The Supreme Court on Wednesday granted bail to 82-year-old poet and activist P Varavara Rao, an accused in the Bhima Koregaon case, on medical grounds.
The National Investigation Agency vehemently opposed Rao's plea in the apex court claiming that he is involved in "serious anti-national activities".
The case relates to alleged inflammatory speeches made at the Elgar Parishad conclave held in Pune on December 31, 2017, which the police claimed triggered violence the next day near the Koregaon-Bhima war memorial on the outskirts of the western Maharashtra city.
The Pune Police had also claimed that the conclave was organised by people with alleged Maoist links. The NIA later took over the probe in the matter.
Rao was arrested on August 28, 2018, from his Hyderabad residence and is accused in the case for which an FIR was lodged by the Pune Police on January 8, 2018, under various sections of the Indian Penal Code and the Unlawful Activities (Prevention) Act.
While granting him bail, a bench headed by Justice U U Lalit noted that the medical condition of Rao, who is presently out on interim bail on medical grounds, has not improved to such an extent over a period that the facility of bail granted earlier to him be withdrawn.
The bench also observed that Rao is 82-year-old and has spent around two-and-a-half-year in custody.
Additional Solicitor General (ASG) S V Raju, appearing for the NIA, argued before the bench that Rao is not an "ordinary criminal" and in certain cases, age cannot be a factor if the offences are serious and affect the nation.
The bench, also comprising Justices Aniruddha Bose and Sudhanshu Dhulia, noted that though the charge sheet in the case has been filed, some of the accused has not been apprehended yet and the matter has not been taken up for framing of charges against the accused who are before the court.
It observed that various applications preferred by the accused seeking discharge are still pending consideration.
"The medical condition of the appellant (Rao) has not improved to such an extent over a period of time that the facility of bail which was granted earlier be withdrawn," the bench said.
"Considering the totality of circumstances, in our view, the appellant is entitled to the relief of bail on medical grounds," it said.
The bench deleted the condition which was imposed in the February 22 last year order of the Bombay High Court which had limited the period of bail granted to Rao on the medical condition to six months.
Rao, who is a Telugu poet, had challenged the Bombay high court's April 13 this year order rejecting his plea for permanent bail on medical grounds.
While granting bail to Rao, the apex court said he shall not leave the area of Greater Mumbai without express permission from the trial court.
"The appellant shall not in any way misuse his liberty, nor shall he get in touch with any of the witnesses or try to influence the course of the investigation," it said.
The bench said Rao shall be entitled to have the medical attention of his choice but shall keep the authorities in touch with any such developments, including the medical attention received by him.
The bench made it clear that the benefit of bail is extended to Rao only on his medical condition and any observations made in the order shall not be taken to be a reflection on merits or rival contentions advanced by the parties.
During the arguments, senior advocate Anand Grover, appearing for Rao, referred to his medical condition and said that even charges have not been framed in the case.
Grover said Rao has been diagnosed with early Parkinson and the trial has not even commenced in the case.
He said how long should Rao be kept in jail and asked whether the prosecution wanted Rao to die like Stan Swamy, who passed away even before the trial could start.
The ASG argued that Rao's condition is stable now.
"The nature of activities this gentleman is doing is very serious and is very harmful for the nation," he said.
The bench asked the ASG when the case was handed over to the NIA.
When Raju said NIA took over the investigation in February 2020, the bench asked, "Why so much of a delay?".
The bench observed that the moment there is a charge under UAPA, the state is obliged to report to the Central government.
The bench observed that it has to take a holistic view of the matter.
"At the age of 82, he has certain issues. There are persons who are in the pink of their health even at the age of 82 or 90. Good luck to them. But normally persons are not, at this age," the bench observed.
It told the ASG that initially, the high court had granted bail to Rao for six months and it is not at all the case of the agency that he has misused the liberty.
Raju, who referred to section 43D (5) of the UAPA during the arguments, said age in certain cases cannot be a factor if the offence is serious.
"It is a very serious offence where they want to overthrow a democratically elected government of this country by arms," he said.
"He is not an ordinary criminal. He is a criminal who is involved in serious anti-national activities and if he is out, it would cause serious prejudice," the ASG said.
He also referred to certain letters, which were part of the record, and said there was a deep-rooted conspiracy and the security forces have been ambushed in the past.
In his plea, Rao submitted that "any further incarceration would ring the death knell for him as advancing age and deteriorating health are a fatal combination".
