Co-Written by Dr. P.S. Sahni & Shobha Aggarwal
The first part of the article (Countercurrents.org, 14.03.2017) dealt with Kobad Ghandy’s trial under Unlawful Activities (Prevention) Act (UAPA) in Delhi, during which he was detained in Tihar Jail for about seven years!; and acquitted by the court of charges under UAPA on 10 June, 2016!! Kobad Ghandy was acquitted of even being a member of CPI (Maoist).
This second part deals with the case filed inter alia under sections 10/13/18/20 of UAPA at Police Station Sadar Patiala, Punjab. Kobad Ghandy has been acquitted in this case too, on 18 October, 2016.
Before detailing the Punjab Case a few gems produced by the Punjab Police are in order.
- In the Delhi case the policemen/prosecution witness had simply done a google search on ‘Kobad Ghandy, CPI (Maoist)’ through their personal computer; downloaded contents from nine websites; self attested these documents; and produced them as evidence under the Indian Evidence Act! The court rejected these documents as evidence. Either these policemen had an IQ well below that of a congenital idiot; or were under pressure of the political establishment to frame Kobad Ghandy; or both factors operated in tandem.In the Punjab case wherein, too, Kobad Ghandy was charged under UAPA even the farce of an exercise to collect evidence against Kobad Ghandy – as was resorted to by the men in Special Cell, New Delhi was not deemed necessary!
- The Punjab Policemen/prosecution witness were not even sure as to when during April-May 2009 i.e. a period of 61 days was the alleged anti-national speech delivered by Kobad Ghandy. Some amnesia, this. Besides, he did not remember the exact words of the speech. He referred to a clean shaven person (alluding to Kobad Ghandy) speaking words against the country. This witness stated that the clean shaven person must be a Hindu. It is another matter that Kobad Ghandy is a Parsi. In any case a clean shaven person could well be a Jain, Buddhist, Christian or a Muslim; some Sikhs, too, have shorn hair. But these possibilities were not entertained by this witness. Some logic, this.
- The second prosecution witness emphasized in the court that Kobad Ghandy was talking like a communist! Since when has “talking like a communist” attracted the provisions of UAPA? What about members of the parliamentary partiesviz CPI and CPI(Marxist) who talk like communists – at least on occasions? Will henceforth these parliamentarians be charged for anti-national activities?
- A prosecution witness stated that Kobad Ghandy in his alleged speech urged that the present government should be changed; and asked people to vote for CPI (Maoist)! Is the Indian Intelligence Bureau unaware that CPI (Maoist) shuns electoral politics?
The case of the prosecution was that on 23 January, 2010 when Hardawinder Singh, PPS, DSP (Rural) along with police party was present near the main gate of Punjabi University, Patiala, he received a secret information that one person namely Kobad Ghandy “head of the activities of international, national parties”(sic) along with others from different cities were involved in unlawful activities against the country and government due to which the unity, security and sovereignty of the country were in danger. A case was registered and investigated. Statements of policemen and witnesses were recorded in January, 2010 to the effect that in the month of April/May 2009, when they went for walk on the grounds of Punjabi University then one person with shorn hair was addressing an assembly of unknown persons. In his speech he was exhorting the persons to help the Maoist Party as the main aim of the party was to dissolve the democratic government and to establish in its place the new democratic government of CPI (Maoist). During interrogation by Punjab Police on 22 February, 2010, Kobad Ghandy while lodged in Tihar Jail, Delhi allegedly admitted to delivering the agitated speech.
The charges as above were framed against Kobad Ghandy accordingly to which he pleaded not guilty and claimed a trial. The prosecution examined thirteen witnesses including police officers of the level of SP; bureaucrats viz Director, Directorate of Field Publicity, Ministry of Information and Broadcasting, Government of India, Chandigarh; official from Home and Justice Department; Manager, Special Cell Intelligence, Hyderabad. Thereafter the Additional Public Prosecutor (PP) closed the prosecution evidence by making a statement which was recorded separately.
The very first prosecution witness deposed that he could neither remember the exact words of the speech delivered allegedly by Kobad Ghandy in April/May 2009 at Punjabi University, Patiala; nor could he identify the accused amongst all the persons present in the court! The second prosecution witness deposed that the accused was talking like a communist person and saying that the present government should be changed!! This conversation took place in April/May 2009 at Mehta Sweet Shop opposite Punjabi University, Patiala where six-seven persons were sitting and addressing one of these persons as Professor Kishore ji (alleged to be an assumed name of Kobad Ghandy). The second prosecution witness could identify the accused in the court. DSP Hardawinder Singh, Investigating Officer (IO) in the case proved the documents filed. FIRs filed against the accused in Punjab, Delhi were proved by prosecution witnesses. The last prosecution witness proved the letter issued by the IG, Hyderabad to Superintendent, Tihar Jail, Delhi showing the cases registered against Kobad Ghandy in the state of Andhra Pradesh.
After closure of the prosecution evidence, the statement of Kobad Ghandy under section 313, Code of Criminal Procedure was recorded, wherein all the oral as well as documentary incriminating evidence was put to the accused. Kobad Ghandy pleaded his innocence and false implication in this case.
Kobad Ghandy’s Statement:
“I, am a Parsi and of70 years of age. I am having numerous health problems. I am deeply patriotic. I am also a journalist and have been consistentlywriting. I have lived in Mumbai and Nagpur in my entire life afterreturning from U.K. in 1972. No case was registered against me inMaharashtra till today, where I have lived my entire life. Theestablishment wanted to keep me indefinitely in jail throughnumerous false cases. I have never been to Patiala University, nordo I know anyone there. I even do not know Punjabi. I could nevereven dream of making the type of speech alleged against me inthe present case. Neither I was nor I am a member of anyterrorist gang or terrorist organization or any unlawfulassociation. I never indulged in any unlawful or terrorist activity inmy life. I have not joined any organization or political party in mylife. I am a true believer of unity and integrity of my country. I aminnocent. I am peace loving and a law abiding citizen. I have notcommitted any offence. I have been falsely implicated in thisfalse case, by the police on false allegations. Nothing wasrecovered from me in this case. The police had conductedtainted, biased and motivated investigation to falsely implicateme in the present case by introducing the false documents andby introducing false and interested witnesses. Upto the time ofmy arrest in 2009, I have been regularly filing income tax returnsand paying tax in Mumbai, having PAN No.AAEPG615IC, Ward No.22(2)(1) and have a bank account with the Vijay Bank, Santacruz(West) Branch in Mumbai. My wife (now deceased) was a lecturerin Mumbai and a Post Graduate Professor at Nagpur University. Iworked as a journalist writing in newspapers and magazines.Recently my articles appeared in Indian Express in August, 2015and on April22, 2016 on (socio-economic analysis of crime andcriminals in Tihar Jail, Delhi).”
The learned defence counsel, B.S. Sodhi argued:
- that the accused has been falsely implicated in this case;
- that the accused worked for the downtrodden and wrote against injustice;
- that the accused worked during his whole life in Maharashtra and there is not a single case against him there;
- that his main writings are on economics and real development policies;
- that in the year 1968 the accused went to London to study Chartered Accountancy and remained there for four years. He faced racism, opposed it and fought for the Indian community;
- that the accused gave up an excellent career to serve the oppressed people of his country and work for the development of the oppressed masses;
- that a case was registered against the accused in Delhi vide FIR no. 58 of 2009 in Police Station Special Cell under various provisions of Indian Penal Code and UAPA;
- that vide order dated 28 March, 2012, the UAPA charges against the accused were dropped;
- that in July 2012 when a new charge sheet was filed, then the charge only under section 20 of UAPA was framed by the court. In that case too, the accused was acquitted vide judgement dated 10 June, 2016 by Additional Sessions Judge, New Delhi District, Patiala House Courts, Delhi;
- that there is no confession in the present case;
- that no recovery of any material showing the accused as member of any banned organization has been effected;
- that no prosecution witness has deposed that the accused was delivering the speech in April/May 2009 in Punjabi University, Patiala;
- that the prosecution failed to establish when and where the previous approval of Central Government was accrued by the State Government as required under sections 42 & 43 A of UAPA;
- that the prosecution case was initiated by police, developed by police, attempted to establish at trial by police;
- that merely uttering some spurious comments against the government or against the law of the land does not alone constitute a terrorist act as per definition under section 15 of UAPA. Several Supreme Court citations were quoted to buttress this argument.
Mohammad Gulzar, Additional Sessions Judge, Patiala, Punjab considered the rival contentions of Additional P.P. for the State and defence counsel and went through the evidence on the file and law cited before the court and came to the following conclusion:
- that the incident according to the prosecution case related to April/May 2009; Kobad Ghandy was arrested on 20 February, 2010. The sanction order was given on 19 May, 2011!! Under UAPA (rule framed in 2008) the time limit for sanction of prosecution is seven working days after receipt of recommendation of the authority!!!
- that there is no evidence on the file that the accused was delivering speech against State in April/May 2009; or that the accused expressed himself as a spokesperson of a terrorist organization;
- that there is no document on the file recovered from the accused to prove that he impersonated himself for the purpose of cheating anybody;
- that mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence [Arup Bhuyan vs. State of Assam (2011) 3 SCC 377];
- that prosecution failed to establish any evidence as to terrorist activity;
- that the organization CPI (Maoist) was banned on 22 June, 2009 as a terrorist organization by Government Notification; while this case relates to April/May 2009 when CPI (Maoist) was not even notified as a banned organization by the Central Government;
- that the prosecution failed to adduce any specific evidence that Kobad Ghandy has taken part in the activity of the organization after that ban which can be identified as terrorist activity;
- that no recovery was effected at the instance of accused;
- that there is no evidence on record to show that the accused was having any link with terrorist activities/militant group; nor any prosecution witness disclosed the outcome of the investigation with Hyderabad Police nor it has been proved by any oral or documentary evidence;
- that prosecution failed to establish any activity on part of accused which can be termed as terrorist act;
- that neither directly nor impliedly any allegation raised against the accused could be established by the prosecution beyond reasonable shadow of doubt;
- Hence by giving the benefit of doubt the accused is acquitted from the charges framed against him.
Accordingly on 18 October, 2016 Kobad Ghandy was ordered to be acquitted.
The following is excerpted from Kobad Ghandy’s piece sent from Cherlapalli Central Jail, Cherlapalli, Medchal District, Hyderabad where he is currently lodged. This piece titled “Fake News, Post-Truth, Ethics and Me” appeared in the Mainstream issue dated April 1, 2017:
“When it comes to myself, when a Telangana court acquitted me of all charges (February 10, 2017), the media was silent; but when a few days later the Supreme Court refused to entertain a bail plea, it was widely covered. Worse still, the PTI report intentionally misquoted the lawyer as stating that “just because he was a member of the Central Committee, 16 cases were slapped on him….”. Where does the question arise of being a ‘leader’ of a party when I have even been acquitted of being a member across the three States of Delhi, Punjab and Telangana!! It will also not bother to report that I have spent over seven-and-a-half years in jail as an undertrial, though I am being acquitted in case after case.
Though this may result in judicial murder, due to a failing digestive system and other ailments, in the final analysis truth and justice will prevail. The post-truth practitioners, the cunning and the duplicit, the perpetrators of evil and cruelty will rot, notwithstanding the gloss that masks their sins. After all, Chanakya merely lives in the mind of the artful manipulators, while Bhakti/truth/honesty lives in the heart of the masses.”
- Judgement dated 18.10.2016 in the case titled State vs. KobadGhandy passed by MohammadGulzar, Additional Sessions Judge, Patiala, Punjab.
[Dr. P.S. Sahni & Shobha Aggarwal are members of PIL Watch Group and can be reached at: email@example.com]