Bhima Koregaon arrests: Letters can't be evidence of conspiracy till probe proves activist-CPI (Maoist) collusion
While the letters seized during the Bhima Koregaon raids, the veracity of which have to be proved in a trial, suggest alleged organisational affiliation of some of the arrested individuals, how these letters attribute organisational role of the CPI (Maoist) party in Elgar Parishad by way of which they directly provoked the violence in Bhima Koregaon as stated by the Maharshtra Police is unclear.
After the Supreme Court of India delayed police custody of the five activists till the petition questioning their arrest is heard on 6 September, the Maharashtra Police held a 50 minute press conference in Mumbai, where they released letters which they termed as 'incriminating material which proved beyond doubt that there were Maoist links to Elgar Parishad.' Elgar Parishad was a cultural convention organised by a group of 250 bodies in Pune on 31 December, 2017, a day before the Dalit community was attacked while they were commemorating Shourya Divas at Bhima Koregaon. Following the attacks, the state witnessed widespread protests and shutdown calls.
Advocate Jacob Daniel who was the Public Prosecutor in the Rajiv Gandhi Assassination case, said that he hadn't heard of a press conference like this in his experience and questioned the intentions of the Maharashtra Police for going to the press with sensitive documents when the matter is sub judice before the highest court of the country. "It is like issuing an open challenge to the apex court.
The Maharashtra Police are in contempt. Till the chargesheet is filed, these documents cannot be shared in the public domain. If the Maharashtra Police is claiming that they are basing these arrests on these letters, they are crucial to the trial and shouldn’t be in the public domain till the trial is completed. Such actions will vitiate trial proceedings." Further, Daniel said that the nature of the letters produced by the Maharashtra Police are such that establishing them scientifically in a court of law is going to be extremely difficult. "This may be the reason why they released these letters, just to sensationalize the arrests."
What Daniel is referring to as difficult is the admissibility of these documents as evidence while adhering to the provisions pertaining to electronic records set out under Section 65B of the Indian Evidence Act of 1872.
"Any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer” will be considered as a document as defined under Section 3 only if it adheres to the conditions set out under Section 65B (2). These conditions are that the information should be produced by the computer during regular use and must’ve been fed into the computer in the ordinary course of activities. The computer must’ve been operational at this point and the information used is derived or is a reproduction from the information fed into the computer.
Additionally, each electronic record needs a certificate to prove its validity which is to be issued by a forensic expert signed by a public official under Section 65B(3). "It is a complicated process. There are times when trial courts aren't equipped to look into these trials but now that the Supreme Court is overseeing the matter, they won’t be easy to evade," said Madras High Court advocate B Sivakumar.
The Maharashtra Police had used similar methods in the trial of Professor GN Saibaba, Hem Mishra and four others where the entirety of the evidence was based on electronic data from CDs, DVDs, pendrives and hard-disks seized from their residences. An 827-page judgment of the Gadchiroli sessions court sentenced Saibaba to life imprisonment on 7 March, 2017, primarily based on this evidence.
At the recent press conference, ADG Maharashtra Police Param Bir Singh had said that the hard drives were confiscated from Rona Wilson and Advocate Surendra Gadling's homes during the raids conducted on 17 April and they were sent to the forensic department. The department, according to the police, gave them cloned copies of letters on 20 April which "proved these individuals were involved in a conspiracy with CPI(Maoist) to overthrow the ruling government which included attacks on Modi." Following this, the police invoked provisions of UAPA on Surendra Gadling, Shoma Sen, Mahesh Raut, Rona Wilson, Sudhir Dawle, Milind Teltumbde, Comrade Prakash, Comrade Manglu and Comrade Deepu on 17 May. Five of them were arrested on 6 June. No explanation was given for the delay of two months in arrest, considering a threat to the prime minister was involved.
Singh said that during the arrests of 5 June, further raids were conducted and more electronic data procured. More letters surfaced. The ADGP, in his initial briefing, read out excerpts from various letters allegedly written between those who are facing arrests. These include a letter in which Sudha Bharadwaj allegedly asked for money from Comrade Prakash, Surendra Gadling and Varavara Rao discussing problems in dispensation of funds due to demonetisation, Rona Wilson’s letter to Comrade Prakash regarding weapons in which a Russian Arms Catalogue is attached, Comrade Sudarshan writing to Gautham Navlakha about using fact finding teams to further the interests of CPI (Maoist), Comrade Prakash to Anand Teltumbde about keeping the spirit of the Dalit agitation high to counter the ruling government, Miltind Teltumbde to Maharastra Zonal Committee regarding disbursement of funds by Varavara Rao and so on. The ADGP mentioned that many letters were password protected and the police were able to break these codes.
None of these above letters are pertaining to the offences mentioned in the FIR filed by Tushar Damgude on 8 January, 2018, on the basis of which arrests were made. On being asked if there is any letter suggesting direct involvement of these individuals with CPI (Maoist), the ADGP read out a letter written by Milind Teltumbde to Rona Wilson which he said was dated 2 January, 2018. This is odd as the letter starts off with the mention of a fact-finding being planned for 6 December. “Com. Manglu, Com. Deepu have been coordinating the Bhima Koregaon movement for two months with Com. Sudhir. The Bhima Koregaon agitation has been very effective, and the unfortunate death of a youth must be exploited to prepare future agitations and propaganda material.” The letter goes on to suggest how the “Maharashtra state government feels cornered because of Dalit agitations” and that they should “keep up the pressure on this issue to help take down Modi in 2019.”
Tushar Damgude’s FIR alleges that violence in Bhima Koregaon was caused by the inflammatory songs sung by Sudhir Dhawale and members of Kabir Kala Manch. It mentions that these “provocative slogans” were made to “incite disputes between two groups, impose wrong and false history” and this is suggestive of “the banned Maoist organisation (CPI) having strong organizational role.”
While the aforementioned letters, the veracity of which have to be proved in a trial, suggest alleged organisational affiliation of some of the arrested individuals, how these letters attribute organisational role of the CPI (Maoist) party in Elgar Parishad by way of which they directly provoked the violence in Bhima Koregaon as stated by the Maharshtra Police is unclear.
On several occasions, the Supreme Court has held that “mere membership of a banned organisation will not incriminate a person unless they’ve resorted to violence or incited people to violence, or did an act intended to create disorder or disturbance of public peace.” In this instance, there is hardly anything which connect those arrested to the offenses alleged in the FIR and hence the purpose of this press conference seems problematic. “The law permits expansion of the investigation to encompass developments that may be brought to the notice of the investigating officer but there needs to some connection with the principle offense in the FIR”, said Daniel.
The commonalities between both, this case and the one of Professor Saibaba's conviction, other than the method of procurement of evidence and reliance placed on electronic data, is the mention of Comrade Prakash. Eight of the letters read out by the ADGP mentions Comrade Prakash. The ADGP explained that Comrade Prakash is a senior member of the CPI (Maoist) and he communicates to ‘overground cadre’ on behalf of the Central Committee.
In the judgment convicting Saibaba, the identity of Comrade Prakash, is discussed at length. Judge Suryakant Shinde noted in para 323 that “in the present case, it is the case of the prosecution that the accused No.6 Saibaba used pseudo/alias name as Prakash, while making correspondence with the members of banned organization (CPI Maoist and RDF). Further, he states in para 335; “it is clear that Prakash is nothing but the accused no.6 Saibaba and from the contents of this letter it shows that Prakash was not well and he faced several problems due to his physical inability and it is not disputed that accused no.6 Saibaba is 90% disabled. Finally, in the operative part of the judgment, Judge Shinde concludes that “There are several letters addressed by accused no.6 Saibaba sometime in his own name and sometime by his pseudo name “Prakash” to the members of banned organization CPI (Maoist) and its frontal organization RDF.”
The letters released by the ADGP including the one’s written by or to Comrade Prakash are from early 2017 to the latest one in April 2018. Professor Saibaba, who the prosecution and the judgment made out to be senior Maoist leader Comrade Prakash has been in Nagpur Central Jail since March 2017.
Mentioning how the judgment relies completely on electronic date, Rebecca John, senior advocate and Saibaba’s counsel said, “None of the letters, which the prosecution relied so heavily on had content suggesting Prof. Saibaba’s involvement in provoking violence, nor were these letters verifiable. The location from which the letters were procured was mentioned as a hard drive or a computer but no source was provided. The IP address of the downloaded emails or attachments wasn’t mentioned. These are fundamental to admissibility of evidence but they were overlooked," said Rebecca.
For instance, the prosecution had submitted that a government appointed forensic expert had carried out the examination of electronic devices seized from Saibaba and 16 GB memory card seized from Hem Mishra by using EnCase software. The expert admitted that he did not mention in the exhibit containing seized electronic documents from Saibaba’s residence and the corresponding Section 65B certificate about the procedure followed by him while conducting tests on file system and other such tests on the data in the device. This was overlooked.
“The certificates that are supposed to accompany the electronic documents were all flawed. They weren’t filed during the time of the chargesheet and were filed much later. They also did not mention the time of seizure of the CPU’s or the hard disks. The witnesses for the Panchnama during seizure were stock witnesses, just like in the present situation. The Pune Police have taken along with them to Delhi, a set of witnesses from Pune. That is not how a Panchanma is to be drawn, the witnesses are supposed to be independent”, explained Rebecca. The conviction of Saibaba is under appeal.
In the present instance too, the police is heavily depending on electronic documents, like the letters released by the ADGP, in its investigation. “For these letters to figure in the
trial and have evidentiary value, they’ll have to they pass the numerous tests set forth by the Indian Evidence Act. Most importantly, these letters should add to the principal offense, there needs to be a connection”, says Advocate B Sivakumar.
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