Explained: The Shoma Sen bail judgment

The arguments, counter-arguments, and the many, many injustices and tethers of the judgment of the Supreme Court granting bail to former Nagpur University and women's rights activist Shoma Sen, who spent six years in jail without a trial.

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ON Friday, the Supreme Court granted bail to former Nagpur University professor Shoma Sen in the Bhima Koregaon case after observing that based on the evidence collected against her as also the allegations made by the prosecution witnesses, it could not be said that there are reasonable grounds for believing that the accusation against her are prima facie true.

A Bench comprising Justice Aniruddha Bose and Justice Augustine George Masih issued a ruling to this effect. Sen has already spent six years in jail as an undertrial for allegations that the Bench has found not sufficient to keep her in jail.

"Taking cognisance of the composite effect of delay in framing charge, period of detention undergone by her, the nature of allegations against her vis-à-vis the materials available before this court at this stage in addition to her age and medical condition, we do not think she ought to be denied the privilege of being enlarged on bail pending further process subsequent to issue of chargesheets against her in the subject-case," the Bench ruled.

The Bench also rejected the preliminary objection raised by the National Investigation Agency (NIA) that Sen should be asked to approach the NIA special court first as directed by the high court.

The Bench said it would not be in the interest of justice to remand the matter to the NIA court, noting that Sen had been in detention for over four and a half years when the high court had directed her to approach the NIA court and, at present, she has been in detention for almost six years, her age is over 66 years and charges have not yet been framed.

The appellant has also moved an application before us, registered as CRL MP No. 166531 of 2023, in which various ailments from which she suffers have been cited and prayer is made for bail on medical grounds as well.

Also read: Supreme Court grants permanent medical bail to P. Varavara Rao in Bhima Koregaon case

Of the sixteen arrested persons, P. Varavara Rao is out on medical bail, Sudha Bhardwaj was granted default bail by the Bombay High Court (later confirmed by the Supreme Court), Vernon Gonsalves and Arun Ferreira were granted bail on merits last year by the Supreme Court.

Father Stan Swamy died in judicial custody while seeking medical bail. Anand Teltumbde was granted bail on merits by the Bombay High Court, which was later confirmed by the Supreme Court.

Last year, the Bombay High Court granted bail to Mahesh Raut and Gautam Navlakha. However, it stayed the Order for a week to enable the NIA to file an appeal. Since then, the Supreme Court has continued the stay on their release.

Allegations against Shoma Sen

The prosecution's case was that Sen was an active member of the banned organisation Communist Party of India (CPI) (Maoist) and conspired with other accused persons to violently overthrow democracy and the State.

There were also allegations that she provided party funds and also received party funds from Mahesh Raut, that she was paid a sum of ₹5 lakh by two other coaccused persons and made constant attempts to further terrorist activities of the banned CPI (Maoist).

It was also the prosecution's case that she had been encouraging youngsters to join the proscribed organisation and recruiting them as members of the banned organisation. She was also accused of having participated in a broad conspiracy to organise the Elgar Parishad programme.

It was further alleged that Sen is associated with the Indian Association of Peoples Lawyers (IAPL), Committee for the Protection of Democratic Rights (CPDR), Anuradha Ghandy Memorial Committee (GMC) and Kabir Kala Manch (KKM) which have been described as frontal organisations of the CPI (Maoist) on the ground that they are instrumental in organising meetings and exchange of messages for implementation of aims and policies of the said banned organisation.

Her alleged involvement in the controversy hatched by the two other accused and underground members has also been highlighted.

Also read: On Father Stan Swamy's second death anniversary, two letters, a painting and the triumph of memory against forgetting

It is the prosecution's case that materials recovered from her, as also other accused persons, revealed her participation in the meetings and conferences of the Revolutionary Democratic Front (RDF), which again has been alleged to be a frontal organisation to spread the propaganda of the banned CPI (Maoist).

The presence of the appellant in the national conference of RDF conducted in Hyderabad was sought to be demonstrated through the first supplementary chargesheet.

The first information report (FIR) lodged in the case on January 1, 2018 did not name Sen. During the investigation, the Pune police invoked provisions of Sections 13, 17, 18, 18[B], 38, 39 and 40 of the Unlawful Activities Prevention (UAPA), 1967.

It is at this stage that the name of Sen was added to the FIR as an accused. She was arrested on June 6, 2018, the day on which her house was raided by the Pune police.

On November 15, 2018, the Pune police filed a chargesheet against Sen and Sudhir Dhawale, Rona Wilson, Surendra Gadling, Mahesh Raut and five other wanted, absconding and accused persons.

On February 21, 2019, the Pune police filed the first supplementary chargesheet against coaccused P. Varavara Rao, Vernon Gonsalves, Arun Ferreira, and Sudha Bharadwaj. On January 24, 2020, the case was taken over by the NIA as per the directions issued by the Union government.

Sen caught in the rigamarole of procedure technicalities

On December 13, 2018, Sen filed a bail application before the additional sessions judge, Pune, which was rejected on November 6, 2019. She challenged the rejection before the Bombay High Court. On July 17, 2021, a single judge of the Bombay High Court directed Sen to add the NIA as a party to her petition and also directed her to place her petition before the division Bench as required under Section 21(2) of the NIA Act.

It was because while Sen's appeal in the high court remained pending for two years, the NIA had taken over the investigation on January 24, 2020, and also filed a supplementary chargesheet in the matter on October 10, 2020.

Also read: What is Section 207 CrPC, an essential piece of the Bhima Koregaon case puzzle?

However, on January 17, 2023, the division Bench of the high court, instead of deciding the bail application filed by Sen, asked her to approach the special judge, NIA, given the investigation having been taken over by the NIA during the pendency of the bail application.

The high court Bench had directed her to the special judge even though her petition had remained pending in the court for almost three years. Sen approached the Supreme Court last year challenging the Bombay High Court's Order and seeking bail under the UAPA.

Preliminary objections raised by the NIA

In the Supreme Court, Additional Solicitor General (ASG) K.M. Nataraj, for the NIA, raised a preliminary objection on the maintainability of the appeal filed by Sen on the ground that since the first court of bail had no opportunity to examine the fresh set of accusations emanating from the second supplementary chargesheet, no error was committed by the division Bench of the high court in remanding the matter to the court of first instance.

He contended that the high court is an appellate forum on the question of bail under the NIA Act, thus it rightly did not examine, for the first time, a fresh set of accusations made by the investigating agency in the supplementary chargesheet.

Senior advocate Anand Grover, for Sen, vehemently contended that sending the bail matter back to the NIA court would do injustice to the petitioner, adding that her bail application had remained pending with the high court for three years for no fault of the petitioner.

He argued that if the hyper-technical and mechanical approach, which was adopted by the Bombay High Court and the NIA, was permitted by the Supreme Court as well, then liberty would be sacrificed at the altar of procedure.

Such an approach, Grover argued, would be detrimental, nay fatal, to liberty because the mere filing of supplementary chargesheets at any stage will become a cause to relegate the matter back to the court of first instance.

Also read: Gonsalves and Ferreira bail judgment: A step in the right direction but where will we go from here?

The Bench chose to overrule the argument of the NIA. It opined that it was the same investigation that was continued by the NIA, based on the same FIR. Only the investigating agency had changed.

"Just because the second supplementary chargesheet had been issued by the NIA after disposal of the bail application by the sessions court, it was not the only legal course available to the high court to remand the matter to the special court for examining the second supplementary chargesheet at the first instance.

"As an appellate forum, in the facts of the given case, it was well within the jurisdiction of the high court exercising its power under Section 21(2) of the 2008 Act, to examine the second supplementary chargesheet as well, while sitting in appeal over the Order of rejection of bail by the regular sessions court upon considering the first two chargesheets," the Bench ruled.

The Bench also added that the course adopted by the high court was also permissible. But it added that it would not invalidate the course adopted by the high court, that is, remanding the matter back to the NIA court.

"In our view, under ordinary circumstances, we might not have had interfered with the high court's judgment and Order which is under appeal before us. The course adopted by the high court was a permissible course. We, however, must take into account that the high court had passed the aforesaid Order when the appellant, a lady, was in detention for over four and a half years.

"At present, the appellant has been in detention for almost six years, her age is over 66 years and charges have not yet been framed. The appellant has also moved an application before us, registered as CRL MP No. 166531 of 2023, in which various ailments from which she suffers have been cited and prayer is made for bail on medical grounds as well," the Bench observed.

The Bench thus held that it would not be in the interest of justice to remand the matter to the NIA court. It also opined that it had admitted the special leave petition filed by Sen and was also vested with the same appellate jurisdiction as the high court.

Also read: Bhima Koregaon: The process continues to clot as punishment as another year passes by

The NIA also contended that it must be permitted to contest the bail plea of the appellant before the first court of bail based on materials disclosed in the second supplementary chargesheet because the prosecution would also be entitled to a right of appeal.

The NIA added that its right of appeal would stand lost if the high court itself had examined the second supplementary chargesheet and decided the question of bail in favour of Sen.

The Bench, however, did not give much credence to this argument of the NIA even though it said these were cogent arguments. The Bench reasoned that it could not lose sight of the fact that it was dealing with the question of liberty of a pre-trial detenue, who is a senior citizen, in custody for almost six years, and against whom charges are yet to be framed.

"The question of losing the right of an appellate forum would have greater significance in substantive proceedings but on the question of bail, in a proceeding where the detenue herself has volunteered to forego an appellate forum by arguing before us her case for bail, the approach of this court would be to address the question on merit, rather than to send it back to the court of first instance for examining the materials available against the appellant," the Bench held.

The Bench also held that this argument of the prosecution would have had a stronger impact if the second supplementary chargesheet, which the first bail court could not examine, had disclosed any new or egregious set of accusations against Sen, far removed from those contained in the earlier chargesheets.

"We have gone through the second supplementary chargesheet but do not find disclosure of any such material," the Bench highlighted.

The NIA also sought to argue that the entirety of incriminating material in the chargesheets, which formed the basis for implicating Sen, did not form part of the petition for special leave to appeal and, to that extent, the investigating agency did not have full opportunity to meet the appellant's case.

The Bench rejected the argument saying that these materials were brought on record and both parties had the opportunity to consider these materials and advance submissions on that basis.

Also read: "What I knew in the abstract I was now living, feeling and observing": An interview with Sudha Bharadwaj

"This is not a case where equitable relief is snatched ex parte, for instance in the case of an ad-interim injunction, by not bringing to the notice of the court the entire factual basis of a given case.

"In this appeal, both the parties have had sufficient opportunity to deal with the relevant materials and the appellant cannot be non-suited on the sole ground of non-disclosure of such materials," the Bench held.

Material against Sen

Sen is facing a chargesheet for the commission of offences under Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the UAPA. These offences fall under the bail restricting clause under Section 43(D)(5) of the UAPA.

This mandates the court hearing the question of bail to scan through the case diary or report made under Section 173 of the Code of Criminal Procedure (CrPC) to form an opinion to the effect that there are reasonable grounds for believing that the accusation against the appellant is prima facie true.

ASG Nataraj, for the NIA, on being asked by the Bench on the necessity of detention of Sen for further investigation, submitted that the prosecution would not require custody of her.

Simultaneously, he emphasised the gravity and seriousness of the offences alleged against Sen and submitted that the question of entitlement of the appellant to be enlarged on bail would have to be examined in the light of the bail restricting clause of Section 43D (5) of the UAPA.

Faced with this, the Bench proceeded to examine the material against Sen and its ultimate conclusion was that the allegations against Sen were prima facie not true.

The prosecution highlighted the following list of materials forming part of the chargesheet against Sen.

• Letter dated June 8, 2017 from one "Comrade M." addressed to "Comrade Surendra", which carries a reference to the appellant to the limited extent that the party leadership has sent instructions to "Comrade Shomasen" for strengthening CPDR and Radical Student's Union in Nagpur, Chandrapur and Gondia region. This letter also records that necessary funds have been sent, but no specific person is named as the recipient of such funds.

Also read: Experiments with truth, Part 2: Truth and dare in Bhima Koregaon

• Letter dated December 23, 2017 from one "R." addressed to "Comrade Prakash" which relates to constituting a fact-finding team to gauge the truth about fake encounters in Gadchiroli. It has been indicated in the letter that "Shoma" will speak to friends, presumably of the author and addressee of the letter, in Nagpur, who might join the team. 
• Letter dated January 2, 2018 from one "Com. M." to "Comrade Rona" and the offending part of this letter, so far as the appellant is concerned, is to the effect that "Com. Shoma" and "Com. Surendra" were authorised to provide funds for the future.
• A document bearing the character of minutes of a meeting, dated January 2, 2018, which marks the presence of "Shomasen" as a "leading CPDR member", along with certain other accused individuals. 
• An undated account statement is relied on by the prosecution, which mentions "Shoma" as the recipient of "1L" (presumably ₹1 lakh) from "Surendra" who is the accused no. 3 in the present case.
• Letter dated September 25, 2017, written by "Com. Prakash" addressed to "Comrade Surendra" where the author asks the addressee to coordinate with "Shomasen" and ensure that all pgp files are securely wiped out from all computers. 
• Letter dated November 5, 2017, purported to have been written by "Comrade Surendra" and addressed to "Comrade Prakash" wherein the author informs the addressee that the information from the party has been communicated to "Soma" and she has destroyed all the data on her computer in addition to all the APT files sent by the party, old and new letters and the party's resolutions, etc. 
• A set of documents includes the panchnama of the search conducted at the house of the appellant, along with the forensic science laboratory (FSL) report containing the analysis of the materials seized from the appellant. These documents were cited by ASG Nataraj to corroborate the allegations of destruction of evidence at the instance of the coaccused persons. The FSL report revealed that deleted audio and video files were retrieved from hard disk and also mentions that uninstalled softwares have been recovered, but no substantive content of the deleted materials has been placed in the chargesheets. The material placed before us only indicates that the process of deletion had taken place. 

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In addition to these documents, the NIA cited statements of four witnesses namely KW1, KW2, KW3 and KW. 

• The statement of the first protected witness (KW1) carried a reference to Shoma Sen as having addressed the delegates of the conference of RDF held in April 2012. 
• The statement of KW2 recorded by the NIA under Section 161 of the CrPC on August 10, 2020 revealed the alleged presence of Sen in the office of a coaccused person, i.e., Surendra Gadling, when KW2 was purported to have joined the CPI (Maoist) at the instance of Surendra.
• A redacted statement of KW3, where the protected witness, on being asked about senior Naxal members of CPI (Maoist), stated that he first met Sen in 2007–08, during the classes of communist ideology, revolutionary movement, party working, etc. in Nagpur, which were attended by some other individuals. The same witness went on to implicate Sen in certain message channels working to exchange messages regarding the urban work of CPI (Maoist). 
• From the three statements of Kumarasai, who was originally identified as KW4, there are only two purported incriminating references to Sen, in the second and the third ones, recorded on December 23, 2018 and August 24, 2020, respectively. In the former statement, which was recorded by the Pune police, he stated that Sen was working along with an intellectual group for solving problems of women and students. In the latter statement, recorded by the NIA, he stated that Sen was an urban Naxalite working with CPI (Maoist). The name of Sen, however, does not figure in his first statement recorded by the pune police on November 2, 2018.

No prima facie case against Sen

Examining these documents and material against Sen, the Bench noted that the acts attributed to Sen by the various witnesses or as inferred from the evidence relied on by the prosecution, it could not be said that she commissioned or attempted to commit any terrorist act under Section 15 of the UAPA.

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The Bench noted that in order to qualify as a terrorist act, such an act must be done with intent to threaten, or such an act should be likely to threaten, the unity, integrity, security, economic security or sovereignty of India or such act must be accompanied by an intent to strike terror, or the act should be likely to strike terror, in the people or any section of the people in India or any foreign country.

These, the Bench said, are initial requirements to invoke Section 15(1) of the UAPA.

The Bench also added that if any offender attempts to commit any of the acts specified in Section 15(1), to come within the ambit of the expression "terrorist act", action or intention to cause such act must be by those means, which have been specified in sub-clauses (a), (b), and (c) of the said provision.

These include terrorist acts by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature that cause or are likely to cause; or overawe by means of criminal force or the show of criminal force or attempt to do so or causes death of any public functionary or attempts to cause the death of any public functionary; or detain, kidnap or abduct any person and threatens to kill or injure such person or any other act in order to compel the government of India, any state government or the government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act.

On the allegations of raising funds for a terrorist act forming part of charges under Section 17 of the UAPA, the Bench noted that most of the materials had emanated from the recovery of documents from devices of third parties and at this stage, on the strength of the materials produced, the prosecution had not been able to corroborate or even raise a hint of corroboration of the allegation that Sen had funded any terrorist act or has received any money for that purpose.

Also read: Bhima Koregaon case: Shoma Sen moves Supreme Court seeking bail 

As regards the allegation against Sen for committing an offence under Section 18 of the UAPA, which includes conspiracy or attempt on her part to commit, advocate, abet, advise, incite or facilitate the commission or any terrorist act, the Bench opined that the materials collected so far, even if it believes them to be true, would only reveal her participation in some meetings and her attempt to encourage women to join the struggle for new democratic revolution.

"These allegations, prima facie, do not reveal the commission of an offence under Section 18 of the 1967 Act," the Bench held.

Returning to the findings on the statements of witnesses, the Bench referred to the statement of KW2 who found Sen to be present in the office of another coaccused Surendra when he was being convinced by Surendra to join CPI (Maoist).

The Bench said that the mere presence of Sen on the spot, by itself, would not constitute an offence of recruiting any person or persons for a terrorist act, as specified in Section 18 of the UAPA.

As regards the statement of KW3, who claimed to have met Sen in 2007–08 during her lectures on communist ideology and party-functioning of CPI (Maoist) at Nagpur, the Bench noted that at that point of time, CPI (Maoist) had not been included in the first schedule of the UAPA, that is, it was not a banned organisation at that time. It came to be banned on June 22, 2009.

As regards the statement of KW4, in his third statement recorded on August 24, 2020, he only stated Sen is an urban Naxal working for CPI (Maoist). The Bench opined that it could not, on this thin thread, apply the rigours of Section 43D (5) of the UAPA against Sen.

"Apart from that, there is no evidence that she was a member of CPI (Maoist). There are no specific materials or statements produced by the prosecution which attribute acts of recruitment in banned organization by the appellant. Thus, at this stage, we cannot form an opinion that the accusation against her under Section 18–B5 of the 1967 Act is prima facie true," the Bench ruled.

Also read: Five years of Bhima Koregaon arrests: CDRO marks 'black day'

Regarding the allegation of the NIA that Sen was a member of the frontal organisation of CPI (Maoist), that is RDF, IAPL, CPDR, AGMC and KKM, the Bench said that apart from mere allegations that these are frontal organisations of CPI (Maoist) no credible evidence had been produced through which these organisations could be connected to the banned terrorist organisation.

The Bench, thus, said the offence under Section 20 of the UAPA relating to membership of a terrorist organisation which is involved in a terrorist act, cannot be made out against Sen.

On another set of allegations regarding Sen being associated with a terrorist organisation, the Bench observed that prima facie the allegations of the prosecution that Sen was a member of a terrorist organisation or that she associates herself or professes to associate herself with a terrorist organisation are not true.

"She cannot be implicated in the offence under Sections 38 of the 1967 Act. Mere meeting of accused individuals or being connected with them through any medium cannot implicate one in Chapter VI offences of the 1967 Act, in the absence of any further evidence of being associated with a terrorist organisation. Such association or connection must be in relation to furtherance of terrorist act," the Bench ruled.

On the updated account statement, the Bench held that it did not have sufficient probative value to prima facie sustain a case against her and implicate her for offences relating to the provision of support or raising of funds for a terrorist organisation, specified under Section 39 and 40 of the UAPA.

"Evidence of her involvement in any fund-raising activities for the CPI (Maoist) or her support to the said organisation has not transpired through any reliable evidence before us at this stage," the Bench held.

Deprivation of liberty must be by just and fair procedure and such deprival must be proportionate

Relying upon a recent judgment by a two-judge Bench in Gurwinder Singh versus State of Punjab, ASG Nataraj argued that bail is not a fundamental right.

Also read: The remedy of bail : From securing liberty to 'digital jail'

Secondly, to be entitled to be enlarged on bail, an accused charged with offences enumerated in Chapters IV and VI of the UAPA must fulfill the conditions specified in Section 43D (5).

The Bench rejected the first part of his argument. It held that the Supreme Court in K.A. Najeeb versus Union of India, has already accepted the right of an accused under the UAPA to be enlarged on bail founding such right on Article 21 of the Constitution of India.

"Any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure, and such deprival must be proportionate in the facts of a given case.

"These would be the overarching principles which the law courts would have to apply while testing the prosecution's plea of pre-trial detention, both at the investigation and post-chargesheet stage," the Bench said.

In its conclusion, the Bench set aside the high court Order and granted bail to Sen.

It, however, put stringent bail conditions on her. It directed that Sen shall not leave Maharashtra without leave of the special court; she shall inform the investigating officer of the NIA of the address where she shall reside during the period she remains enlarged on bail; she shall use only one mobile number during the time she remains on bail, and shall inform her mobile number to the investigating officer of the NIA; she shall also ensure that her mobile phone remains active and charged round the clock so that she remains constantly accessible throughout the period she remains enlarged on bail.

The Bench also directed that during this period, i.e., the period during which she remains on bail, Sen shall keep the location status (GPS) of her mobile phone active, twenty-four hours a day and her phone shall be paired with that of the investigating officer of the NIA to enable him, at any given time, to identify the appellants' exact location.

Sen has also been asked to report to the station house officer of the police station within whose jurisdiction she shall reside once every fortnight.

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