National

Nimesh report and aquittals vindicate the stand of UP Government

Legal notes

M.R. Shamshad

A full bench of Allahabad High Court, Lucknow, took another serious view [after about three years of Ayodhya dispute verdict] in relation to the power and its exercise by the state government under the Code of Criminal Procedure if it wanted to withdraw the criminal cases pending in different courts in alleged “terror” cases where youths are in custody for substantially long time.

The High Court, in a PIL, has held that they cannot be withdrawn by the decision of the state government alone, without the permission of Central government, and also such withdrawal cannot be without independent application of mind and satisfaction of the public prosecutor in the case. Now at the instance of the state government, the matter has reached the Supreme Court.

The view of the High Court is based upon the fact that once the criminal case has travelled to the court, the court and its officers must have control over the case to decide its fate. Nobody can have quarrel with that proposition of law as it reiterates the principle laid down by the Supreme Court in earlier cases. However, the ultimate basis is the test of “good faith”, interest of “public policy”, “justice” and also the “material provided by the State” for withdrawal.

In these terror cases, the process of criminal justice administration, like other cases, starts with the registration of an FIR by a special team of police and upon investigation they collect the “material” and other prima facie evidence on the basis of which the prosecution conducts the trial. The concern here is that the accused have remained in jail for a period ranging between seven to 15 years. The charge sheets in such cases have been filed after long time violating the statutory period, and the trials are yet to be concluded.

The prototypes of dealing with these cases by the investigation and prosecution, where most of the accused are youth, are certainly not in “good faith” or to serve “justice” to any one.

As far as “material” to support continuance of trial and on the other hand the “material” in favour of withdrawal is concerned, we need to look at it objectively. As and when a terror act takes place, there is huge pressure of public, media and civil society upon the police to act upon. Consequentially, arrests take place. Very few detainees are let off after questioning. In the case of arrests made in such cases in the year between 1995-2010, invariably, charge sheets were filed against most of them.

We cannot also lose sight of the fact that in the recent past, in various cases relating to Mecca Masjid blast, Malegaon blast, story of Amir in relation to blasts in Delhi buses from 1996-2001, acquittal of Javed and Ashiq by a Delhi court where police has been accused of plotting and framing the accused etc., etc have created a lot of insecurity in the minds of youth (of a particular community).

 After seven to 15 years of custodial trial, if the accused are found “not guilty” -- as many have been found in various cases -- that will not serve the cause of “victim” in terror cases and certainly would be against the interests of “justice” and basic fundamental rights of the accused.

The Sachar Committee report recorded that “every bearded man is considered an ISI agent”, “Whenever any incident occurs Muslim boys are picked up by the police” etc. These findings should be seen with seriousness. Does that not reflect a seriously flawed “public policy”?

Though it very rarely happens, State of UP had constituted Justice RD Nimesh Commission under the Commissions of Enquiries Act. This commission submitted it’s report on 30 August, 2012 in relation to one of the celebrated terror cases which is also one of the cases proposed to be withdrawn by the state government. The findings of the commission are shocking. It found that one suspect, Tarique, was picked up on 12 December, 2007 while another, Khalid, was picked up on 16 December, 2007 and they were subjected to barbarous acts of torture. The commission concluded that the involvement of Tarique and Khalid in the case is seriously doubtful. Even the prosecution story of the arrest was seriously doubted. It raised questions on the conduct of the investigators.

After the publication of the report, the same Khalid was declared dead under suspicious circumstances on 18 May, 2013 in police custody, of which a CBI enquiry is on. The commission also gave 12 recommendations, including the determination of the guilt/offence of the police as alleged and thereafter punishment to them. Despite the said position, surprisingly, the District Government Counsel (DGC) had opined on 11 October, 2012 that withdrawal of that case was not in the “national interest”. The High Court took into consideration the cryptic note of DGC but did not consider the detailed report of the Nimesh Commission which was placed on record.

Before the applications were moved, the said cases were considered by the highest authorities in the state including the Committee of Law and Home Secretaries which had expressed their view in favour of the withdrawal of the cases by considering each case separately. The Advocate General also, separately, opined in favour of the withdrawal of the cases.

In this background, the elected government’s view on this issue cannot be subjected to suspicion by branding it to be a general “political agenda” or “appeasement” for political gain. Not only this, another case in the list of withdrawal included the case of Nasir Hussain, arrested in 2007, claimed to be belonging to Harkatul Jihad-e-Islami alleged to be planning a bomb blast. RDX and other items like detonators were shown to have been recovered. Nasir’s trial concluded in his acquittal. The trial concluded with the finding that Nasir was picked up much before he was shown to be arrested. The pattern is the same as concluded by Nimesh Commission in relation to Khalid’s case.

These two instances are in relation to the cases listed in the proposed withdrawal of the criminal trials by U.P. government. Both have been tested by judicial officers, one in criminal trial and another in enquiry commission.

Most of the terror cases are registered under huge public and/or political pressure to act immediately. Many arrests turn out to be wrong, evidences collected are quite frequently found either fake or inadmissible, charge sheets are awaited for long time, prosecutors never record dissenting note at the time of filing the charge sheet, meaning that they act mechanically, trial of cases prolong for unexpectedly long periods, the concept of bail in such cases is nonexistent, trial concludes in acquittal, and finally, no action is taken against the officers who framed the accused.

It is time now to look at such cases with a  different approach from the one followed until now. Even the judicial approach, in this changed scenario, needs to be objective rather than subjective. We also need a mechanism to evaluate the work assessment of the investigating officers (IO) and find out as to how many criminal trials have failed in which that particular IO had charge sheeted the accused. The Central Government also needs to consider an appropriate amendment in Sections 321 and 173 CrPC, keeping in view the assessment of the work of the IO and large numbers of trials ending in acquittal.

The author is Advocate-on-Record, Supreme Court of India

This article appeared in The Milli Gazette print issue of 16-30 April 2014 on page no. 7

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