Supreme Court Grants Bail to Shoma Kanti Sen in Elgar Parishad Case: A Detailed Analysis (2024)

Date of the Judgment: April 5, 2024

Citation: 2024 INSC 269

Judges: Aniruddha Bose, J., and Augustine George Masih, J.

Can a High Court refuse to consider a bail application on merit simply because a supplementary chargesheet has been filed by a different investigating agency? The Supreme Court of India recently addressed this question in the case of Shoma Kanti Sen vs. The State of Maharashtra & Anr. The court examined whether the High Court was correct in directing the appellant to approach the trial court for a fresh bail application after the National Investigation Agency (NIA) filed a supplementary chargesheet. The Supreme Court ultimately granted bail to the appellant, Shoma Kanti Sen, setting aside the High Court’s order.

The judgment was delivered by a two-judge bench comprising Justice Aniruddha Bose and Justice Augustine George Masih. Justice Aniruddha Bose authored the judgment.

Case Background

The case originates from an FIR registered on January 8, 2018, at Vishrambaug Police Station, Pune, concerning violence that occurred at an event organized by Elgar Parishad on December 31, 2017. The prosecution alleged that provocative speeches and cultural performances at the event incited enmity between caste groups, leading to communal disharmony, violence, and loss of life.

Initially, the FIR was against the organizers of the Elgar Parishad event, including activists from Kabir Kala Manch. The appellant, Shoma Kanti Sen, was not named as an accused at this stage.

Later, the investigation expanded, and Section 120-B of the Indian Penal Code, 1860 was added on March 6, 2018. The State Police conducted raids on April 17, 2018, at the residences of eight individuals, allegedly finding incriminating materials. The police believed a larger conspiracy was at play, involving the Communist Party of India (Maoist) [CPI (Maoist)], a banned terrorist organization. This led to the invocation of offences under Sections 13, 16, 17, 18, 18B, 20, 38, 39, and 40 of the Unlawful Activities (Prevention) Act, 1967 (1967 Act).

On June 6, 2018, the appellant’s residence was raided, and certain materials were seized, leading to her arrest on the same day.

The investigation was transferred to the NIA on January 24, 2020, and the case was renumbered as RC-01/2020/NIA/MUM.

Timeline:

Course of Proceedings

The appellant’s initial bail application was rejected by the Additional Sessions Judge at Pune on November 6, 2019. The Sessions Court applied the bail-restricting provision of Section 43-D (5) of the 1967 Act to deny bail.

Subsequently, the appellant filed a regular bail application before the High Court of Judicature at Bombay on January 9, 2020, under Section 439 of the Code of Criminal Procedure, 1973 (1973 Code).

As the investigation was transferred to the NIA, the Single Judge of the High Court directed that the bail application be placed before a Division Bench, citing Section 21(2) of the National Investigation Agency Act, 2008 (2008 Act).

The Division Bench, on January 17, 2023, disposed of the appellant’s bail application, granting her the liberty to approach the Trial Court for filing a fresh bail application. The High Court reasoned that the NIA had filed a supplementary chargesheet with new incriminating materials, and thus, the Trial Court should assess the entire evidence first.

Legal Framework

Several legal provisions are central to this case:

• Sections 153A, 505(1)(b), 117, and 120B of the Indian Penal Code, 1860: These sections deal with promoting enmity between different groups, statements conducing to public mischief, abetment of offences, and criminal conspiracy, respectively.
• Sections 13, 16, 17, 18, 18B, 20, 38, 39, and 40 of the Unlawful Activities (Prevention) Act, 1967: These sections pertain to various offences related to unlawful activities, including terrorist acts, raising funds for terrorist acts, conspiracy, recruitment for terrorist acts, and membership of a terrorist organization. Specifically:
  • Section 13: Punishment for unlawful activities.
  • Section 16: Punishment for terrorist acts.
  • Section 17: Punishment for raising funds for terrorist acts.
  • Section 18: Punishment for conspiracy, etc.
  • Section 18B: Punishment for recruiting any person for terrorist acts.
  • Section 20: Punishment for being a member of a terrorist gang or organization.
  • Section 38: Offence relating to membership of a terrorist organization.
  • Section 39: Offence relating to support given to a terrorist organization.
  • Section 40: Offence of raising funds for a terrorist organization.
• Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967: This provision restricts the grant of bail to individuals accused of offences under Chapters IV and VI of the Act, unless the court believes there are no reasonable grounds to believe the accusations are prima facie true.

  The provision states:
  
  “Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”
  

• Section 439 of the Code of Criminal Procedure, 1973: This section grants the High Court and Sessions Court the power to grant bail.
• Section 21(2) of the National Investigation Agency Act, 2008: This section stipulates that appeals from orders of the Special Court under the NIA Act regarding bail shall lie to a bench of two judges of the High Court.

Arguments

Appellant’s Submissions:

• The appellant argued that the High Court erred in not considering the bail application on merit and instead directing her to approach the trial court again.
• The appellant contended that the High Court, being an appellate forum, had the jurisdiction to examine the second supplementary chargesheet and decide on bail.
• The appellant argued that the second supplementary chargesheet did not contain any new or egregious accusations against her, and therefore, there was no need to remand the matter to the trial court.
• The appellant argued that she has been in detention for a long period of time, and her age and medical condition should be considered.
• The appellant relied on the fact that the charges have not been framed yet.

Respondent’s Submissions (NIA):

• The NIA argued that the High Court was correct in remanding the matter to the Special Court.
• The NIA stressed that the Special Court should examine the fresh accusations in the second supplementary chargesheet at the first instance.
• The NIA contended that the High Court is an appellate forum on the question of bail under the 2008 Act and should not examine fresh accusations for the first time.
• The NIA argued that if the High Court had examined the second supplementary chargesheet and granted bail, the prosecution’s right of appeal would be lost.
• The NIA argued that the entirety of incriminating material in the chargesheets did not form part of the petition for special leave to appeal.
• The NIA emphasized the gravity and seriousness of the offences alleged against the appellant.
• The NIA submitted that the question of entitlement of the appellant to be enlarged on bail would have to be examined in the light of the bail restricting clause of Section 43D (5) of the 1967 Act.

Sub-Submissions Categorized by Main Submissions:

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the High Court was justified in directing the appellant to approach the Trial Court for a fresh bail application after the NIA filed a second supplementary chargesheet.
2. Whether the High Court, being an appellate forum, had the jurisdiction to examine the second supplementary chargesheet and decide on bail, or whether it should have remanded the matter to the Special Court for fresh consideration.
3. Whether the materials on record reveal that there are reasonable grounds for believing that the accusations against the appellant for commission of the offences incorporated in Chapter IV and VI of the 1967 Act are prima facie true.
4. Whether the appellant is entitled to bail considering the period of detention, her age, and medical condition.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court relied on the following authorities:

The court also considered the following legal provisions:

• Section 15 of the Unlawful Activities (Prevention) Act, 1967: Definition of a terrorist act.
• Section 16 of the Unlawful Activities (Prevention) Act, 1967: Punishment for a terrorist act.
• Section 17 of the Unlawful Activities (Prevention) Act, 1967: Punishment for raising funds for a terrorist act.
• Section 18 of the Unlawful Activities (Prevention) Act, 1967: Punishment for conspiracy, etc.
• Section 18B of the Unlawful Activities (Prevention) Act, 1967: Punishment for recruiting any person for a terrorist act.
• Section 20 of the Unlawful Activities (Prevention) Act, 1967: Punishment for being a member of a terrorist gang or organization.
• Section 38 of the Unlawful Activities (Prevention) Act, 1967: Offence relating to membership of a terrorist organization.
• Section 39 of the Unlawful Activities (Prevention) Act, 1967: Offence relating to support given to a terrorist organization.
• Section 40 of the Unlawful Activities (Prevention) Act, 1967: Offence of raising funds for a terrorist organization.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• State of Haryana vs. Basti Ram [(2013) 4 SCC 200]*: The Court distinguished this case, stating that it was not mandatory for a court to remand a matter to the first court of bail when dealing with a pre-trial bail plea.
• State of Andhra Pradesh, through Inspector General, National Investigation Agency vs. Mohd. Hussain alias Salim [(2014) 1 SCC 258]*: The Court affirmed that the High Court was correct in referring the matter to a Division Bench, as prescribed in this judgment.
• National Investigation Agency vs. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1]*: The Court relied on this case to interpret the meaning of “prima facie true” under Section 43D(5) of the 1967 Act.
• Vernon vs. The State of Maharashtra & Anr. [2023 INSC 655]*: The Court relied on this case to interpret the meaning of “prima facie true” and the definition of “terrorist act” under the 1967 Act.
• Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra [(2005) 5 SCC 294]*: The Court relied on this case to determine the scope of the court’s power in granting bail.
• Kalyan Chandra Sarkar vs. Rajesh Ranjan [(2004) 7 SCC 528]*: The Court relied on this case to emphasize the need for prima facie reasons when granting bail.
• Jayendra Saraswathi Swamigal vs. State of T.N. [(2005) 2 SCC 13]*: The Court relied on this case to outline the factors to be considered when granting bail.
• K.A. Najeeb vs. Union of India [(2021) 3 SCC 713]*: The Court relied on this case to emphasize the power of the Constitutional Court to grant bail even when there are statutory restrictions.
• Gurwinder Singh vs. State of Punjab [2024 INSC 92]*: The Court distinguished this case on facts, stating it was not applicable in the present scenario.
• Shaheen Welfare Association vs. Union of India and Others [(1996) 2 SCC 616]*: The Court cited this case for the principle of delay in trial as a ground for bail but distinguished it on facts.
• Angela Harish Sontakke vs. State of Maharashtra [(2021) 3 SCC 723]*: The Court cited this case for the principle of delay in trial as a ground for bail but distinguished it on facts.
• Mazhar Khan vs. N.I.A. New Delhi [Special Leave Petition (Crl) No. 14091 of 2023]*: The Court distinguished this case, stating that the present case does not gain any premium from the reasoning forming the basis of the case.

What weighed in the mind of the Court?

The Supreme Court’s decision to grant bail was influenced by several factors, including:

• The High Court’s error in remanding the matter to the trial court instead of examining the supplementary chargesheet itself.
• The lack of new or egregious accusations in the second supplementary chargesheet.
• The appellant’s prolonged detention of almost six years without charges being framed.
• The appellant’s advanced age (over 66 years) and medical condition.
• The Court’s finding that the accusations against the appellant under the bail-restricting provisions of the 1967 Act were not prima facie true.

Sentiment Analysis of Reasons Given by the Supreme Court:

The court’s reasoning reflects a strong inclination towards safeguarding individual liberties and ensuring a fair trial. The court emphasized the need for the High Court to fulfill its appellate role and not merely defer to the trial court. The court’s concern for the appellant’s prolonged detention, age, and health indicates a compassionate approach. The court’s analysis of the chargesheets, finding no prima facie case under the bail-restricting provisions, further underscores its commitment to upholding justice and preventing undue incarceration. The overall sentiment is one of balancing the State’s interest in prosecuting serious offenses with the individual’s right to liberty and a fair trial.

Logical Flowchart of Court’s Reasoning:

Final Order

The Supreme Court allowed the appeal, setting aside the order of the High Court. The appellant, Shoma Kanti Sen, was ordered to be released on bail, subject to the following conditions:

• The appellant shall be released on bail on such terms and conditions as may be imposed by the Special Court.
• The appellant shall surrender her passport to the Special Court.

Key Takeaways

• Appellate Court’s Role: The judgment emphasizes that the High Court, as an appellate forum, has the jurisdiction to examine a supplementary chargesheet and decide on bail. It cannot remand the matter to the trial court simply because a supplementary chargesheet has been filed.
• Prima Facie Truth: The court reiterated that the bail-restricting provision of Section 43D(5) of the 1967 Act requires the court to form an opinion based on a perusal of the case diary or report under Section 173 of the Code that there are reasonable grounds for believing that the accusations are prima facie true. The court held that this standard was not met in the appellant’s case.
• Balancing Liberty and Security: The judgment underscores the importance of balancing the State’s interest in prosecuting serious offenses with an individual’s right to liberty. Prolonged detention without a trial and the individual’s age and health are significant factors to be considered.
• Impact on UAPA Cases: This judgment is significant for all cases under the Unlawful Activities (Prevention) Act, 1967, as it clarifies the role of the appellate court in bail matters and emphasizes the need for a strong prima facie case before denying bail.
• Importance of Judicial Scrutiny: The Supreme Court’s decision highlights the importance of judicial scrutiny of chargesheets and the need for courts to not merely accept the prosecution’s claims at face value, particularly in cases involving stringent bail provisions.

Conclusion

The Supreme Court’s judgment in the Shoma Kanti Sen case serves as a critical reminder of the importance of upholding individual liberties and ensuring a fair trial. The court’s decision to grant bail, despite the stringent provisions of the Unlawful Activities (Prevention) Act, 1967, reflects a commitment to justice and a balanced approach to the administration of criminal law. This case will likely have a significant impact on similar cases in the future, particularly concerning bail applications under the UAPA.