Honourable High Court Decides
Criminal Appeal No. 20 & No. 54/2011
By Sadanand Patwardhan
19 February, 2011
The detailed judgement of the Chhattisgarh High Court (HC) at Bilaspur in Criminal Appeal No. 20/2011 of Dr. Binayak Sen & No. 54/2011 of Piyush Guha is before me. It was shared on the Chhattisgarh Net by Vivek Sundara. There were high expectations in many quarters that HC will grant interim relief to Sen and may be Guha too by granting bail; while hearing on the overturning of conviction on Sedition & Conspiracy case proceeds at the “pace” for which Indian Judicial system is now infamous. Renowned criminal lawyer, Ram Jethmalani, offered to fight Sen’s case pro bono though he belongs to the same Bharatiy Janata Party, which rules the government in Chhattisgarh and is prosecuting the case; then EU delegation asked for permission to attend the proceedings in HC and was granted its wish; and lastly 40 Nobel Laureates in a signed letter asked for Sen’s release on bail. All these events heightened the sense of drama surrounding the appeal. But unexpected happened when the bail was denied to Sen & Guha.
The judgement first records submissions of Defence Lawyers (DL) that presumably it considers germane to the appeal in paragraphs 4 to 20; follows up with same exercise for submissions of Prosecution Lawyers (PL) in paragraphs 21 & 22, and finally reaches its conclusions over the course of paragraphs 23 to 54. All the references to paragraphs and pages pertain to the scanned copy of the detailed judgement made available by Vivek Sundara.
A] Before, one follows the flow of the judgement; it would be worthwhile to note some of the internal inconsistencies in the judgement. Some could be blamed on typographical errors, but not all.
1. See paragraph 31 (page 21) : “It is trite (lacking power) to say that for constituting the offence of conspiracy and sedition it is neither necessary that the person accused should himself be the author of the seditious material nor is it necessary that there should be actual or attempted hatred, contempt or disaffection brought or excited, by the accused himself”. This statement flies in the face of rest of the judgement where it is repeatedly held that accused need not be the author of seditious material and he himself need not have attempted or succeeded to incite hatred… for proving the charge of conspiracy & sedition.
2. Article A19 is described as booklet of ‘Communist Party of India (ML)’- see paragraph 34, page 23. Whereas same A19 is ‘Peoples March Visheshank’ related with ‘Krantikari Gorilla Yudh’ & ‘Lok Yudh’ (paragraph 36 page 25); and it reveals constitution of PLGA (criminal force) and ‘Jan Sena Gorilla Zone Krantikari Samyukta Morcha’ (paragraph 48 page 32). There are many organizations today that claim to be some variant of CPI(ML), have given up armed struggle, and now operate as ‘lawful organizations’. But terms Naxalites or Maoists, who are committed to armed struggle, are used to describe only CPI(Maoist). Such confusion was avoidable because much is held in store based on A19.
3. Sen has denied that Article A37 (‘alleged letter written by Chhattisgarh Rajya Committee – CPI[Maovadi] to Sen’)was seized from his office and it is not in the seizure memo Ex.P-20 (paragraph 35, page 24); yet it was part of charge sheet. Defence had tried to prove that copy of A37 was not received relying on the testimony of defence witness, Amit Banergee (Counsel for Sen), but he has testified that ‘virtually he has not received copy of charge sheet’; and instead Sen and his (another)counsel Kamlesh Ganjir received it. (And) ‘They have not objected at the time of filing charge sheet relating to non-supply of any document’ (paragraph 35, page 24). This contradicts the DL submissions taken on board by the judgement at paragraph 7 page 8 : ‘Copy of charge sheet was received by his counsel Mr. Amit Banerjee who has pointed out that documents A19 to A24 do not bear signatures of panch witnesses and copies of documents A25 to A37 have not been supplied to him despite the court order’.
4. In paragraph 36 page 24, the judgement states, ‘On 3-1-2006 Article A1 – one bulletin named Prabhat was found in possession of appellant Piyush Guha’. The prosecution’s case says Guha was arrested on 06-05-2007. Was there previous arrest or search made of Guha on the earlier date of 3-1-2006? There is no mention of any previous arrest or search made of Guha in the judgement. In the same paragraph it is stated, ‘This bulletin further reveals that on 6th February, 2006 members of PGLA had destroyed the vehicle…’. A question arises how the bulletin on 3-1-2006 had the foreknowledge of an event that occurred on 6th February, 2006.
5. Another article on which judgement heavily relies is A36, which is described as ‘one booklet of Salwa Judum’ – see paragraph 34 page 23. It further says this, ‘have been seized (from Sen’s home) which have been admitted by appellant Sen’. But in paragraph 7 page 8, there is reference made to article A26, which DL submits Sen received ‘in a seminar on Salwa Judum organized by Nelson Mandela Centre for Peace & Conflict resolution, Jamia Milia Islamia, New Delhi”. Now A36 & A26 look suspiciously the same because of common reference to ‘Salwa Judum’. Are they really but for the typographical error? Or are they different?
B] One crucial issue stands unresolved just on the reading of the judgement. DL had contended that ‘State government of Chhattisgarh has declared Communist Party of India (Maoist) and its six front……’ as ‘Unlawful organizations under Section 3(1) of the act, 2005 for a period of one year from 12th April 2009’ – see paragraph 18 page 15. Naturally, membership of such organizations or association with members of such organizations cannot be treated as unlawful prior to this date. Judgement says in paragraph 51 page 34, above contention of DL ‘does not appear to be sound in view of earlier Notification No. 14/2006 dated 12-4-2007 available on record’. Now, obviously these notifications are prospective in nature, and not retrospective. Therefore, notification No. 14/2006 dated 12-4-2007 has force from 12 April 2007 onwards. But almost all the “activities” by unlawful organizations referred in the judgement have occurred prior to this date.
1. 21-02-2006 : FIR as Ex.P-233 -> ‘naxalite literature and CD have been distributed in the MLA rest house situate at Raipur’ & ‘Comrade Dandkaranya Makapa Pravakta Gutsa Sendi has requested and threatened public, in that case Malti @ K.S. Priya whose name finds place in hard copy of the computer entry of appellant Binayak Sen is accused’ – Paragraph 46 page 31.
2. 10-02-2006 : Article A1 one bulletin named Prabhat in “possession of Piyush Guha” -> ‘They (PLGA)have taken upon Beladila Gunpowder Depot and killed members of armed forces…… have also taken arms and ammunition from the said gunpowder depot’ – Paragraph 36 page 25.
3. 06-02-2006 : Article A1 one bulletin named Prabhat in “possession of Piyush Guha” -> ‘members of PLGA have destroyed the vehicle of Naga Battalion by land mine and have killed nine members of Naga armed forces’ & ‘has also attacked upon Aara police outpost of Jashpur…’ – Paragraph 36 page 25.
4. 10-01-2006 : Article 36 ‘one booklet of Salwa Judum’ recovered from Sen’s house -> ‘… with the use of special bomb they have succeeded in killing one member of CRPF’ - Paragraph 36 page 25.
5. 03-09-2005 : Article 36 ‘one booklet of Salwa Judum’ recovered from Sen’s house -> ‘PLGA members have succeeded in destroying the mine proof vehicle of police, hence succeeded in killing twenty-four members of CRPF…’ - Paragraph 36 page 25.
6. 16-04-2005 : Article 36 ‘one booklet of Salwa Judum’ recovered from Sen’s house -> ‘they have also succeeded in killing seven SPOs and have further succeeded in taking 49 arms’ - Paragraph 36 page 25.
7. Since 2005 : Testimony of defence witness Pralhad Sahu (DW-1) -> ‘…Shankar Singh was working as teacher in Roopantar, but he has left his job since 2005’ - Paragraph 33 page 24.
Only two incidences mentioned are after 12 April 2007.
8. 01-06-2007 : ‘…naxalites were found in possession of dangerous explosives within the Police Station Farsegarh area’ – Paragraph 40 page 29.
9. 21-05-2007 : ‘As per evidence of Sher Singh Bande (PW-49) on 21-5-2007 at Vijay Jhadi Khedi forest, naxalites were convening meetings and dangerous arms & ammunition including bombs were found’ - Paragraph 40 page 29. This prosecution witness is identified as “Jailor” in paragraph 37 page 26. Why was the jailor in the forest? What was he doing? or How did he come to know of these activities?
C] Inadmissibility of the confessional statement made by Piyush Guha to the police as per the provisions of Indian evidence act has not found any importance in the judgement, though it is the lynchpin of prosecution case in linking Narayan Sanyal, Piyush Guha, and Binayak Sen, and thereby for proving “conspiracy”. Judgement instead avers, ‘In case of conspiracy, normally no direct evidence and direct connection of the accused with other conspirators would be possible’ – paragraph 44 page 30; and ‘In case of conspiracy direct evidence would not be possible and the court is required to consider circumstantial evidence and the circumstances exist in this case which lead to irresistible inference that the appellant along with unlawful organizations were at consensus ad idem with respect to their aforesaid acts shown to have done against the government established by law in the name of spreading awareness and opposing atrocities of men in uniform’ – paragraph 52 page 34. What is “Normally not possible” in paragraph 44 by paragraph 52 becomes more certain, “Would not be possible”. “The aforesaid acts” cited in judgement are materially antedated to the notification declaring “unlawful organizations” dated 12 April 2007 (see point B above) on which the judgement relies. Therefore, the contention that appellants were at ‘consensus ad idem’ (agreement to this same thing) with “unlawful organizations” doesn’t hold any water.
D] After stating that areas of operation of PUCL/ Sen are the same as are affected by naxalite problem and by unlawful organizations, and where resident innocent people and members of armed force/ police are being killed; there is this statement made in paragraph 51 page 34 of the judgement : ‘Appellant Binayak Sen has not made any demand to these organizations whom he has made aware from police atrocities to refrain from violence’. This statement has two operative parts : (i) Sen has not asked these organizations to refrain from violence. (ii) Sen has made these organizations aware “from” police atrocities. The implications of the second part of the statement are absolutely astounding. Is there a single instance where police or paramilitary forces have admitted that they have violently acted (i.e. committed atrocity) against innocent people? In each and every case of encounter or violence they claim that only Maoists/ naxals or Maoist/ naxal sympathizers have been killed or are affected. Would then “these organizations” need to be made aware by Sen that police are committing atrocities on them? Victims of violence always know who the perpetrator is? Or would such “awareness campaign” by Sen be necessary before “these organizations” act or retaliate violently?. Naxalites/ Maoists are known to use violence whenever and wherever they choose to and need no guidance in the matter from any quarter.
The efforts of PUCL and other human rights defenders are directed to make everyone aware of the atrocities committed across India by the coercive arm of the state in blatant disregard of laws, and to try and stop those atrocities and infringements of laws. This is also true in case of “rural areas and forests”, where the coercive of arm of the state is avowedly engaged with Naxalites/ Maoists in a bloody armed conflict. Has this resulted in causing public disorder or disturbance of law & order or incitement to violence? The answer is obviously no. This brings us to the first part of the statement. Human rights activists have condemned the violence of Maoists in the strongest of terms. There is no justification for killing anybody for any reason in true democracy that is responsive to the problems of people and their peaceful resistance. The Indian state is challenging the Maoists in an armed conflict with all its might. Also the State along with mainstream media are very ably publicising and condemning the violent acts of Maoists. Maoists do not accept Indian Constitution and the laws of the land, but human rights activists do. In fact, they respect the constitution, and want the Indian State to abide by it in letter and spirit, and also follow laws of the land, always. But they get upset when they see or find out that the government constituted by law fails to observe those very laws that it is committed to uphold. It then becomes a constitutional obligation of every citizen to check the wrongdoings of government machinery through democratic means, such as disseminating information of such failures or infringements to wider citizenry. Would such discharge of constitutional duty worthy of being labelled “sedition” or “Conspiracy”? The unlawful activities cited in the judgment have resulted neither because of the work of Binayak Sen as the office bearer of PUCL – Chhattisgarh nor due to his work as a doctor among the poor & tribals. The charge of sedition therefore cannot be said to have been proved prima facie.
E] Conspiracy angle the judgement adduces from :
1. Intimacy of Binayak Sen with Narayan Sanyal established through his thirty three (33) visits and a letter written by the latter to former. Sen visited Sanyal every time in jail. Every visit had to be pre-approved by the police. Every visit was held under strict supervision and in the presence of jail authorities under explicit instructions from superiors (see paragraph 16 page 14 – evidence of jailors and paragraph 33 page 22). If the judgement even then holds Sen guilty of conspiring with Sanyal, then logically it has no choice but to hold the “Government Machinery”, which permitted, facilitated and participated as observer in those very meetings too, guilty of conspiring with Sanyal. It would lead to an absurdity of government conspiring against itself (it does conspire against the people, but that is another matter). The only recourse left is to abandon reliance on these visits to prove the case.
2. Then, Piyush Guha was “found” in possession of “seditious” materials A1, A2, A3 (- paragraph 36 page24) and of course letters A8, A9, A10 (– Paragraph 33 page 22). There are two difficulties that cast shadow of doubt on accepting the prosecution contention in this regard as an established fact. (i) The testimony of prosecution witness B S Jagrat (PW-95)says Guha was arrested near Raipur Railway station on 06-05-2007. In a sworn affidavit submitted to Supreme Court, same B S Jagrat had stated that he arrested him from Mahendra hotel – see paragraph 19 page 15. Now, date and place of arrest in a criminal case is of utmost importance; and the trial court ignored such glaring inconsistency by accepting B S Jagrat’s explanation that it was by mistake. Why is Mahendra hotel mentioned by mistake?, the very place from where Guha contends he was arrested on 01-05-2006, and held in “illegal custody” for 6 days before “legally arresting” him on 06-05-2006 near Raipur railway station. (ii) Guha was already seized by the police according to the testimony of Anil Kumar (PW-1), when he was called to witness the search of the suspect. Therefore, his testimony that Guha was in possession of aforementioned documents at the time he was stopped by police cannot be relied upon. Guha further contends that these documents were planted on him by the police. Taking together all this evidence, it poses grave difficulties to hold possession of aforementioned documents by Guha as fact.
3. Prosecution has established through the testimony of a handwriting expert that the letters A8, A9, A10 have indeed been penned by Narayan Sanyal. But Narayan Sanyal was in jail. So how did Guha come into possession of letters written by Sanyal in jail? Since prosecution has charged that these letters were found on Guha, the onus of proving this “charge” lies on the prosecution. It failed to establish that Sen acted as “the courier” to deliver these letters from Sanyal whom he was “meeting 33 times” in jail under strict supervision because the “confessional statement” Guha made to the police is inadmissible as evidence. At trial stage, judge shifted the onus to the accused Guha of proving satisfactorily how he came into possession of letters written by a jailed person. At the appeal stage the judgement says, ‘Normally it was not possible for Piyush Guha to be in possession of such documents. But the fact remains that he was found in possession of the alleged handwritten letters written by Narayan Sanyal. Appellant Piyush Guha has not offered any explanation that how the said letters were found in his possession…’ – paragraph 38 page 28. Guha in fact had offered the explanation that “evidence of documents found on him” was tampered (paragraph 19 page 16), yet the possession of documents by Guha is treated as “fact”. Whereas through the handwriting expert Sanyal has been proved to be the author of handwritten letters, and yet curiously judgement calls them ‘…alleged handwritten letters written by Narayan Sanyal’. What is alleged? That they are handwritten letters or that they are written by Sanyal”. And if they are “alleged”, then why rely on them in the judgement.
4. Much reliance is placed in the judgement on article A19 (see point A-2 above) and A36 (see point A-5 above) that were seized from Sen’s residence. Ditto for articles A1, A2, & A3 seized from the person of Guha. All of these are considered to be “seditious material”. The mere possession of some printed material talking of naxalites and their allied organizations’ activities by two persons (see paragraph 36 page 25), who are not known to each other is construed as “acting in concert”. This would be highly tenuous surmise at best.
5. The judgement at paragraph 37 page 27, based on the testimony of some 47 prosecution witnesses concludes, ‘Shankar Singh, Amita Shrivastava & Malti @ K.S. Priya are members of hardcore naxalite group and they were in close contact with appellant Binayak Sen. In different attacks by banned organizations or unlawful organizations……’. Shankar Singh and Amita Shrivastava are said to be members of Roopantar just as Sen is said to be. Shankar Singh left Roopantar sometime in 2005 (see point B-7 above), and was not associated with it thereafter. Therefore his “association” with Sen by virtue of common membership of Roopantar predates the notification dated 12 April 2007 (see point B above) that “banned organizations” or turned them into “unlawful organizations” of which he is alleged to have become member later on. Malti @ K.S. Priya is said to be linked with Sen because her name was found in the hardcopy of Sen’s computer. Judgement mentions only one instance where a FIR has been filed against her on 21-02-2006 for distributing naxalite literature and CD at MLA rest house in Raipur (see point B-1 above). This act of hers too predates the notification dated 12 April 2007.
6. It is not possible to conclude from the reading of paragraph 37 page 27, whether Shankar Singh, Amita Shrivastava, Malti @ K.S. Priya, and one Praful Jha have been only accused of membership and participation in activities of banned or unlawful organizations, or have they been convicted of them. If it is the former, then one can only say in their regard that ‘it is alleged that…’. One wonders if such “allegations” – that is if they are simply accused of it – can be admitted as evidence in a trial?
In view of above it is highly unlikely to conclude that all the above people, but specially Binayak Sen and Piyush Guha have conspired and acted in collusion towards a common purpose.
Above analysis poses insurmountable hurdle to reasonably concur with the Honourable High Court’s judgement in denying relief to Sen and Guha by granting bail during the pendency of main appeal against the conviction by competent trial court. Had the High Court granted relief to Sen, then it would have been left with no choice but to grant same relief to Guha. Because Binayak Sen was “prosecution’s only link” between Narayan Sanyal and Piyush Guha.
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