Thread by @barandbench

#BombayHighCourt is hearing the pleas filed by #ElgarParishadcase accused Rona Wilson and Shoma Sen seeking quashing of the chargesheet against them, alleging fraudulent evidence gathered by #NIA.

Hearing before Bench of Justices SS Shinde and NJ Jamadar.

@NIA_India

Sr Adv Indira Jaising gives a brief overview of the matter.

She shows the history of the #elgarparishad event. She points out that days following the event, there was an incident of violence recorded.

Jaising: The question is who was responsible for the violence?

Jaising: This is a case of cross-FIRs. There were 22 FIRs registered after the violence took place. This is a case of simplicter violence and not UAPA. That occurred because the people were restricted from paying their respect.

Jaising: My submission is that there is no connection between the Parishad event and the violence which took place.

#elgarparishad

Jaising: The complaint in this case was made 8 days later. There was already a complaint pending from before.
This case was transferred from one department to another based on the transfer of the IO.
There was investigation being conducted by two police stations.

Jaising: Pune rural and Pune urban.
The UAPA charges were still not added at this point.

Jaising: When Milind Ekbote approached the 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: The Court asked the government why they could not manage the law and order situation. They submitted that there was police bandobast, they dodged the police bandobast with saffron flags and attacked.

Jaising: Then they changed and said that these people (the accused) are responsible. Can these two narratives stand?
The two events took place at a distance of 7 kms. One event the Dalits paid homage to the war memorial. The other event, there was homage being paid to Sambhaji.

Jaising: There is electronic evidence and the technology used in that is advanced.. and the manner and procedure used to procure it…

Court: Will this be raised during the trial?

Jaising: I am aware of the objection raised. I will address.

Court: These questions are questions of facts. In a writ jurisdiction how much can we go into the facts of the case. You have brought on record details. They have brought on record details.
How do we know which is true?

Court: Secondly, you have brought evidence which will work in your favour.
And we are only in dialogue. Whatever we say is considered to be a formation of opinion. We are only trying to get quality assistance from the advocates.

Sr Adv Anand Grover appearing for Shoma Sen points out that he loves it when the judge asks questions.

Grover: Then we know what is going on in the minds of the judges, so we can point out.

Court: One side will say whatever they have collected is right. The other side will say this is all manipulated..

Grover: The question being considered is the secret of the electronic evidence and how it has to be procured.

Jaising: This is a sui-generis case. Whether we get relief or not, we want a judgment from this court on what is legal electronic evidence and what is not!

Jaising: Let us take search and seizure. You want to seize a book, you take it, seal it and seal it. That is not how computer evidence can be seized.
There is nothing in the criminal laws for this. There needs to be an authoritative law.

Jaising: I am invoking the Article 226 and 227 jurisdiction.

Court: but why not go before the Court of first instance?

Jaising: I will submit n number of judgments to show that the Court..
Why go to SC, our own court.. Param Bir Singh judgment..

Jaising: They were told to come back to the High Court..

Court: the facts were that the FIR could not have been registered, because complaint was by a senior officer of same agency.

Jaising: Yes on those facts. But the issue was despite having an alternate remedy, the Court intervened..

Court: Yes because the parties were senior officials in the administration…

Jaising: The alternate remedy must be equally efficacious. The Supreme Court says that 482 will lie even during discharge.. This whole fight is about bail. I have been in prison for 3 years.
You are saying charges are going to be framed. When will they be framed?

Jaising: When will I apply for discharge?
DO you have any legal evidence against me? They have only my harddisk and some letters from that hard disk. But it was not procured in a proper legal manner. I have not seen anything like this in any pending criminal proceeding.

Jaising: This is a sui generis case, hence it is difficult for me also to prepare for this case.

The second question is the sanction. The sanctioning authority did not apply its mind while granting sanction. The

Jaising:
What is legal electronic evidence?
Was the sanction properly and legally granted?
Was there an abuse of process of law?

Jaising: I have come before you of tampering of evidence and I want an investigating agency to look into it.
Suppose my device is tampered with, and I am prosecuted, where do I go to raise the issue of tampering. I can only go under Article 226.

Jaising: If my computer is tampered with, what relief do I have? There are many types of reliefs possible. But this is sui generis. This is a case of selective prosecution.

#elgarparishad

Jaising: You say on a solemn oath before Supreme Corut that Ekbote was responsible. And then before this court you say the accused (present 14 accused) are responsible.
These two narratives cannot stand together. Only one can stand.

Jaising: The situation now for me is, 3 years in jail. No acquittal or conviction in the near future. No prospect of release or conclusion in the near future.

Court: Now alright constitutional court can consider how many years in jail, maximum sentence.

Jaising: 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.

Jaising: I don’t need to rely on the Delhi High court judgment and I don’t intend to. If you see the FIR, there is nothing against the integrity of the country?
Under Section 13, 15, a devious act, deference with the intention of terror, where is that?

Shinde: So on a piece of paper show us what sections and what offences.

Court: Mr Patil, we assure both that we will give full hearing.
But the issue we have 100 matters tomorrow, then the Param Bir Singh, Rashmi Shukla is listed day after tomorrow.

Jaising: Milords may continue on Friday, the flow of arguments will go.
Milords may have to give a little priority to this. Some of them, most of them actually are senior citizens. Some of them are ill.

Patil: There is a chargesheet filed. The mention of terrorist charges is there in that. Let the chargesheet be brought on record.

Jaising: I have no objection.. He may file it.

Patil: No this is your petition..

Jaising: This is unfair. It is a 20000 page chargesheet. Most of it is Marathi. If I bring chargesheet, then they will say my translation is incorrect.

Patil: If they want to contend from the chargesheet, they have to bring that on record.

Jaising: One of my allegations is that of sanction, they may produce the sanction file to the Court.

Patil: My contention is, why make the records bulky, when there is..

Court: Mr. Patil, you leave that to us!

Court adjourns the hearing to August 4, 2021.
NIA will make his submissions on the preliminary objections and then Jaising and Grover will respond to the same.