7 Dec 2023 6:02 AM GMT
The Supreme Court on Wednesday (December 6), while hearing English professor and Bhima Koregaon-accused Shoma Sen's plea against a Bombay High Court order asking her to approach a special National Investigation Agency (NIA) for bail, indicated 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.
A bench of Justices Aniruddha Bose and Augustine George Masih was hearing a special leave petition filed by Sen through Advocate-on-Record Nupur Kumar challenging a January 17 order of the Bombay High Court, by which it directed her to approach the special court trying her case, for bail. She has been lodged in jail since June 2018 for offences under the Unlawful Activities (Prevention) Act, 1967 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 the proscribed outfit, Communist Party of India (Maoists).
The top court issued notice in Sen's special leave petition in May this year, along with co-accused Jyoti Jagtap's bail plea. 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. "The high court or the sessions court is not exercising their concurrent jurisdiction, but hearing an appeal. The high court, therefore, was not correct and should have heard it on its merits. This court does not have the benefit of the high court's findings. Second, all material has to be placed before this court and examined by it. The high court has wrong in not considering these aspects and remitting the matter to the lower court."
"We'll keep this mind. Your case is that the high court did not have the opportunity to examine this material?" Justice Bose clarified. The law officer responded in the affirmative. Senior Advocate Anand Grover, however, protested, arguing that all relevant material had already been placed before the top court for its consideration.
Justice Bose reasoned, "On the technical point, Mr Nataraj is correct. What we will examine is that if fresh allegations in the supplementary chargesheets against her have been brought on record. This appeal has been pending before us for a while. In the event we find that the first chargesheet was the substantive one, which was examined by the trial court and the high court..."
Grover, in response, strongly insisted that there were no fresh allegations against Sen in the supplementary chargesheets. Like the additional solicitor-general, Grover also argued against the high court order. But the ground he cited was the lack of any change in circumstances that would necessitate the trial court to consider Sen's bail application. "There are two supplementary chargesheets that do not relate to Sen. The original chargesheet, which contained the allegations against her, was examined by the trial court and the high court. Despite this, the high court has asked her to go back. But why should she go back? Why should she be prejudiced for five and a half years? It's a travesty of justice."
Taking the court through the chargesheets filed in the case, the senior counsel contended -
"Even assuming that there is no new material in the second chargesheet, high court ought to have gone into merits," ASG Nataraj interjected. Justice Bose, in this connection, observed that where an appellate court does not go into the merits and wrongly remands the matter, then the Supreme Court could sit in appeal.
Before concluding for the day, Grover invoked the dictum of the top court's ruling in KA Najeeb, which upheld the right of a constitutional court to grant bail to people accused of offences under the Unlawful Activities (Prevention) Act, notwithstanding the bar contained in Section 43D (5), in order to protect the right of the accused to speedy trial which is guaranteed under Article 21 of the Constitution. In aid of this contention, Grover specifically pointed to Sen's advanced age and ill health, as well as the period spent under incarceration.
He also said that Sen's appeal was squarely covered by the Vernon Gonsalves judgment from earlier this year. In this case, co-accused Gonsalves and Ferreira were granted bail by the Supreme Court after almost five years in custody. Justice Bose, along with Justice Sudhanshu Dhulia, besides taking into consideration 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. The Vernon Gonsalves bench 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. Applying this rationale, Grover questioned the probative value of the evidence against the English professor. He said -
The Supreme Court was set to continue hearing the matter today(December 7), but owing to a change in the composition of the bench, it will be heard next on Wednesday, January 10.
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.
Earlier this 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