Bhima Koregaon: Supreme Court issues notices in bail pleas of Jyoti Jagtap and Shoma Sen

The division bench of the Supreme Court issued notices to the National Investigation Agency and the state of Maharashtra in respect of the bail applications

ON Thursday, a Supreme Court Bench comprising Justices Aniruddha Bose and Sudhanshu Dhulia issued notices in the bail pleas by anti-caste activist and musical performer, Jyoti Jagtap; and women’s rights activist and academic Shoma Sen. Notices were issued to the two respondents named in the petitions, namely, National Investigation Agency (NIA) and the State of Maharashtra. 

Jagtap and Sen, the accused persons in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case along with 14 other activists and academics, have been charged under the Unlawful Activities (Prevention) Act (UAPA). While Sen has been incarcerated as an undertrial since June 6, 2018, Jagtap was arrested on September 8, 2020. Both are lodged at the Byculla jail in Mumbai.

In Jagtap’s case, on October 17, 2022, the Bombay High Court rejected her appeal filed against the order of a special court under the NIA Act, dated February 14, 2022, that rejected her bail application. 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). 

Further, in Sen’s case, on January 17, the high court refused to examine the order of the additional sessions judge, Pune that rejected Sen’s bail application and asked her to approach a special court under the NIA Act for bail instead, on the ground that during the pendency of Sen’s application before the high court, the investigation was transferred to the NIA.

Advocate Aparna Bhat, appearing on behalf of Jagtap, submitted that she has been in custody for two and a half years. Apprising the Bench of the crux of the case, Bhat said that although the first information report (FIR) in relation to the incident was filed on January 8, 2018, Jagtap was arrested after a period of two years and nine months. On the main allegation against Jagtap, Bhat submitted that Jagtap is accused of performing a play in a large public gathering with more than 100 host organisations. Bhat referred to the delay of 65 days in filing the bail application before the court and sought its condonation or issuance of notice in that respect. The Bench decided to condone the delay and directed for notices to be issued to the respondents. 

Referring to the same FIR as in Jagtap’s case, senior advocate Anand Grover, appearing on behalf of Sen, submitted that Sen has been incarcerated for around five years. Subsequently, notices were directed to be issued by the Bench in respect of Sen’s bail plea as well. 

Bail pleas

The bail plea filed by Jagtap before the Supreme Court alleges that not a single piece of evidence relied on by the State is indicative of the cause of action for arresting her, that is, Jagtap had set out to “destabilise the country” and acted as such in concurrence with the CPI (Maoist).

The plea states that despite two raids, no incriminating evidence was recovered and seized from Jagtap’s house. It further asserts that vague conspiracy charges are levied to implicate Jagtap for a host of offences under the UAPA and the Indian Penal Code alleging “attempting, advocating and abating the commission of a terrorist act” and “promoting enmity, sedition and conspiracy against the State”. 

Praying that the judgment of the high court that upheld Jagtap’s bail rejection was erroneous, the plea highlights the reasoning relied on by the high court. It states that the high court referred to the house search panchanama conducted in 2020 and the eight pages of the Elgar Parishad account to conclude that Jagtap was involved in Elgar Parishad beyond participation. The plea, however, asserts that both such sets of documents are not a part of the chargesheet.

In view of the allegation that Jagtap attended organisational meetings of the Elgar Parishad programme, the plea states that none of these meetings was held in secrecy. The meetings were attended in large numbers by eminent personalities including retired judges of the Bombay High Court and Supreme Court, it further submits.

The plea refers to the high court’s opinion, in its judgment upholding the rejection of bail, that the play enacted by Kabir Kala Manch, which Jagtap was a part of, was aggressive, highly provocative and designed to incite violence. It also referred to the high court pointing out the phrases from the speech, including, “acche din”, “gomutra”, and “atrocities against Dalits in today’s India”  to conclude that the play sought to overthrow and ridicule the elected government.

To this opinion of the high court, the plea filed by Jagtap emphasises that the high court failed to appreciate the difference between “government established by law” vis-à-vis “India”, and that the protests against any government established by law in India cannot relate to the invocation of UAPA.

Whereas, Sen’s petition before the Supreme Court highlights a substantial question of law for determination: whether the high court was correct in its refusal to examine the trial court’s order on the ground that during the pendency of Sen’s application before the high court, the investigation was transferred to the NIA.

It must be noted that 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.

Apart from Dr Teltumbde, two of the other co-accused, trade unionist, activist and lawyer Sudha Bharadwaj; and activist, poet, writer and teacher Dr P. Varavara Rao; 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. Arsenal’s findings were published in four reports last year.

The Leaflet