Supreme Court on April 5 found that material submitted by the National Investigation Agency revealed Professor Shoma Sen encouraged women to participate in the struggle for a “new democratic revolution” and there are Prima Facie no reasonable grounds to believe accusations of any involvement in “terrorist acts”.

Encouraging women to participate in a democratic revolution does not construe as conspiracy under the anti-terror law, the court said.

The court’s observation is significant since the embargo on bail under section 43D(5) of the UAPA—which states that bail rules don’t apply if the court finds the accusations to be Prima facie true—would not apply in Sen’s case.

The top court, however, clarified that “our observations as regards the nature of allegations against her are only prima facie views and the future course of her prosecution would be dependent upon framing of charge and if charges are framed, the nature of evidence the prosecution can adduce against her in the trial as also her own defence”.

Sen, an English professor at Nagpur University, is one among the 16 academicians, lawyers, and activists charged under the provisions of the Unlawful Activities (Prevention) Act, 1967 for their alleged role in the violence that broke out at Shaniwarwada, near Pune during the annual gathering on January 1, 2018 to celebrate the battle of Bhima Koregaon.

Sen was arrested on June 6, 2018, for her alleged role in this violence.

According to the NIA, Sen “is an active member of CPI (Maoist)” and “conspired” with others to “violently overthrow democracy and the State”. The probe agency further alleged that Sen funded and received party funds from co-accused Mahesh Raut, “and made attempts to further terrorist activities of the banned CPI (Maoist)”.

No evidence to commit, fund terrorist acts

The bench comprising Justices Aniruddha Bose and Augustine George Masih observed that though Sen was present at Shaniwarwada, Pune where the violence broke out, there is nothing to show her involvement “in any outrageously offensive act”.

“There is no allegation at this stage that apart from being present, she had any further active participation on that date in the programme,” Supreme Court said. “For instance, there is no allegation that she had delivered any provocative speech. She was also not named in the initial FIR,” the order read.

“If we examine the acts attributed to the appellant by the various witnesses or as inferred from the evidence relied…we do not find prima facie commission or attempt to commit any terrorist act,” the judgment authored by Justice Bose read.

The top court further found that documents recovered from third parties does not “even raise a hint of corroboration” to prove Sen raised funds to commit terrorist acts.

“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,” SC said.

The bench took note of her “advanced age”, “ailments”, and the almost six-year delay in framing charges coupled with the time Sen has already of spent in detention. “At present, the appellant has been in detention for almost six years, her age is over 66 years and charges have not yet been framed,” the Supreme Court’s order read.