How Delhi Police messed up the Kobad Ghandy case

Sending a stern message to the police on the importance of maintaining procedure especially when it comes to offences under stringent laws such as the Unlawful Activities (Prevention) Act (UAPA), a Delhi court discharged terror charges against Kobad Ghandy on the grounds that the sanction order obtained by the Special Cell to prosecute him was defective.

Ghandy was accused by the state of being a senior member of the banned outfit CPI (Maoist) and of trying to set up a base of the organization in Delhi.

The judge observed that there was sufficient prima-facie evidence to show Ghandy “was a vibrant member of CPI (Maoist)”, but said the Special Cell’s violation of mandatory provisions of the UAPA rendered the prosecution charge illegal.

It therefore restricted charges against him to offences under the Indian Penal Code that related to cheating, forgery and criminal conspiracy.

As a means of course correction, the Delhi Police has now decided to get an independent review of its investigation to correct the ‘defect’ in its sanction order.

Here’s a breakdown of the judge’s observations on how the prosecution defeated its own case on Kobad Ghandy.

Five lapses the judge pointed out in the investigation by the Delhi Police and the prosecution’s case against Kobad Ghandy

• In violation of the Unlawful Activities (Prevention) Act , the Special Cell of the Delhi Police did not have the evidence it collected independently reviewed by an authority appointed by the Central Government. Sanction can only be granted based on the recommendations of such an authority - in this case the Lt Governor of Delhi. However the sanction was granted by the Lt Governor “only on the basis of a draft charge-sheet, allegations made in FIR and other material and evidence placed on record.” The result: The judge declared the sanctions ‘not legal and not valid’.

• The Special Cell failed to note down the hash value of the electronic devices (CDs/DVDs/Pendrives/floppies) recovered during the raid on Kobad Ghandy’s house in Septmber 2009. The oversight didn’t escape the judge’s attention. “Even investigating officer had not deemed it appropriate to note down the hash (#) value of the recovered devices. It is basic rule of investigation that whenever any such device is recovered, first step is to note down the hash (#) value of the device, which rules out the possibility of any editing. But in the instant case, no such step was taken by the investigating officer, such type of lapse was not expected in such a heinous offense”, he said.

• The prosecution failed to put on record any material to prove that Francis Induwar, the inspector who worked in the Intelligence wing of the Jharkhand police, was abducted and later killed by Maoists in an attempt to compel the state or the central government to release Kobad Ghandy. The prosecution heavily relied on this incident to charge Kobad Ghandy under Section 15 of UAPA (that defines a terrorist act).

To the prosecution’s embarrassment however, the Defence relied on the Union Home Ministers statement (on 7 October 2009), where he categorically denied that maoists had demanded the release of Kobad Ghandy in exchange for police inspector Francis Induwar). The judge observed, “The investigating officer to his wisdom has not deemed it appropriate to file the copy of charge-sheet or FIR of the said case to show prima-facie that the release of accused Kobad Ghandy was the real motive of abduction and murder of Francis Induwar. Similarly, there is no evidence to show that the abductors of Francis Induwar had placed any demand of release of Kobad Ghandy either before the Government of India or the State Government.”

• The prosecution depended on other cases Kobad Ghandy is involved in – including a case in Andhra Pradesh where he is facing charges under UAPA – to make a case against him under Section 18 (punishment for consiparcy which extend upto life imprisonment). Rejecting the argument, the judge observed, “I am unable to understand how his previous acts are relevant to make out a prima-facie case under Section 18 in the case in hand….his previous involvements, for which he is already facing trial cannot be looked into to make out a prima-facie case under Section 18 of UAPA in the present case.”

• The prosecution failed to provide material to support charges under Section 13 (punishment for unlawful activity) of UAPA. The judge said, “Mere fact that someone is in the possession of any literature relating to cession or secession of territory of India does not mean that person has committed any unlawful activity unless he does any overt act. Moreover, in the instant case, learned Special Public Prosecutor failed to point out any specific literature relating to cession or secession of territory of India.”