Supreme Court grants bail to Shoma Sen in Bhima Koregaon case

The Supreme Court on Friday granted bail to Dalit and women's rights activist Shoma Sen in connection with the Bhima Koregaon violence case [Shoma Kanti Sen vs State of Maharashtra and anr]..A bench of Justices Aniruddha Bose and Augustine George Masih passed the order after noting that the National Investigation Agency (NIA) did not oppose her bail and hence, the stringent conditions for bail under the Unlawful Activities Prevention Act (UAPA) would not apply."Section 43(D)(5) restriction should not apply to the petitioner. We have noted that Additional Solicitor General (who appeared for NIA) stated custody is no longer needed. Once we hold that 43(d)(5) of the 1967 act does not apply.... We have seen she is of advanced age and the effect of delaying trial at this stage.. in addition to her medical conditions. She should not be denied the privilege of being released on bail," the Court said in its order. It clarified that its observations are prima facie in nature and future course will be subject to examination of witnesses etc and Sen can be included in trial.The Court also set the following conditions while granting bail:- Sen shall not leave Maharashtra and shall surrender her passport;- She shall inform NIA about her residence and inform NIA officer her mobile number and ensure that number remains active and charged; - The GPS of her mobile should be active and her phone should be paired with phone of NIA officer so that her location can be ascertained;If any of the conditions are breached, it would be open to the prosecution to seek cancellation of bail, the Court added..Sen was arrested on June 6, 2018 and booked for offences under UAPA. .The Bombay High Court had in January last year directed her to approach the special NIA court for bail before coming to the High Court leading to the present appeal before the apex court.She had first applied for bail before the Pune Sessions Court in December 2018 prior to filing of chargesheet and another application after filing of chargesheet.Both the applications were rejected by the sessions court by way of a common order in November 2019.After this, the investigation in the case was transferred to the National Investigation Agency (NIA) and the trial was transferred to the special NIA court.Sen then approached the High Court for bail in 2020.The High Court in January 2023 asked her to approach the special NIA court first. Sen then chose to appeal against that High Court order before the apex court.Before the top court, the NIA said it would not need further custody of Sen..The top court stated in its judgment that the offences alleged under the UAPA were not, prima face, made out."[Allegations] 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 said. Further, the undated account statement relied on by the NIA also did not have sufficient probative value at this stage to prima facie sustain a case of raising terror funds against her, it was observed."Evidence of her involvement in any fund-raising activities for the CPI (Maoist) or her support to the said organisation has not transpired through any reliable evidence before us at this stage."The Court further said that were no specific materials or statements produced by the prosecution which attributed acts of recruitment in banned organization, CPI (Maoist), by the Sen. The Court noted that so far as the allegation of the appellant being member of frontal organisation of CPI (Maoist) was concerned, the prosecution referred to organisations like RDF, IAPL, CPDR, AGMC and KKM.But apart from mere allegations that these are frontal organizations of CPI (Maoist), no credible evidence was produced through which these organisations can be connected to the aforesaid banned terrorist organization, the Court made it clear."Thus, the offence under Section 20 of the 1967 Act relating to membership of a terrorist organisation which is involved in a terrorist act, cannot be made out against the appellant at this stage, on the basis of materials produced before us," the Court held.Merely meeting accused individuals or being connected with them through any medium cannot implicate one in Chapter VI offences under of the UAPA, in the absence of any further evidence of being associated with a terrorist organisation, the Court underscored.Such association or connection must be in relation to furtherance of terrorist act, the Court ruled while granting bail to Sen. .Senior Advocate Anand Grover with advocates Nupur Kumar and Paras Nath Singh appeared for Sen.Additional Solicitor General KM Nataraj appeared for the NIA.Advocates Siddharth Dharmadhikari and Aaditya Aniruddha Pande appeared for the State of Maharashtra..[Read Judgment]