Trial of Akshardham Attack Exposes Criminal Justice – Published in The Milli Gazette

“…we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing.”
Justices  A K Patnaik and V. Gopala Gowda
Supreme Court

May 16th (2014) was the day when the entire country was eagerly waiting for the results of the 16th Lok Sabha Election and had kept fingers crossed to see as to whether the candidate with prime ministerial ambition would get the adequate numbers to form the next Government. On the other hand, on the same day, two Judge-Bench comprising Justices AK Patnaik and V. Gopala Gowda of the Supreme Court sat at 1.30 pm to pronounce the fate of one of the most maligned set of convicts in relation to the attack on Akshardham Temple in Gujarat in the intervening night between 24-25 September, 2002. In the said incident, 33 persons had died due to indiscriminate firing by two alleged fidayeen. To control the said situation, NSG commandos had airdashed from Delhi to Ahmadabad by a special chartered flight and they had taken control of the situation by midnight.  An FIR was registered on 25 September, 2002 and the investigation was handed over to Police Inspector V.R. Tolia. Later the investigation was transferred to the ATS on 3 October, 2002.

Again, on 28 August 2003, the investigation was transferred to the Crime Branch, almost after 11 months later, at the instruction of D.G. Vanzara. The very next day, 29 August five persons, namely, Altaf Malek, Adam Bhai Ajmere, Mohamad Salim Sheikh, Abdul Qaiyum Bhai and Abdullah Miyan, were arrested. The sixth accused, Chand Khan, was brought from custody of Kashmir Police to Ahmadabad on 12 September, 2003.

In this background, the entire matter proceeded.  The Gujarat Police made a list of 376 witnesses in support of prosecuting these six persons but at the end they could only examine 126 witnesses before the Special POTA Court.  The trial proceeded and all six were declared “guilty” by the Special Court on 1 January, 2006. Three, out of six, were awarded death penalty in addition to other sentences, one received life imprisonment and others got 5-10 years imprisonment.

In appeal, the High Court of Gujarat, a bench comprising of Justices (Mrs) R.M. Doshit and K.M. Thaker affirmed the Special Court’s conviction and sentence and, accordingly, the matter reached the Supreme Court on appeal by five persons while the 6th preferred not to appeal since he had already undergone five years’ imprisonment.

Before moving to the contents of the findings of the Supreme Court, I must state that it is a matter of chance that I was sitting in the court-room at the time of the pronouncement of the judgment. For the lawyers who had defended the accused, the verdict sounded to be “simply satisfactory” because they knew the facts of the case and expected a fair pronouncement.

The Hon’ble Judges read the important parts of the 287-page judgement for about 30 minutes. I and my colleagues, present in the court-room, were “extra-ordinarily shocked” to hear the actual facts as was being pronounced one after the other. I could see in the court-room, as usual, reporters of all the major national newspapers were present, who also took note of the pronouncement but I could not find  reporting of this judgment in any major newspaper next day except in an  Urdu daily.

One of the colleagues, one year old to Advocacy, could not stop himself from putting his emotional feelings on paper which was taken by  Another, intern who had joined my chamber as trainee, was assigned to do the meticulous study of the judgment. He came under shock for quite some time and was not in a position to explain to me as to what has happened to him.

While acquitting all these accused, the Court in its judgment stated that “A careful observation of the above said dates would show that the ATS was shooting in the dark for about a year without any result. No trace of the people associated with this heinous attack on the Akshardham temple could be found by the police. Then on the morning of 28.03.2003, the case is transferred to Crime Branch, Ahmedabad. This was followed by D.G. Vanzara giving instructions to the then-ACP G.S. Singhal (PW-126) about one Ashfaq Bhavnagri (PW-50). PW-126 was thereafter made in-charge of the case on the same evening at 6:30 p.m. and the statement of PW-50 was recorded at 8 p.m., i.e., within one and a half hours. …… The courts below accepted the facts and evidence produced by the police without being suspicious about the extreme coincidences with which the chain of events unfolded itself immediately, that is, within 24 hours of the case being transferred to the Crime Branch, Ahmedabad.”

It is a matter of serious concern that the courts (including the High Court) have decided the matter of extreme sensitivity and seriousness with utmost callousness and hurry by ignoring “basic legal principles while admitting the statement of witnesses and weighing the case against the accused persons. The finding of facts (also in this case) that Police detained the innocent people much prior to the time of arrest is shown on paper, has become a matter of general routine as in this case also the accused were indicated to have been arrested much before the date of the arrest shown, i.e., 29 August, 2003.  It is important that the investigation was transferred from one set of investigators on 28 August 2003 when they had failed to collect any evidence against anyone. The reason for showing the arrest of the accused on 29 August, 2003 was obvious.  The ATS had struggled for 11 months prior to the arrest of the accused(s) and all of a sudden the mystery was resolved not due to the positive evidence collected against the accused(s) but the evidence being confessional statement of the said accused(s).

The said series of recording of confessional statements did not only relate to the culpability of Police officers but the finding of the Supreme Court Judges also indicate that it was highly improbable “that the confessional statement running to more than 15 pages could be read back to them within half an hour”.  The position prior to recording the statement, the accused(s) “were subjected to torture, they would not make a complaint before the CJM due to fear and apprehension, since they were taken back to Police custody after their statements were recorded”.

The Supreme Court, ultimately, was of the opinion that “neither the Police officer recording the confessional statements nor the CJM followed the statutory mandate laid down in POTA” and even the minimum compliance of “…presenting the accused persons before the CJM for half an hour was a mere formality to show compliance with the provisions of Sections 32(4) and 32(5) of POTA…”.

It further held that the statements made by the CJM show how casually the mandates of POTA laws were followed, rendering the said requirement a “hollow and empty exercise”.

POTA itself was a draconian law where confessional statements could become the basis of conviction and sentence. If the Police and Magistrates act in such reckless manner, where the Supreme Court has to record the finding about the working process of Police and shocking part of judicial process is a matter of concern.

Confessional statements, if made basis of awarding capital punishment to the accused, not only gives an impression that the basic humanitarian principles are given go-bye while trying to show results and to become favourite Police officers in the eyes of their political masters, who in turn, would encash the said story to achieve their higher political goals.

As a lawyer, I would lose complete confidence in the Police and to a great extent in the judicial process at the level of District Courts/Trial Courts in trial of terror-related cases in Gujarat.  There are many cases outside Gujarat where the judicial process did not allow the prejudices to dominate their function to discharge their “Dharma”.  I am conscious of the fact that I may be accused of crossing certain boundaries but the findings of Supreme Court in the present case have compelled me to think on these lines when I pass through findings of the learned Supreme Court judges stating that “The statement made by PW-51 during the cross examination along with the legal principle laid down by this Court leads us to the conclusion that there was a serious attempt on the part of the investigating agency to fabricate a case against the accused persons and frame them with the help of the statements of the accomplices, since they had not been able to solve the case even after almost a year of the incidence”.

The next process of granting sanction to prosecute under POTA, comes after huge deliberation and discussion but the sanction to prosecute in this case came without application of mind and the Supreme Court had to observe that the act “would go to show a clear non-application of mind by the Minister in granting sanction”. Therefore, the third custodian of basic human rights could also not consider to act “at least” in technically correct way as the prejudice in their minds became so writ large, none would bother to follow the law of the land.

From the chain of events, having started from 24 September, 2002 till 1 July, 2006, when the conviction and sentences were awarded to the accused, it is apparent that the three important constitutional sets of criminal justice system, i.e., Police, political representatives and Judiciary at the Trial Court level completely closed their eyes and wanted to show the results with collective efforts through by-passing the basic legal formalities to show results.

In most of the criminal cases, for a judicial mind, there are certain issues which lead to the conclusion of not proving the case beyond reasonable doubt and the accused, as a result, is acquitted.  That is not the case here which is the most disturbing factor.

The finding of the Supreme Court about the attempt to fabricate the evidence against the accused persons and the same having been ignored by two judicial authorities, including the High Court, is a matter which would go a long way.  The Supreme Court, realizing the seriousness of the application of a draconian law, has analyzed the entire facts and taken a view which is the only view that can be taken in the light of the facts of the present case.

The principle of law laid down by the Supreme Court way back in 1958, in the case of Anwar Ali Sarkar, had laid down a proposition that “in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact: Do these “laws” which have been called in question offend a still greater law before which even they must bow?”

It is not that this kind of serious irregularity has happened for the first or the last time.  POTA and TADA cases have seen so much of irregularities. Some irregularities have been corrected while  many became final for failing to go “straight into the heart of things”.

The present one is one of those fortunate cases where things have been corrected.

Upon the verdict of the Supreme Court, at least one final finding came which declared “an innocent” as “the innocent” being “convinced that accused persons are innocent with respect to the charges levelled against them”.  Not only the appellants were acquitted from all charges but the conviction of Altaf Malek too was set aside despite the fact that he had not filed an appeal in the Supreme Court.  The Supreme Court invoked its extra-ordinary power to set aside Malek’s conviction “to absolve him of the stigma he was carrying of that of a convict, wrongly held guilty of offence of terror, so that he is able to return to the family and society, free from any suspicion.”

Why one should not be proud of the gesture shown by the highest court to Altaf to uphold his basic rights as a citizen?

This article was published in The Milli Gazette.
[ Published online : 26th May, 2014 (LINK); Print Issue : 1-15 June, 2014 ]

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