No Ground To Believe Accusations Against Shoma Sen Are Prima Facie True : Supreme Court In Bhima Koregaon Case

Sen was booked under the Unlawful Activities Prevention Act 1967 (UAPA) for alleged Maoist links in connection with the Bhima Koregaon case. She was arrested on June 6, 2018, and has been under custody since then, awaiting trial.

The allegations of commission of offences under Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act against Sen came within the purview of the bail restricting clause under Section 43D(5).

The Bench of Justices Aniruddha Bose and Augustine George Masih was hearing a petition challenging a January 2023 order of the Bombay High Court, by which it directed Sen to approach the special court trying her case, for bail.

Today, the Division Bench handed over the verdict, overturning the impugned judgment of the High Court and allowing her appeal. At the outset, the Court relied upon the ratio in the cases of National Investigation Agency v. ZahoorAhmad Shah Watali and Vernon v. The State of Maharashtra & Anr. In Watali's judgment, it was held that it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true.

Notably, following the decision in Watali, the Apex Court in the case of Vernon (where Justice was also part of the Division Bench) had held that a plea for bail under Section 43D (5) would not pass the muster of the prima facie test envisioned in Watali without “at least surface-analysis of the probative value of evidence”.  

No evidence of any 'terrorist act'

Having said that, the Court went on to examine the allegation put by the central agency. To begin with, the Court noted that while it is true that Sen was present at the Elgaar Parishad meeting, it did not "reveal involvement of the appellant in any outrageously offensive act". 

“For instance, there is no allegation that she had delivered any provocative speech. She was also not named in the initial FIR which was registered at Vishrambaug Police Station, Pune on 08.01.2018.,” the Court explained.

With regard to the NIA's allegation that Sen was an active member of the CPI (Maoist) and furthering its terrorist activities, the Court dealt with this in two parts. First, the Court decided whether the alleged acts would come under the ambit of a “terrorist act" as per Section 15, which is punishable under Section 16.

The Court opined that there is no prima facie commission or attempt to commit any terrorist act. The Court also observed that to bring Sen's acts under the terrorist act, the same should be done with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India. Further, such an act must be accompanied with an intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. However, the Court, after perusing the evidence available on record, refused to accept such an allegation by the NIA.

"If we examine the acts attributed to the appellant by the various witnesses or as inferred from the evidence relied on by the prosecution, we do not find prima facie commission or attempt to commit any terrorist act by the appellant applying the aforesaid test for invoking Section 15 read with Section 162 of the 1967 Act," the judgment authored by Justice Bose stated.

No evidence for funding terrorist act

Regarding the offence under Section 17, the Court also noted that the allegation of raising funds for a terrorist act is based on the strength of the documents recovered from the third party and does not “even raise a hint of corroboration.”

“What we can infer on the basis of the materials produced before us, are mere third-party allegations that money has been directed to be sent to her. None of the materials reveal receipt of any funds by her or her direct role in raising or collecting funds.,” the Court firmly stated.

Sen attempted to encourage women to join the struggle for a new demoratic revolution, can't be construed as conspiracy

Next, the Court rebutted the allegations regarding the offence of conspiracy punishable under Section 18 of the UAPA.

The Court, in this regard, observed that Sen only participated reveal her participation in some meetings and attempted to encourage women to join the struggle for new democratic revolution.

"..the materials collected so far, even if we believe them to be true at this stage, applying the principles enunciated by this Court in the case of Zahoor Ahmad Shah Watali (supra), 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."

No evidence of Sen being a member of Maoist outfit

The Court also noted that there was no evidence of Sen being a member of the banned Maoist outfit.

“On this thin thread, we cannot apply the rigors of Section 43D (5) of the 1967 Act against her. 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.,” the Court said.

The Court also stated that no credible evidence has been produced before it through which the organisations (with which the petiitoner was associated) can be connected to the banned terrorist organization.

"Thus, the offence under Section 20 of the 1967 Act relating to membership of a terrorist organisation which is involved in a terrorist act, cannot be made out against the appellant at this stage, on the basis of materials produced before us."

Notably, the Court also relied upon the KA Najeeb case, that held that the constitutional courts can 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.

At the same time, it is noteworthy to mention that the agency instead sought to place its reliance on Gurwinder Singh v. State of Punjab to argue that that bail is not a fundamental right. However, the same did not find favor with the Court, and it went on to record:

“But 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.”

Elucidating, the Court also said that though Gurwinder Singh's case was distinguished from the K. A. Najeeb case and the prayer of bail was rejected, this would not “dislocate” the ration laid down in the latter case.

With these observations in place, the Court also went on to highlight that Sen is a lady of advanced age and is suffering from various ailments.

“The ailments by themselves may not be serious enough for granting bail on medical ground. But taking cognizance 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 Court concluded while allowing her appeal. The Court also clarified in clear words that these observations are prima facie in nature and will not affect the trial of her case.

Advocates who appeared for the appellant (Sen): Senior advocate Anand Grover, Advocates Paras Nath Singh, Rohin Bhatt, and Advocate-on-Record Nupur Kumar.

Advocates who appeared for the Respondent(s): Additional Solicitor General K. M. Nataraj, Advocates Aniruddha Joshi, Siddharth Dharmadhikari, Bharat Bagla, Sourav Singh, Aditya Krishna, Preet S. Phanse, Omkar Deshpande, Aadarsh Dubey, Sharath Nambiar, Kanu Agarwal, Annam Venkatesh, Siddharth Dharmadhikari, Chitransh Sharma, Indra Bhakar, Vinayak Sharma, Vatsal Joshi, Anuj Udupa, Yogya Rajpurohit, Satwika Thakur, Shubham Mishra, Siddhant Kohli, Anirudh Bhatt and Advocates-on-Record Arvind Kumar Sharma and Aaditya Aniruddha Pande.

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

Citation : 2024 LiveLaw (SC) 280

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