Mumbai: Arrested activists Rona Wilson and Shoma Sen on Monday told the Bombay High Court bench of Justices Sambhaji Shinde and Nijamoodin Jamadar that the Maharashtra government as well as the NIA haven't pursued the first FIR in the Bhima-Koregaon violence case, filed against right-wing leader Milind Ekbote. The activists, who are booked for instigating the violence by holding Elgar Parishad, claimed that their meeting was "a lawful activity" permitted by the Pune Police and that the NIA has resorted to "selective prosecution."
The bench is dealing with the petitions filed by Wilson and Sen through senior counsels Indira Jaising and Anand Grover, respectively, seeking to quash the criminal proceedings against them in the case. The duo vehemently relied upon a US-based forensic science report that has found that the alleged incriminating material (letters) retrieved from Wilson's computer was actually planted by a hacker much prior to his arrest.
Arguing on behalf of Wilson, Jaising apprised the bench of "the Bhima-Koregaon battle that was fought in 1881 between 25,000 mighty Peshwa army and 500 British soldiers, including people from the Mahar (Dalit) community."
"It is the prosecution's case that the violence at Bhima-Koregaon on January 1, 2018, was a result of the Elgar Parishad held the previous day. But there was no violence on December 31, 2017, after the Elgar Parishad meeting, which was even attended by Justice (retd.) P B Sawant," Jaising said, adding, "It should be noted that the meeting was held after taking permission of the police. Thus, it was a lawful activity."
The senior advocate further pointed out that the violence that took place on January 1, 2018, couldn't attract the provisions of the Unlawful Activities (Prevention) Act (UAPA). "Even for the sake of it, at the most my client can be charged for rioting, but how does UAPA come in? Where is the allegation of attacking the sovereignty and integrity of the country?" Jaising argued.
Jaising further referred to the statement made by the then Chief Minister Devendra Fadnavis on the floor of the state assembly. She said, "I am relying on two statements made by the then CM made on the floor of the house that violence was caused by a mob holding saffron flags. He said that the violence occurred because people were not allowed to pay their respects at the Bhima Koregaon memorial on that day."
The very first FIR was registered on the very day when the violence took place, the senior counsel pointed out. "I can say that this is a case of selective prosecution," Jaising argued, adding, "It has two narratives. Milind Ekbote was arrested and released in the first FIR after the violence. The second FIR which is being pursued was filed by a right-wing activist Tushar Dumgude on January 8."
"I fail to understand as to how can two people be responsible (for one offence)?" she questioned, further claiming that Milind Ekbote was the one responsible for the violence.
During the course of the hearing, senior counsel Anand Grover for Shoma Sen pointed out that the court also should consider the nature of electronic evidence that is being relied upon by the prosecution against the accused in this case.
To this, Jaising said, "In my view there is no definitive judgement on what is considered as legal electronic evidence. What they are relying on is not evidence in the eyes of law." "Today they only have the hard disk and those letters. Question is whether the evidence is legal and has my client's computer been tampered with?" she added.
The arguments would continue on August 4.
