The law, per se, is still what is ‘good’ about the criminal justice system; the bad guys are the cops mucking up the investigations. Or so lawyers think. The reasons for this, they say, is that while the police, especially in the investigation of terrorism cases, operate on the basis that a man is suspect, the justice system, on the other hand, leaves elbow-room for a lawyer to argue his client’s case on the premise that he may be ‘not guilty’. In other words: The System could be dead, but God will save The System.
The result of some such judicial rescues and corrective measures have, however, extracted a heavy price. Parvez Radoo was a Kashmiri zoology postgraduate studying in Pune when he was picked up by the Special Cell of the Delhi Police in 2006, on the charge of being a Jaishe-Mohammad militant. Ever since his acquittal in 2013, he has been a wholesale merchant of candy and dried fruit. Maqbool Shah was a 17-year-old student on holiday in Delhi from Kashmir when he was made a co-accused in the 1996 Lajpat Nagar blast. He is now a bitter 36-year-old waiting for the promised government job after 14 years in jail.
The publication of the Jamia Teachers Solidarity Association report (JTSA) on the fabrication of evidence against civilians, mainly Kashmiris, by cops in the name of fighting terror in the late 1990s and early 2000s, also point to repeated instances of trial court judges handing out judgments on the premise that if cases were being built up by the Delhi Police Special Cell, it must mean they are true. The report also underlines the need to see the lapses in the criminal investigation system as crime, and asks why their victims, should go without compensation.
Ashok Agrwaal, the lawyer of Ameen Wani, a Kashmiri trucker, one of the cases examined in the report, raises several unanswered questions. “The Special Cell implicated Wani claiming they had recovered 1.6 kg of a brown explosive from Wani’s co-accused, based on Wani’s disclosure statement. However, during the trial it was found that the sample of the explosive sent to the Central Forensic Science Laboratory (CFSL) for testing, was off-white. The police recalled the witness and got him to say that the explosive could have changed from brown to white,” says Agrwaal. He adds: “Further, the police told the trial court that the rest of the explosive seized had burned away in a fire in the police storage room. The court had to either accept the unverified word of the police or acquit both the accused. Despite these discrepancies, the trial court convicted Wani. During the appeal hearing, I pointed out to the High Court that if 1.6 kg of PETN had actually caught fire, the whole of Delhi’s Meharchand Market would have been demolished. Fortunately, the High Court disbelieved the Special Cell’s case and acquitted Wani and his co-accused. But by then, they had already spent seven years in jail. My point is, if Wani was guilty, they should have proved it. You can’t send a man to jail on flimsy or fabricated evidence.” Ideally not. But the ‘success story’ of the cops tells a different tale. Even after the National Human Rights Commission indicted ACP Sanjeev Yadav (a cop who figures prominently in the JTSA report) for staging an encounter in Sonia Vihar in 2006, the report says he continues to head probes as crucial as the attack on the Israeli diplomat in Delhi. Yadav, now additional DCP, Special Cell, said he is not “in a position to speak on the issue as many cases are in court.”
The paltry rate of conviction in such cases is a mere 30%. There have been virtually no measures against police frame-ups. The CrPC recognises victims of crime. “I say people like Wani are victims too. They are victims of a crime that does not have any recognition in this country — the crime of fabrication of evidence and cases by the police. It’s not easy to prove cops fabricated a case deliberately,” says Agrwaal. An ACP in another case, had even admitted to him outside the court room: “‘I also know the case is false, and you also know it, but my goal is accomplished as even though your client has now been acquitted, he has spent five years in jail.’” The Delhi police have alone not been guilty of shoddy investigations. Defence lawyers in terror cases say the investigative agencies are in general communalised, interested in undertrial incarceration, and not in enhancing conviction rates, which require huge investments in police training and prosecution services.
Yug Mohit Chaudhry, a lawyer practising in the Bombay High Court and the defence lawyer for the SIMI boys said to be behind the 2006 Mumbai train blasts, points out the contradictions in the case, typical of terror accusations.
Thirteen boys allegedly with the SIMI, and with Laskar connections, were chargesheeted after their confessions. Subsequently, the Crime Branch headed by Joint Commissioner of Police Rakesh Maria held about 15 boys who were allegedly with the Indian Mujahideen and recorded their confessions wherein they admitted to having even been involved in the train blasts for which the earlier 13 ‘SIMI boys’ were being prosecuted. “So, from the Maharashtra cops, you now have two different charge-sheets of two mutually exclusive groups of people saying they had committed the same offence.... It becomes difficult to fight a case when so many people have been killed. The judge wants to hang somebody, the media wants a scapegoat, all that a cop then needs to do is to round up somebody and effect some recoveries,” says Chaudhry. The September special court verdict sentenced five to death. Seven got life sentences. “I will be appealing in High Court,” he adds.
The Criminal Procedure Code allows for a maximum of 5,000 to be paid as compensation for ‘frivolous prosecution’, but even this is rarely awarded by the courts. For compensation to be paid mandatorily to those acquitted, a statute brought in by Parliament is needed. “In the absence of such a statute, there is hardly any deterrence for the police against false implication or frivolous prosecution. Conviction in murder cases in trial courts is 35 per cent, which is reduced by half in appeals. At the end of the judicial process, from trial to the High Court, the conviction rate is about 15%,” says Chaudhry.
Activists argue that if compensation for human rights violations by the state is paid in India, as is done in many democracies, it could be a deterrent. “India has done a declaration on the right to compensation when it ratified the United Nations International Covenant on Civil and Political Rights. This is a reservation, euphemistically called a “declaration” by the Indian government,” says Ravi Nair, one of India’s best-known human rights activists. “The courts have been tardy in addressing the issue of mandatory compensation for all victims of human rights violations. The failure to award compensation to all the six accused and acquitted of all charges in the Akshardham temple attack is a telling reflection in this area.” But was that sufficient to shame the usual suspects?
(With inputs from Karn Pratap Singh)