Bhima Koregaon: As Watali casts a long shadow, Jagtap’s bail plea adjourned, to be heard after Shoma Sen’s

A division bench of the Supreme Court said it will next hear Jyoti Jagtap’s bail petition in the third week of January, after Shoma Sen’s regular bail plea has been heard. 

TODAY, the Supreme Court said it will hear anti-caste activist and musical performer Jyoti Jagtap’s bail plea after Shoma Sen’s bail petition.

Jagtap is an accused in the Bhima Koregaon–Elgar Parishad case and charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

Jagtap has been incarcerated as an undertrial since September 8, 2020, and is lodged at the Byculla jail in Mumbai.

A three-judge Bench comprising Justices Aniruddha Bose, Sudhanshu Dhulia and Augustine George Masih adjourned the matter to January.

At the previous hearing of Jagtap’s case on November 1, the Supreme Court, while adjourning the plea for bail, had observed that the parameters set in the judgment granting bail to co-accused Vernon Gonsalves and Arun Ferreira will be applied to the bail plea of Jagtap.

At a separate hearing yesterday and this morning, the division Bench adjourned the bail application of women’s rights activist and academic Shoma Sen.

During the Shoma Sen hearing yesterday, Justice Bose made a reference to the National Investigation Agency versus Zahoor Ahmad Shah Watali (2019) and stated that the court need not go into the probative value of the recovered materials.

At the centre of these developments is Section 43(D)(5) of the Unlawful Activities (Prevention) Act, 1967. The Section states that an accused shall not be released on bail if the court believes that there are “reasonable grounds for believing that the accusation against such person is prima facie true”.

In Watali, the court had interpreted the Section to mean that the court is not expected to analyse individual pieces of evidence or circumstance. The court had also averred that the issue of admissibility of evidence is a matter of trial.

However, in Vernon versus State of Maharashtra & Anr (2023), the Supreme Court disagreed with the ratio of the Watali judgment on this point.

The judgment said, “[I]t would not satisfy the prima facie ‘test’ unless there is at least surface analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the court of its worth.”

Trade unionist and activist, Vernon Gonsalves; and lawyer and activist, Arun Ferreira were consequently granted bail by the Supreme Court on July 28.


On February 14, 2022, a special National Investigation Agency (NIA) court denied bail to Jagtap and three other co-accused in the Bhima Koregaon case. The court maintained that the accused had hatched a “serious conspiracy” to create unrest in the country.

On October 17, 2022, the Bombay High Court rejected her appeal which was filed against the Order of a special court under the National Investigation Agency, Act, dated February 14, 2022, under which her bail application was rejected.

According to the high court, Jagtap was involved in a “terrorist act” by organising the Elgar Parishad event and associating with prominent members of the banned organisation Communist Party of India (Maoist).

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 have now spent almost five years in judicial custody without trial.

Five of the accused persons, Sudha Bharadwaj, Varavara Rao, Anand Teltumbde, Vernon Gonsalves and Arun Ferreira have managed to secure bail so far. Another co-accused Mahesh Raut was granted bail by the Bombay High Court but it was stayed by the Supreme Court. Father Stan Swamy, who was a co-accused, passed away due to Covid in custody in June 2021 after incarceration of over seven months.

An 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 in 2021.

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