Elgar Case: Fearing Medical Bail Grant for Shoma Sen, NIA Pleads Fast-Tracking Regular Bail

ON Thursday, the Supreme Court allowed the National Investigation Agency (NIA) to argue against the regular bail plea filed by women’s rights activist and academic Shoma Sen on Wednesday, December 6.

A division Bench of the Supreme Court comprising Justices Aniruddha Bose and Augustine George Masih was hearing Sen’s interim medical bail plea, in addition to her pending regular bail matter.

Sen is an accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case along with 14 other activists and academics, and is charged under the Unlawful Activities (Prevention) (UAPA) Act.

Sen has been incarcerated as an undertrial since June 6, 2018, and is lodged at the Byculla jail in Mumbai.

During the previous hearings, senior advocate Anand Grover, appearing on behalf of Sen, had decried the repeated pleas of adjournment by the NIA in the matter.

Today, Grover prayed for the court to grant medical bail on the ground that Sen is suffering from multiple ailments.

Grover stressed that Sen has been lodged in jail for five-and-a-half years without trial and the bail hearing before the Supreme Court has been pending for five-and-a-half months.

Opposing the medical bail plea, Additional Solicitor General K.M. Nataraj, representing the NIA, argued that the plea only enumerates general ailments without any imminent danger to Sen’s health.

Nataraj suggested the court constitute a medical board to determine the nature of the ailments.

“It is becoming a routine exercise where everyone is asking for medical bail,” Nataraj claimed.

The Bench expressed its inclination to grant medical bail for four weeks and to hear arguments pertaining to regular bail in the meantime.

To this, Nataraj responded that he was ready to argue the matter as soon as next Tuesday.

Allowing the matter to be fast-tracked, Sen’s regular bail plea has been posted for next Wednesday, December 6.

Background

In June 2018, Sen was arrested by the Pune police under provisions of the Indian Penal Code (IPC) and the UAPA, along with human rights lawyer and Dalit rights activist Surendra Gadling; activist, actor and publisher Sudhir Dhawale; activist Mahesh Raut; and activist and researcher Rona Wilson, for their alleged 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 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 of a private digital forensics consultant.

An independent investigation by Arsenal Consulting, a leading, independent expert firm on digital forensics, revealed that 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.

In September 2021, Sen sought interim bail on medical grounds. She submitted that she was suffering from several ailments, including hypertension and blood pressure, making her more susceptible to Covid. However, an NIA court rejected her bail plea.

In May last year, the Bombay High Court dismissed a petition filed by Sen and seven of her co-accused in the case, who sought a review of an earlier Order of the high court that dismissed their appeal 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.

On January 17 this year, the Bombay High Court refused to examine the Order of the additional sessions judge, Pune that rejected Sen’s bail application and asked her to approach a special court under the National Investigation Agency Act, 2008 for bail instead, on the ground that during the pendency of Sen’s application before the high court, the investigation had been transferred to the NIA.

Sen’s petition before the Supreme Court is for the determination of a substantial question of law: whether the high court was correct in its refusal to examine the trial court’s Order on the ground that during the pendency of Sen’s application before the high court, the investigation was transferred to the NIA.

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, have now spent almost five years in judicial custody without trial.

Five of the accused persons, trade unionist, activist and lawyer Sudha Bharadwaj; activist, poet, writer and teacher Dr P. Varavara Rao; scholar, writer and civil rights activist Dr Anand Teltumbde; trade unionist and activist Vernon Gonsalves; and lawyer and activist Arun Ferreira have managed to secure bail so far.

Another co-accused, tribal rights activist and Jesuit priest Father Stan Swamy, passed away due to Covid in custody in June 2021 after incarceration for over seven months.