Bhima Koregaon: Supreme Court directs respondents to file reply to Shoma Sen’s bail plea

A division Bench of the Supreme Court, comprising Justices Aniruddha Bode and Sanjay Kumar, permitted Sen to file an additional affidavit on her deteriorating health within two weeks. 

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ON Friday, a division Bench of the Supreme Court, comprising Justices Aniruddha Bode and Sanjay Kumar, directed the respondents to file a reply affidavit to the bail application filed by women rights activist and academic Shoma Sen.

Sen is accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case along with 14 other activists and academics, and is charged under the Unlawful Activities (Prevention) (UAPA) Act. Sen has been incarcerated as an undertrial since June 6, 2018, and is lodged at the Byculla jail in Mumbai.

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 (NIA) Act, 2008 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.

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.

During the previous hearing on May 4, the Supreme Court Bench comprising Justices Aniruddha Bose and Sudhanshu Dhulia had issued notices to the NIA and the Maharashtra government in the bail pleas by Shoma Sen.

Today, Additional Solicitor General S.V. Raju, appearing for the NIA, submitted that the high court has directed the matter be heard again by the trial court and contended that the trial court will finish hearing the matter soon.

To this contention, senior advocate Anand Grover, representing Sen, argued that the bail plea seeks to challenge the Order of the high court. He averred that with the delay of one year in hearing matters, bail applications have been pending in the high court for three years. He urged the Bench to allow him to argue the matter.

Grover sought to file an additional affidavit highlighting Sen's deteriorating health. The Bench allowed Grover to file the additional affidavit within a period of two weeks. It also directed the respondents to file the reply affidavit within the same period. 

The matter is posted for further hearing within five weeks.

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 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.

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 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.

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.