider this to be their trick to delay things further,” Rathod added.

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The sessions court judge, while hearing the application, had observed that the police had filed an “incomplete chargesheet” and that the court should ideally not have accepted the documents. However, now that the court has accepted the chargesheet, the police should hand over the copies to the accused, the court had orally observed.

When The Wire approached special public prosecutor Pawar, she responded in a single sentence: “The court has asked us to carry this procedure and as per the court’s order it is being carried on.”

Assistant commissioner of police and investigating officer in the case Shivaji Pawar too told The Wire that they have only been following the court’s order. Further, when asked how long will the entire procedure will take, Pawar added, “It all really depends upon the court. We get dates from the court [and then] we, in the presence of the accused and their lawyer, carry out the copying process. We really can’t tell how long all this will take.”

The defence lawyers have decided to move the high court seeking expedition of the process.