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

In a significant development, the National Investigation Agency (NIA) made a surprising admission in the Supreme Court this week regarding former Nagpur University professor and Bhima Koregaon-accused Shoma Sen.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...

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

Awstika Das

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