SC bail to Binayak Sen, questions conviction for sedition

"No case of sedition is made out," a bench comprising justices H S Bedi and C K Prasad observed while granting bail to 61-year-old Sen, who was also held guilty by a trial court in Chhattisgarh for helping naxalites to set up a network.

The bench, which preferred not to give any reasons for granting bail, said, "We are a democratic country. He may be a sympathiser (of Naxalites) but it did not make him guilty of sedition.

"He is a sympathiser. Nothing beyond that," the bench said, perusing the affidavit filed by the Chhattisgarh government opposing his bail.

"The worst can be said that he was found in possession of general documents (relating to Naxal activities) but how can it be said that such possession would attract the charge of sedition. How can you lay the charge of sedition?" the bench asked.

"Is it like that if someone has got the autobiography of (Mahatma) Gandhi at his home he will be called a Gandhian.

Is that your logic that having documents and pamphlets on Maoists and Naxalites at his (Sen`s) house (makes him an outlaw)," the bench said.

Some of Sen`s family members including his wife Elina were present in the courtroom along with some right activists when the order granting bail to him was pronounced.

However, members of European Union, who were present in the previous hearing, could not be seen in the visitors` gallery of the courtroom.

At the outset, senior advocate Ram Jethmalani, appearing for Sen, said that the conviction for sedition was untenable and illegal in the face of law and the trial court judgement did not comply with any requirement of law.

He said before the trial, the apex court had released him on bail and there was no misconduct on his part and questioned the allegations made by the state government in its affidavit.

Chhattisgarh Government, in its affidavit, had said Sen should not be granted any relief as he has "deep links" with hardcore Naxalites and was providing active support and co-ordination in spreading the base of CPI-Maoist in the country.

"Apart from providing logistic support, he exchanges information and material directly and indirectly with the Naxalites in the areas of Chhattisgarh, West Bengal, Andhra Pradesh, Maharashtra, Bihar, Jharkhand and Orissa and propagates Naxal ideology," the affidavit had said.

It had said documents and pamphlets recovered from Sen`s house suggest he was actively associated with the Naxalites and he visited his co-accused Pyush Guha 33 times in the jail.

The bench, however, said that all the statements made by the state in its affidavit have no relevance.

It said other documents and evidences produced by the state government including that Sen, a doctor by profession, had met Guha 33 times in a jail and pamphlets and documents relating to Maoist activities were recovered from his possession did not mean that he was involved in seditious activities.

However, senior advocate U U Lalit, appearing for the state government, said that no case is made out for the bail and submitted that the activities of Sen have to be seen in a broader perspective.

Lalit took exception at being interrupted during arugments by Jethmalani and told the bench that he should given protection by it. "I may be given protection from such interruption," he said.

When the bench asked him whether his activities in any way connect to the offence of sedition, Lalit said, "My case has been accepted by the trial court and the apex court has only to consider whether he can be granted bail or not."

When the court asked him if there were any documents backing the charge of sedition, Lalit said Sen visited the jail and exchanged documents with Guha and others.

However, this submission did not satisfy the bench, which said, "Visitors are screened and searched by the jail staff when they go and meet the inmates.

"The jailors are there to oversee all these things. So the question of passing letters or documents doesn`t arise."

The bench also said visitors` areas in jails were fitted with cameras and in such a situation there could be no exchange of documents.

However, the bench was told that at that time cameras were not installed in the jail.

While granting bail, the bench said, "We are concerned with the implementation of the judgement as even no case of sedition is made out."

When the bench was about to pronounce its order, another senior advocate Mukul Rohatgi joined Lalit and said, "There is no presumption that Sen is innocent".

He said Sen is allegedly actively supporting the banned organisation and on being released on bail, he would foment further trouble in the state.

Realising that the bench had made up its mind to grant bail, Rohatgi said some conditions be put upon Sen that he would not enter Chhatisgarh.

He said the apex court, which has granted bail to former Gujarat Minsiter Amit Shah in connection with the Sohrabuddin Sheikh case, has asked him not to enter the state and such a condition should be imposed on Sen also.

However, the bench said both the cases were different as in the case of Shah trial has not been completed and in this (Sen`s) case, he has already been convicted.

It left it to the satisfaction of the trial court concerned to impose the conditions for his release on bail.

Sen had challenged the order of the Chhattisgarh High Court, which had rejected his bail plea on February 10.