HC questions maintainability of Hany Babu's fresh bail plea
Babu, a professor of English literature in Delhi University, was arrested and lodged at Taloja Jail on July 28, 2020, along with other accused in the case. The NIA accused Babu of being a co-conspirator in the Elgar Parishad case, where inflammatory speeches were allegedly delivered on December 31, 2017, which allegedly triggered violence the following day near the Koregaon Bhima war memorial, killing one and injuring several.
Additional solicitor-general Anil Singh, appearing for the NIA, raised preliminary objections over the maintainability of the application, citing a delay of more than two years and four months in its filing after the NIA court on February 14, 2022 rejected Babu's bail application.
After the Bombay high court dismissed Babu's plea on September 19, 2022, he challenged it in the Supreme Court through a Special Leave to Appeal Petition (SLP) in 2024. However, he decided not to pursue it further and withdrew the SLP on May 3, 2024. Citing 'change of circumstance', he claimed that he would be moving the Bombay high court which had granted bail to five co-accused in the same case.
The NIA argued that the Supreme Court has not granted liberty to Babu to file a fresh appeal. 'It is only on the motion of the appellant that the apex court was pleased to permit him to withdraw the SLP, as he had made a statement that there was a change of circumstance and that he would approach the high court for appropriate remedy,' it said.
The agency contended that instead of filing the present appeal, Babu ought to have filed a fresh bail application before the trial court as permitted by law. 'The appeal being a statutory remedy, unless and until there is an order passed by the trial court, the present appeal is not maintainable,' it said.
Senior advocate Dr Yug Mohit Chaudhry, representing Babu, stated that the objection regarding maintainability of the appeal had been raised for the first time. He further informed the high court that Babu was willing to amend the petition in terms of removing the challenge against the February 2022 order, and base the bail application solely on the ground of delay in conducting trial and not on merits.
Focusing on 'the change of circumstance', Chaudhary submitted that after the passing of the 2022 judgment, eight co-accused had been released on bail either by the Supreme Court or by the high court. He, therefore, urged the court to consider Babu's application on the ground of prolonged incarceration without trial.
Acknowledging the Supreme Court's order, the division bench of Justices A S Gadkari and Kamal Khata suggested that Babu seek the necessary clarification from the Supreme Court on the question of approaching the appropriate forum to seek bail. The court granted him liberty to file a fresh bail application on the ground of prolonged incarceration without trial before the trial court. The case is scheduled for further hearing on July 7.
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