One of the papers written in prison in July 2010 as part of the Post Graduate Diploma Course in Human Rights

In June 2010, Somji Kopa Mohaka, aged 30, an adivasi from Gadchiroli (Maharashtra) and presently lodged in the Nagpur Central Prison was furnished with another charge-sheet from the Gadchiroli Police. Curiously he was not at all perturbed by the gravity of the charges he was arraigned in. Being an original resident of a ‘Naxal-affected’ district, he had become accustomed to being branded a Maoist and implicated in false cases. On the contrary he was delighted that the charge-sheet had been filed by the Police. For Somji, unlike other under-trials, a delay in the filing of the charge-sheet would not automatically translate into him being released on bail under section 167(2) of the Criminal Procedure Code (CrPC).

Given the large number of Naxal related cases wherein he was implicated and his poor economic conditions, executing a bail order and producing the requisite sureties was never an option. For him, the charge-sheet therefore meant that his case was now committed to the Court of Sessions and his trial would hopefully commence without delay. His anxiety was similar to that of a ‘newly arrested’ under-trial. But, in Somji’s case it meant the beginning of another cycle of arrest – acquittal – re-arrest.

Somji had spent the last five years in prison. He was initially arrested in December 2004, from his residence in Bhamragarh Tehsil, Gadchirolli District for his alleged role in Naxal activities. The Police thereafter implicated him in approximately 20 Naxal related cases, and other villagers from his area were made his co-accused. As mentioned earlier, Somji could not even contemplate being released on bail. His only hope was that his fate would not follow that of his father’s. His father too was arrested in a Naxal related case, and although he was fortunate to get bail, he suddenly received news of his conviction and sentence to life imprisonment, on the sole ground of a fabricated ‘confessional statement ‘ of a co-accused.

The draconian TADA Act had allowed such a confession in police custody to be admitted as evidence in court. Somji thus hoped for better luck. His best bet was to properly defend his innocence during the trials and be finally released on acquittal. Finally after nearly 5 years of delayed court proceedings, numerous non-production on dates and the feet dragging of the court appointed lawyer, his cases were diminishing with an increasing number of acquittals. It was by the end of 2009 that he was acquitted in all but one case, and was anxiously waiting his release. But the Gadchiroli Police planned and acted otherwise. Somji was rearrested by them from the prison on the date of his release, i.e. November 2009.

The charge sheet of Somji received in June 2010 was for one of the crimes in which he was re-arrested from the prison. A total of 5 further cases were imposed on him this time. This particular charge-sheet charged him for dacoity, possession of arms, etc, in an offence registered in 2003. The police had earlier completed their investigations in this crime and had then declared Somji as an absconder (u/s 299 of the CrPC) i.e. one evading arrest.

But herein lies the devil. Somji was already in prison when declared absconder by the very Police who had put him there. The Gadchiroli Police had deliberately postponed arresting Somji in 2004 in this case and instead waited for his acquittal in his last case to make an arrest in this one. Somji was not only malafidely denied his liberty by this arrest but will also be denied any reliefs although he has spent more than half the maximum sentence specified for this sentence (eg. reliefs u/s 436A CrPC etc.) The Gadchiroli Police in an abuse of their power to arrest had malafidely timed this arrest so as to blatantly violate Somji’s fundamental right to life and liberty.
Part of a larger Police practice

The above case of Somji is not an aberration. It is not an exception, but rather the rule! A pre-meditated practice employed by the Maharashtra Police to indefinitely extend the incarceration of alleged Naxal under-trials. This practice has picked up steam given the ‘Naxal-bashing’ rhetoric of our Prime Minister and Home Minister Chidambaram. Under pressure from higher-ups the police officers are fine-tuning strategies to show results. While some political dissenters are killed in fake encounters or ‘neutralized’ (to use our home minister’s terminology) others are put behind bars. In 2009, 836 persons had been arrested as ‘Naxals’ and till July 4, 2010 the corresponding figure is 603 (according to the South Asia Terrorism Portal).

With this strategy to show long prison terms of such arrested accused, the Police have geared up their entire machinery. Initially, the arrest of such an accused is trumpeted in the Media as a ‘big catch’ or as ‘a person wanted in numerous crimes’, etc. Such propaganda is effective in prejudicing the judiciary into denying the accused bail or other reliefs from police custody. Such a Judiciary readily ‘co-operates’ with the Police .

Once branded a Naxal, the arrestee is then implicated in any number of Naxal offences throughout the country and the judiciary becomes a mere spectator. Harsh special laws like the Unlawful Activities (Prevention) Act, 2008, Chattishgarh Special Public Securities Act, etc, also help the Police in the denial of bail, even if evidence is inadequate. Thereafter, the Police resort to deliberate delaying in the trials by numerous frivolous adjournments and failure to produce witnesses. In such conditions, the actual figure of those languishing in Jails in Naxal cases throughout the country would inevitably run into thousands. And as ‘Operation Greenhunt’ continues this number is bound to increase.

However, due to the falsity of the charges and fabricated evidence, many such under-trials are ultimately acquitted by the courts, after spending many years in prison. The Police resort to re-arresting them, when faced with their probable release, as part of this strategy. In Maharashtra, this is a regular and systematic practice. Below is an attempted compilation of some such re-arrests made, intending to deliberately extend the incarceration of such under-trials indefinitely.

1. Muttakka and Ganpat Kudhmethe: This husband and wife duo are tribals from Gadchiroli. They were originally arrested in 2004 and were totally tried in more than 40 Naxal related cases and were acquitted in all of them. On the day of their release in March and September 2008, respectively, the Gadchiroli Police re-arrested and sent them back to prison. The following year, Muttakka was once again re-arrested by the Gadchiroli police. Like Somji, Ganpat too had been re-arrested in cases where he was shown absconder after investigation, although he was in prison.

2. Mallesh Sailu Kusma was originally arrested in May 2004. He had been re-arrested thrice in 2007 and 2008, whenever he was released from the prisons. On two such occasions the Gondia and Gadchirolli police detained him for six months ( u/s 110 CrPC). The third time he was rearrested by the Madhya Pradesh Police.

3. Mrs Latta Gowda, Sampat Madavi and Shamlal Salame were initially arrested in December 2004. After their acquittal in all their cases in March 2009 they were re-arrested by the Gondia Police in two more cases.

4. Somji Mahaka was arrested in December 2004 and re-arrested after acquittal in November 2009.

5. Fagulal Tekam arrested from his village in Madhya Pradesh in 2004 was implicated in cases in Gondia. After being acquitted by the court, the Gondia Police re-arrested him in March 2009.

6. Chandramouli Voghe was arrested in August 2005 and arraigned in more than 40 cases in Maharashtra, Madhya Pradesh and Chattisgarh. On the acquittal of his last case in Maharashtra in February 2009, the Gondia Police once again re-arrested him in a case registered in 2003.

7. Madanna Kawli was initially arrested in 2005. He too had been re-arrested thrice in the period of one year whenever he was released from prison. On two occasions, the Gadchiroli Police invoked Section 110 CrPC to detain him for 6 months each time. On the fourth occasion they re-arrested him in an old murder case.

8. Kailash Punem, Vinod Netam, Shomeji Sheresingh Pundu and Mrs Triveni had been in jail since 2003. Acquitted from all their cases in Chattisgargh, they were transferred to Amravati Central Prison for their trial in the Gadchiroli cases. After the acquittal of these cases they were released in October 2008 to be once again re-arrested by the district Police under section 110 CrPC.

9. Ashok Reddy was originally arrested in May 2007. Although the Gadchiroli Police interrogated him way back in 2007, they deliberately postponed arresting him in cases till 2009 and 2010. Due to which, even though he was acquitted in majority of earlier cases, the latter Gadchiroli ones are left deliberately pending.

A careful scrutiny of the above mentioned examples, shows that the method to re-arrest such under-trials who have been released by the Courts is largely similar and smacks of an ulterior motive to harass them.
Method of deliberate omissions and prompt commissions

The method used by the police in this regard is by virtue of its wide powers to arrest. In these particular cases, the Naxal suspect is initially arrested only in those cases wherein evidence can be easily ‘manufactured’ so as to ensure conviction, and arrests in other probable cases are deliberately postponed until conviction in the earlier ones fail. Thus, not only are the grounds of arrest falsely fabricated, but also the timing of re-arrest is abused. The Police malafidely wait for the trials in all the earlier cases to complete.

Lest the accused may realise this strategy and may himself call for arrest in cases of possible implications, the Police deliberately refuse furnishing any such information. This method of deliberate omission in providing information of possible implications and grounds of arrest or in making the arrest is followed by prompt action to re-arrest the under-trial on the date of release.

The Naxal suspect when initially arrested, is denied any information on the number of cases in which he is required either for investigation or for arrest. Implication in numerous such cases is for the sole purpose of acquiring extended remands of Police custody rather than his actual involvement in the crime. It is mandatory, as a part of the procedure of arrest, to supply the accused information of the number and the details of the cases in which he/she is wanted [memo of Arrest/Court Surrender Form, No 3 – Column no 12(i)]. However, this procedure is conveniently avoided by the arresting authority.

This deliberate omission has an important role to play in the overall strategy. As the accused can be implicated in any number of cases and that too whenever the Police arbitrarily decide to. In the case of Somji Mahaka and Ganpat Kudmethe, this omission was even more severe. Not only were they kept in dark about the future implications, but an arrest was deliberately not made in those cases where they were declared absconders (u/s 299 CrPC) by the very department who had detained them.

Even if one sought to invoke the provisions of the Right to Information Act, 2005, like in the case of under-trial Ashok Reddy, such information was repeatedly refused under the absurd reason of security (u/s 8g of the RTI Act) or impeding the process of investigation (u/s 8h of RTI Act).

On the other hand, on the date of the under-trial’s release the Police resort to prompt action. For the Police, such an under-trial is not to be released (even though this is contrary to the Court’s decision), and hence all old criminal cases are immediately dug up in which he/she could be immediately rearrested. As in the case of Somji Mahaka and Ganpat Kudmethe, the job is easier since they have already been declared ‘absconder’!

For others like Mrs Lata Gowda, Shamla Salame, Sampat Madavi and Fagulal Tekam, whose names are not mentioned in any criminal records, new evidence has to be conjured to justify the re-arrest. This new evidence is fabricated in form of a ‘confessional statement’ of a recently surrendered Naxalite. Statements of such persons, who have received enormous monetary reward from the Police, are given under ‘inducement, threat and promise’ and hence have no evidentiary value during the trial (u/s 24 of the Indian Evidence Act). However at the time of re-arrest they are served as sufficient grounds to satisfy the judiciary. Such cases are definite acquittals in the future, but nonetheless deprive the accused of his/her liberty for the moment.

And finally, if by chance for any reason, the above two methods are not practicable, the Police then rely on Section 110 of the CrPC. This section allows the Police to detain persons for persons extending upto 6 months without judicial supervision. Mallesh Kusma and Madanna Kawli, both received such treatment, not once but twice serially, whenever released from prison. Whatever be the method adopted, the Police has promptly rearrested all under-trials whenever released or faced with a release.

For the purpose of executing such re-arrests, coinciding with the date of the under-trails’ release, the State Anti Naxal Dept (ANO) has instructed the prison department to make it mandatory for the prison authorities to inform the concerned Police of the release and also delay the release until the arrival of the Police (IG Prisons Circular dated July 11, 2007 to all Prison Sup’dts). In short, procedures are deliberately tweaked and powers deliberately abused to traumatise the under-trials and ensure that he/she remains in prison for long periods.
A blatant violation of fundamental rights

In the infringement of a person’s natural right to life and liberty by the State, the basic yardstick for its legality, is whether this deprivation is according to the procedure established by law. This procedure must also be fair, just and reasonable and not arbitrary, fanciful and oppressive.

While commenting on the power to arrest, i.e. the deprivation of an individual’s liberty by the Police, the Supreme Court in Joginder Kumar v/s State of UP, laid down that ‘the existence of the power to arrest is one thing, the justification for exercise of it is quite another’.

This criteria for reasonableness is crucial to curb any arbitrariness in arrests. The Power to arrest also includes the power not to do so, and reasonably demands a justification for not doing so. In the case of those already in custody, to postpone an arrest when the grounds exist for doing so, also demands a justification. And in particular the postponement of arrest till the date of the under-trial is ordered to be released by the court, also demands a strong justification. Without any justification, such re-arrests would be unjust, unfair and unreasonable and in contempt of the orders for release by the Court.

It is thus evident, that the re-arrest of such alleged Naxal under-trails on the date of their release, is arbitrary and not in accordance with the established process of law and therefore constitutes a violation of the fundamental right to life and liberty guaranteed in Article 21 of the Constitution of India.

As mentioned earlier, at the time of their initial arrest, such accused are denied information regarding the cases wherein the Police intended to implicate them. To have full knowledge of this fact is essential so as to be able to prepare one’s defence. The Police only supply information of charges restricted to a particular crime which is grossly inadequate where the accused is faced with the possibility of being arraigned in a number of such crimes.

Thus, for the purposes of making a legal representation against these multiple implications, it is only reasonable that the arresting authority furnish full details of cases where the accused is wanted. Their omission to do so also violates Article 22(1) of the Constitution of India, which demands that the arresting authority informs the arrestee ‘as soon as, may be, of the grounds of such arrest’. Although the present procedure of arrest has made it mandatory for the Police to state the cases in which the accused is wanted (column 12 of arrest memo), the Police conveniently disregards it.

Even after the particular accused has been interrogated, and investigations of his involvement have been completed with the filing of the charge-sheets, the Police still deliberately choose not to furnish such information. As in the case of Somji Mahaka and Ganpat Kudmethe, they were not even communicated about the fact that they were declared as ‘absconders’ in certain crimes, while in custody.

Related to the above issue of furnishing grounds of arrest, it should be remembered that an accused already in custody, deprived of his liberty, needs and seeks such information, not to evade arrest, but on the contrary to prepare his defence and hasten judicial proceedings intending an early release. By not arresting the accused in custody, the Police obstruct his timely production before the judicial authority in that case and thus delay his trial. Hence this omission of postponing arrest of the accused in custody violates his right to a speedy trial.

The Supreme Court has interpreted that this right to a speedy trial emanates from the fundamental right to life enshrined in Article 21 of the Constitution and commences from the moment the accused faces an implication. A seven judge bench of the Supreme Court, while elaborating this, stated the following:

“Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial – in short everything commencing with an accusation and expiring with the final verdict. The two being respectively, the terminus a quo and terminus ad quem – of the journey which an accused must necessarily undertake when faced with an implication.” [P. Ramchandra Rao v/s State of Karnataka (2002) 4 SCC 578 at para 1].

In all the above cited examples, such accused faced implications in Naxal crimes from the time of their initial arrest. But the Police deliberately postponed making the arrest and only did so when the under-trial was released. This deliberate postponement has caused delay of 4 to 5 years for many.
The hunt is on

‘Operation Greenhunt’ is on. Central paramilitary forces are being steadily built up in Naxal affected countryside. Infrastructure of the army and the air force is being mobilised. Indiscriminate fake encounters, rapes, disappearances, arrests are on the rise. Protests are being curbed. Any dissent or criticism is unacceptable, branded as support for Maoists and threatened with arrests under UAPA. Trade unionists, journalists, human rights activists, cultural and political activists are arrested, labelled as Maoists and incarcerated for long periods. Constitutionally guaranteed fundamental rights are under severe attack and threat.

The situation resembles that of an undeclared Emergency – a State at war with its own citizens. Violations under the garb of countering Maoism which hitherto remained confined to the hinterland, has now reached cities like Delhi, Surat, Kolkata, etc. Given the Central Government’s patronage, every State Police department is eager to show the arrest of Naxal suspects by fabricating evidence, conjuring crimes of sedition and prolonging the incarceration by re-arrests. Such strategies will enable the states to join in the anti-Naxal bandwagon, resulting in a free flow of funds and assistance.

The issue of re-arrests of the abovementioned Naxal under-trials ought to be viewed in this larger context. And hence the struggle against these violations is an integral part of the larger democratic struggle against this ‘undeclared war’ of the Government in the name of anti-Maoist operations. In this ‘hunt’, it is our fundamental rights that face threat and extinction.

– Arun Ferreira, Nagpur Central Prison
July 2010

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