Co-Written by Dr. P.S. Sahni & Shobha Aggarwal
In 2009, the Government of India announced a new nation-wide initiative viz. “Integrated Action Plan” (IAP) for broad coordinated operations to deal with the ‘Naxalite’ problem. This plan included increased funding for special police for better containment and reduction of Naxalite influence. Kobad Ghandy’s arrest in September 2009 was a direct fall out of this IAP.
Kobad Ghandy, born in 1951, studied in Doon School; St. Xavier’s College, Mumbai and went to London to study chartered accountancy. He often wrote in newspapers and journals. Prior to his arrest he was living in Delhi since 2006. He was said to be in charge of expanding the Communist Party of India (Maoist) [CPI (Maoist)] in urban areas. He was actually arrested days before 20thSeptember, 2009 – the date touted by the police – at the Bhikaji Cama Place, New Delhi by the Intelligence Bureau. He was illegally detained, tortured and interrogated till his formal date of arrest. At that time a T.V. news channel compared him to Lashkar-e-Tayiba founder Mohammed Sayeed; while the 2008 BBC interview quoted Kobad Ghandy:
“The first step is to distribute land to the tiller … We have a clear-cut definition of development.”
Kobad Ghandy was charged under the Draconian Unlawful Activities (Prevention), Act (UAPA) inter alia for the offences under Sections 20 and 38 of UAPA. The investigation was assigned to the then Additional Commissioner of Police (ACP) Special Cell of Delhi Police. The police raid – allegedly conducted at the premises of Kobad Ghandy – yielded a large number of books, CDs, DVDs, computer, CPU, pen drives, laptop and other material/articles. As per the Police Report submitted to the court the material contained codes, email ids and telephone numbers related to CPI (Maoist), a banned organization under UAPA. The Police Report further stated that the recovered electronic material related to Maoist activities/ programmes e.g. Kobad Ghandy’s disclosure that he had gone to Nepal to meet Prachanda! (Ironically the Prime Minister of India, Narendra Modi had met Prachanda in October, 2016 during the BRICS summit, Goa!!)
By order dated 16 July, 2012, charges as above were framed against Kobad Ghandy to which he pleaded not guilty and claimed trial. The prosecution examined in all a total of 37 witnesses including top bureaucrats, police and intelligence officers both from various states as well as Central government e.g. Deputy Superintendent of Police Intelligence; Inspector General of Police; Special Branch, Additional Superintendent Police; Secretary, Govt. of National Capital Territory of Delhi; Deputy Secretary; several Deputy Commissioners of Police. Prosecution evidence was closed on 4 November, 2015 when recording of evidence of accused was fixed for.
Ms. Rebecca John, Senior Advocate addressed arguments on behalf of Kobad Ghandy. She was assisted by Mr. Bhavook Chauhan. Rebecca John argued:
- that recoveries shown to have been made at the instance of Kobad Ghandy were planted;
- that CPI (Maoist) had actually been outlawed only on 22 June, 2009; none of the material alleged to have been recovered pertained to any period after 22 June, 2009;
- that no material is produced to show that Kobad Ghandy continued to be a member of CPI (Maoist) after 22 June, 2009;
- that heavy reliance was placed by the prosecution on digital storage devices such as CDs, DVDs, pen drives and hard drives; but none of these media/devices were sent for forensic examination to any Forensic Sciences Laboratory (FSL) to verify genuineness and authenticity of their contents;
- that no photograph or voice sample of Kobad Ghandy was obtained and sent to any FSL to establish that the voice/video footage contained in the said media was that of Kobad Ghandy;
- that unverified newspaper reports placed by the prosecution cannot be said to be evidence;
- that FIRs involving Kobad Ghandy had been placed on record to prove that he was a member of CPI (Maoist); that authors of these FIRs had not been examined; that these FIRs were thus inadmissible in evidence;
- that Section 20 of the UAPA makes punishable membership of a terrorist organization “which is involved in terrorist act”; but no evidence on record shows Kobad Ghandy had advocated any terrorist act;
- that additional charge against Kobad Ghandy was under Section 38 of the UAPA; but this Section would not apply to Kobad Ghandy since CPI (Maoist) was not declared to be a terrorist organization when he allegedly became a member;
- that the Sanction Order was declared to be illegal by the Court of Shri P.K. Jain through its order dated 28 March, 2012; and the second Sanction Order dated 28 March, 2012 could not cure the defect which was there in the earlier Sanction pertaining to Section 45(2) of the UAPA;
- that there was absolutely no time given to the Sanctioning Authority to consider any material;
- that in the absence of any valid Sanction Order, the prosecution of Kobad Ghandy for the offences under UAPA fall through;
- that the prosecution had relied on the recovery of written material and digital storage media touting it to be incriminating evidence at that time;
- that the prosecution failed to prove beyond reasonable doubt that Kobad Ghandy had led the police team to the premises from where incriminating evidence was recovered;
- that the prosecution had relied on material downloaded from the internet as evidence of association and membership of Kobad Ghandy of CPI (Maoist);
- that this material was downloaded by the prosecution and assessed from certain nine named websites which had hosted the information; servers of Internet Service Providers (ISPs) are used to host these websites on the internet;
- that prosecution had furnished signed certificates under Section 65B of the Indian Evidence Act in support of this downloaded information;
- that the prosecution witness had assessed the information by using his computer and then taking print outs of the same; the material was thus neither generated nor stored in the computer system used by the prosecution;
- that as per Section 65B(2) of the Evidence Act the information in the electronic record has to be produced by the computer from which it is retrieved; only then it is deemed a document;
- that the said electronic records relied upon by the prosecution are therefore inadmissible in evidence;
- that the prosecution witness was not competent to sign the certificates as he had no control over these websites; therefore the said electronic records are inadmissible;
- that emails attributed to Kobad Ghandy were assessed by the prosecution and relied upon to prove his association.
For the very same reasons (supra) that the Court had observed that the electronic records produced by prosecution was inadmissible in evidence, the print outs of the emails too could not be looked into or read in evidence. This was the Court’s observation. The emails were stored in the servers of the email service providers viz. Yahoo. The computers used by prosecution witness did not produce the emails, but provided access to these emails. Prosecution would therefore not be competent to give any certificate under Section 65B of the Evidence Act in regard to the emails stored in the servers of Yahoo.
The Court observed in its judgement:
“108. The task of the prosecution is to establish its case against an accused beyond any reasonable doubt. The same has been reiterated by the Hon’ble Supreme Court in several cases. In the case of Paramjeet Singh vs. State of Uttarakhand (2010) 10 SCC 439 it was held that the burden of proof is on the prosecution to prove its case beyond reasonable doubt and that the law does not permit the Court to punish the accused on the basis of moral conviction or suspicion alone. The more serious the offence, stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. In the case of Kali Ram vs. State of Himachal Pradesh (1973) 2 SCC 808 it was held that when two views are possible, one pointing to the guilt and other to the innocence of the accused, the view favourable to the accused must be taken. When Court entertains a reasonable doubt regarding the guilt of the accused, the accused must get the benefit of that doubt. In the case of Datar Singh vs. State of Punjab (1975) 4 SCC 272 it has been held that suspicion, however grave, cannot be a satisfactory basis for convicting an accused person. When the superstructure of the prosecution has crumbled, it is impossible to not give the benefit of the doubt to the accused.
- In the facts and circumstances of this case, there are reasonable doubts on the version of the prosecution on charge under Sections 20 and 38 of the UAPA. The benefit of the same will have to go to the accused. …
- Hence in the absence of any evidence in support of these charges, Kobad Ghandy is acquitted for the charge framed for the offences under Sections 20 and 38 of the UAPA.”
This judgement was announced in the open court on the 10th of June, 2016 by Shri Reetesh Singh, Additional Sessions Judge, Patiala House Courts, New Delhi.
The prosecution had submitted to the court that Kobad Ghandy had disclosed that he had gone to Nepal in 2006 to meet Prachanda, the Chief of Nepal Maoists and other Maoists leaders in Nepal. This was held against Kobad Ghandy even as he was charged under UAPA. Ironically Narendra Modi, the Indian Prime Minister had met Prachanda in October, 2016 during the BRICS Summit, Goa. Does Modi know the following facts about Prachanda?:
- That Prachanda’s Communist Party of Nepal (Maoists) declared a “peoples war” on 4 February, 1996 and started looting weapons of policemen posted in rural Nepal.
- That the Maoists started blowing up police posts.
- That Prachanda led the bloody civil war for ten years during which over thirteen thousand people were killed; over one thousand disappeared; and thousands were displaced. Prachanda still faces cases of his involvement in killings of people during the armed conflict.
- That ending his twenty-five year long underground life, Prachanda made a public appearance at the then Nepal Prime Minister’s residence on 16 June, 2006. It culminated in a 2006 peace deal. Prachanda was elected Prime Minister in August 2008; and is presently the Prime Minister of Nepal in his second term.
During Modi’s meeting with Prachanda in 2016, the Chinese President Xi Jinping was also present. Does Modi know the following facts about Xi Jinping?:
- That Xi Jinping is the General Secretary, Communist Party of China (1974-Present).
- That Xi Jinping has been referred to as Maoist both in ideological terms and in how he tries to control Chinese society.
- That Chairman Mao Tse-tung’s or Mao Zedong’s Marxist-Leninist theories, military strategies and political policies are collectively known as Maoism.
– That critics of Mao consider him a dictator who was responsible for forty to seventy million deaths through starvation, prison labour and execution.
Modi was appointed Chief Minister of Gujarat in 2001. He was elected to the legislative assembly soon after. His administration has been considered complicit in the 2002 Gujarat riots. Several scholars have described the violence as a pogrom, while others have called it an example of state terrorism.
As far as Kobad Ghandy is concerned there is not a single act of violence committed by him, yet he continues to be in custody for over seven years and continues to fight cases under Draconian laws in several states in India even as he approaches the end of the seventh decade of his life and is in precarious health.
- ‘Prachanda’s rise from Maoist to leader of Nepal’
(Judgement dated 10.06.2016 by Additional District and Sessions Judge Shri Reetesh Singh, Patiala House, New Delhi.)
- ‘Why Kobad Ghandy Should Be Released On Bail’, by Dr. P.S. Sahni, Countercurrents.org, 12.04.2016
[Dr. P.S. Sahni & Shobha Aggarwal are members of PIL Watch Group and can be reached at: [email protected]]