Disillusionment On Rise With Acquittals In Terror Cases
BY Adv. Masood Peshimam:-
Prime Minister Modi said that guilty would not be spared but the ground reality is different in our country. The way the accused are set free in the Mecca Masjid blast case, the setting free of Maya Kodnani, an erstwhile minister in Modi cabinet in Gujarat then and the earlier bailing out of Sadhvi Pragya , Colonel Prohit and others in Malegaon blast give the impression that the season of acquittals has come. The prospect of certain set of accused walking free has brightened with the Modi Government at the Centre. They cannot be defined as saffron terrorists as if the radicalisation and terrorism are only confined to Muslims. Only the Muslim terrorists are acceptable in day today parlance. The concept of terrorists other than Muslims is not only discarded but treated as offensive.
One of the latest acquittals in the season of acquittals is the Mecca Masjid judicial outcome.
It was eleven years after a bomb ripped through Mecca Masjid, killing nine people, the NIA Special Court acquitted all the five accused in a much awaited verdict in a packed Court room.
Now the 2007 bombing remains a terror mystery with two premier agencies, the Central Bureau of Investigation and the National Investigation Agency failing to gather evidence to nail the accused.
The operative portion of the judgement was read out by the Fourth Metropolitan Session’s Judge, Ravindra Reddy, declaring acquittal of all five accused Swami Assemanand, head of the Kalyan Ashram, RSS Vibagh Pracharak Devendra Gupta, RSS karyakarta Lokesh Sharma, Hindu Vichar Manch member Mohanlal Rateshwar and Rajedra Choudhry, a farmer. Nine people died in the May 18, 2007 blast and another five were killed in police firing.
The judge said that he had carefully examined documents and material evidence placed on record and declared none of the allegations could be proved against any of the accused. “Hence all five accuses stand acquitted”.
Surprisingly the special NIA judge Ravindra Reddy resigned just hours after pronouncing the judgement. In the Mecca Masjid blast case, a decision which astonished many and there is a lot of speculation about the possible trigger. It is said that Additional Metropolitan Session Judge, had cited personal reasons in his resignation letter. The judicial officer who was on the verge of superannuation proceeded on 15 days leave. The abrupt resignation triggered the backlash that there was the Corruption complaint pending against him in the High Court. It’s necessary on the part of those on the high pedestal to see that no opportunity is given for their dirty linen to be washed in the public.
The abrupt resignation of the Session Judge Ravindra Reddy smells something fishy. There is the procedure to give three months’ advance notice before leaving the service. The immediate withdrawal of service that too after pronouncing the Mecca blast verdict is a matter of deep concern and invited all sorts of speculations.
Even before the speculations died down the Session Judge Ravindra Reddy requested the Hyderabad High Court to allow him to take voluntary retirement apparently to avail the retirement benefits.
It’s not understood as to what made him resign and resume the services. However notwithstanding the reasons for doing so the entire scenario looks to be fishy.
While Session’s Judge Revindra Reddy’s resignation and resumption of service is a mystery no less mysterious is the course of investigation and the judicial outcome.
It was after the blast Hyderabad police launched the probe and arrested several Muslims suspected to be Huji operatives. The story of the Huji members clandestinely operating in the country ended with the installation of the new government of Sheikh Hasina in Bangladesh. The story of Muslims planting the bomb in the Masjid was not digestible. There was much of the move to falsely implicate the Muslims all over the country in the Congress rule which was seen as politically motivated and governed with the vested interest. Despite huge outcry against the false arrest of Muslims in the terror cases there was no restraint over the same. To add fuel to the fire the media was no less active in spreading the cock and bull stories.
It’s not understood why the Muslims were to make the Mecca Masjid in Hyderabad a theatre of violence and kill their own brothers. It’s not understood why the Muslims in India would bomb their own mosques and shrines. There is no sectarian clash or sectarian extremism among Muslims in India to attract such worrisome development.
In the midst all this murky scenario there occurred another dimension to whole story of Mecca Masjid blast. It so happened that Swami Assemanand, an accused in the Mecca Masjid blast came in close contact with one Kalim Shaikh in the jail. He was so impressed by the cooperative character of the accused Kalim Shaikh that he decided to make the confessional statement. The story has already come in the media.
Hence Swami Assimanand made the confessional statement before the magistrate under 164 of CRPC which is admissible in contrast with the statement before the Police officer not admissible u/s 161 of CRPC.
It is significant to note that any such confession shall be recorded in the manner provided in section 281 for recording the examination of the accused and shall be signed by the person making the confession and the magistrate shall make a Memorandum at the foot note of such record to the following effect ….
“I have explained to [name] that he is not bound to make the confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him.
It is the discretion of the Court to take cognisance of the judicial confession. The word may be used in the memorandum at the footnote defines the discretion of the Court and all the precautions are taken to avoid an element of pressure.
With reference to the withdrawal of the confessional statement or the retraction of the confessional statement of Swami Assemanand it can be said that it was made after a long time and there is no police complaint against the CBI for the pressure exerted over Swami Assimanand as alleged by him. Swami has never made any allegation to this effect to any competent authority.
In the circumstance advocate Abu Zaid practising in Mumbai Session Court said that a retracted confession can form the basis of conviction if the Court is satisfied that it is true and has been made voluntarily. It is neither an inflexible rule of law nor practice nor prudence that in no circumstances the conviction can be made on the basis of the retracted confession without corroboration.
The question of corroborating the retracted confession with the other evidences does not arise as the retracted statement was accepted by the Court.
It’s not the question of the withdrawal or the retraction of the judicial confessional statement alone but the scenario has emerged that a plenty of witnesses turned hostile in the Mecca Masjid case and the Sohrabuddion case in which BJP President Amit Shah is an accused.
The witnesses turning hostile around 64 in Sohrabuddin case and a plenty of them in Mecca Masjid blast case appear to be the mockery of justice. A plenty of witnesses turning hostile is a sorry state of affairs in our Justice System.
It’s reflection on the functioning of the prosecution and fractures the credibility of the prosecution. The question arises as to how the weak and vacillating witnesses are produced in the Court and saddening it is to note that there is no sense of accountability in the bleak scenario. With such scenario continuing unabated we have made our Justice System laughing stock before the world.
In the case of the retraction of the earlier judicial confession and the witnesses turning hostile the question arises as to what about the earlier statements. It implies that the earlier statement was false and lacking in strength. Hence it is relevant to quote section 191 of IPC which says
“who ever being or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject , makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give a false evidence”.
Then there is a punishment for false evidence in section 193 of IPC which may extend to seven years and shall also be liable to fine.
Those giving false statement earlier in the case of Swami Assemanand and the Sohrabuddion case in which Amit Shah is allegedly involved and the retraction of swami have come to stage where there is an unbridled flouting of law, justice and fair play. Would such degeneration be restrained by any judicial corrective measure?
The Court is to see that what pressure is applied over the witnesses turning hostile and retraction of the judicial confession. It is many a time the witnesses turn hostile out of deep fear to their lives. The instances galore. Hence the protection of the witnesses is all the more necessary.
The terror investigations are not free from flaws and foibles . That apart the people fear to critically analyse the judgements due to the Contempt of the Court. In the circumstance the Contempt of Court needs some relook but that is another subject.
With the accused left scot free in the terror cases there is the diminishing sense of accountability on failure of the investigative agencies. With the prejudice operating at the different layers of decision for many a time to pin down the real culprits is too blatant to ignore. What is no less sickening is the political interference in the different components of the Government which claims its own toll.
To achieve justice it is necessary to see that the investigative agencies handle the cases without an iota of bias and prejudice and no political interference is made to erode the independence of judiciary. Otherwise the disillusionment with the justice system is on the rise in our country. One Urdu couplet explains the current murky scenario,
“mai kis ke hath pe apna Lahu talash karun
Tamam sheher ne phene hue hain dastane”
[On whose hand do I search the stain of blood
Worn are the hand gloves by the entire city].
Justice can only be ensured with the independent judiciary and unbiased investigation.