'No Evidence Establishes UAPA Case, Links With Banned Groups' : Bhima-Koregaon Accused Shoma Sen Argues For Bail In Supreme Court

Right at the outset of the hearing, Senior Advocate Anand Grover, appearing for the arrested professor, invoked the precedent set by the Supreme Court in the KA Najeeb case, underscoring the right of constitutional courts to grant bail to individuals accused under the UAPA, notwithstanding the bar contained in Section 43D (5), in order to protect their right to a speedy trial guaranteed under Article 21 of the Constitution. Sen's advanced age, ill health, and prolonged incarceration were factors that made her case for being released on bail stronger, the senior counsel argued.

Central to Grover's contention was that Sen's plea was squarely covered by the court's Vernon Gonsalves judgment, that was handed out by a bench of Justices Bose and Sudhanshu Dhulia last year. In this case, co-accused Vernon Gonsalves and Arun Ferreira were granted bail by the Supreme Court after almost five years in custody, The court, other than taking into account the length of incarceration, also held that the seriousness of the allegations alone could not be a ground to deny bail and justify their continued detention. Notably, it was held that a plea for bail under Section 43D (5) would not pass muster of the prima facie test envisioned in Watali without “at least surface-analysis of the probative value of evidence” and if the court is not satisfied of the worth of the probative value of such evidence.

Building on this legal framework, Grover scrutinised the evidentiary basis against Sen, sequentially guiding the court through the various documents and witness statements that formed part of the prosecution's case, all the while highlighting deficiencies in it. In particular, the senior counsel pointed to the absence of any incriminating evidence on Sen's own electronic devices, questioning the reliability and probative value of unsigned documents recovered from co-accused persons. He argued, "These are not letters or emails, just unsigned documents in Rona Wilson's computer. Another co-accused. Nothing is found from Shoma Sen's computer. Nothing. There's no corroboration. Besides, these are planted documents. That matter is pending before the Bombay High Court. I'm not even touching that aspect here." Grover was referring to another petition filed by Rona Wilson, presently pending before the Bombay High Court, seeking a Special Investigation Team probe based on a forensic science report which alleged that incriminating documents were planted in his laptop through a malware without his knowledge.

Other than this, Grover challenged the National Investigating Agency (NIA) characterising Sen as a member of a the far-left outfit, CPI(Maoist), citing a lack of substantive evidence supporting this claim. "There's a statement of a witness. He says Shoma Sen is working along with intellectual groups on the problems of women and students. There is no mention of the Communist Party of India (Maoist). Nothing. This is the only thing he said when asked about Sen."

"Besides, what is so objectionable about what is being attributed to Shoma Sen?" Grover asked, pointing out that the allegations covered, among other things, her membership of a fact-finding team constituted to investigate a local political murder and her role in working with leftist student organisations. The senior counsel argued -

"If she were a member of a legal organisation doing something proscribed under the law, then penal consequences would be attracted...But suppose, as they are alleging, that she was doing the constitutional work of putting ideas in the public domain, right or wrong, left-wing or right-wing, how is this illegal? The link has to be with terrorist work. The type of involvement here is so scanty, that there is no case. It's unfortunate. An ailing, old woman..."

Notably, the senior counsel also alleged that the link between the speeches at Elgar Parishad commemorating the Battle of Koregaon Bhima and the violence that broke out in the region was tenuous. "At the Bhima Koregaon celebrations, there were speeches. Much later there was violence. Much later. But they were attributed to these speeches. It is their own case that the riots took place much later."

During the hearing, Additional Solicitor General KM Nataraj questioned the high court's order remanding the matter to the trial court arguing that it ought to have considered Sen's application on its merits. At the law officer's insistence, the court had indicated on the last occasion that it would have to examine whether the supplementary chargesheets filed in the case levelled any fresh allegations against her and these were brought on record before the high court. However, like last time, Grover insisted that there were no fresh allegations against Sen in the supplementary chargesheets. He also said, "All these chargesheets were issued before the impugned order of the Bombay High Court."

The Supreme Court is slated to continue hearing Sen's bail plea on Thursday, February 15.

Background

Shoma Sen, a professor of English literature and former departmental head at the Nagpur University, along with 15 others have been accused by the National Investigation Agency of being responsible for the caste violence at Bhima Koregaon in Pune, although one of them – Jesuit priest and tribal rights activist Father Stan Swamy passed away in July 2021.

The Pune police and later, the NIA contended that inflammatory speeches at Elgar Parishad – an event to commemorate the two hundredth anniversary of the Battle of Koregaon Bhima – triggered the violent clashes that broke out between Maratha and Dalit groups near the village of Bhima Koregaon in Maharashtra. This led to the 16 activists being arrested for allegedly conspiring and planning the violence and charged with various provisions of the Unlawful Activities (Prevention) Act based on letters and emails primarily retrieved from their electronic devices.

Sen was arrested by the Pune police on June 6, 2018. In the following year, a sessions court in Pune rejected the bail applications of Surendra Gadling, Sudhir Dhavale, Varavara Rao, Shoma Sen, Mahesh Raut, and Rona Wilson, before the probe was transferred to the National Investigation Agency in January 2020. In June of the same year, a special NIA court rejected the interim medical bail plea of Sen, who was 61 years old at the time, as well as a similar plea by octogenarian activist and poet Varavara Rao.

In 2021, a common application for default bail was filed by Sen and eight other accused, which was rejected by a special court in Pune. This was challenged in the Bombay High Court, but even as it granted default bail to activist and lawyer Sudha Bharadwaj in December 2021, a division bench of Justices SS Shinde and NJ Jamadar refused to grant default bail to the eight others – Sudhir Dawale, P Varavara Rao, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, Vernon Gonsalves, and Arun Ferreira. One among them – Telegu poet and activist Varavara Rao – has been released on bail by the Supreme Court on medical grounds last year.

Last year, in January, the Bombay High Court disposed of another bail plea filed by Professor Sen. Noting that the NIA had filed a supplementary charge sheet against her, the division bench of Justices AS Gadkari and PD Naik asked Sen to approach the special court. It observed that the circumstances had changed since the Pune sessions court denied her bail in view of the supplementary charge sheet, and the special court should be given the opportunity to reconsider her plea.

Case Details

Shoma Kanti Sen v. State of Maharashtra & Anr. | Special Leave Petition (Criminal) No. 4999 of 2023