Elgaar Parishad case: Wilson, Sen ask Bombay HC to decide what is ‘legal electronic evidence’ under criminal law

Activists Rona Wilson and Shoma Sen, arrested in connection with the Elgaar Parishad case, urged the Bombay High Court on Monday to decide what was “legal electronic evidence” and stating the evidence relied upon by the probing agency was illegal as per law as it had been “planted”.

Their counsels, senior advocates Indira Jaising and Anand Grover, also told a division bench of Justices S S Shinde and N J Jamadar that there was no connection between the Elgaar Parishad event held on December 31, 2017, and the Koregaon Bhima violence that took place a day later. They have sought that the FIR and charge sheet filed against the two activists be quashed and set aside.

In his plea in the case, Wilson has cited a report of US-based digital consultant ‘Arsenal Consulting’ that stated the “incriminating evidence” found by investigators in his laptop were allegedly “planted” through an email on June 13, 2016, two years prior to his arrest on June 6, 2018. The division bench was also hearing a plea by Sen challenging her prosecution under the Unlawful Activities Prevention Act (UAPA) filed on similar grounds.

The counsels of the two activists have questioned the authenticity of the electronic evidence cited by the NIA which was allegedly recovered from electronic devices of the accused in the case and sought a probe into “tampering of evidence”.

The court said while both the sides, including petitioners and the investigation agency, will have contradictory arguments about the authenticity of the electronic evidence, in writ jurisdiction it may not be competent to decide the same and can be raised before a trial court, which is “the first court of instance”.

Irrespective of what the trial court held, Jaising said, the HC should consider what amounted to legal electronic evidence and what did not. “This is a sui-generis (unique) case. Whether we get relief or not, we want a judgment from this court on what is legal electronic evidence and what is not. In my considered view, there is no definitive judgment on what is considered legal electronic evidence. There is nothing in criminal law on this. There needs to be an authoritative law. What they (NIA) are relying on is not evidence in the eyes of law,” Jaising said.

Jaising added that the petitioners had been in prison for nearly three years without availing any bail and there was no idea as to when the trial was likely to begin. HC will continue to hear the pleas on August 4.

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