The arguments, counter-arguments, and the numerous, many injustices and tethers of the judgment of the Supreme Courtroom granting bail to former Nagpur College and ladies’s rights activist Shoma Sen, who spent six years in jail with no trial.
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ON Friday, the Supreme Courtroom granted bail to former Nagpur College professor Shoma Sen within the Bhima Koregaon case after observing that primarily based on the proof collected in opposition to her as additionally the allegations made by the prosecution witnesses, it couldn’t be mentioned that there are cheap grounds for believing that the accusation in opposition to her are prima facie true.
A Bench comprising Justice Aniruddha Bose and Justice Augustine George Masih issued a ruling to this impact. Sen has already spent six years in jail as an undertrial for allegations that the Bench has discovered not ample to maintain her in jail.
“Taking cognisance of the composite impact of delay in framing cost, interval of detention undergone by her, the character of allegations in opposition to her vis-à-vis the supplies obtainable earlier than this courtroom at this stage along with her age and medical situation, we don’t assume she should be denied the privilege of being enlarged on bail pending additional course of subsequent to subject of chargesheets in opposition to her within the subject-case,” the Bench dominated.
Shoma Sen has already spent six years in jail as an undertrial for allegations that the Bench has discovered not ample to maintain her in jail.
The Bench additionally rejected the preliminary objection raised by the Nationwide Investigation Company (NIA) that Sen needs to be requested to method the NIA particular courtroom first as directed by the excessive courtroom.
The Bench mentioned it might not be within the curiosity of justice to remand the matter to the NIA courtroom, noting that Sen had been in detention for over 4 and a half years when the excessive courtroom had directed her to method the NIA courtroom and, at current, she has been in detention for nearly six years, her age is over 66 years and fees haven’t but been framed.
The appellant has additionally moved an software earlier than us, registered as CRL MP No. 166531 of 2023, wherein varied illnesses from which she suffers have been cited and prayer is made for bail on medical grounds as nicely.
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Of the sixteen arrested individuals, P. Varavara Rao is out on medical bail, Sudha Bhardwaj was granted default bail by the Bombay Excessive Courtroom (later confirmed by the Supreme Courtroom), Vernon Gonsalves and Arun Ferreira have been granted bail on deserves final 12 months by the Supreme Courtroom.
Father Stan Swamy died in judicial custody whereas in search of medical bail. Anand Teltumbde was granted bail on deserves by the Bombay Excessive Courtroom, which was later confirmed by the Supreme Courtroom.
Final 12 months, the Bombay Excessive Courtroom granted bail to Mahesh Raut and Gautam Navlakha. Nevertheless, it stayed the Order for per week to allow the NIA to file an attraction. Since then, the Supreme Courtroom has continued the keep on their launch.
Allegations in opposition to Shoma Sen
The prosecution’s case was that Sen was an lively member of the banned organisation Communist Get together of India (CPI) (Maoist) and conspired with different accused individuals to violently overthrow democracy and the State.
There have been additionally allegations that she supplied get together funds and likewise acquired get together funds from Mahesh Raut, that she was paid a sum of ₹5 lakh by two different coaccused individuals and made fixed makes an attempt to additional terrorist actions of the banned CPI (Maoist).
It was additionally the prosecution’s case that she had been encouraging children to affix the proscribed organisation and recruiting them as members of the banned organisation. She was additionally accused of getting participated in a broad conspiracy to organise the Elgar Parishad programme.
The Bench additionally rejected the preliminary objection by the Nationwide Investigation Company (NIA) that Sen needs to be requested to method the NIA particular courtroom first as directed by the excessive courtroom.
It was additional alleged that Sen is related to the Indian Affiliation of Peoples Legal professionals (IAPL), Committee for the Safety 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 bottom that they’re instrumental in organising conferences and trade of messages for implementation of goals and insurance policies of the mentioned banned organisation.
Her alleged involvement within the controversy hatched by the 2 different accused and underground members has additionally been highlighted.
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It’s the prosecution’s case that supplies recovered from her, as additionally different accused individuals, revealed her participation within the conferences and conferences of the Revolutionary Democratic Entrance (RDF), which once more has been alleged to be a frontal organisation to unfold the propaganda of the banned CPI (Maoist).
The presence of the appellant within the nationwide convention of RDF carried out in Hyderabad was sought to be demonstrated by way of the primary supplementary chargesheet.
The primary info report (FIR) lodged within the case on January 1, 2018 didn’t title Sen. In the course of the investigation, the Pune police invoked provisions of Sections 13, 17, 18, 18[B], 38, 39 and 40 of the Illegal Actions Prevention (UAPA), 1967.
It’s at this stage that the title of Sen was added to the FIR as an accused. She was arrested on June 6, 2018, the day on which her home was raided by the Pune police.
On November 15, 2018, the Pune police filed a chargesheet in opposition to Sen and Sudhir Dhawale, Rona Wilson, Surendra Gadling, Mahesh Raut and 5 different wished, absconding and accused individuals.
On February 21, 2019, the Pune police filed the primary supplementary chargesheet in opposition to 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 instructions issued by the Union authorities.
Sen caught within the rigamarole of process technicalities
On December 13, 2018, Sen filed a bail software earlier than the extra classes decide, Pune, which was rejected on November 6, 2019. She challenged the rejection earlier than the Bombay Excessive Courtroom. On July 17, 2021, a single decide of the Bombay Excessive Courtroom directed Sen so as to add the NIA as a celebration to her petition and likewise directed her to position her petition earlier than the division Bench as required beneath Part 21(2) of the NIA Act.
It was as a result of whereas Sen’s attraction within the excessive courtroom remained pending for 2 years, the NIA had taken over the investigation on January 24, 2020, and likewise filed a supplementary chargesheet within the matter on October 10, 2020.
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Nevertheless, on January 17, 2023, the division Bench of the excessive courtroom, as a substitute of deciding the bail software filed by Sen, requested her to method the particular decide, NIA, given the investigation having been taken over by the NIA through the pendency of the bail software.
Father Stan Swamy died in judicial custody whereas in search of medical bail.
The excessive courtroom Bench had directed her to the particular decide regardless that her petition had remained pending within the courtroom for nearly three years. Sen approached the Supreme Courtroom final 12 months difficult the Bombay Excessive Courtroom’s Order and in search of bail beneath the UAPA.
Preliminary objections raised by the NIA
Within the Supreme Courtroom, Extra Solicitor Common (ASG) Ok.M. Nataraj, for the NIA, raised a preliminary objection on the maintainability of the attraction filed by Sen on the bottom that for the reason that first courtroom of bail had no alternative to look at the contemporary set of accusations emanating from the second supplementary chargesheet, no error was dedicated by the division Bench of the excessive courtroom in remanding the matter to the courtroom of first occasion.
He contended that the excessive courtroom is an appellate discussion board on the query of bail beneath the NIA Act, thus it rightly didn’t study, for the primary time, a contemporary set of accusations made by the investigating company within the supplementary chargesheet.
Senior advocate Anand Grover, for Sen, vehemently contended that sending the bail matter again to the NIA courtroom would do injustice to the petitioner, including that her bail software had remained pending with the excessive courtroom for 3 years for no fault of the petitioner.
He argued that if the hyper-technical and mechanical method, which was adopted by the Bombay Excessive Courtroom and the NIA, was permitted by the Supreme Courtroom as nicely, then liberty can be sacrificed on the altar of process.
Such an method, Grover argued, can be detrimental, nay deadly, to liberty as a result of the mere submitting of supplementary chargesheets at any stage will change into a trigger to relegate the matter again to the courtroom of first occasion.
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The Bench selected to overrule the argument of the NIA. It opined that it was the identical investigation that was continued by the NIA, primarily based on the identical FIR. Solely the investigating company had modified.
“Simply because the second supplementary chargesheet had been issued by the NIA after disposal of the bail software by the classes courtroom, it was not the one authorized course obtainable to the excessive courtroom to remand the matter to the particular courtroom for inspecting the second supplementary chargesheet on the first occasion.
“As an appellate discussion board, within the info of the given case, it was nicely throughout the jurisdiction of the excessive courtroom exercising its energy beneath Part 21(2) of the 2008 Act, to look at the second supplementary chargesheet as nicely, whereas sitting in attraction over the Order of rejection of bail by the common classes courtroom upon contemplating the primary two chargesheets,” the Bench dominated.
The prosecution’s case was that Sen was an lively member of the banned organisation CPI (Maoist) and conspired with different accused individuals to violently overthrow democracy and the State.
The Bench additionally added that the course adopted by the excessive courtroom was additionally permissible. But it surely added that it might not invalidate the course adopted by the excessive courtroom, that’s, remanding the matter again to the NIA courtroom.
“In our view, beneath odd circumstances, we would not have had interfered with the excessive courtroom’s judgment and Order which is beneath attraction earlier than us. The course adopted by the excessive courtroom was a permissible course. We, nevertheless, should bear in mind that the excessive courtroom had handed the aforesaid Order when the appellant, a girl, was in detention for over 4 and a half years.
“At current, the appellant has been in detention for nearly six years, her age is over 66 years and fees haven’t but been framed. The appellant has additionally moved an software earlier than us, registered as CRL MP No. 166531 of 2023, wherein varied illnesses from which she suffers have been cited and prayer is made for bail on medical grounds as nicely,” the Bench noticed.
The Bench thus held that it might not be within the curiosity of justice to remand the matter to the NIA courtroom. It additionally opined that it had admitted the particular depart petition filed by Sen and was additionally vested with the identical appellate jurisdiction because the excessive courtroom.
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The NIA additionally contended that it should be permitted to contest the bail plea of the appellant earlier than the primary courtroom of bail primarily based on supplies disclosed within the second supplementary chargesheet as a result of the prosecution would even be entitled to a proper of attraction.
The NIA added that its proper of attraction would stand misplaced if the excessive courtroom itself had examined the second supplementary chargesheet and determined the query of bail in favour of Sen.
The Bench, nevertheless, didn’t give a lot credence to this argument of the NIA regardless that it mentioned these have been cogent arguments. The Bench reasoned that it couldn’t lose sight of the truth that it was coping with the query of liberty of a pre-trial detenue, who’s a senior citizen, in custody for nearly six years, and in opposition to whom fees are but to be framed.
“The query of dropping the appropriate of an appellate discussion board would have better significance in substantive proceedings however on the query of bail, in a continuing the place the detenue herself has volunteered to forego an appellate discussion board by arguing earlier than us her case for bail, the method of this courtroom can be to handle the query on benefit, slightly than to ship it again to the courtroom of first occasion for inspecting the supplies obtainable in opposition to the appellant,” the Bench held.
The Bench additionally held that this argument of the prosecution would have had a stronger affect if the second supplementary chargesheet, which the primary bail courtroom couldn’t study, had disclosed any new or egregious set of accusations in opposition to Sen, far faraway from these contained within the earlier chargesheets.
“We’ve got gone by way of the second supplementary chargesheet however don’t discover disclosure of any such materials,” the Bench highlighted.
The NIA additionally sought to argue that the whole lot of incriminating materials within the chargesheets, which shaped the premise for implicating Sen, didn’t type a part of the petition for particular depart to attraction and, to that extent, the investigating company didn’t have full alternative to fulfill the appellant’s case.
The Bench rejected the argument saying that these supplies have been introduced on file and each events had the chance to contemplate these supplies and advance submissions on that foundation.
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“This isn’t a case the place equitable reduction is snatched ex parte, for example within the case of an ad-interim injunction, by not bringing to the discover of the courtroom your entire factual foundation of a given case.
“On this attraction, each the events have had ample alternative to cope with the related supplies and the appellant can’t be non-suited on the only real floor of non-disclosure of such supplies,” the Bench held.
Materials in opposition to Sen
Sen is going through a chargesheet for the fee of offences beneath Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the UAPA. These offences fall beneath the bail proscribing clause beneath Part 43(D)(5) of the UAPA.
This mandates the courtroom listening to the query of bail to scan by way of the case diary or report made beneath Part 173 of the Code of Prison Process (CrPC) to type an opinion to the impact that there are cheap grounds for believing that the accusation in opposition to the appellant is prima facie true.
Her alleged involvement within the controversy hatched by the 2 different accused and underground members has additionally been highlighted.
ASG Nataraj, for the NIA, on being requested by the Bench on the need of detention of Sen for additional investigation, submitted that the prosecution wouldn’t require custody of her.
Concurrently, he emphasised the gravity and seriousness of the offences alleged in opposition to Sen and submitted that the query of entitlement of the appellant to be enlarged on bail must be examined within the gentle of the bail proscribing clause of Part 43D (5) of the UAPA.
Confronted with this, the Bench proceeded to look at the fabric in opposition to Sen and its final conclusion was that the allegations in opposition to Sen have been prima facie not true.
The prosecution highlighted the next checklist of supplies forming a part of the chargesheet in opposition to Sen.
- Letter dated June 8, 2017 from one “Comrade M.” addressed to “Comrade Surendra”, which carries a reference to the appellant to the restricted extent that the get together management has despatched directions to “Comrade Shomasen” for strengthening CPDR and Radical Pupil’s Union in Nagpur, Chandrapur and Gondia area. This letter additionally information that vital funds have been despatched, however no particular particular person is known as because the recipient of such funds.
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- Letter dated December 23, 2017 from one “R.” addressed to “Comrade Prakash” which pertains to constituting a fact-finding staff to gauge the reality about pretend encounters in Gadchiroli. It has been indicated within the letter that “Shoma” will communicate to pals, presumably of the creator and addressee of the letter, in Nagpur, who would possibly be a part of the staff.
- Letter dated January 2, 2018 from one “Com. M.” to “Comrade Rona” and the offending a part of this letter, as far as the appellant is anxious, is to the impact that “Com. Shoma” and “Com. Surendra” have been authorised to supply funds for the longer term.
- A doc bearing the character of minutes of a gathering, dated January 2, 2018, which marks the presence of “Shomasen” as a “main CPDR member”, together with sure different accused people.
- An undated account assertion is relied on by the prosecution, which mentions “Shoma” because the recipient of “1L” (presumably ₹1 lakh) from “Surendra” who’s the accused no. 3 within the current case.
- Letter dated September 25, 2017, written by “Com. Prakash” addressed to “Comrade Surendra” the place the creator asks the addressee to coordinate with “Shomasen” and be certain that all pgp recordsdata are securely worn out from all computer systems.
- Letter dated November 5, 2017, presupposed to have been written by “Comrade Surendra” and addressed to “Comrade Prakash” whereby the creator informs the addressee that the data from the get together has been communicated to “Soma” and she or he has destroyed all the information on her laptop along with all of the APT recordsdata despatched by the get together, previous and new letters and the get together’s resolutions, and so on.
- A set of paperwork consists of the panchnama of the search carried out on the home of the appellant, together with the forensic science laboratory (FSL) report containing the evaluation of the supplies seized from the appellant. These paperwork have been cited by ASG Nataraj to corroborate the allegations of destruction of proof on the occasion of the coaccused individuals. The FSL report revealed that deleted audio and video recordsdata have been retrieved from onerous disk and likewise mentions that uninstalled softwares have been recovered, however no substantive content material of the deleted supplies has been positioned within the chargesheets. The fabric positioned earlier than us solely signifies that the method of deletion had taken place.
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Along with these paperwork, the NIA cited statements of 4 witnesses particularly KW1, KW2, KW3 and KW.
- The assertion of the primary protected witness (KW1) carried a reference to Shoma Sen as having addressed the delegates of the convention of RDF held in April 2012.
- The assertion of KW2 recorded by the NIA beneath Part 161 of the CrPC on August 10, 2020 revealed the alleged presence of Sen within the workplace of a coaccused particular person, i.e., Surendra Gadling, when KW2 was presupposed to have joined the CPI (Maoist) on the occasion of Surendra.
- A redacted assertion of KW3, the place the protected witness, on being requested about senior Naxal members of CPI (Maoist), acknowledged that he first met Sen in 2007–08, through the lessons of communist ideology, revolutionary motion, get together working, and so on. in Nagpur, which have been attended by another people. The identical witness went on to implicate Sen in sure message channels working to trade messages relating to the city work of CPI (Maoist).
- From the three statements of Kumarasai, who was initially recognized as KW4, there are solely two purported incriminating references to Sen, within the second and the third ones, recorded on December 23, 2018 and August 24, 2020, respectively. Within the former assertion, which was recorded by the Pune police, he acknowledged that Sen was working together with an mental group for fixing issues of girls and college students. Within the latter assertion, recorded by the NIA, he acknowledged that Sen was an city Naxalite working with CPI (Maoist). The title of Sen, nevertheless, doesn’t determine in his first assertion recorded by the pune police on November 2, 2018.
No prima facie case in opposition to Sen
Analyzing these paperwork and materials in opposition to Sen, the Bench famous that the acts attributed to Sen by the assorted witnesses or as inferred from the proof relied on by the prosecution, it couldn’t be mentioned that she commissioned or tried to commit any terrorist act beneath Part 15 of the UAPA.
Sen was arrested on June 6, 2018, the day on which her home was raided by the Pune police.
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The Bench famous that with the intention to qualify as a terrorist act, such an act should be finished with intent to threaten, or such an act needs to be prone to threaten, the unity, integrity, safety, financial safety or sovereignty of India or such act should be accompanied by an intent to strike terror, or the act needs to be prone to strike terror, within the individuals or any part of the individuals in India or any overseas nation.
These, the Bench mentioned, are preliminary necessities to invoke Part 15(1) of the UAPA.
The Bench additionally added that if any offender makes an attempt to commit any of the acts laid out in Part 15(1), to come back throughout the ambit of the expression “terrorist act”, motion or intention to trigger such act should be by these means, which have been laid out in sub-clauses (a), (b), and (c) of the mentioned provision.
These embody terrorist acts through the use of bombs, dynamite or different explosive substances or inflammable substances or firearms or different deadly weapons or toxic or noxious gases or different chemical compounds or by another substances (whether or not organic radioactive, nuclear or in any other case) of a hazardous nature or by another technique of no matter nature that trigger or are prone to trigger; or overawe via legal pressure or the present of legal pressure or try to take action or causes dying of any public functionary or makes an attempt to trigger the dying of any public functionary; or detain, kidnap or abduct any particular person and threatens to kill or injure such particular person or another act with the intention to compel the federal government of India, any state authorities or the federal government of a overseas nation or a world or inter-governmental organisation or another particular person to do or abstain from doing any act.
On December 13, 2018, Sen filed a bail software earlier than the extra classes decide, Pune, which was rejected on November 6, 2019.
On the allegations of elevating funds for a terrorist act forming a part of fees beneath Part 17 of the UAPA, the Bench famous that many of the supplies had emanated from the restoration of paperwork from units of third events and at this stage, on the energy of the supplies produced, the prosecution had not been capable of corroborate and even elevate a touch of corroboration of the allegation that Sen had funded any terrorist act or has acquired any cash for that goal.
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As regards the allegation in opposition to Sen for committing an offence beneath Part 18 of the UAPA, which incorporates conspiracy or try on her half to commit, advocate, abet, advise, incite or facilitate the fee or any terrorist act, the Bench opined that the supplies collected up to now, even when it believes them to be true, would solely reveal her participation in some conferences and her try to encourage ladies to affix the battle for brand spanking new democratic revolution.
“These allegations, prima facie, don’t reveal the fee of an offence beneath Part 18 of the 1967 Act,” the Bench held.
Returning to the findings on the statements of witnesses, the Bench referred to the assertion of KW2 who discovered Sen to be current within the workplace of one other coaccused Surendra when he was being satisfied by Surendra to affix CPI (Maoist).
The Bench mentioned that the mere presence of Sen on the spot, by itself, wouldn’t represent an offence of recruiting any particular person or individuals for a terrorist act, as laid out in Part 18 of the UAPA.
As regards the assertion of KW3, who claimed to have met Sen in 2007–08 throughout her lectures on communist ideology and party-functioning of CPI (Maoist) at Nagpur, the Bench famous that at that time of time, CPI (Maoist) had not been included within the first schedule of the UAPA, that’s, it was not a banned organisation at the moment. It got here to be banned on June 22, 2009.
As regards the assertion of KW4, in his third assertion recorded on August 24, 2020, he solely acknowledged Sen is an city Naxal working for CPI (Maoist). The Bench opined that it couldn’t, on this skinny thread, apply the rigours of Part 43D (5) of the UAPA in opposition to Sen.
“Aside from that, there is no such thing as a proof that she was a member of CPI (Maoist). There aren’t any particular supplies or statements produced by the prosecution which attribute acts of recruitment in banned group by the appellant. Thus, at this stage, we can’t type an opinion that the accusation in opposition to her beneath Part 18–B5 of the 1967 Act is prima facie true,” the Bench dominated.
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Relating to the allegation of the NIA that Sen was a member of the frontal organisation of CPI (Maoist), that’s RDF, IAPL, CPDR, AGMC and KKM, the Bench mentioned that other than mere allegations that these are frontal organisations of CPI (Maoist) no credible proof had been produced by way of which these organisations could possibly be related to the banned terrorist organisation.
Anand Grover argued that if a hyper-technical and mechanical method was permitted by the Supreme Courtroom, liberty can be sacrificed on the altar of process.
The Bench, thus, mentioned the offence beneath Part 20 of the UAPA referring to membership of a terrorist organisation which is concerned in a terrorist act, can’t be made out in opposition to Sen.
On one other set of allegations relating to Sen being related to a terrorist organisation, the Bench noticed 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 affiliate herself with a terrorist organisation will not be true.
“She can’t be implicated within the offence beneath Sections 38 of the 1967 Act. Mere assembly of accused people or being related with them by way of any medium can’t implicate one in Chapter VI offences of the 1967 Act, within the absence of any additional proof of being related to a terrorist organisation. Such affiliation or connection should be in relation to furtherance of terrorist act,” the Bench dominated.
On the up to date account assertion, the Bench held that it didn’t have ample probative worth to prima facie maintain a case in opposition to her and implicate her for offences referring to the availability of help or elevating of funds for a terrorist organisation, specified beneath Part 39 and 40 of the UAPA.
“Proof of her involvement in any fund-raising actions for the CPI (Maoist) or her help to the mentioned organisation has not transpired by way of any dependable proof earlier than us at this stage,” the Bench held.
Deprivation of liberty should be by simply and truthful process and such deprival should be proportionate
Relying upon a latest judgment by a two-judge Bench in Gurwinder Singh versus State of Punjab, ASG Nataraj argued that bail isn’t a elementary proper.
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Secondly, to be entitled to be enlarged on bail, an accused charged with offences enumerated in Chapters IV and VI of the UAPA should fulfill the circumstances laid out in Part 43D (5).
The Bench rejected the primary a part of his argument. It held that the Supreme Courtroom in Ok.A. Najeeb versus Union of India, has already accepted the appropriate of an accused beneath the UAPA to be enlarged on bail founding such proper on Article 21 of the Structure of India.
The Bench held that it might not be within the curiosity of justice to remand the matter to the NIA courtroom.
“Any type of deprival of liberty leads to breach of Article 21 of the Structure of India and should be justified on the bottom of being cheap, following a simply and truthful process, and such deprival should be proportionate within the info of a given case.
“These can be the overarching ideas which the legislation courts must apply whereas testing the prosecution’s plea of pre-trial detention, each on the investigation and post-chargesheet stage,” the Bench mentioned.
In its conclusion, the Bench put aside the excessive courtroom Order and granted bail to Sen.
It, nevertheless, put stringent bail circumstances on her. It directed that Sen shall not depart Maharashtra with out depart of the particular courtroom; she shall inform the investigating officer of the NIA of the handle the place she shall reside through the interval she stays enlarged on bail; she shall use just one cell quantity through the time she stays on bail, and shall inform her cell quantity to the investigating officer of the NIA; she shall additionally be certain that her cell phone stays lively and charged around the clock in order that she stays consistently accessible all through the interval she stays enlarged on bail.
The Bench additionally directed that in this era, i.e., the interval throughout which she stays on bail, Sen shall maintain the situation standing (GPS) of her cell phone lively, twenty-four hours a day and her cellphone shall be paired with that of the investigating officer of the NIA to allow him, at any given time, to determine the appellants’ precise location.
“These allegations, prima facie, don’t reveal the fee of an offence beneath Part 18 of the 1967 Act,” the Bench held.
Sen has additionally been requested to report back to the station home officer of the police station inside whose jurisdiction she shall reside as soon as each fortnight.
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