Saibaba, Maruti Suzuki and Aseemanand rulings: Burden of ‘development’ and Hindutva

Judiciary leans to favour a corporate development narrative; NIA remains soft on Hindutva terror.

“Saibaba ko phaasi do” was the slogan that greeted members of human rights organisations from across India assembled at Nagpur on April 8, 2017, for a meeting on “Repression on Social Movements and the Judiciary”. It was a demonstration outside the meeting venue by a clutch of self-styled anti-Naxalite organisations, led by the recently formed Bhumkaal Sanghatan.

‘Mastermind’ Saibaba

The demand of death sentence was for 90 per cent disabled Delhi University professor Dr GN Saibaba who, along with four others, had just a month earlier been sentenced to life imprisonment by the Court of Sessions of Gadchiroli, Maharashtra, for membership and support of the Maoist party.

The demonstrators told the press that their demand was justified, as Saibaba was the “mastermind” of Naxalite violence.

It may seem ridiculous that anyone could think it possible that somebody who is wheel-chair bound, with full-time teaching responsibilities at Delhi, over a 1,000km away, could be the mastermind of the Naxalite movement in central India. But think again before writing this off as the fevered rants of fringe elements.

In fact, these demonstrators were only echoing the outpourings of the ANO (anti-Naxalite operations) police cell. It is the ANO that had, through a press statement within a week of the Saibaba judgment, indirectly criticised the Supreme Court for ordering the release of Saibaba, by claiming that he was the mastermind of 72 violent offences that had been registered while he was out on bail.

This mastermind storyline was widely publicised in the media. Saibaba was in hospital for most of his bail period, but no one asked the ANO how he could direct violent operations over such a distance from his hospital bed. More importantly, no one thought fit to question the police why none of the 72 FIRs registered had even named this so-called mastermind.


A fraudulent development narrative

This casual distortion of logic and truth has been a hallmark of much of what such agencies have spouted in recent years. Such stories aim at shoring up a fraudulent narrative that development – a nasty euphemism for big industry projects that displace and destroy local lives – is being held up by violent resistance devised and even directed by “white collar Naxalites” in far-off metros.

Organisations that are closely linked to security agencies would naturally be expected to remain faithful to this official “development” theme. Journalists are supposed to be more discerning, however, but even that is too much to ask of large sections of today’s mainstream media.

The problem however acquires disquieting dimensions when trial court judges start buying deep into this narrative. This can be seen in the judgment of Judge Shinde, the principal district and sessions judge of the Gadchiroli court.

The judgment seems to be gripped with a desire to see a particular type of “development” in Gadchiroli. Opposition to an iron and steel project at Surjagad is considered proof of being anti-development, and possession of a pamphlet against it is considering incriminating. Such is the judge’s fascination with this project that Surjagad is mentioned no less than 11 times in the judgment.

This despite the project itself being of dubious legality. Seventy gram sabhas in the area have voted against the project and without their approval, the project itself is rendered illegal as per the provisions of PESA (Panchayats (Extension to Scheduled Areas) Act).

Life sentence not sufficient

This however does not stop the judge from giving his understanding of development (or lack of it) a central place in his judgment. Even at the stage of pronouncing punishment, he says, at Para 1013 “…the situation of Gadchiroli district from 1982 till today is in a paralysed condition and no industrial and other developments are taking place because of fear of Naxalite and their violent activities. Hence, in my opinion, the imprisonment for life is also not a sufficient punishment to the accused (emphasis added by us) but the hands of the court are closed (sic)…”

He is so enthralled by the development narrative that he feels that the only appropriate punishment for those standing in its way is a death sentence – the only sentence harsher than life imprisonment. Since there is nothing in the charges, chargesheet or judgment that even alleges (leave aside proves) that any of the accused have engaged in violent activities, it seems that even non-violent opposition to big project “development” is a capital crime.

This bias is amply evident throughout the judgment. It ensured an undeserved conviction and an unjust sentence.

Maruti Suzuki: where unionisation becomes a criminal act

Another case decided around the same time was the Maruti Workers Union judgment decided by the Gurgaon (Gurugram) Sessions Court, Haryana. The case was vastly different and the socio-economic conditions of the two places too are vastly different – Gadchiroli is a forested, unindustrialised district, while Gurgaon is one of the most modern enclaves of the country.

However, here too the same development narrative, albeit another version, was being played out before the courts during the course of the trial.

In this case, an astonishing 148 workers had been implicated in the death of a manager who had been burnt in an unexplained fire during a protest at the Maruti Suzuki plant at Manesar, Gurgaon, in July 2012. They had all been kept in prison for long periods, many throughout the trial, which lasted four years and eight months.

Finally, 13 workers got a life sentence, 18 got imprisonment for various terms and 117 were acquitted. The workers’ actual crime was that they had formed a union of their choice and had demanded the regularisation of the contract workers in the plant.

This “crime” of fighting for their rights resulted in them being denied bail for years despite none having any previous criminal record and there being no substantial reason for keeping them behind bars. Courts at various levels who refused bail seemed to be bending backwards to satisfy big Indian and foreign corporates who wanted to crush the labour movement.

Clearing the way for foreign investors

The development narrative here was one of attracting foreign investment. It was voiced most articulately by Justice Puri of the Punjab and Haryana High Court who, while rejecting bail observed: “The incident is a most unfortunate occurrence which has lowered the reputation of India in the estimation of the world. Foreign investors are not likely to invest money in India out of fear of labour unrest.”

He thus apparently felt that it was the duty of the court to teach the workers a lesson and satisfy foreign investors so that they would be attracted to put their money in India.

Even at the time of sentencing of the workers, the special prosecutor demanded a death sentence by invoking these same words of the high court. He too, like the Gadchiroli sessions court, felt that standing in the way of “development”, here foreign investment, deserved death by hanging. Fortunately, here the court did not accede to this demand.

Nevertheless, the earnestness of the government to somehow bolster their “development” narrative by obtaining a conviction and stiff sentence was a constant pressure on the court throughout the trial. A special public prosecutor was specially appointed for this case who was assisted by a battery of lawyers, including a designated senior counsel.

The case was based on the false evidence of labour contractors, who were interested parties, interested in preserving the contract system that the union sought to abolish. The investigating police officers were in constant attendance to ensure that the witnesses were tutored to parrot before the court the stories that had been cooked up.

NIA shields Aseemanand

Contrast this with the approach of the investigating authorities in the Ajmer bomb blast case that was decided in the same week as the above two cases. Here, the prime investigating agency of the country, the National Investigating Agency (NIA), had worked to ensure that the acquittal of the prime accused and former RSS member Swami Aseemanand was a foregone conclusion.

The Swami had voluntarily confessed before magistrates to being behind a number of bomb blasts throughout the country, but the NIA did not make use of this confession at the trial stage.

The prosecutor, Ashwini Sharma, complained that the IO [investigating officer] did not come once for the hearing, even when he was called and said the witnesses are turning hostile. This attitude of the NIA seems to be their policy in bomb blast cases involving Hindutva accused, as can be seen in the disclosures in 2015 by Rohini Salian, prosecutor in the Malegaon bomb blasts case, that she had been told by the NIA to go soft on the accused.

Now the Hyderabad NIA officers who wanted to appeal against grant of bail to Aseemanand have been refused permission by their top brass in Delhi.

Thanks to the NIA, Swami Aseemanand, a self-confessed bomb blast mastermind, now roams free. Other Hindutva-inspired terror accused like Sadhvi Pragya Thakur are soon expected to follow suit.

Unlike Prof Saibaba, who opposed the displacement of the poor by big projects and the Maruti trade unionists, who stood against the contract system that foreign investors love, their terror acts pose no threat to the dominant “development” narrative of the ruling classes.

By Arun Ferreira and Vernon Gonsalves


Let justice take its course

The Gadchiroli court verdict in the Saibaba case shows disdain for established law and judicial principles.

On March 7, 2017, the Sessions Court of Gadchiroli, Maharashtra, pronounced a life sentence on Delhi University professor GN Saibaba and four others, and a 10-year imprisonment on another. Many are now questioning the wisdom of handing life sentences to persons who had no accusation of violence against them and had, at the most, been charged only with sympathising with and supporting the Maoist movement. The security agencies, in their turn, attempted to justify the court’s verdict through press statements that painted Saibaba as a “mastermind of many arsons, murders, and abductions”. The Maharashtra Anti-Naxal Operations (ANO) office even seemed to criticise the Supreme Court for granting him bail earlier, stating that “72 offences were registered during this period [when Saibaba was out on bail], which included the murder of two policemen in explosion and encounters, 15 other murder cases and other offences”.

Many in the mainstream media were quick to pick up the ‘mastermind’ angle, without pausing to ask how a person with 90 per cent disability, who spent much of the period in question in Delhi hospitals, could direct violent operations 1,200 km away in Gadchiroli.

Some did point out that the ANO statement conveniently did not specify whether the cases were registered against the professor after his release on bail in April 2016; 72 registered crimes “masterminded by Saibaba”, but without a single FIR in his name!

What’s more worrying is when trial court judges start buying into this narrative of “violent resistance directed by ‘white-collar naxals’ in far-off metros”.

The 827-page judgement of Suryakant S Shinde, the principal district session judge in Gadchiroli, displays a reasoning that runs counter to the maxim “Not only must justice be done, it must also be seen to be done.”

‘Not harsh enough’

In para 1,013, the judge says, “Hence, merely because the accused no.6 Saibaba is 90% disabled is no ground to show him leniency and though he is physically handicapped but he is mentally fit and he is a think tank and high profile leader of banned organization CPI (Maoist) and its frontal organization RDF and by the violent activities of accused nos. 1 to 6… the situation of Gadchiroli district from 1982 till today is in paralyzed condition and no industrial and other developments are taking place because of fear of naxal and their violent activities. Hence, in my opinion, the imprisonment for life is also not a sufficient punishment to the accused but the hands of the Court are closed (sic)…”

The judge makes it plain that he personally feels the accused deserved the only harsher sentence available in Indian law — death by hanging. The law restricts death sentence to only the rarest of rare cases when aggravating circumstances outweigh mitigating circumstances. Shinde, however, offers no convincing basis for his assertion in favour of a death sentence.

His mention of “violent activities of accused nos. 1 to 6” is without basis, as there is nothing in the charges, chargesheet or judgment that alleges (let alone proves) this charge against any of the accused. There is also no evidence linking the development of Gadchiroli, or lack of it, to naxal violence.

These assertions are merely the judge’s personal opinions, which have limited weightage under the Indian Evidence Act. They would, however, certainly have served to prejudice him in favour of conviction and the harshest possible sentence. This bias is also seen in the rest of the judgment, particularly during the crucial evaluation of evidence.

Rules bypassed

The case rests heavily on the authenticity of the electronic evidence — memory chips, hard disks, pen drives and the like — shown to be seized by the investigating authority. As it is easy to tamper with electronic evidence, the law is stricter on its admission. The essential requirement of a certificate under section 65B of the Indian Evidence Act has been bypassed under the pretext that “prosecution has proved beyond reasonable doubt that at no point of time there was any alternation (sic) or manipulation in the electronic data contained in electronic gadgets.”

A trial court cannot waive the statutory requirement, but Shinde just brushed it away.

Biased evaluation

Eighteen of the 23 witnesses examined were police or government officials, and most others were professionalpanchas(apanchais a person called to witness and check the truthfulness of a police action), who had been used by the police in several cases, and included one who was a home guard and another employed to clean the police station. Among the most crucial witnesses was Jagat Bhole, thepanchfor the search-and-seizure at the Delhi University home of Saibaba. Illiterate, he had been specifically picked by the police over the numerous professors and students present there at the time — possibly because they felt he would be more amenable to manipulation.

Bhole, however, told the court that “the police kept myself and Saibaba out of the house and locked the door from inside while the search was going on”. This obviously rendered thepanchnama(a record of the search) unreliable, as it violated the provisions for searches and evidence gathering.

Judge Shinde got around this by simply rejecting this part of the witness’s evidence. His logic: “It is to be noted that this witness is illiterate witness. He cannot read and write English language and his cross examination was held in whole day that too by eminent lawyer having standing practice of more than 25 years and this witness might have frightened because of Court atmosphere.”

But the judge did not use the same yardstick for other crucial evidence — for instance, the confessional statements of accused 1 and 2. Both young Madia and Gond tribals, they retracted their confession after alleging that it was extracted from them in police custody through torture and intimidation.

Judge Shinde chose to disbelieve the complaint of ill-treatment and used an unbelievable leap of logic to assert that Marathi, the language in which the confession was recorded, was known to the accused. He states that the confession was retracted through an “application in Hindi language and… accused no.1 Mahesh and No.2 Pandu also signed in Marathi language”. Since Hindi, Marathi and even Gondi (the mother tongue of the accused), all use the Devanagari script, it is meaningless to conclude that the “accused were well conversant with Marathi and Hindi” from their Devanagari signatures.

Contrast this with the confessions of Swami Aseemanand, a blast accused, that were made well after he was out of police custody and in jail. His subsequent retraction was accepted, leading to his acquittal.

Going bananas on evidence

The court uses the flimsiest of reasons to convict Prashant Rahi and Dilip Tirki. It says, “Finding of incriminating article i.e. Yatri card (Art.126) shows that accused no.4 Prashant Rahi was going from Delhi to Raipur and finding of newspaper with him which was usually used by the members of CPI (Maoist) and its frontal organisation RDF as identification code to recognize each other shows that he was going to forest area to meet underground naxals as alleged by the prosecution.”

The court arrived at this conclusion based on an article by award-winning Hyderabad journalist C Vanaja, who once reported how she established contact with Maoists by using a particular newspaper and bananas as identification codes. This article was shown to have been found on Saibaba’s computer and used as evidence at the trial — a bizarre reasoning that was considered sufficient to grant Rahi a life sentence.

Saibaba has been the joint secretary of the Revolutionary Democratic Front (RDF). In trying to establish that it is a terrorist organisation under the Unlawful Activities (Prevention) Act (UAPA), the judgment attempts to take upon itself powers that only the Central Government has. Its logic: “there is photo of accused no.6 Saibaba and there appears a meeting under the head of banner “Release all political Prisoners unconditionally”… Saibaba is addressing to the people. This shows that accused no.6 Saibaba is the active member of banned organization.”

Similarly, elsewhere it states, “Slogan “Lal Salam” is used by naxals and members of banned organisation RDF and hence it is clear that accused no.6 is a member of banned organisation CPI (Maoist) and its frontal organisation RDF and inciting the people with slogans Lal Salam Lal Salam.”

The Supreme Court has often held that the implementation of procedural provisions must be more rigorous in the case of special and stringent laws such as UAPA. In a similar case involving writer-activist Sudhir Dhawale and eight others, the Gondia Sessions Court had acquitted all on the grounds, among other things, of the non-fulfilment of provisions under the UAPA. The State appealed against the acquittal, but was rejected outright by the Nagpur Bench of the Bombay High Court. In an order passed just seven days after the Gadchiroli judgment, the HC gave prime importance to the sanction order showing compliance with the mandatory provisions of law, such as an independent review within the time limit, and that the sanctioning authority was aware of material that would constitute an offence punishable under the UAPA.

Overlooking basic principles

In contrast, the Gadchiroli court has been lenient to the prosecution, holding that the relevant sections of the UAPA were non-mandatory, and non-compliance did not vitiate the proceeding. Another important provision of law was given the short shrift.

In a criminal case, the proof should be beyond reasonable doubt — that is, no other explanation can be derived from the facts except that the accused committed the crime. A civil trial, on the other hand, simply requires a preponderance of probabilities — that is, its version of facts is more likely than not the correct version, as in personal injury and breach of contract suits.

At several points the judgment has dispensed with the principle of proof beyond reasonable doubt. On the other hand, it seems to be applying the civil trial principle in what is clearly a criminal proceeding. “According to the defence, the newspaper Sahara dated 19-8-2013 was found in possession of accused no.3 Hem Mishra and newspaper Lokmat dated 20-8-2013 was found in possession of accused no.2 Pandu Narote. This shows that accused were arrested on 20.8.2013. However, merely because the accused persons were found in possession of newspapers dated 19-8-2013 does not mean that they were arrested on 20-8-2013. According to the prosecution, newspaper is used as identification code by the members of banned organization… Hence, the version of the prosecution appears to be more probable than the defence”.

Similarly, the principle of adverse inference — “evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it” — has been turned on its head. The prosecution admitted to obtaining the CDR (call details report) of accused 1 and 2 but withheld it despite the defence asking for it to be produced, as it would prove false the prosecution’s arrest story (according to the prosecution, the accused were arrested along with JNU student Hem Mishra on August 22, 2013, from Aheri, whereas the defence contends they were picked up from Ballarshah on August 20 and their phone SIM were removed. The CDR would have settled the question and, had the defence been found right, proved the falseness of the very FIR on which the whole case is based).

Judge Shinde blames the defence for not obtaining the CDR on their own, overlooking the fact that such information can be shared by a telecom company only on the orders of a court. The judgment abounds with numerous such transgressions. The defence plans to appeal before the Nagpur Bench of the Bombay High Court at the earliest, given the fragile health of Saibaba.

Apart from his disability and cardiac and orthopaedic problems, Saibaba is suffering from acute pancreatitis, for which he was hospitalised in Delhi for four days just ahead of the judgment. Amnesty International has raised the issue of the alleged denial of medical treatment to him in jail.

Saibaba the human rights activist, however, is more pained by the misinformation shrouding the case.

In a letter to his lawyer from prison, he says, “We are deeply pained by looking at the false and defamatory and negative propaganda stories in newspapers… targeted for exerting pressure and influencing public opinion, in turn seeking to affect the legal process.”

Several civil liberties activists and organisations have raised their voice against the judgment. Two members of the European Parliament from Spain and Germany have written to the European Commission, calling for measures to ensure “all legal guarantees are respected under the highest human rights standards for him and the rest of prosecuted people”. Saibaba and his co-convicts can only hope that, whatever be the views on the bench, they will not be permitted to stand in the way of justice.

By Arun Ferreira and Vernon Gonsalves

(This article was published in the Business Line print edition dated April 8, 2017)

How Maharashtra robbed Dr Saibaba of his rights

BannerUntil police can be compelled to respect basic human rights, we will continue to remain far removed from the democracy we claim to be.

“I hope you are doing well, despite the fact that you are all in a larger penitentiary, as Uncle Sam would call it. I have been in a smaller enclosure here for the last ten months. My wish to join you back in the larger prison-house has been thwarted once again. I am sure you all understand the anxieties of your friend’s existence in the claustrophobic sealed concrete enclosure of an ‘anda cell’ behind seven heavy and gigantic gates.” Gokarakonda Naga Saibaba’s words (written over three months ago from the confines of the Nagpur Central Prison) carry that gritty tone characteristic of the man ‘guilty’ of supporting and participating in sundry issues and causes of the poor and dispossessed in various parts of the country over the last three decades.

Dr Saibaba, a Delhi University Professor in English, with 90 per cent permanent physical impairment of his lower limbs, was abducted on May 9, 2014 from a Delhi road by the Maharashtra police and has since been behind bars. His story is a telling commentary on the biases of a criminal justice system that readily releases convicted film-stars and politicians but insists on incarcerating those accused of committing the ‘crime’ of supporting or believing in thought contrary to the ruling ideology. Despite many Supreme Court rulings and the recent Kerala High Court assertion that ‘being a Maoist is no crime’, the reality is that it is just this accusation that keeps Saibaba and hundreds of others like him in prison for years on end.

Excuses for Denying Prof Saibaba his Rights


In the last thirteen months, Saibaba has had his bail rejected four times – thrice in the Sessions Court and once in the High Court. Despite his severe disability and his rapidly deteriorating medical condition, the State has not only vigorously opposed bail, but also gone out of its way to deny him proper medical care. Whenever Saibaba has applied for bail on medical and disability grounds, the prosecution has adopted the tactic of ensuring that facilities were provided in the jail when the bail application came up for hearing, but after the bail application was disposed of, those facilities are withdrawn.

It was these tactics leading to a rapid deterioration in Saibaba’s health that prompted the bench of the Chief Justice of the Bombay High Court to take suomoto cognisance of the matter and pass orders on June 17, 2015 directing that Dr Saibaba should be taken from jail to a private hospital within 24 hours and be allowed to be accompanied by his wife and brother and a court-appointed doctor, where he was to be kept for a week until further orders of the court. Despite the detailed order of the High Court, the prison authorities, under the directions of the police anti-Naxal operations (ANO) department, did not implement the court’s directions and no one except the police were allowed to be with Saibaba when, as a formality, he was taken to the hospital for an hour and returned back to jail. Though Dr Saibaba is in jail custody and the court directions were to the jail and medical authorities, it was the ANO’s Inspector General of Police, Ravindra Kadam, who was directly supervising operations and even giving medical updates to the press on behalf of the doctors. It can now be expected that the doctors’ earlier report submitted to the court, which showed he required hospitalisation, will now, under police pressure, be changed to show some miraculous recovery. The long weary battle of Saibaba to salvage his health and reclaim his liberty is likely to continue its uphill course.

His letter relates an earlier experience when the Chief Medical Officer (CMO) of Nagpur was questioned by the Sessions Court why his treatment constituted primarily of diclofenac tablets. The CMO explained that this was because all physically handicapped persons were affected by excruciating pains for which medical science had found no answers except pain-killers. All this when Saibaba was known to have a number of medical problems, including stones in the kidney, heart problems, neurological and orthopedic issues, which were continuously being aggravated by the jail conditions.

Meanwhile the prosecution sees that the trial is deliberately delayed so that Saibaba can remain imprisoned as long as possible. Aside from the first production in court, there has been no attempt to take him to court – on the plea that the police lack a low-carriage vehicle suitable for the physically challenged. This was also a reason earlier given at an earlier hearing for not even taking Saibaba to the hospital, until a strict order from the court forced the authorities to bring such a vehicle, which had always been in their possession.

Have your say. You can comment here.The High Court is now seized of the matter and has again on June 22, 2015 taken serious note of non-compliance by the state of its earlier directives and has passed further orders in this regard. But for a Dr Saibaba, long languishing in Anda dungeons, this perhaps would bring scant comfort. One could not fault him if he were to be a bit cynical of the outcome of such orders – he has after all seen the casual contempt with which the authorities have treated many such judicial orders thus far. Until ways can be found to compel the police to respect basic human rights and the rule of law, we will continue to remain far removed from the democracy we claim to be.

By Vernon Gonsalves and Arun Ferreira

Plants, frames and false implication

 />Laxman Jangu Madavi was one of the many young Gond tribal men and women charged with 'terrorist' crimes whom we met while we were incarcerated in Nagpur Central prison. Brought in from villages of the

Laxman being the silent stoic type it took some days after he came to jail for him to come out with his short and simple story. It seems he had had some earlier relation with the Naxalite movement and had gone before the police to give himself up. The police however, despite all government proclamations to the contrary, did not need surrenders. They preferred to show capture, with associated narratives of bravery and claims of awards. So they detained him for ten days and then cooked up a story of a chase in the jungle and arrest of Laxman Madavi, a “dreaded terrorist”; they showed seizures of a gun, cartridges and explosives and prepared a report of an offence and registered an FIR. When shown to be arrested and produced in court, Laxman had no idea of this “crime” he was supposed to have committed. It was only when, some months later, he was served a copy of his chargesheet that he came to know of this fantastic story. This was in 2008.

Almost six years later, in fact just a few days ago, Laxman was acquitted by an Order the Nagpur Bench of the Bombay High Court dated 23rd July, 2014. Since the only “witnesses” to his “chase and capture” were police personnel, and since the trial court had believed their story, Laxman had been convicted. It was only after appeal to the High Court, that the High Court judge managed to catch the apparent lies of the witnesses. He ordered Laxman’s acquittal stating, ‘The plea of the appellant that he had surrendered before the Police and he has been implicated in a false case later on cannot be rejected in view of the unreliable evidence of the prosecution witnesses.’ width=

But this recognition that Laxman had been implicated in a false case came a bit late. He had already served out his prison sentence. The only purpose left in the judgment was to clear him of the stigma of conviction.

Similar is the case of Bamu Deva Micha, whom we met in jail in 2010 as an ever-smiling teenager. An orphan, he had been left to shuttle from one relative to another throughout his childhood. On one such trip he was accosted by a police squad, who not only arrested him and showed a muzzle loader gun to be seized from him, but also made up a story that he had fired on them from it, thus accusing him of an attempt to murder them. He too was convicted by the Sessions Court and was only set free by the High Court.

In his case, the High Court Judgment dated 10th July, 2013 observed that, ‘The weapon appeared to have been planted on the appellant.’ Analysing the evidence of the prosecution, it pointed out that it ‘gives clear impression that the appellant has been framed in this case.’ It concluded ‘The loopholes found in the prosecution case make it certain that the prosecution case is manipulated against the appellant and he has been framed in this case.’

If you feel that the cases of Laxman and Bamu are exceptions and framing and false implication do not generally take place, you can think again. Some of the biggest criminal cases in recent times have seen the investigating agencies fabricating and concocting evidence to falsely implicate innocent persons. Well-known is the case of the 26/11 attack on Mumbai, where an attempt was made to fabricate evidence to implicate two accused, Fahim Ansari and Sabauddin, for conspiracy in the attacks. This evidence was rejected at the Sessions Court itself and confirmed by High Court as well as the Supreme Court.

Three months ago came the Supreme Court Judgment dated 16th May, 2013 in the case of the attack on the Akshardham temple in Gandhinagar of September 2002, which not only acquitted all the accused, but also found that the whole case against them was fabricated and concocted. It stated, ‘…we fear that the story against the accused persons and its corroboration through the statements of accomplices is an act of concoction to make up a case against them’, and it concluded that ‘…there was a serious attempt on the part of the investigating agency to fabricate a case against the accused persons and frame them with the help of the statements of the accomplices, since they had not been able to solve the case even after almost a year of the incidence.’ [Para 96]. It took note of ‘the perversity in conducting this case at various stages’ [Para 131] and expressed anguish over the way in which ‘the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing.’ [Para 136]


The conclusions of the Supreme Court thus mean: The Akshardham accused are innocent. They spent almost eleven years in jail for no fault of theirs. They suffered because the police framed them just to create a false impression that they had solved the case.

This also means that the real conspirators were never identified. It is now almost twelve years after the attack and the investigation has been buried. There is thus almost no possibility that the actual perpetrators will ever be known.

Fabrication and false implication is thus a very serious crime. One would expect that the guilty officers would be penalised. But there has been no significant case where such officers have been even probed or prosecuted, leave aside punished.

By Vernon Gonsalves and Arun Ferreira.


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