Senior advocate Anand Grover, appearing on behalf of Sen and Wilson, argued that the prosecution violated principles of Code of Criminal Procedure, 1973, Indian Evidence Act, 1872 and Information Technology Act, 2000 in searching and seizing allegedly incriminating electronic documents.
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ON Monday, the Bombay High Court heard pleas by women’s rights activist and academic Shoma Sen, and activist and researcher Rona Wilson for quashing chargesheets filed against them.
Sen and Wilson are accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case along with 14 other activists and academics, and are charged under the Unlawful Activities (Prevention) (UAPA) Act.
The duo have been incarcerated as undertrials since June 6, 2018. While Sen is lodged at the Byculla Jail in Mumbai, Wilson is currently lodged at Taloja Central Jail.
A division Bench of the high court comprising Justice A.S. Gadkari and Sharmila U. Deshmukh heard senior advocate Anand Grover, appearing on behalf of Sen and Wilson.
Grover submitted that the National Investigation Agency (NIA) is relying upon ten documents that have allegedly been recovered from the electronic devices of Wilson.
According to Grover, the electronic documents are not attachments and are unsigned, and hence lack probative value.
The electronic documents were neither written nor transmitted by Sen or Wilson, classifying them as “digital hearsay”, Grover said.
Grover pointed out that Section 88A of the Indian Evidence Act, 1872 prohibits presumption of the originator of electronic evidence.
Grover highlighted the failure of the prosecution (Pune police) in recording the hash value of the device at the time of its seizure.
In order to “secure electronic records,” an investigative agency is required to calculate the hash value at the time of seizure of an electronic device, Grover stated. ‘Hash value’ is a method of authentication of an electronic record.
Grover pointed out Section 3 of the Information Technology (Security Procedure) Rules, 2004 that states that “an electronic record shall be deemed to be a secure electronic record for the purpose of the Act if it has been authenticated by means of a secure digital signature”.
Grover further submitted that since the Pune police sent the electronic device to the Forensic Science Laboratory (FSL) in Pune to ascertain its hash value, the tampering of the documents in the interim cannot be ruled out.
The sealing of electronic records at the place of seizure does not imply the security of data within the meaning of law, Grover added.
Furthermore, Grover averred that under Section 14 of the Information Technology Act, 2000, the law does not create a presumption relating to authenticity and integrity of electronic records that are not secure.
Grover relied on the judgment of the Supreme Court in Anvar P.V. versus P.K. Basheer (2014) and submitted that since electronic evidence is volatile in nature, it can be easily tampered with without any signs or indications.
Grover also drew the court’s attention to the fact that the FSL had failed to answer the query in their report— of whether electronic evidence seized from Wilson had been tampered with.
Grover claimed since June 2018, the accused persons have made repeated requests to the NIA to provide cloned copies of the seized electronic devices in compliance with Section 207 of the Code of Criminal Procedure, 1973 (CrPC).
The issue of providing the accused with cloned copies of the purported evidence is still pending with a special court constituted under the NIA Act, 2008.
According to Grover, the prosecution has failed to follow the procedure under the CrPC, such as Sections 91, 41A and 100(4).
The matter is posted for further hearing on October 23.
Background
In June 2018, Sen and Wilson were arrested by the Pune police under provisions of the Indian Penal Code, 1860 (IPC) and the UAPA, along with human rights lawyer and Dalit rights activist Surendra Gadling; activist, actor and publisher Sudhir Dhawale; and activist Mahesh Raut, 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 February and April 2021, Arsenal Consulting confirmed that Wilson’s phone was attacked multiple times by the Pegasus spyware, and 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.
Consequently, Wilson moved the Bombay High Court, challenging his prosecution under the UAPA. He sought the constitution of a special investigation team to investigate his “framing” and “targeting” by planting incriminating material in his laptop.
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.
On May 4, 2021, the Bombay High Court asked the NIA, the Union Ministry of Home Affairs and the State of Maharashtra to file their respective responses to the petitions filed by Wilson and Professor Shoma Sen that challenged the decision of the Maharashtra government to grant sanction to prosecute under the UAPA.
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 September 2021, the special NIA court granted Wilson 14 days’ interim bail to complete his father’s last rites.
On May 4, 2022, the Bombay High Court dismissed a petition that sought review of its earlier December 1, 2021 order which dismissed the appeal by eight accused in the case, including Wilson, 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 and Wilson, have now spent almost five years in judicial custody without trial.
