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

While granting bail to Shoma Sen, nearly six years after her arrest in the Bhima Koregaon case, the Supreme Court on Friday (April 5) raised prima facie doubts over the tenability of the allegations against her regarding the commission of offences under the Unlawful Activities Prevention Act 1967 (UAPA).Considering the evidence presented against her by the National Investigation Agency (NIA), the bench comprising Justices Aniruddha Bose and Augustine George Masih observed :"...we are of the opinion that there is no reasonable ground for believing that the accusations against the appellants for commission of the offences incorporated in Chapter IV and VI of the 1967 Act are prima facie true."Since the allegations were not found to be prima facie believable, the Court held that the embargo on grant of bail as per Section 43D(5) would not apply against her. 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 actRegarding 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 conspiracyNext, the Court rebutted the allegations regarding the offence of conspiracy...

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

Gyanvi Khanna

The Court observed that the materials collected by the NIA only reveal her attempt to encourage women to join the struggle for a "new democratic revolution" and showed no attempt to commit any "terrorist act".

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