Bhima Koregaon Case | 'Don't Need Shoma Sen In Custody Anymore': NIA Tells Supreme Court; Oral Arguments In Bail Plea Concluded

Represented by Additional Solicitor General KM Nataraj, the agency admitted that they no longer require Sen's custody, after a bench of Justices Aniruddha Bose and Augustine George Masih questioned him over the necessity of her continued detention.

This week, the division bench finished hearing the oral arguments in a special leave petition filed by Sen challenging a January 2023 order of the Bombay High Court, by which it directed her to approach the special court trying her case, for bail.

Sen has been lodged in jail since June 2018 for offences under the Unlawful Activities (Prevention) Act after being arrested in connection with the 2018 caste-based violence that broke out at Bhima Koregaon in Pune, and for having alleged links with CPI (Maoists). The top court issued notice in Sen's special leave petition in May last year, along with co-accused Jyoti Jagtap's bail plea.

The apex court heard Additional Solicitor General Nataraj's argument against the grant of bail, and Senior Advocate Anand Grover's rebuttal this week. 

Challenging Sen's bail plea, the National Investigation Agency presented two alternative arguments before the bench. The first limb of the additional solicitor general's argument was a preliminary objection regarding the maintainability of the embattled academician's bail application in the Supreme Court.

“Since it is a special leave petition arising out of an order passed by the high court, the first question is whether the high court was wrong in saying that the issue will have to be considered by the trial court. Suppose the high court was wrong in saying so, then what would be the relief? Should it be considered by this court on its merits, or should the high court apply its mind and consider it? …Our submission is that the high court was right to say that the special court must consider the bail application in view of the National Investigation Agency Act, since an additional chargesheet was filed by the agency. Second, if the high court was wrong, then the high court is required to consider the entire material as an appellate court under Section 21 of the NIA Act as there is no concurrent jurisdiction vested in the high court under these offences.”

This led to a crucial moment when Justice Aniruddha Bose pointedly asked, “From the agency's point of view, do they actually need her in custody if Section 43D(5) was not there?”

To this, ASG Nataraj confessed, “To be candid, in many cases, the prosecution agency may not require custody. In many of the cases. But ultimately we have to defend this position because of the rigours of Section 43D(5) and the gravity of the offences.”

“Custody, as such, may not be required in this case,” the law officer admitted, before informing the court that it will clarify the NIA's stance after 'seeking instructions'.

On the next occasion, ASG Nataraj categorically told the court, “We don't require her custody.”

“Then we will examine the seriousness and gravity, read with Section 43D(5) of the UAPA,” Justice Bose indicated.

The additional solicitor general further argued that the agency needed to be put on notice in the first place if the court intended to go into the merits of the matter. Then, the court must examine all the material placed on record by the NIA, which cannot be done in a petition of this kind, he contended.

Importantly, he also emphatically rejected the petitioner's argument that there was no material in the supplementary chargesheets that implicated her in the UAPA case. He told the court –

“The most glaring thing about this case is the suppression of facts and the projection that there is no material against Shoma Sen…The statements of the protected witnesses were neither produced before this court nor read out, trying to project as if there's nothing. The principle of fairness demanded the disclosure of these statements. The person who seeks relief, especially on grounds of equity, should come with clean hands...There are other materials which make it evident that she is a part of the frontal organisation of these proscribed Maoist organisations.”

Shoma Sen's lawyer, Senior Advocate Anand Grover's rejoinder focused on the need to consider the probative value of the evidence in terms of the apex court's landmark judgment in Vernon Gonsalves (2023).

Addressing ASG Nataraj's claim about certain documents missing from the batch produced by the petitioner in the Supreme Court, Grover argued, “And insofar as the documents relating to the statements of the protected witnesses…Justice Gadkari of the Bombay High Court has commented on these documents in the Anand Teltumbde verdict, saying that they do not push the case of the prosecution at all.”

“But why did you miss them out?” Justice Bose pressed further.

To this, Grover replied, “I don't know what happened when it was drafted. It comes from Bombay. There are 50,000 pages of documents. We don't look into these documents. That's done by the people who are in the thick of it. I don't want to get out of an apology because I have to apologise.”

Then he went on to point out that the 'redeeming feature' is that in two judgments of the Bombay High Court (Anand Teltumbde) and the Supreme Court (Vernon Gonsalves), the documents have been examined and “not been given credence”.

He also refuted one of the pillars of the prosecution's case against Sen, i.e., the deletion of certain files from her electronic device, allegedly on the instructions passed on between two co-accused persons.

Again highlighting the absence of incriminating evidence, Grover insisted, “This data has been retrieved by the forensics team and no sensitive material was found.”

Finally, he questioned the continued deprivation of her liberty, especially in light of her advanced age, ill health, and the prolonged period of her incarceration.

“Also, irrespective of Section 43D(5) and the judgment in Watali, Najeeb kicks in because she has spent an inordinate time in custody. This is an old woman who is suffering from many ailments. It is just not fair to keep her in custody. Who is going to account for this time if she is acquitted? Saibaba was acquitted after ten years. Who is accountable? Whose conscience is suffering because of this? The prosecution is not accountable. Who is accountable for this suffering of a human being in jail? And some of these people die in jail. Are we going to allow this kind of thing to go on?”

With this, the arguments were concluded in Shoma Sen's bail application. A fresh date will be given to hear Jyoti Jagtap's bail plea, Justice Bose indicated before rising for the day.

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