Shoma Sen has been incarcerated for five-and-a-half years and her bail plea has been pending before the Supreme Court for nearly six months.
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“[DO] I have to run from court to court just for bail? That cannot be by virtue of Article 21. It has been five-and-a-half years,” bemoaned senior advocate Anand Grover, appearing for women’s rights activist and academic Shoma Sen in a bail plea.
Today, the Supreme Court division Bench comprising Justices Aniruddha Bose and Augustine George Masih partly heard a regular bail application of Sen.
She is an accused in the 2018 Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case along with 14 other activists and academics. She is charged under the Unlawful Activities (Prevention) (UAPA) Act.
Sen has been an undertrial prisoner since June 6, 2018, lodged at the Byculla jail in Mumbai.
At today’s hearing, Grover took the court through the chargesheet filed against Sen in this case.
He stated that apart from the first chargesheet, which contains the main allegations levelled by the National Investigation Agency (NIA) against Sen, subsequent chargesheet are devoid of substantial allegations against her.
He argued the electronic evidence claimed to have been found by the NIA against Sen in the first chargesheet was not actually found on her electronic devices.
He stated that the electronic material on which the NIA relies is claimed to have been found on the electronic devices of Rona Wilson and Surendra Galding, who are two of the co-accused in the case.
Grover also contested the probative value of the electronic evidence. However, 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.
However, Grover reiterated that the court must take into consideration the principles laid down by the Supreme Court of Union of India versus K.A. Najeeb (2021).
In Najeeb, the court has stated that pending incarceration, bail can be granted under the UAPA. The judgment held that the stringent conditions laid down under Section 43D(5) of the UAPA do oust the jurisdiction of the court to grant bail on the violation of fundamental rights under Part III of the Constitution.
Grover also referred to the Vernon versus State of Maharashtra & Anr (2023) to substantiate his claims.
What happened at the previous hearing?
At the previous hearing on November 30, Grover had stated that Sen’s bail application was pending before the Supreme Court for five-and-a-half months.
The court was also hearing Sen’s plea on interim medical bail alongside her regular bail plea.
Grover had stated that Sen suffers from multiple ailments and should be granted bail on medical grounds, if not any other.
To this, Additional Solicitor General K.M. Nataraj had told the court that Sen’s plea only enumerates general ailments without any imminent danger to her life.
He had said: “It is becoming a routine exercise where everyone is asking for medical bail.”
When the court expressed its inclination to grant medical bail, Nataraj had prayed that the hearing of regular bail should be fast-tracked.
Background
In June 2018, Sen was arrested by the Pune police under provisions of the Indian Penal Code (IPC) and the UAPA, along with human rights lawyer and Dalit rights activist Surendra Gadling; activist, actor and publisher Sudhir Dhawale; activist Mahesh Raut; and activist and researcher Rona Wilson, for their alleged 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 of a private digital forensics consultant.
An independent investigation by Arsenal Consulting, a leading, independent expert firm on digital forensics, 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.
In September 2021, Sen sought interim bail on medical grounds. She submitted that she was suffering 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 that 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.
On January 17 this year, the Bombay 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 National Investigation Agency Act, 2008 for bail instead, on the ground that during the pendency of Sen’s application before the high court, the investigation had been transferred to the NIA.
Sen’s petition before the Supreme Court is for the determination of a substantial question of law: 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.
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.
Five of the accused persons, trade unionist, activist and lawyer Sudha Bharadwaj; activist, poet, writer and teacher Dr P. Varavara Rao; scholar, writer and civil rights activist Dr Anand Teltumbde; trade unionist and activist Vernon Gonsalves; and lawyer and activist Arun Ferreira 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.
