New Delhi: The Supreme Court on Friday granted bail to former professor of Nagpur University Shoma Sen in relation to the Bhima Koregaon violence case, saying that any form of deprivation of liberty results in breach of Article 21 of the Constitution must be justified on the ground of being reasonable, following a just and fair procedure.
A bench comprising Justices Aniruddha Bose and Augustine George Masih said: "In our prima facie opinion, the allegations of the prosecution that the appellant is a member of a terrorist organisation or that she associates herself or professes to associate herself with a terrorist organisation are not true, and at this stage, she cannot be implicated in the offence under Sections 38 of Unlawful Activities (Prevention) Act, 1967."
The bench said that the materials collected so far, even if we believe them to be true at this stage -- applying the principles enunciated by this court in the case of Zahoor Ahmad Shah Watali -- 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," said Justice Bose, who authored the judgment on behalf of the bench.
Justice Bose said 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.
Against the backdrop of the evidences collected against her and also the allegations made by prosecution witnesses, the bench said, “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."
The bench said that mere meeting of accused individuals or being connected with them through any medium cannot implicate one in Chapter VI offences under the 1967 Act, in the absence of any further evidence of being associated with a terrorist organisation. "Such association or connection must be in relation to furtherance of terrorist act," it added.
Justice Bose said, “But any form of deprival of liberty results in breach of Article 21 of the Constitution of India, must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case".
"These would be the overarching principles which the courts would have to apply while testing prosecution's plea of pre-trial detention, both at investigation and post-chargesheet stage," he said.
The bench took cognisance of the composite effect of delay in framing charge, period of detention undergone by her, nature of allegations against her vis-à-vis the materials available in addition to her age and medical condition.
"We do not think she ought to be denied the privilege of being enlarged on bail pending further process subsequent to the issue of chargesheets against her in the subject case," said the apex court in its 54-page judgment.
The bench said pre-conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an accused from being a fugitive from justice. It added that such detention is also necessary to prevent further commission of offence by the same accused.
Additional solicitor general (ASG) K M Nataraj, representing the Maharashtra government, submitted that bail is not a fundamental right and to be entitled to be enlarged on bail, an accused charged with offences enumerated in Chapters IV and VI of the 1967 Act, must fulfil the conditions specified in Section 43D (5).
"We do not accept the first part of this submission. This Court has already accepted the right of an accused under the said offences of the 1967 Act to be enlarged on bail founding such right on Article 21 of the Constitution of India”, said Justice Bose.
The bench said 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 at this stage, on the strength of the materials produced before it.
The bench said the prosecution has not been able to corroborate or even raise a hint of corroboration of the allegation that the appellant has funded any terrorist act or has received any money for that purpose.
The bench said the petitioner was a 66-year-old and suffered from various ailments so the court would not apply the rigours of Section 43D (5) of the 1967 Act against her, besides, there was no evidence that she was a member of the banned terrorist organisation CPI (Maoist).
“We must not lose sight of the fact that we are concerned here with the question of liberty of a pre-trial detenue, who is a senior citizen, in custody for almost six years, against whom charges are yet to be framed," said the bench.
Nataraj said the prosecution at present would not require her custody but contested her plea due to the gravity and seriousness of the offences.
The apex court imposed a slew of bail conditions on Sen: She should not leave Maharashtra without the permission of the court, surrender her passport, the appellant shall use only one mobile number, during the time she remains on bail, and shall inform her mobile number to the Investigating Officer of the NIA.
"The appellant shall also ensure that her mobile phone remains active and charged round the clock so that she remains constantly accessible throughout the period she remains enlarged on bail. During this period, i.e. the period during which she remains on bail, the appellant shall keep the location status (GPS) of her mobile phone active, twenty-four hours a day, and her phone shall be paired with that of the Investigating Officer of the NIA to enable him, at any given time, to identify the appellants’ exact location," said the top court.
Sen was arrested on June 6, 2018, and booked for offences under UAPA. In January last year, the Bombay High Court had 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.
