Shoma Sen, an accused in the case along with 15 other activists and academics, has been charged under the Unlawful Activities Prevention Act (UAPA). Sen has been incarcerated as an undertrial since June 6, 2018, and is lodged at the Byculla jail in Mumbai.
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ON Monday, a National Investigation Agency (NIA) court of special judge Rajesh Kataria continued hearing a discharge application filed by women's rights activist and academic Shoma Sen, claiming discrepancies in the evidence against her in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case, and drawing a parallel with the allegations raised against Dalit scholar, academic activist and co-accused Dr Anand Teltumbde.
Also read: Bhima Koregaon: Who's who of those arrested
At the outset, advocate Sharif Shaikh, appearing for Sen, emphasised the existence of the discrepancies in the evidence provided in the chargesheet and the lack of prima facie evidence to charge Sen for the offences under the UAPA.
Shaikh submitted that the allegedly incriminating documents against Sen were seized from co-accused Rona Wilson's devices. He emphasised four of the documents recovered from Rona Wilson's laptop were found to be infected with malware.
Shaikh stressed that co-accused Dr Anand Teltumbde was granted bail by the Bombay High Court on November 18, 2022. According to him, the observations of the Bombay High Court in the Order granting bail to Dr Teltumbde are also applicable to Sen's case.
In particular, Shaikh referred to the high court's observation on the lack of evidence to prove that Dr Teltumbde used to impose his ideology through Maoist literature-containing letters. Shaikh also stressed that the high court's order rejected the allegations that Dr Teltumbde was an official member of the Committee for Protection of Democratic Rights, supposedly a "frontal organisation" of the banned Communist Party of India [CPI] (Maoist).
Further, Shaikh highlighted NIA's accusation that Sen had knowledge of the conspiracy of CPI (Maoist). However, he argued that in the absence of evidence, the association of the accused with this conspiracy cannot be considered proof of Sen's involvement. Shaikh also referred to various Supreme Court judgments in support of his arguments.
Human rights lawyer and Dalit rights activist Surendra Gadling, a co-accused in the Bhima Koregaon–Elgar Parishad case, apprised the court that the jail authorities had seized his medicines worth ₹50,000. Gadling also raised the grievance that despite filing several applications with the investigating authorities under Section 207 (supply to the accused of copy of police report and other documents) of the Code of Criminal Procedure, he has not been allowed access to the compact disks given to a musical performer, anti-caste activist and co-accused Sagar Gorkhe. The court called for a reply from the authorities.
Also read: Bhima Koregaon: Shoma Sen's discharge application at NIA court claims lack of incriminating evidence
The matter is posted for further hearing on June 19.
In June 2018, Sen was arrested by the Pune Police under provisions of the Indian Penal Code (IPC) and the UAPA, along with Gadling; activist, actor and publisher Sudhir Dhawale; activist Mahesh Raut; and activist and researcher Rona Wilson, for their involvement in the Bhima Koregaon incident.
On December 13, 2018, Sen moved the additional sessions judge, Pune, for bail. The trial court rejected the bail application on November 6, 2019. Thereafter, the NIA took over the investigation of the case on January 24, 2020, and filed a supplementary chargesheet on October 9, 2020.
Sen filed an appeal at the Bombay High Court against the rejection of bail by the additional sessions judge, Pune on January 9, 2020.
In April 2021, Sen petitioned the Bombay High Court challenging the UAPA charges levelled against her by the NIA. Sen submitted that the case against her was entirely based on evidence retrieved from Wilson's electronic devices that were infiltrated with malware, as confirmed by forensic reports by a private digital forensics consultant.
In September 2021, Sen sought interim bail on medical grounds. She submitted that she suffered from several ailments, including hypertension and blood pressure, making her more susceptible to COVID. However, an NIA court rejected her bail plea.
In May last year, the Bombay High Court dismissed a petition filed by Sen and seven of her co-accused in the case, who sought a review of an earlier order of the high court which dismissed their appeal for default bail.
In June last year, an NIA court also rejected the default bail application filed by Sen and four of her co-accused.
It must be noted that the trial is yet to begin in the Bhima Koregaon case. The prosecution has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Several of the accused persons, including Sen, have now spent almost five years in judicial custody without trial.
Three of the accused persons, trade unionist, activist and lawyer Sudha Bharadwaj; activist, poet, writer and teacher Dr P. Varavara Rao; and scholar, writer and civil rights activist Dr Anand Teltumbde have managed to secure bail so far. Another co-accused, tribal rights activist and Jesuit priest Father Stan Swamy, passed away due to COVID in custody in June 2021 after incarceration for over seven months.
An independent investigation by Arsenal Consulting, a leading, independent expert firm on digital forensics, has revealed that sophisticated malware was used to plant the digital evidence that forms the basis for the prosecution's case on the devices of two of the accused persons in the case, Gadling and Wilson. Arsenal's findings were published in four reports last year.