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The apex court imposed several conditions on the 66-year-old Sen, including that she shall keep the location status (GPS) of her mobile phone active round the clock while under bail and her phone shall be paired with that of the investigating officer of the NIA to enable him, at any given time, to identify her exact location.
A bench of Justices Aniruddha Bose and Augustine George Masih also directed that Sen shall inform the investigating officer about her place of residence, will use only one mobile number and not leave Maharashtra without the leave of the special court.
It noted that any form of deprival of liberty results in breach of Article 21 of the Constitution and must be justified on the ground of being reasonable and following a just and fair procedure. Such deprival, the court said, must be proportionate to the facts of a given case.
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“The ailments by themselves may not be serious enough for granting bail on medical ground. But taking cognisance of the composite effect of delay in framing charge, period of detention undergone by her, the nature of allegations against her vis-a-vis the materials available before this court at this stage 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 issue of chargesheets against her in the subject-case,” the bench said.
It noted that having regard to the proviso to section 43D (5) of the Act, the court hearing the question of bail is under duty to scan through the case diary or report made under section 173 of the Code of Criminal Procedure for the purpose of forming an opinion to the effect that there are reasonable grounds for believing that the accusation against the accused is prima facie true.
The top court also set aside the January 17 last year order of the Bombay High Court which had disposed of her bail application with liberty to approach the trial court for filing a fresh application for bail.
It noted that Additional Solicitor General K M Nataraj, who appeared for the National Investigation Agency (NIA), had taken a fair stand and stated that at present the agency would not require her custody for the purpose of further investigation.
Referring to the NIA’s submissions, the bench said it must not lose sight of the fact that it is concerned with the question of liberty of a pre-trial detenue against whom charges are yet to be framed and who is in custody for almost six years.
Regarding the allegation against Sen of raising funds for a terrorist act, the bench said at this stage, on the strength of the material produced before it, the prosecution has not been able to corroborate or even raise a hint of corroboration of the allegation that she funded any terrorist act or received any money for that purpose.
It said the NIA has not been able to produce any material to show that she had facilitated recruitment to the banned CPI(Maoist).The bench noted the next set of allegations against her to bring her case within the bail-restricting provisions relates to offences specified under Chapter 6 of the 1967 Act. “This set of allegations relates to being associated with a terrorist organization. We have already given our finding on such allegations and 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 organization are not true, and at this stage, she cannot be implicated in the offence under sections 38 of 1967 Act,” it said. The bench clarified that its observations regarding the nature of allegations against her are only prima facie views. It said while on bail, Sen shall report to the station house officer of the police station within whose jurisdiction she shall reside once every fortnight. The bench said in the event of breach of conditions, it would be open to the prosecution to seek cancellation of bail granted to her before the special court. Sen, an English literature professor and women’s rights activist, was arrested in connection with the case on June 6, 2018. The case relates to alleged inflammatory speeches delivered at the Elgar Parishad conclave held at Shaniwarwada in Pune on December 31, 2017 which police claimed triggered violence the next day near the Koregaon-Bhima war memorial located on the city’s outskirts. The Pune Police had claimed that the conclave was backed by Maoists.