The Special NIA court’s Judge DE Kothalikar has dismissed the bail plea of former Professor and women’s rights activist Shoma Sen. In a plea filed through her lawyers, Sen submitted that she suffers from hypertension, blood pressure and other ailments that makes her vulnerable to Covid-19.

However, the court rejected this argument and said that the prison authorities can provide medical care if necessary. LiveLaw quoted the court saying, “The prison authority shall observe medical protocol and provide appropriate medical aid to the applicant (Sen) if required.”

The Special Public Prosecutor, Prakash Shetty, argued that similar pleas filed by other accused persons have been rejected and that Covid-19 cannot be used as a ground for release anymore. In August, the court had rejected the pleas filed by Anand Teltumbde and Gautam Navlakha for bail citing old age and the possibility of contracting Covid-19.

Further, as per media reports, the court has also rejected the applications filed by co-accused Sudha Bharadwaj, Hany Babu and Gautam Navlakha for a copy of the draft charges filed by National Investigation Agency (NIA) that has reportedly submitted a list of seventeen draft (proposed) charges against the 15 accused, including the serious charge of waging a war against the country, which is punishable with death or imprisonment for life (section 121 of the Indian Penal Code).

Sen and co-accused Rona Wilson had moved the Bombay high court alleging tampering and planting of evidence in light of the reports published by the American cyber forensic firm Arsenal Consulting, and seeking that the charges against them be quashed. They have urged the court to consider their prayer of an inquiry by a Special Investigation Team (SIT) into the possible planting of evidence.

Their pleas were admitted by the high court and have not been listed for hearing since July this year.

Status of other co-accused in the case

Rona Wilson is currently out on interim bail following his father’s demise and will surrender on September 30. According to an IE report, the court allowed his application seeking an extension of his temporary bail by three days since he was released late from Taloja jail.

On August 4, the Bombay high court reserved its judgment on the plea filed by lawyer-activist Sudha Bharadwaj seeking default bail. She had argued before the high court that in November 2018, the order authorising the charge sheet and her extension was illegal, as the judge who signed the orders exceeded his jurisdiction. She had submitted that only a special judge under the National Investigation Agency (NIA) Act could have heard the same as she was booked under a scheduled offence under the Unlawful Activities (Prevention) Act.

Gautam Navlakha has moved high court for house arrest after developing a lump in his chest that needs medical attention. On September 2, the court was informed by the government that he would be taken to the Tata Cancer Hospital, Kharghar on September 3. His matter will now come up for hearing on September 27, where the court will examine the affidavit filed by the NIA and the Maharashtra government.

Professor Anand Teltumbde, whose bail plea was dismissed in July this year, has moved the high court for reportedly quashing the terminology “and all its formations and front organizations”, attached to the banned CPI (Maoist) organisation in the first schedule of UAPA. In a significant move, he has also asked the court to examine section 43D (5) of the act that makes it impossible for an accused to get bail.

Related:

Bhima Koregaon: Gautam Navlakha moves Bombay HC for house arrest citing lump in chest
Mumbai court rejects bail pleas of Anand Teltumbde, Gautam Navlakha
Bhima Koregaon case: NIA files draft charges under UAPA, sedition & conspiracy against 15 accused
Why was Dr. Anand Teltumbde denied bail by the NIA court?

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One of the sixteen accused in the Bhima Koregaon violence case, Prof. Shoma Sen, has moved the Bombay High Court challenging her prosecution under Unlawful Activities (Prevention) Act, as per some media reports.

Sen, the founder of Stree Chetna, a women rights movement and a former professor of English at Nagpur University has alleged that the case against her is based on unfounded, forged, hearsay evidence that was planted on digital devices belonging to co-accused Rona Wilson, which were “illegally” seized by the police in complete violation of the law, as per The Leaflet.

In February this year, activist Rona Wilson moved the High Court after a Massachusetts-based digital forensics firm, analysed an electronic copy of his laptop and arrived at the conclusion that an attacker used malware to infiltrate the laptop and place incriminating evidence on it.

Wilson, who has been accused of writing to a Maoist group leader, discussing the need for guns and ammunition, planning to assassinate Prime Minister Narendra Modi, has demanded an inquiry by a Special Investigation Team (SIT) into the possible planting of evidence on his laptop before his arrest on June 6, 2018. His plea is yet to be heard by the Bombay High Court.

In lieu of this revelation, Sen has alleged in her plea that the entire case against her is based only on the said electronic evidence, according to an Indian Express report. She has pointed out that the prosecution (NIA) did not present any other corroborative evidence against her and that the “independent verifications” of the cloned copy of the evidence indicated that the same was “forged, fabricated and planted through dangerous malware”.

According to some news reports, she also referred to the regional Forensic Science Laboratory (FSL) reports that have been silent on the existence of malware or the evidence of tampering and, therefore, making such electronic evidence unreliable.

According to The Leaflet, her plea reads, “The analysis of the FSL is restricted solely to aspects of forensic acquisition of the files, and searching of the hard-disks, without any examination of the source, authenticity, usage, interaction, and related metadata that could establish the origin of the documents therein. Effectively, the only objective of the FSL report is to describe the various files found on the electronic devices that were seized from the accused.”

Her petition reportedly states that the presence of an electronic record on a digital device cannot lead to the presumption that the owner of the digital device was the original source of that electronic record. Instead, an investigation of the source of an electronic record required an analysis of the metadata and technical aspects of that record, and further corroboratory evidence, so as to establish who the originator of that information was, reported The Leaflet.  

Shoma Sen, who has been accused of being a member of the banned organisation Communist Party of India (Maoist) and booked under UAPA, has also contended that the said Act does not recognise frontal organisations and that it only deals with ‘unlawful associations as are notified by the Central Government following due process under Rules 3 and 4’, and ‘unlawful activities’.

“An allegation that an organisation is a frontal organisation is meaningless under the UAPA, and the UAPA does not outlaw frontal organisations, unless these organisations are either notified as an unlawful association, or shown to be carrying out unlawful activities under the Act”, she has argued according to a Leaflet report.  

She was arrested by the Pune Police on June 8, 2018, for her alleged involvement in the Bhima Koregaon violence.

Related:

My mother’s name is not even in the charge sheet: Koel Sen

Rona Wilson moves Bombay HC, demands probe into ‘planted evidence’

Bhima Koregaon case: Was evidence planted to implicate activists?

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The Pune Police on Friday took into custody activists Vernon Gonsalves and Arun Ferreira hours after a Pune Sessions court rejected their bail pleas and applications seeking an extension of their house arrests for seven days. The period of their house arrests, as ruled by the Supreme Court, ended on Friday.

The review petition filed by RomilaThapar and others was heard today and the Order is still being awaited.

Gonsalves is being taken to MIDC police station in Mumbai’s Andheri and later will be taken to Pune.

Ferreira and Gonsalves, along with activists Sudha Bharadwaj, Varavara Rao and Gautam Navlakha, were arrested on August 28 in connection with their alleged involvement in an event that preceded the violence at BhimaKoregaon near Pune on January 1. On Thursday, a Hyderabad court had extended the house arrest of Varavara Rao. The Delhi High Court had ordered Navlakha’s release from house arrest on October 1.

The Supreme Court had last month extended the house arrest of all five activists by four weeks. Five other activists – ShomaSen, Surendra Gadling, Mahesh Raut, Rona Wilson and Sudhir Dhawale – were arrested in June as part of the same investigation. They are also accused of having links to the outlawed Communist Party of India (Maoist).
 
 

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