Supreme Court grants bail to Shoma Sen in Bhima Koregaon Elgar Parishad case

Supreme Court: In a special leave petition filed by former Nagpur University professor and Bhima Koregaon-accused Shoma Sen, against the order passed by Bombay High Court, wherein the Court disposed her bail application with liberty to approach the Trial Court for filing a fresh application for bail,, the division bench of Aniruddha Bose* and Augustine George Masih, JJ. has granted her bail and held that the restriction for grant of bail as Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) would not apply in her case.

Background:

Shoma Sen was detained on 06-06-2018 in connection with offences under Sections 153-A, 505(1b), 117 read with Section 34 of the Penal Code, 1860 (‘IPC’). The complaints were related to violence that broke out at a function organised by Elgar Parishad. The prosecution’s case is that in the said programme, provocative speeches were delivered and there were cultural performances which had the effect of creating enmity between caste groups, resulting in disruption of communal harmony, violence, and loss of life.

Analysis:

The Court noted that the FIR was initially lodged against the organisers of the Elgar Parishad event, which included activists of a cultural body. Shoma Sen was not named in that FIR as an accused then. Subsequently, the scope of investigation was expanded, and Section 120-B of IPC was added to the list of offences. The State Police had discovered a larger conspiracy of which the Shoma Sen was alleged to be a part of. The police raided Shoma Sen’s residence, where certain literature, electronic devices and mobile phones were seized. Thus, she was arrested by the State Police.

While examining whether the offences under Part IV & VI of the 1967 Act, alleged to have been committed by Shoma, are prima facie true or not, the Bench said that on the allegations of raising funds for a terrorist act forming part of charges under Section 17 of the 1967 Act, most of the materials have emanated from recovery of documents from devices of third parties and the prosecution has not been able to corroborate or even raise a hint of corroboration of the allegation that Shoma has funded any terrorist act or has received any money for that purpose.

Concerning the allegation against Shoma for committing an offence under Section 18 of the 1967 Act, which includes conspiracy or attempt on her part to commit, advocate, abet, advice, incite or facilitate commission or any terrorist act, the Court while applying the principles enunciated in NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, said that it 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.

The Court further said that though Shoma was present at Shanivarwada within the district of Pune on 31-12-2017 when the Elgar Parishad event took place. But there is no allegation at this stage that apart from being present, she had any further active participation on that date in the programme. For instance, there is no allegation that she had delivered any provocative speech. She was also not named in the initial FIR.

The Court further said that under ordinary circumstances, it might not have interfered with the High Court’s judgment, however, the High Court had passed the aforesaid order when Shoma Sen, a woman, was in detention for over four and a half years. She has been in detention for almost six years, her age is over 66 years and charges have not yet been framed.

Further, the Court opined that it would not be in the interest of justice to remand the matter to the Special Court constituted under the 2008 Act at this stage, as it would not have been beyond jurisdiction of the High Court Division Bench, even in exercise of appellate power under Section 21(2) of the 2008 Act, to examine the second supplementary chargesheet as well.

The Bench also noted that Shoma Sen was at an advanced age with several ailments. But, as per the Court the ailments themselves may not be serious enough for granting bail on medical ground. However, after 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 placed, in addition to her age and medical condition, the Court opined that Shoma should not be denied the privilege of being enlarged on bail pending further process subsequent to issue of chargesheets against her in the subject-case. Thus, the Court granted her bail subject to the conditions that she will not leave the State of Maharashtra without the permission of the Special Court and have to surrender her passport and furnish her address and mobile number to the investigating officer. She was also directed to keep the location and GPS of her mobile phone active throughout, and the device should be paired with the device of the investigating officer.

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