The former head of the department of English at the Nagpur University, Prof Shoma Sen, and activist Rona Wilson who were arrested in the Bhima Koregaon case told the Bombay High Court on Monday that there was no connection between the Elgar Parishad event held on December 31, 2017, and the Bhima Koregaon riots that took place a day after.
Their counsels, senior advocates Indira Jaising and Anand Grover, further told HC that the FIR against the activists had been registered in the aftermath of the Bhima Koregaon incident, which pertained to rioting and violence, and not to any terrorist activity. There was no legal ground for the activists to have been charged under the stringent Unlawful Activities Prevention Act (UAPA), the counsels told a bench of Justices SS Shinde and NJ Jamadar.
Advocate Jaising also raised questions on the authenticity and legal admissibility of the electronic evidence the National Investigating Agency (NIA) claimed to have recovered from Wilson's computer, and from the electronic devices of the other accused in the case.
She said the HC must direct an investigation into the alleged tampering of legal evidence. The bench was hearing pleas filed by Wilson and Sen challenging their prosecution under UAPA and seeking that all charges against them in the case be quashed. In their pleas filed in the HC in April this year, Wilson and Sen said the case against them was based on forged and hearsay evidence that was planted on devices allegedly belonging to co-accused Wilson.
The activists cited the report of a US digital forensic firm that said an incriminating letter and other material had been planted on the computers of Wilson and several of his co-accused in the case. On Monday, the advocates for the accused told the HC that the Elgar Parishad event and the one at Bhima Koregoan took place at a distance of 7 kilometres, and two separate FIRs were registered for the two incidents.
The Maharashtra government had said in the Supreme Court that Hindutva leader Milind Ekbote and some others were responsible for the Bhima Koregaon violence, Jaising said. "My submission is that there is no connection between the Parishad event and the violence which took place. The complaint, in this case, was made eight days later. When Milind Ekbote approached Supreme Court for anticipatory bail, the Maharashtra government submitted in an affidavit that he is responsible for the attack and hence his pre-arrest bail was rejected," Jaising told HC.
"Then they changed and said that these people (the activists and their co-accused) are responsible. Can these two narratives stand?" she said. Jaising further said the petitioners had been in prison as undertrials for three years, with no bail, and with no idea when the trial was likely to begin. "You can prosecute me for the violence, but where does UAPA come in? Where is the allegation of sovereignty and integrity of India? Every riot is not an offence under UAPA. This is a case of selective prosecution," she said.
On the issues raised on the credibility of the electronic evidence cited by the National Investigation Agency, the HC said the same would be considered by the special court at the time of trial. Grover and Jaising, however, said irrespective of what the trial court held, the HC must consider what constituted legal electronic evidence and what did not. HC will continue hearing the pleas on August 4. The same HC bench reserved its verdict on the temporary bail plea filed by lawyer Surendra Gadling, another accused in the Elgar-Parishad case.
