COMMENTARY

To a layperson, the image of a criminal The Haren Pandya Judgment: investigation comes from watching films and television. While investigators are Dissection of a Botched usually portrayed as sleuths who can fig- ure out the clues and catch the culprit Investigation with one breathtaking deduction after an- other, there is another genre of cinema, especially in Hindi cinema, where the in- Sarim Naved vestigators are portrayed as being clumsy and unfortunately buffoonish. This case The acquittal of the 12 accused he Haren Pandya murder case, brings the latter image to mind. in the 2003 murder of Gujarat which attracted a degree of cover- The case made by the prosecution is as Bharatiya Janata Party leader Tage and scrutiny owing to the high- follows: Haren Pandya left his house on the profile status of the victim who was a senior morning of 26 March 2003. He was going Haren Pandya brings out all that leader of the state unit of the Bharatiya Ja- to the Law Gardens in Ahmedabad for his can go wrong in high-profile cases nata Party and earlier also a minister in morning walk, and he took his car, a white where “terrorism” is invoked to the state government, serves as a reminder Maruti, to go from his home to the Law convict those who are rounded up of many fundamental facts about our Gardens. As he reached his destination criminal justice system. and parked his car, a man came and shot for a criminal act. Investigation First, the Gujarat High Court’s acquittal him through the window of his car. This and prosecution end up becoming of all the accused is a strong statement window was partially open, and five shots an exercise to prove a theory, against the existing investigative tech- were claimed to have been fired at Pandya not necessarily to find out the niques where scientific and technological who had been driving the car himself and scrutiny is ignored in favour of unreliable was alone in the car. The prosecution claimed truth. Even if a reinvestigation is witnesses and so-called confessions. to have an eyewitness who could testify to ordered of the Pandya murder, ­Second, it is a reminder that laws like the seeing Mohd Asghar Ali (Accused No 1 in it is now unlikely that the guilty Prevention of Terrorism Act 2002 (POTA) this case) shoot Haren Pandya. The inves- will be brought to book. can have a dangerous effect on the admin- tigators then figured out that there were istration of justice by allowing investiga- 11 other individuals who had been part of tors to become complacent and theorise this conspiracy and arrested them as well. on the basis of insufficient information A straightforward case as it stands, but and (often forced) confessions instead of one that turned out to be completely at seeking actively and persistently to find variance with the evidence collected. out what really happened. Third, it affirms the fact that public safety as well as state Lapses in Investigation security cannot be assured by a system First, the Central Bureau of Investigation which takes eight years to exonerate 12 (CBI), which was drafted in as the investigat- persons of the crime of murder, for the ing agency for the case, failed to examine simple reason that this delay has ensured Pandya’s wife and the members of his that the real culprits are now hardly likely family to ascertain the simple fact of the to be identified. time at which he left his home. This became In the words of justice D H Waghela, who crucial when the eyewitness, a small vendor spoke on behalf of a Gujarat High Court operating from a handcart nearby, made a bench consisting of himself and justice number of self-contradictory statements in J C Upadhyaya (in para 23 of the judgment). his deposition before the trial court. He was confused about when he saw the car What clearly stands out from the record of the present case is that the investigation in the coming, about the details of the shooting case of murder of Shri Haren Pandya has all and could not explain satisfactorily as to throughout been botched up and blinkered when his statement was finally recorded. and has left a lot to be desired. The investi- The police personnel present on the day of gating officers concerned ought to be held the incident and later the CBI also failed to accountable for their ineptitude resulting into injustice, huge harassment of many persons produce records of Pandya’s phone calls Sarim Naved ([email protected]) is a concerned and enormous waste of public re- on that day which would not only have Delhi-based practising lawyer. sources and public time of the courts. provided evidence of his movements but

10 september 17, 2011 vol xlvI no 38 EPW Economic & Political Weekly COMMENTARY would also have helped them to figure out untenable and, indeed, impossible. Further, invoked, all the accused confessed, only to the time of death by ­ascertaining the time the forensic team which ­examined the spot retract later. The high court has noted in at which he stopped answering his phone. found no traces of cartridges near the car and its judgment that some of the accused had Of course, the accused might still have been no traces of gunshot residue on the car. Un- only confessed to the conspiracy regard- convicted if the CBI had been able to link less the assailant carefully cleaned up after ing the attempted murder of Jagdish the accused, at the very least, to the scene himself, this would not have been possible. ­Tiwari, but such confessions were also of the crime. A perusal of the judgment, Further, the number of bullets fired by the sought to be used for the Haren Pandya however, shows that the forensic evidence assailant did not match with the number murder. It was observed by the high court collected actually proved that the sequence of injuries. To add insult to injury, even the that the alleged confessions clashed with of events suggested by the prosecution bullets that were examined by the ballis- the other evidence on record, as far as could not possibly have happened. tics ­expert did not match with the bullets the main accused were concerned. Apart that had been ­extracted from the body. from this, those who were convicted as The Curious Incident of Injury No 7 co-­conspirators and against whom there Different witnesses have testified that the Confessional Statements was no direct evidence in the first place, window on the driver’s seat was open, but The prosecution’s evidence having been had allegedly confessed that they had only to a slight degree. Witness statements disproved, the only factor left in favour of the participated in the conspiracy as Pandya range in their estimates, but the version prosecution was the confessions recor­ded had led a mob in the 2002 riots and had accepted by the trial court was that the by the accused. The appeal in the high court attacked a mosque. Regarding this facet, window was open a little, almost “to the against the sessions court judgment did not the high court has observed (in Para 17.3): measurement of a palm”. This became a deal only with the Haren ­Pandya murder There was no material whatsoever to sub- crucial factor because, as per medical evi- case, it also dealt with an attempt on the stantiate that Shri Pandya had, in fact or in dence, one of the injuries to Pandya could life of one Jagdish Tiwari, some 15 days perception of the victims of riots, played a not have happened unless he was shot prior to the murder of Pandya. Jagdish leading role in the riots or caused in any way demolition of any masjid. Therefore, the ob- from a level below his waist. This was Tiwari, a Vishwa Hindu Parishad leader in ject and intent of taking revenge and strik- injury No 7 which was described as Ahmedabad, was fired at on the morning ing terror through his murder was provided

External injury No (7) has passed through of 11March 2003 but he managed to survive with no basis except the dialogues narrated skin, subcutaneous tissue, muscles, left testis the attack. He identified Asghar Ali and in the confessional statements. and has entered abdominal cavity through Mohd Shafiuddin (Accused Nos 1 and 3 in pelvis from left lateral of urinary bladder. Bul- Conspiracy and let has found peforated coils of small intes- the Pandya murder case) as the persons tine, ascending colon and has passed behind who had come into his shop and shot at him. the Jagdish Tiwari Case liver through posterior aspect of right ab- Both these cases were handed over to the As such, all the accused were acquitted on dominal wall from 10th intercostal space and CBI for investigation. After these cases were the charge of murdering Pandya and con- is found lodged in chest muscles on back of right chest at 4th-5th ribs region. Vessels and brought under the purview of POTA, the spiracy and abetment thereof. How­ever, other tissues coming in plane of bullet are confessional statements of the 12 accused they were all convicted for the attempted lacerated and ecchymosed. Track of bullet is were recorded. Unlike under general murder of Jagdish Tiwari and for ­conspiring directed upward, slightly right and backward. criminal law, special statutes like POTA (and and abetting that offence. The high court Regarding this injury, Pratik Patel, head the earlier Terrorist and Disruptive Activities has, however, clarified that this conviction of the forensic medicine department at (Prevention) Act as well as the current is not based on merits but based on a con- V S Hospital, who had examined ­Pandya’s Maharashtra Control of Organised Crime cession from the lawyers for the accused body, had this to say in his cross examination, Act) allow for confessions recorded by senior that they would not press their case 160 Q: What is your view with regard to the police officers to be considered admissible if the appeals were partly allowed on merits injury No 7? evidence. The accused in these cases almost so as to set aside conviction for the offence A: In this case, track of the bullet was direc­ted always “confess” to police ­officers and under section 302 of IPC and the sentences upward, slightly right and backward. It depends were reduced accordingly, the appellants on the position of a person, whether standing, then retract them at the first opportunity. would not and do not insist upon acquittals or sitting or inclining. In this, weapon should be on However, these confessions if they are decision on merits regarding convictions for front, slightly left at the level below the scrotum. improperly recorded, or if they are in any the other offences (Para 6 of the judgment). 164 Q: With regard to the Injury No 7, irre- way contradicted by the material on record, In response to this, the high court spective of the position of the victim, sitting or standing, the assailant will have to be in lose their evidentiary value. This is a cycle ­accepted this concession observing, in front left and beneath? regarding police confessions that has held paragraph 23 of the judgment, that A: Yes. true for the last 25-odd years since TADA In view of the concession made for the ap- The clear and inescapable conclusion was legislated. Although a ­basis for con- pellants, as recorded in para 6 herein, and in from this opinion is that unless the assailant viction in certain cases, the confessions view of the voluminous record and number of pushed his arm through the window, which are widely distrusted as far as their value controversies about each piece of important evidence, it was found to be unnecessary to was open for only a few inches, and shot as conclusive evidence is ­concerned. deal with and discuss each and every argument Pandya from under his seat (a physical The same thing happened in this case addressed by learned counsel on both sides. ­impossibility) the prosecution case was as well. Once the provisions of POTA were However, it is clarified that we are unable

Economic & Political Weekly EPW september 17, 2011 vol xlvI no 38 11 COMMENTARY

to endorse the general conclusions drawn in suggest that any such conspiracy existed. governance itself. In such cases, to allow para 32 of the impugned judgment… As far as merits of the Tiwari case are for the investigating agency to enjoy longer As the last line in this extract mentions, concerned, as pointed out above, the high periods of police custody as well as the abil- the contents of paragraph 32 of the trial court has hinted that it is not convinced ity to record confessions (both are ­features court’s judgment have not been accepted about the terrorist conspiracy which the of the erstwhile POTA, while the provisions by the high court. Paragraph 32 of the trial prosecution had alleged in both these for longer period in police custody exist un- court’s judgment details the court’s con- ­cases. Pursuant to the concession made by der the Unlawful Activities Prevention Act, clusion that there was a clear pre-planned the lawyers for the accused and accepted which is the current ­national anti-terror conspiracy to commit terrorist activities by the prosecution, while most of the ac- law) is to offer to them a great temptation. within Gujarat and to specifically target cused were released after their prison sen- Investigation and prosecution end up BJP and VHP leaders. It is extremely signifi- tences had been reduced to the sentence becoming an exercise to prove a theory, and cant that the high court has said what it already undergone, accused No 1 Ali ­Asghar not necessarily to find out the truth. Even if has, that there really is no evidence of such has to serve two more months of his reinvestigation of the Haren ­Pandya case is conspiracy. Apart from the confessional sentence while two others remain in jail ordered today, it is extremely unlikely, giv- statements of the accused persons, which serving a life term in another case. en the passage of time, that the real culprits of course have been discredited thoroughly, Cases which involve terrorist activities can be brought to book. What we need is the prosecution did not bring a shred tend to attain a political hue. Success or not harsher laws but better trained and mo- of evidence before the court that would failure in these cases is seen as a test of tivated people to enforce our existing laws.

being promoted to a cabinet position in The National Environment the ­Ministry of Rural Development and a “relative novice”2 Jayanthi Natarajan re- Assessment and Monitoring placing him. Also, interestingly, not too long back, another branch of the govern- Agency: A Step Forward? ment – the judiciary – expressed need for a similar ­institution.3

Shibani Ghosh Questions The timing of this announcement lends The Ministry of Environment and uring an international conference ­itself to many alternative explanations – is Forests’ initiative to set up an on environmental law held in this to appease the industry faction that is independent environmental D­Delhi recently, Prime Minister blaming the environment ministry for Manmohan Singh announced that the slow growth and disincentivising foreign regulator is a positive one and government is planning to set up an inde- investment? Is this a response to the large- acknowledges the problems in the pendent environmental regulator, which scale public opposition to projects such as current system of regulations. Yet, would “lead to a complete change in the in the case of POSCO’s steel plant? Or is it a perusal of the proposal suggests process of granting environmental clear- to pacify members in the coalition union ances” and “staffed by dedicated profes- government and other state governments? that it has a number of limitations sionals, it will work on a full-time basis to The pressures on the government are and therefore has to be rejected. evolve better and more objective stand- significant, arguably, because they would But it is equally important that ards of scrutiny” (Press Information affect any analysis that is undertaken of the viable alternatives to the proposed ­Bureau 2011). Manmohan Singh was refer- existing environmental governance system ring to the National Environment Assess- and also define the nature and ­extent of agency are actively constructed. ment and Monitoring Authority (NEAMA) the proposed changes. For ­instance, if the that was proposed by the Ministry of Envi- government wishes to change the current The author is grateful to Navroz Dubash for ronment and Forests (MOEF) and has been environmental clearance process because his guidance and insightful comments and to on the drawing board since November it seems to make for a lengthy and uncer- Bharath Jairaj, Kanchi Kohli, Ritwick Dutta 2010 (MoEF 2010a). tain route for businesses, then the new in- and Manju Menon for stimulating discussions and comments which helped in writing this The prime minister’s announcement stitution it proposes will address a very article. All errors and omissions are my own. follows a string of controversies relating to different set of ­issues than an institution Shibani Ghosh ([email protected]) approvals for high profile infrastructure created to respond to issues of systemic is with the Centre for Policy Research, projects in the country.1 It comes soon failure in environment impact assessment New Delhi and also a practising environmental ­after a change of guard at the MOEF, with and public partici­pation in decision-making. lawyer with the Legal Initiative for Forest and Jairam Ramesh, who was at the helm At the same time, institutional design can Environment, New Delhi. of affairs during the recent controversies, affect ­centre-state relations if it causes a

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