Elgar case: Pleas filed by accused based Arsenal report not maintainable, says NIA

The National Investigation Agency (NIA) told the Bombay high court Thursday that the agency has denied the claims of tampering of electronic evidence in the Elgar Parishad-Maoists Links case that were made by a US-based forensic firm.

The agency made the submission while opposing the plea filed by Nagpur University professor Shoma Sen, an accused in the case, seeking quashing of the charges against her.

Additional Solicitor General Anil Singh, who appeared for the NIA, told the high court that the agency was opposing the reliefs sought by Sen. He said that the NIA had also filed an affidavit opposing the plea.

In the affidavit that was filed on Wednesday, the NIA said that Sen's plea was not maintainable and it was a tactic to delay the trial in the case. It said that Sen's plea was not maintainable since charge sheets had already been filed in the case and the special court had already taken cognisance of the charge sheets.

The central agency said that Sen could instead file a separate writ petition seeking discharge from the case in accordance with the CrPC norms. It further opposed Sen's reliance upon the reports of the US forensic firm Arsenal Consulting, which had earlier this year said that electronic evidence in the Elgar case had been tampered with and that evidence had been planted on the devices of several accused persons in the case.

The central agency said in its affidavit that Arsenal had no locus standi in the case. It further said that the NIA had already disputed the said report and it could not be admitted as evidence. "I stoutly deny the Arsenal report. Since the contentions made in the report are not accepted (by the NIA) as they are disputed questions of facts and hence, cannot be entertained in the present petition," the affidavit reads. "It is contended that the present petition is not maintainable. Since charge sheets are already filed, these contentions by the petitioner can be raised at the time of the trial," it reads. The submissions were made before a bench of Justices S S Shinde and N J Jamdar that was presiding over the pleas filed by Sen and her co-accused Rona Wilson, seeking interim bail and quashing of the FIR against them.

The accused persons also questioned the legality of the sanction granted by the Maharashtra government authorities to prosecute them under the Unlawful Activities (Prevention) Act (UAPA) considering that the sanctioning authority did not take into account the possibility of tampering of electronic evidence. The NIA, however, said that the question of tampering of evidence could be dealt with at the stage of trial. During the day's hearing, Chief Public Prosecutor Deepak Thakare, who appeared for the Maharashtra government, sought two weeks to file affidavit on behalf of the Pune police to respond to the questions raised by Sen and Wilson on the issue of sanction.

Senior advocate Indira Jaising, who appeared for Sen, told the bench that if the state's request for the time was being considered, then the entire file pertaining to the sanction is required be placed before the court since the main issue in the petitions pertained to the sanction. "This is an issue of liberty. The court may grant or deny bail, but I have to be heard. This petition has been pending for hearing for over three months now," she said. Jaising further said that she will be referring to the judgment of the Delhi High Court delivered earlier this week while granting bail to some student activists, accused in the anti-CAA protests in the national capital.

The HC then said that it will give one last opportunity to the state to file the reply. It directed that all replies be filed by July 9 and scheduled further hearing on the pleas on July 13. In April this year, the NIA had filed an affidavit on similar grounds, opposing the plea filed by Wilson and disputing the Arsenal report. The NIA had opposed the plea, contending that since the Arsenal Consulting report was not part of the charge sheet, it could not be be relied upon by Wilson to seek quashing of the charges.