CHAPTER 4

IDENTIFICATION OF WRONGFUL IN – AN ANALYSIS OF SELECTED TERROR RELATED CASES

4.1 Victimization of Wrongfully Prosecuted- A Failure of Indian

Criminal Justice System

Persons identified to last being wrongfully convicted through post-conviction DNA analysis gets wasted even after 14 years in jail. The anguish of being in jail due to wrongfully convicted and the comprehensive loss of liberty are only incorporated by the thoughts of anything may have been there, then the wrongly awarded conviction. Expelled for years of folks and relatives and the competence to skill oneself competently, the frightening beliefs do not end upon independence. With no money, housing, conveyance, comfort amenities or coverage, and a negative identity record that is rarely cleaned despite innocence, the charge of being accused lingers even after . State has an obligation to restore the life of the ones who are wrongfully convicted.

Ensuring protection of an individual in the criminal justice system law and order are integral parts of a civilized society. It is the responsibility of the state that an effective criminal justice system is maintained in order that we maintain law and order.382 If a person is wrongfully convicted, then it is only an indicator of the state' s failure in that responsibility. There is intrinsic in this duty the responsibility to bring the wrongfully prosecuted to justice as much as offering redress to the victim. You will appreciate that the victim of wrongful conviction suffers two ways in the criminal justice system.383

382 GOULD, J. B. , & LEO, R. A. (2010). CENTENNIAL SYMPOSIUM: THEN AFTERWARD A CENTURY OF CRIMINAL EQUITY. NORTHWESTERN UNIVERSITY, SCHOOL OF LAW DIARY FOR & CRIMINOLOGY, 70 100(3), 825-868. 383 BANDES, ENCOUNTERED WITH URBAN DECAY BECAUSE OF DEINDUSTRIALIZATION, INNOVATION DEVELOPED, GOVERNMENT LODGIN. AN. (2009). SECURING THOSE PURE AS THOSE ESSENTIAL QUALITY OF THE CRIMINAL JUSTICEFRAMEWORK. THE OHIO STATE DIARY OF CRIMINAL LAW, 7, 1-27.

217 Firstly, it is personal, because it is the victim of wrongful conviction who suffered jail time. Secondly, the victim of wrongful conviction is condemned for rest of his life with societal demise and hate, due to the failure of criminal justice system.384

Traditionally, when a person is arrested in different charges, he is presumed guilty where due to lack of responsibility played by the investigating officers, political corruption, media , false confessions if there leads to wrongful conviction of a person who is otherwise innocent. A truth is that inadequate attention is paid to the welfare and concerns of the victim of wrongful conviction.385 These people are punished in such a way that even if they are wrongfully convicted and are later exonerated but still after going into the society they are publicly hated, demised whether due to public disgust and hatred for a particular crime or the story attached to it. 386

We are familiar with the procedure that in every civilized state a who commits a crime is apprehended, brought to trial, and if found guilty convicted and sentenced. I ask the question, does this achieve 'complete justice' as constitutionally envisaged. I ask the further question whether the criminal justice system ends there. What if the person who is arrested is a victim of malicious prosecution, what if the person is convicted in a rape case in absence of any DNA sample where it would have made him innocent? Is the victim consigned to the limbo of forgotten things?387

On Adam Bhai case

The accused post have described horrifying instances of abuses where besides physical torture, third-degree measures; emotional torture was used including

384 GROSS, ENCOUNTERED WITH URBAN DECAY BECAUSE OF DEINDUSTRIALIZATION, ENGINEERING CONCOCTED, GOVERNMENT LODGI. R. (2008). CONVICTING THOSE PURE. THOSE TWELVE-MONTH SURVEY ABOUT LAW AND SOCIAL SCIENCES, 4, 173-192. 385 DRAIN , A. , CUTLER, B. L. , & WALLENDAEL, L. (2009). LINEUPS ALSO ONLOOKER ID NUMBER. THOSE TWELVE-MONTH SURVEY FOR LAW FURTHERMORE SOCIAL SCIENCES, 5, 157-178. 386 MURTY, K. ENCOUNTERED WITH URBAN DECAY BECAUSE OF DEINDUSTRIALIZATION, ENGINEERING IMAGINED, GOVERNMENT LODGIN. , & VYAS, AN. G. (2010). POST-CONVICTION DNA . DIARY FOR U. ENCOUNTERED WITH URBAN DECAY BECAUSE OF DEINDUSTRIALIZATION, ENGINEERING IMAGINED, GOVERNMENT LODGIN. -CHINA GOVERNMENT FUNDED ADMINISTRATION, 7(7), 82-83. 387 Murty, k. Encountered with urban decay because of deindustrialization, engineering concocted, government lodgi. , & vyas, an. G. (2010). Post-conviction dna exonerations. Diary about what's to come for u. Encountered with urban decay because of deindustrialization, engineering imagined, government lodgin. -china general population administration, 7(7), 85-88.

218 threats of physical and sexual violence against the accused family, if they refused to accept the charges. One of the accused depicted a ‗club party‘ that beat up detainees. ―This club party was a group of five-six inhumans…uncivilised persons who would rush in like hungry wolves… they used to beat until they themselves got tired or the victim became unconscious.‖

There are mainly 2 key issues involved in the case.

1. The said the prosecution has lots of flaw.

2. There was non-application of mind of home minister. The court also, allude to CM at that time.

68,000 were arrested under TADA. There was torture and their trial was held in camera. The conviction was 0.6%.

Victim Testimony

―I (Ravi nayar himself) was arrested on raj ghat reading gandhi‘s speech. I was taken up a special treatment. I was put into separate room where pickpocketers are kept. Other pickpokecters said ‗they beaten us for 7 days only for the case of pickpocketing‘. ‗other accused said ‗Forcing me to confess that I have committed burglary‘. I was accused of a new act after a month. Mohammad Shami acquitted me. I got benefit due to having contact with railways.‖

Nanda accident case: - where the car became truck it become plane. The defense was trying to unnecessary procrastinating the case.

In Khehar Singh case: - Justice Tarkunde very Cleary said that there was no to hand even a dog and they have handed the accused. Justice chandhrud said we made a mistake on the case. MR hanif was arrested in this case

In Farooqa case: 10 lack was given as compensation that was never provided thereafter.

In a gang rape case by a policeman of 17-year-old the compensation was meagre 50K Rs. The fact her life was shattered. The recommendation is that Compensation

219 has to be mandatory with good amount. The national commission in 1981 had clearly done a whole chapter. There must be compensation. A senior officer to me once said there must not be section 197, as it is prone to misuse.

Hawala case: - Mandatory compensation in akshardham case- the court named the PO for torture and falsification of evidence and wrongful . Rule of law was compromised.

On May 16, 2014 the Supreme Court of India acquitted the six defendants, stating in their judgment: "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."388

There are different ways of achieving this objective but perhaps the easier way may be for the victim to pursue compensation within the criminal process or what we describe as the adhesion procedure. The framework of the law in India on this matter should finds its place in the provisions of the constitution, the code of 1973. the person who faced the vengeance of the failure of the criminal justice system shall have rights to be enforced in order to provide it with the place to stand in a dignified condition after being exonerated but till now the criminal justice system has been lacking and failed to provide that support in the form of compensation and acknowledgement to be a free man. Even after almost 70 years being an independent nation, the criminal justice system has failed to stop certain evils that come in subordination of being wrongfully convicted, that are-

1. Illegal detention by the police

2. Torture

3. Malicious methods of investigation

4. Harassment of family members

388 ABDAMBHAI, SULEMANBHAI, AJMERI & ORS. VS. STATE OF , NOS. 2295-2296 OF 2010 (SUPREME COURT OF INDIA, CRIM. APPELLATE JURISDICTION, 5-16-2014)"

220 5. Continuing surveillance even after .389

Above are some of the many factors that are weakening the stature of the criminal justice system where a common thought of process which evolve is that once an individual is arrested for a serious crime, he is not coming out as a dignified member of society even after an exoneration by law.

These principles are fundamental to the governance of the country and it is the duty of the state to apply these principles for it has pledged to establish a just and fair state committed to social, economic and political justice which includes the promotion of the welfare of the people by securing and protecting, as securely, as it may, a social order in which justice shall guide all institutions of national life.

On the other hand, we have the chapter on provisions for the protection of the accused from the time of his arrest until the end of his trial. Victims here as we all know are persons who have individually or collectively suffered torture, including physical or mental injury, emotional suffering due to insult of individual and family due to wrongful prosecution, economic loss or substantial impairment of their rights guaranteed by the constitution, but ironically, we do not make similar provision to address their suffering in the meticulous manner in which they deserve to be.

A symmetric step of case analysis that has been done in this chapter to demonstrate the plight and problems of the person whose wrongful conviction resulted into exoneration .

If any right was to be sieved through the mesh of a democratic society which believes in the rule of law, something very basic, something really fundamental- it would indeed be the ‗‘. It‘s not just a legal right but also manifestly a human right that every human possess by virtue of having taken birth as a human. Writing for Global Network for Rights and Development, lawyer MalénStølen says: ―In order to place trust in the court and judicial systems it is essential that everyone

389 Murty, K. Encountered With Urban Decay Because Of Deindustrialization, Engineering Imagined, Government Lodgin. , & Vyas, An. G. (2010). Post-Conviction Dna Exonerations. Diary For U. Encountered With Urban Decay Because Of Deindustrialization, Engineering Imagined, Government Lodgin. -China Government Funded Administration, 7(7), 82-83.

221 has the right to a fair trial. If people do not perceive the judicial system to be fair, it loses its legitimacy, trust and respect the rule of law. Therefore, the right to a fair trial can be considered as a cornerstone in every functioning society and for the rule of law390.‖

This right is important so as to prevent people from being wrongfully punished for the deeds they never committed.

The plight of wrongfully prosecuted was highlighted, for the first time, in the case of Hussainara Khatoon and Others v. Home Assistant State of Bihar,391 in 1979. The Supreme court took note of various articles published in Indian Express regarding the terrible conditions in the prisons of Bihar. The articles in the newspaper disclosed that several prisoners, including women and children, have been detained in the prisons as under- for at least 2-5 years. Out of them, most of the under-trials have been arrested for minor charges, the punishment of which would not be more than few months, however these detainees have been in the prison since 3 to 10 years. A writ petition of was filed in the Supreme Court which revealed a disturbing picture of under trials in the state of Bihar and challenged the administration of justice in the state.

The Supreme Court admitted the petitions and ordered the Government of Bihar to submit an extensive report on the prisoners and the under-trials. The Apex Court pronounced a landmark judgment in his case and held that the right to is an essential part of the administration of justice in any state. Further, this right is a constitutional right and it is the obligation of the state to ensure the protection of it. The Supreme Court said that ―Article 21 from the Constitution lays down that nobody shall be deprived of life or individual liberty except based on the procedure established legally. The procedure ought to be reasonable, fair and otherwise such deprivation will be illegal.‖392

390 MALÉNSTØLEN, ENSURING JUSTICE IN THE : THE RIGHT TO A FAIR TRIAL, (SEP 27, 2014), HTTP://GNRD.NET/SEEMORE.PHP?ID=951 391 TH HUSSAINARA KHATOON V. STATE OF BIHAR, 1979 SCR (3) 532, 9 MARCH 1979 392 PARA 5, HUSSAINARA KHATOON V. STATE OF BIHAR, 1979 SCR (3) 532

222 In another shocking case of Mantoo Majumdar v. State of Bihar393, it was found that two accused persons were serving as under trial prisoners in jail since seven years. It was also found that the charge sheet against them was never filled nor was any investigation conducted for the charges. Justice Krishna lyer, admonished the State of Bihar and held it as a gross violation of the constitutional mandate on right to liberty and directed the state to release the under trials on their own bond without sureties. The court condemned the inefficiency of the police in completing the investigation on time and the inhuman and mechanical attitude of the magistrates in following legal dictums, depriving the freedom of under trials and inability to observe the detention of the under trials extending beyond a reasonable period of time. The words of Hon‘ble Justice Iyer has been recapitulated here, ―Most grievous of all, the judicial officers concerned have routinely signed away orders of detention for years by periodically appending their incarceratory authorisations. We know not how many others are languishing in prison like the petitioners before us. 'If the salt hath lost its savour, wherewith shall it be salted? If the law officers charged with the obligation to protect the liberty of persons are mindless of constitutional mandates and the code's dictates, how can freedom survive for the ordinary citizen?‖394

In yet another disturbing case of Veena Sethi v. State of Bihar395 , the legal aid committee of Hazaribagh addressed a letter to Justice P.N. Bhagwati disclosing the most shocking and unfortunate incident in the history of humanity. The letter described the plight of 16 under-trial prisoners who were of unsound mind and most of them were detained in prison for more than ten years, without any legal aid given to them. Even after regaining their sanity these unfortunate souls were denied their rightful freedom.

Concept of Fair Trial and Wrongful :

In contradiction to its international obligations, even having been authenticated by the ICCPR396, India has not achieved a constructive legislative strategy to give justice to the victims of wrongful prosecution.

393 TH MANTOOMAJUMDARV. STATE OF BIHAR, 1980 (SC) 846, 27 FEBRUARY, 1980 394 IBID 395 TH VEENA SETHIV Vs. STATE OF BIHAR,1982 (SC.C.) 583 , 11 MAY, 1982 396 ―International Covenant On Civil And Political Rights, Adopted And Opened For Signature, Ratification And Accession By General Assembly Resolution 2200a (Xxi) Of 16 December 1966 Entry Into Force 23 March 1976, In Accordance With Article 49‖

223 Only a finite and negligible amount of compensation in fewer instances is provided as per The Code of Criminal Procedure. Prosecutions which fall under UAPA397 does not include provisions of compensation as stated in CrPC. ( Sections 250,237,357,358) Sue for damages is the only cure accessible to such a victim. 398

Differentiated between terrorist and terror . Until proven guilty no stigmatisation should be done. Even after the conviction human rights of such people must not be forgotten. Need of legislative changes. Rights such as human dignity, fair hearing, and right to life must be remembered for the accused also. Traditional view of society says that terrorist should not get any human rights while modern approach thinks differently.

The ones who are acquitted either from the trial court or upon appeal from the higher court are left to trench an isolated path by again proceeding to the courts.

In State versus Saqib Rehman and Others (FIR No. 146 / 05; Police Station: Kapashera, New ), the Additional Sessions Judge, Virender Bhat, concluded:

―They [accused] are totally innocent and have been framed in this case by the aforesaid four police officers in order to achieve their personal gains and/or to settle petty personal scores, be that at the behest of one Major Sharma, whose attempts to persuade accused Gulam Moinuddin Dar to work for him in getting the militants surrendered in Kashmir were spurned by him [Gulam Moinuddin Dar] or to earn undue honours or awards for themselves.‖

The commissioner of Police, Delhi was given order to start with the proper investigation against the four police officers who were involved in the case ―for the misuse and abuse of their powers as a police officer.‖ Station House Officer of Kapasahera police station was ordered to see that the FIR should be lodged the said 4 officers under section 167 IPC399.

397 Unlawful Activities (Prevention) Act, 1967 - Mha 398 [Hardeep Singh V. State of M.P. (2012) 1 SSC 748]. 399 ―Public Servant Framing an Incorrect Document with Intent to Cause Injury‖

224 However, neither the claimant was awarded with any compensation or relief from the government, nor the police officers were punished.

In 2014, the Supreme Court in reversing the decision by the court (POTA) along with the High Court of Gujarat in the Akshardham attack case observed:

―131. Here, we intend to take note of the perversity in conducting this case at various stages, right from the investigation level to the granting of sanction by the state government to prosecute the accused persons under POTA, the conviction and awarding of to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court. We, being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us.‖

Now also there is no assistance approaching from the government nor any identification of harm is administered. Many of the accused had been pronounced with death sentence or life if it had not been for the Supreme Court. But the state is not even forced to provide ex-gratia, which literally means ‗payment of money made or given as a concession, without lawful obligation‘.

Right of a terror charged to acquire remuneration for a false conviction has been identified in the eyes of our Hon‘ble Supreme Court.

Daulat Ram v. State of AIR 1995 SC 1998 - it was discovered that the investigating police had forged a case under TADA and the Arms act, awarded a sum of Rs. 5000 to the accused individuals, payable by the State of Haryana. It further permitted the State of Haryana to reclaim the amount from the police officials. In the case of Mohammed Zahid v. Government of the National Capital Territory of DelhiAIR 1998 SC 2023, Supreme Court discovered that the Delhi police had interfered with the Daily Diary and also has falsified other . The legal proceedings of this case continued for almost 7 years and the Supreme Court ordered that an amount of Rs. 50,000 should be awarded as a compensation to the guiltless

225 victims. State was free to reclaim the amount from the offending police officers. Supreme Court later gave an order to investigate into the forged evidences by the police officials.

4.2. Wrongful Conviction in India

4.2.1. The case of State versus Saqib Rehman and others:

In one case from Delhi, State versus Saqib Rehman and Others(FIR No. 146 / 05; Police Station: Kapashera, New Delhi,) referred to above, the Additional Sessions Judge concluded that four police officers ―scripted‖ and assembled the case against the terror-accused. He also concluded that ― these four police officers have stigmatised the entire Delhi Police Force.‖ According to me, nothing more severe crime than this can be committed by a officer of police department , where a person who is an innocent is dragged in a malicious factual case. Order of filing an FIR against the police officials was passed by ―The Learned Sessions Judge.‖

Unfortunately, when this case was taken to high court by the police officials against this order, the High Court was of opinion that the police officials should at least have got one chance to get heard. And due to this order of the High Court only an administrative inquiry was conducted by the Commissioner of Police.

The judgment of the High Court is considered wrong because of the following grounds:

 The order of the sessions judge was the result of the cross-examination of the police officials. They took into consideration ever event and evidence. Moreover, police officials had an opportunity to prove their innocence during the proceedings.

 When an inquiry and investigation was taking place as per the order of the sessions judge, the police officials had sufficient time to present their case ironically.

226  Sessions judge reached to a conclusion where the evidence was not only ‗inadequate‘ but was also scripted. How can sessions judge cannot make negative remarks when it was already discovered that evidence was fabricated by the police officials.

4.2.2. The KURLA SIMI case

In the much criticised , The Kurla SIMI Case which was registered as FIR No.: 275/2001, dated 28 September 2001 in Kurla Police Station . The accused were booked under Section 143, 144, 145, 147 and 353 which have to read with section 149 of IPC and Sections 10 and 13 of UAPA (1967). The case was decided on 20th November 2014.

Notification under Section 3 of UAPA prohibited The Students Islamic movement on 27th September 2001. Many people were convicted on the developing days and weeks throughout the country by declaring themselves members of SIMI (Students Islamic Movement of India ) and conducting illegitimate projects under its banner. This is one such case from .

The story which was presented by the prosecution was such that, the day when SIMI got prohibited was (27-09-2001), at 08:30 pm Kurla Police station a foray was organised at Fitwala compound, Pipe road, Kurla and conviction of eight people took place who were liable for organising illegitimate activities. Two posters in Urdu and two pamphlets in Hindi and English were annexed which contained the objectionable words ―Islam Dushmanoki Baukhlahat‖, as well as copies of the magazine Nayee Duniya, one of which contained a poster of Osama Bin Laden.

The accused were brought before the Court just the second day of the day when whole incident took place i.e. on 28-09-2001. They were acquitted on by the court on the very same day. As per the trial which was being conducted they made the slogans which have already been mentioned above and constrained criminally against the Police at 4 pm and therefore, again they were convicted and a case was filed.

As per the confirmation of the trial, conviction of eight people from the Fitwala compound (accused no. 1 to 8) were assembled in the Court after which, when they

227 were taken to the police van, the accused and a crowd supporting them started shouting ‗Hindustan Murdabad, SIMI Zindabad, Bin Laden Zindabad, Police Murdabad, Desh Ka Kanoon Murdabad‘. It was getting very difficult for police to control them but the accused kept on shouting due to which a a fight emerged with the Police. A Police Constable on duty was also pushed by them. The Police took four people (accused no. 9 to 12) from the crowd in custody.

The accused was captured on the grounds of information obtained by PSI Bhandatta Vishwanath Khatavkar, who was later made a police witness. As an interested witness he gradually destroyed the reliability of the trial.

The date on which the material was captured is not clear it can be accelerated. The most important fact of this case is that they were convicted on the very same day which questioned the gravity of the case. Poster of Osama Bin Laden was captured which was published in Magazine, ―Nayee Duniya‖. Thus, owning the poster is not an offence, as it is published in the registered magazine.‖ (Para 16, Pg 9 of Judgment)

―In the trial the evidence is not only neglected but it also goes through material deviations. Legal necessities in accordance with IT is not enough to prove the accused guilty. He also debated about the individual being present at the site, entirely forbidden organisation does not prove the guilt of the accused, it required the report of some good behaviour or violence from the prosecution. The case is not authenticated by The Independent Panch Witnesses. Witnesses of the police are of great interest. Their evidence cannot be believed.‖ (Para 10, Pg 6)

 The dependency of entire trial was based on the presence of accused in the office of SIMI when the organisation was neglected. The prosecution failed to look after as to how the accused was still a part of SIMI or what illegitimate undertakings were organised by them. Police also failed to perform basic steps like to bring in knowledge of the organisation that it had been banned, affixing the ban notification on its office etc. Police was never able to subjectify the notification stated that SIMI was a banned organisation, they were already aware of the fact, by the time they arrested the accused on 27th September 2001.

228  When the incident of the court was narrated, it was found with few variations . Failure of police was also jotted down as there was no free witness who could attest or clear any kind of confusion in the court room on that day, in the presence of many lawyers, litigants and court staff would have been present.

Later on in the judgement it was specifically stated that the "Accused being present in the office of SIMI organisation, does not make him the member of the organisation . His presence in the office would not have amounted to any kind of crime as per Section 10 or 13 of UAP Act, unless his involvement in any active part in the direction of obtaining the so called motives of the Organisation by illegitimate methods or to bring back the violence was proved. No strong proof is available against the accused. The accused who are Muslims are not ought to be a member of SIMI, unless there is no strong and convincing evidence which proves the active participation in the SIMI. No weapon was confiscated from the accused. It was a rare and doubtful case where the criminal force against the police was used as a weapon by the accused in the court Campus.‖ (Para 23, Pg 12)

The court while acquitting the accused invoked the law as laid out by the supreme court in State of Kerala V/s. Ranif : ―Mere membership of a banned organization will not make a person criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.‖

4.2.3. The Case

In this case an FIR was registered as FIR No: 54/07 at Police Station( Gopalapuram PS, ) where the charges that were imposed were Sections: 120(b) r/w 121, 121A, 122, 123, 124A, 125 IPC and Sec 4 & 5 of explosives substances act. The case went for judgement on 17 July 2014 by Justice Shri V. Radhakrishna Krupa Sagar . Before the accused were exonerated, they already spent more than 18 months in jail.

It all happened in such a manner where A bomb had burst out in the courtyard of Mecca Masjid, Hyderabad on 18th may,2007. It took lives of 9 people and 40 people were wounded. An unexploded bomb was also traced next to the ablutions pool. The consequential panic led to the strong disorganised efforts, to get the injured to the

229 hospital, an open firing at the people by the police officials took place. Open firing by the police again took the lives of 6 people and injured 21. Soon after the explosion more than 300 persons captured from different areas of the city. Out of all people who were detained, 39 were prosecuted for 4 different cases. Their acquisition took place when the spend almost a year in the police custody. They were agonised grievously. State government framed a single man Commission headed by Advocate Ravi Chander to discover the facts of the whole incident. The report of the commission concluded that some police officers were not lodged, which later led to the promotions of all the police officers.

The prosecution was presenting the case in a way where it deposed that ―The enquiry of this case concluded that A1 formulated a criminal conspiracy with A2 to A4 and others to generate internal and external distractions to the government of India by obtaining unlawful weapons and explosives which were involved in disruptive activities, as per the desire of the terrorists. As per the implementation of the plan, A1, A3, and A4 on the instructions of A2 Nayeem came to Hyderabad in the 2nd week of February, provided accommodation and debated for having a passport by illegal means for Nayeem in the fake name of ‗Sohel Sheikh‘.‖

Statements given to police were contained in the name of evidence and Narco test conducted on Nayeem (A2), Shoeb Jagirdar (A1), and Syed Imran Khan (A3). The whole case was based on having a fake passport, passport application form or any other official papers were not connected to the charge.

Soon the whole web of prosecution was shattered by incremating evidence where it showed that the ― Accused were prosecuted with three charges for having links with the Mecca Masjid blast. PW-1 said that the Mecca Masjid blast case was enquired by the CBI and then NIA and then the charge sheet was filed against some persons and not against these accused. There were no indication of facts by the witnesses.

No armaments were discovered and seized from any of the accused. As per ex P-1, Shoeb Jagirdar (A1) gave to Nayeem (A2) Rs 1,000 in order to obtain arms and weapons using contacts in Uttar Pradesh.‖ No authentication of any facts was done in this regard.‖

230 The other side of the trial was that for A2, i.e. Sheikh Abdul Nayeem @sameer all put the efforts to obtain the passport in the name of Sheik Sohail. In order to justify the trial the main evidence which was needed was to reveal the real/true name of A2 was Sheikh Abdul Nayeem. Acceptance of accusation that he tried to get a passport under a different name was not yet confirmed. No document was obtained by the prosecution which could find out the real/ original name of A2. No witnesses came forward who knew A2 to state the name of A2. As per the perception of the court ―there were no recorded evidence which point out towards the fake documents. Thus every evidence failed to prove falsification of the documents.‖

When the whole story of the case was administered, it was observed that The bringing together of the accused was done by a systematic method: policemen forcefully went inside the house in their civil uniforms and at the gunpoints people were made sit there. The rounding up was supposed to take in groups of five or six, every night. The family members, as well as the accused, were not updated about the incident. Few were asked to arrive for the investigation of some minor local incident, after which they would be let go. Thereafter, they all were being blindfolded and were taken to the farmhouse situated in the outskirts of the city.

Advocate Ravi Chander‘s report pointed out:

―Tell-tale signs of bodily abuse obviously not self-inflicted in the incarcerated youth, including noticeable small scars of 1 cm diameter noted on external ears and 1 mm to 2 mm scars noted around nipples indicative of electricity or needle entry… They were visibly traumatized, some vomited blood, and others were severely dehydrated with swollen limbs and barely able to walk. The Commission observed that since these injuries ―are not self inflicted, these obviously arose during police custody...[therefore] custodial atrocities on young detainees, all minority persons, stand proved‖.400

400 MECCA MASJID BLAST CASE – SCC 17AIR 2014

231 4.2.4. Serial Train Bombing Case - 1993

A bomb was being exploded in few trains during night involving both 5th and 6th December, 1993. It took the lives of two individuals and wounded 22 people.16 people were prosecuted for this case. One of the accused managed to run from custody but got arrested later and was charged separately on the above based grounds. There was also a juvenile named Ather, he was also prosecuted on different grounds Nisar, later his kin Zaheer and their neighbor in Gulbarga, Mohammad Yusuf, an auto laborer, were captured by the police of Hyderabad. Before all else they were charged for the bomb blast which occurred in October 1993 of every a Muslim instructive establishment in Hyderabad. Their case was documented in Abid Street Police headquarters. They were additionally being questioned for a portion of the bomb impacts which occurred in August and September that year. In the end, they were additionally discovered engaged with the serial prepare impacts. Their claimed custodial admissions were the main confirmations which the police had — the arrangements (TADA) were later refered to make these acceptable. In the first place the cases got enrolled in the police headquarters according to the locales of the railroad stations . Afterward, the entire enquiry got exchanged to the CBI . On February 28, 2004, the assigned TADA Court at Ajmer sentenced the other 15 charged, including Nisar, his sibling Zaheer and Yusuf, and were sentenced with life sentence .One among them, got escaped on the basis of being juvenile by Supreme Court in 2012. The TADA Court‘s order was challenged by them by consulting Supreme Court.

The prosecution presented its case by stating that , Prosecution is ought to depend on witnesses for testimonies. No direct evidence in form from any of the witnesses, implied the accused clearly as regards any of the material stages as above stated, as per the trial, the admissions made by the accused were verified on the basis of circumstantial evidence, enough to institute a case. Confessions are considered to be the turning point of the case of the trial, where every confession is required to be recorded in the correct manner, recognised by law.

232 Factors leading to Exoneration

The compliance of the accused can be explained under following five points: -

A) No reasonable acknowledgment of provisions of TADA Act as required under Section 20 A (1) of TADA Act. The documents/orders of citation as considered in the current text were not simultaneous but later on they were found fake.

B) The prosecution was all set to depend on the recorded confessions of the other crime(s). As permitted by law , this dependency was not based on the rules framed by the court.

C) In the present content no intentional confessions were being recorded. Rather they were recorded when the accused were in police custody and most of the confessions were recorded by PW 62 H.C. Singh in the presence of other competent officials.

D) In any such situations, dependency on such admissions, upon as substantive evidence to bring home the charge against the confessing accused and for that matter against the co-accused.

E) No independent evidence existed to stand in favour of the prosecution. There was no recorded content to verify the confessions on which the prosecution depends.

GROUNDS on which the accused was acquitted- The Judgement said that Nasir‘s ―role is neither referred to in the confessions... nor is there any material other than the confession of (Nisar) himself on record. The conviction and sentence of (Nisar) is therefore completely unsustainable‖.

Torture in Judicial Custody: they were forced to stay awake all day and all night leading to anxiety and sickness . they were put to solitary confinement and hence making them phobiatic to go to public and other activities after exonerations. For 4 days Police kept Nisaruddin standing, chained and was not allowed to sleep. He was in isolation for 73 days.

4.2.5. The Mulund Blast Case

19 accused were prosecuted for exploding bomb at three places namely Mc Donald Hotel, Mumbai Central Railway Station, Monghibhai Market Vile Parle and in second

233 class general compartment of Kalyan local train. Explosions at Mumbai Central Blast, Vile Parle Blast and Mulund Train Blast are remembered as Mumbai Central blasts. The accused Adnan was convicted for his mastermind in Mulund Blast.401

Mulund Blast: A bomb explosion took place on 13 March 2003 at 08:36 pm, in the third biggie of Kalyan local train. Effusion of the bomb mainly included three places namely Mc Donald Hotel, Mumbai Central Railway Station, Monghi bhai Market Vile Parle and in second class general compartment of Kalyan local train, explosion was being done by following their own strategy, it was their initial terrorist move to harm the diversified unity, security or sovereignty of India and to hit public with the act of terrorism. The explosions were given the following names: Mumbai Central Blast, Vile Parle Blast and Mulund Train Blast.

Prosecution story: that he was held liable to transfer armaments to Mahuli Hill for the motive of training, obtained chicken and also indicated spot Mahuli Hill where schooling of weapons was tackled with advanced weapons namely AK47.

―On 16/6/2003 Accused Adnan Mulla claimed that he confiscated one hen from one lady from bottom of said hill and ready to show said place and said contract was decreased in his presence vide Ex 640. It is his perception that afterwards accused took other panch and police officer from Crime Branch Ghatkopar office to Shapur Asangaon Judgment Road and near one Jain Mandir and made them witness a place which was near the hill and one lady was sitting in front of said house and accused pointed out towards the said lady told that he obtained hen from her and therefore police made panchanama of said place vide Exh.641...‖

Reason of Exoneration:

No single confession against Adnan existed to proceed with trial. Adnan appealed for liberation but his appeal was not accepted. Adnan also tried by reaching Honourable Bombay HC but even the Bombay HC declined to consider Adnan‘s

401 POTA C.R.NO.52/2003

234 and he went through the difficult process of almost 2 years of day to day trial, where no evidence or witness existed against Adnan. He got released on 29th March 2016 he was acquitted of all the charges as there was not a singele evidence against him. The judgement noted,

―neither accused No.10 nor accused No.12 or accused No.13 (Adnan) is anyway connected to any incident of blast, So far as accused No.13 in proof of above stated allegations there is absolutely no evidence on record. So far as those allegations about carrying bag to Mahuli Hill and purchase of chicken, evidence produced on record by prosecution discussed in relevant para of the judgement, is not reliable one to prove allegations levelled against accused No.13. In sum and substance, so far as offences levelled against accused No.10, 12 and 13 it has to say that prosecution failed to prove offences under Section 3(3) and 4(b) of POTA Act, so also, offences under The Arms Act has levelled against all three accused. So far as offences of waging war under section 12A r/w. 122, 120(B) of IPC these three accused also falls in the same category of other accused as those offences are not proved against any of the accused by prosecution. With such observations and findings, I hold that none of the offences charged is proved against accused Nos.10, 12 and 13.‖

Judicial probe on Illegal Detention:

A judgment was passed by Bombay HC in 2008 which ordered for an investigation for his illegal custody of 35 days.

On 8th of July 2008 the Principal Judge Shri T. V Nalawade submitted his report confirming illegal detention by the crime branch. On page No.9 of the said report, the report reads as :

―Adnan was not produced before magistrate from 05/05/03 till 09/06/03 and so in view of section 56, 57 and 167 of Crpc the detention of Adnan during this period was illegal and unauthorised.

235 The arrest was also not made as provided by section 46 to 53 and 58 of Crpc. The procedure was not followed by DCB-CID with intention to avoid creating of record and there is clear probabibility that the investigating agency did not want to make Adnan an accused but it wanted to make him a witness.On page No.10 para 22 of the said report, In view of the aforesaid circumstances, I have no hesitation to hold and report that aforesaid Police officers are responsible for illegal, unauthorised detention of Adnan Bilal Mulla from 05/05/2003 to 09/06/2003.‖

His bail application was rejected by the trial court on 10/09/2008 even after this finding of judicial report by the principal Judge of the sessions Court which was appointed vide an order of Bombay HC.

4.2.6. The Mumbai train blast 7/11 case402

On 11th July, 2006, 7 bomb explosions took place in 1st class compartments of 7 trains in Mumbai. The explosion killed more than 200 people and injured 1000. 1500 people were acquitted in the next two weeks by the ATS from the muslims suburbs of Mumbai. Finally, 13 people were arrested in the case and the police filed the chargesheet 29thNovember, 2006. However, in 2008 confession was made by other individuals also (held by the crime branch)

PROSECUTION STORY

The record made by police disclosed that the blasts were conducted by the (SIMI)403, while the whole surgical operation was supervised by Lashkar-e-Toiba of Pakistan which was assisted by the ISI. The conspiracy was being organised since 1999, and all the accused, also involving the bolted ones have been gathering in few places in India and abroad. During this time all the accused were sent to Pakistan for learning the tackling of weapons and explosives. During a meeting in the months of May, 2006, in the house of Faisal Sheikh (A-3) at Bandra, the strategy to explode bombs in local trains was already fixed. For the purpose 12 Pakistani nationals under the assistance

402 SPECIAL MCOCA CASE NO 05 OF 2006 403 STUDENTS ISLAMIC MOVEMENT OF INDIA

236 of Azam Cheema, LeT commander, carried RDX and came in India via Bangladesh border, the Bihar- Nepal border, and through Kutch in Gujarat.

Aid was provided to These Pakistani nationals who crossed the border and were guided in India by the arrested accused from Kolkata, Bihar, and Mumbai, and also the accommodation was provided to them in the houses of the accused from Mumbai in Mira Road, Bandra, and Govandi. The next day the accused reached in cabs to plant the bomb in various trains. Pakistani nationals went after the, while one who was a part of planting of bombs, died in the blast itself.

The main evidence in the case came out to be the confession of 11 out of the 13 accused. As the case is under MCOCA the confessions are admissible as evidence in court. Keeping the confessions aside the case also depends on statement of few witnesses- especially taxi drivers who were enforced to drive the accused to the different stations. Wahid Sheikh (A) he had confined role in nurturing the Pakistani nationals in his house and assisting them in formulating conspiracy.

HOW THE CASE FELL APART:

The only proof which offended the accused is the statement of his relative (P.W 65), Mahmood Qureshi, who confessed that Wahid Sheikh used to an activist of SIMI. No link existed between him and the trial.

Senior legal counselor Rizwan Trader, who was picked as a consultant to the court with a specific end goal to help the court while speaking to Wahid and furthermore wrangled for Wahid's release at the time constituting charges, however no authorization was allowed as the judge said that the case was fit for trial.

In the judgement, the court marked a strong point that there was no evidence against Wahid which connected him to the trial and he was discharged of all the charges against him.

It was observed that the other co-accused in the case (12 in all), were also find accused and obtained rigid sentences on much the same ‗evidence‘ that was

237 discovered to be insufficient and false in the case of Wahid. This is a case of gross wrongful conviction.

Torture: According to Wahid Sheikh, the police told him to accept his crime and to sign the papers given to them in front of the DCP. His declination had grievous results, his palms and feet were tied and he was beaten for 4 hours. Then he was unclothed and made to sit on the floor with both his hands tied at the back, with legs stretched in the opposite direction till he make 180 degrees.

Water boarding: He was asked to sleep on a wooden plank and tied with ropes. The plank was elevated to a higher position from the side of the leg in prefer to keep his head down. His face was flooded with water. A check on his blood pressure was taken care of through a machine so that it does no reach to a level of death. They carried on this procedure till the time they were numb.

Gassing: Wahid Sheikh was surrounded and some gas was blown due to which his body swelled up. Electric shocks were given to their penis and nipples and Surya Prakash oil was applied to their nose, anal passage and penis. The oil burnt the skin wherever it was applied.

Torture in Judicial Custody: Wahid Sheikh went through severe torturing when he submitted a complaint in to the MCOCA court against the then Jail Superintendent Swati Sathe who permitted police officers see him frequently, who was pressurised to turn of the acknowledgers. When the complaint was filed, other jail occupants beat all the accused up at the desire of the Jail Superintendent.

4.2.7. The Jaipur SIMI Case

City of Jaipur saw outrageous bomb impacts of blasts on thirteenth May 2008. 3 months after the impact happened in Jaipur in 2008, the Muslim locale of Kota saw genuine police examinations. In the midst of the enquiry self-assertively picked people were approved to surrender. They were required for routine addressing with respect to the effects; no charge sheet ought to be recorded against them, the police kept influencing them and their families. Once the affirmation was made by them, they were taken to SOG home office in Jaipur and later prosecuted.

238 PROSECUTION STORY:

They were sentenced for conducting un lawful demonstrations of the prohibited association SIMI through secretive social events and raising assets. The initial charge against the charged was unrolling joined poison in inconsistency of divine beings and goddesses of Hindu culture, talking against enhanced solidarity, respectability and secularism, of including Muslim youth in hostile to national exercises, of implementing unlawful exercises of SIMI in spite of the association being controlled and of giving security and shelter to the individuals who are engaged with same exercises.

There was a need to scribble down that there are no specific dates or times for any of these ill-conceived acts: gatherings happened; false proclamations were made at those gatherings; cash was assembled, and so on. Everything delayed and stayed uncertain.

The police claimed to have seized:

- 5 pieces of the document ―Islamic Movement in Urdu‖ year 2000,2001

- 2 pieces of the document ―Babri Masjid ki Pukar‖ and 4 copy disks.

The state prosecutor brought 48 witnesses to verify about the Occitan evidence of secret meetings, and to the seizure of this allegedly banned literature of SIMI from the accused.

HOW THE CASE FELL APART

Of all the witnesses brought by the prosecution in the court, 38 became aggressive (out of original list of 48) , promising in court that they were enforced to sign blank papers by the police. It is required to point out here that the witnesses were both Hindus and Muslims. One of the important witnesses was Mahant Kanahiya Das whose temple abuts the Nanta Road mosque where the police supposed that secret machination meetings were held and infuriating speeches were made.

Mahant Das said this in court:

239 ―My temple is next to the mosque. People come to offer namazand leave—I have never seen any quarrels or conflict. I have not given any statement to the police. There is a kitchen in the mosque but I have never seen any meeting. Zafar used to work in the mosque till about 5-6 months ago. He got many works done in the mosque while he was there. I have heard the statement (P. 36) [attributed to me]. I did not give this statement to the police.‖

1. The remaining witnesses who did not turn hostile were police witnesses, who proved to be unreliable in court.

2. The allegedly proscribed literature (publications and posters of SIMI) seized by the police as evidence of their crimes, turned out to be perfectly legal, as it predated the ban on SIMI.

3. And finally, the prosecution had failed to secure the sanction of the central government – as is required when certain sections of Unlawful Activities Prevention Act are invoked.

Key Highlights of The Case

Torture

Though all accused surrendered to the police, they were shown as arrested on a later date, giving the investigating agency enough time to subject the accused to brutal torture.

Name Date of surrender Arrest shown

Imran Mehdi 17.08.2008 25.08.2008

Hasan Md. 17.08.2008 25.08.2008

Ishaq Qureshi 16.08.2008 25.08.2008

NadeemAkhtar 18.08.2008 31.08.2008

MunawarHusan 21.08.2008 31.08.2008

AtiqurRehman 18.08.2008 31.08.2008

Md. Ilyas 25.08.2008 31.08.2008

240

The accused went through the severe torture at the Special Operations Group Head Quarters in Jaipur, with their cruelty being witnessed by senior members of the Rajasthan Police, whom the accused can identify and name.

Torture in Judicial Custody

When they reached jail, a board there at the main gate which said ―Dreaded terrorists of

SIMI are housed in this jail.”

Every charged accused was advanced in a separate single cell. It was a cell, a sort of a stake assembly of 8 x 10 ft, which had two entryways: out of which one was comprised of metal bars and the internal entryway was a strong metal entryway. starting October 2008, the accused were beaten constantly for two months by numberdaars who also enforced them to chant ―Jai Shri Ram, Jai hanuman‖. Their cells kept changing so that they cannot coordinate, no proper meals were provided, they were not accessed to clean drinking water . Meetings with family members were denied, and no hygienic conditions were provided. It was an effort to humiliate the accused completely.

4.2.8. The Malegaon blast Case

On eighth Sept. , 2006 4 bomb blasts occurred in Malegaon, a small town in Nasik region in Maharashtra. The upheaval occurred upon the arrival of shab-e-baraat, a huge celebration in Muslim religion, detonated bomb ended the lives of 31 individuals and injured 321, the majority of the victims being Muslim Travelers. Arrangement of one bomb was at the passageway door of Hamidiya Masjid and Bada Kabrastan, second bomb was set on the bike stopped in the stopping region which was situated inside the compound and third was held tight the mass of the power supply room which was before waju khana inside the compound and the position of the fourth one was at Mushawart chowk which is a swarmed put upon a bike close to an electric shaft.

241 Many enquiries were conducted to find out the facts, which were taken forward by the local Malegaon police. Later the case got transferred to the Anti-terrorist squad on 23 October, 2006, which was headed by K.P.Raghuvanshi. The lodging of charge sheet was first done by ATS. The additional charge sheet was later filed by the CBI, it only helped in confirming the investigation conducted by ATS. The case, however, drastically changed when one of the accused arrested in Mecca Masjid Bomb blast case, Swami Aseemanand‘s confessions was brought to the notice. Even though, two charge sheets already existed , Government of India directed NIA (National Investigation Agency), in 2011, carry forwarded the enquiry. Therefore, the case was disclosed again which led to the further investigation.

The investigation done by NIA discovered a group of accused to be liable for the explosions and has uplifted various reasons to doubt and to question regarding the investigations conducted by ATS and CBI. The final charge sheet filed by NIA which resulted in the acquisition of the accused.

Prosecution Story:

The Anti terrorist squad reported nine Malegaon occupants – every one of them purportedly individuals from SIMI – to be the brains behind the assault. These were Noorul Huda Samsudoha, Shabbir Ahmed Masiullah, Raees Ahmed Rajab Ali Mansuri, Salman Farsi Abdul Latif Aimi, Farogh Iqbal Ahmed Magdumi, MohammadAli Alam Sheik, Asif Khan Bashir Khan moniker Junaid, Mohammad Zahid Abdul Majid Ansari and Abrar Ahmed Gulam Ahmed. According to the immediate report by investigation agency, they arranged the blasts with the main thought process to incite Muslims to constitute riots against the Hindu people group.

The main evidences which were discovered by ATS were the mud illustrations obtained from the location where the offender was committed and from the godown of on the accused. The demonstrations were sent to the SFSL, Nasik for the inspection purpose. The report disclosed that the samples included traces of RDX and both the samples from both places were discovered in the similar amount. The remaining important evidence, on which ATS established their theory of the accused being the part of SIMI were the writings of the same discovered in their ownership .

242 Recorded phone conversation of accused no.8 and no.9 was also made a basis to indicate their participation in the bomb explosion.

Moreover, all the 9 accused gave acknowledged declaration to the ATS and accused no.9 even lodged an application in the court to become the authoriser in the case. Statement of witness A-369, affirmation about the offended persons organising bombs along with Pakistani Nationals, which was recorded u/s 164 of CRPC, was also appraised as a bridge to connect the accused persons with the bomb explosions.

How the Case Fell Apart:

Soil Sample: NIA Investigation proved that the panch witnesses of the panchnama indicating gathering of soil illustrations were actually not available during the collection of gatherings.

Confessional Statements: The NIA enquiry discovered that all the offenders had renounced their confessions and declared that the confessions had been gained under compulsion. Witness A-369 also withdrew his declaration . Accused no. 9 declared that he and his wife had been in illegitimate police charge before he got convicted in a formal manner and that he had converted confirmer only as a result of abuse by the ATS.

Call Records: The court examined the content of the taped discussed between two of the offenders and decided that even if the admission was taped to be true as introduced, there was nothing in its text to connect the accused with the bomb explosion.

In next part of the chapter there is a step by step analysis of cases in tabulation form .

4.2.9 Case Tables

Below there is a realm of tabulated case laws out of which some have been crucially analysed above .

243 I. Nisar-ud-din Ahmad404

Facts and summary: - There were bomb impacts in different trains amid the night mediating fifth and sixth of December, 1993. All the previously mentioned six violations were enrolled against obscure people. Out of the previously mentioned six occurrences, the blast that happened at Maula Ali Station in Hyderabad had caused 2 deaths.

1. Name Nisar-ud-din Ahmad

2. Gender Male

3. Case Number 546

4. Years Imprisoned 23 years

5. Charge Terrorism

6. Sentence

7. Year of exoneration 2016

8. Result Judicially exonerated

It‟s so questionable to understand that how the charge under Tada 9. What the bench said Act was put on just mere the confession of co accused .

Wrong appreciation of confession of 10. Reason of conviction the co accused and false investigation.

The confessions made were recorded in the police station and which were produced by the DCP 11. Innocence proved by were the carbon copy but were never signed which lead to the idea of confession in burden of force.

Therefore on the day – 17/07/2001, the Andhra Pradesh government administration requested retraction of its petitions. Therefore, the petition of TADA turned wrong in the case wherever the suspected admission of Nisar, Zaheer and Yusuf was

404 MOHD.JALEES ANSARI & ORS VS CENTRAL BUREAU OF INVESTIGATION ON 11 MAY, 2016- CRIMINAL APPEAL NO.546 OF 2004 IN SUPREME COURT OF INDIA

244 documented, conferming the admissions unacceptable. The stages that takes place before the beginning of the trial. We are not at all following the principle of until proved guilty. It is also the responsibility of the investigation agency along with the courts to make the criminal justice system flawless. They have been using section 41A of CrPC for extracting bribery and the case of Lalitha Kumari is being used by the police blindly without any application of mind.

II. Abdambhai, Sulemanbhai, Ajmeri 405

Facts and Summary : - "Adam Suleman Ajmeri, Chand Khan, Abdul Qaiym Muftisaab Mohmed Bhai, Mohammed Hanif Salim Sheik, Abdulamiya Yasinmiya, and Altaf Malek were 6 co convicts wrongly indicted 2006 for terrorist activities and other charges identified with the September 24-25, 2002 Akshardham Mandir , amid which 33 individuals were executed and 85 harmed. In July 2006 Adam Ajmeri, Shan Miya or Chand Khan and Mufti Abdul Qyyum Mansuri were condemned to death and fine i.e. Rs.25,000, Salim Shaikh was condemned to life detainment and fine i.e. Rs.25,000, Abdulmiyan Qadri was given a 10-year jail sentence and fine i.e. Rs.10,000, and Altaf Hussain was condemned to 5 years detainment in jail and fine i.e. Rs.5,000.

There was a magnificent illusion of due process. Courts completely failed to go with the inherent values. By Courts the author mean to say judges and other officers of the court.

In the case of adam bhai case After a month of incident, confessional statement were recorded and were duly arrested The prosecution narrated with precision the facts. Trial Court and High Court found not guilty.. Prosecution play a dual role one he is also the Officer of the court and other of executive authority.

In adam bhai case, was a quasi-theatric performance by the public prosecutor. Talks about so nitty gritties. Malimath Committee report on Criminal Law Reforms the

405 ABDAMBHAI, SULEMANBHAI, AJMERI & ORS. VS. STATE OF GUJARAT, NOS. 2295- 2296 OF 2010 (SUPREME COURT OF INDIA, CRIM. APPELLATE JURISDICTION, 5-16- 2014)"

245 recommended that there is need for Pro active investigation to reduce the no. of false prosecution. In the case of Adam Bhai there was Shocking and shameful investigation. Role of Public Prosecutor is very ambiguous in the case.

Referring to Crime Manual, 2005: - Chapter 7 and 27 for Prosecution. 7.1.2 – mandate for the prosecution

The infamous letters from fidayin.

Para 145 of the judgement : - Letters were quite clean but were molded with blood. The pen through which letters were written was found with the person. In seizure memo there was no pouch.

Para 173 of the judgement :- expert was called Knowing urdu. But when his confessional statement was recorded, it came to know that he did‘t know urdu and was not professional to deal with the complexities of the case

Also referred to Section 13 of POTA

POTA court accepted the confession despite the fact that accused was not sent to judicial custody. There was grave injustice on accused. It erroneously held him liable.

Referring to Section 32 of POTA : - ―The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody.‖

These 6 people were given death penalty (Incuding adam khan). Apex court busted the prosecution case all the things like letters, pen, and pouch and acquitted the accused.

The bothering thing is no investigation is ordered to ascertain to what hierarchy the police has drawn the conclusion.

NLU-D community collected money for adam bhai for his livelihood.

246 Arrest rate under the POTA court is high while the conviction rate is pretty low. Political dimensions of this case has not been highlighted in any critique of this case. Compensation should be made mandatory in the cases of wrongful prosecution just like in other commonwealth countries. He even proposes a scheme of mandatory prosecution. In the case of Akshardham Bomb Blast the names of the police officers were revealed were no action was taken against them. In the Kehrat Singh Case the judge realised that they made a very big mistake.

1. Years Imprisoned: 11

2. Gender Male

3. Charge: Terrorism

4. Sentence: Death

5. Year of conviction: 2006

6. Year of exoneration: 2014

7. Region of offence:

8. Result: Judicially Exonerated Released

On May 16, 2014 the Supreme Court of India acquitted the six defendants, stating in their judgment: "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." 9. What the bench said Justice V. Gopala Gowda commented : "Instead of booking the real culprits responsible for taking so many precious lives, police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing," On May 18, 2014 the four defendants still imprisoned were released from the Sabarmati Central Jail after 11 years in custody."

Here as been observed from this case , Arrest rate under the POTA court is high while the conviction rate is pretty low. Political dimensions of this case has not been highlighted in any critique of this case. Compensation should be made mandatory in

247 the cases of wrongful prosecution just like in other commonwealth countries. He even proposes a scheme of mandatory prosecution. In the case of Akshardham Bomb Blast the names of the police officers were revealed were no action was taken against them. In the Kehrat Singh Case the judge realised that they made a very big mistake.

III. Rajubhai Dhamirbhai Baria 406

Facts and Summary : - There is a checkered history in regard of this case which is also known as Best Bakery case . After finish of the trial in Gujarat district Court and the Gujarat High Court affirmed the request of exoneration by the Trial Court, a petition was registered in the Supreme Court by one of the victims Zahirabibi Habibulla Shaikh (P.W.41) alongwith one Non Governmental organisation - "Citizen of justice and peace" of which Mrs. Teesta Setalvad is a part and it was claimed that the witness Zahira had been threatened in light of the fact that she was pressurized by specific people in Gujarat and, in this manner, it was encouraged that the judgment and direction by the Trial Court at Gujarat and the Gujarat High Court ought to be put aside. The Supreme court acknowledged the petition of the witness Zahira and put aside the judgment and direction by the Trial Court and the Gujarat High Court and remanded the issue in the wake of moving it from the Territory of Gujarat to Maharashtra and directions for re- trial and reinvestigation by the police was ordered.407

1. Years Imprisoned: 10

2. Gender Male

3. Charge: Murder

4. Sentence: Life Imprisonment

5. Year of conviction: 2006

6. Year of exoneration: 2012

7. Location of Trial: India

8. Result: Judicially Exonerated Released

9. What the bench said "554. what is remarkable is that in the cross-

406 RAJUBHAI DHAMIRBHAI BARIA VS THE STATE OF GUJARAT, CRIMINAL APPEAL NO.583 OF 2006 407 HTTPS://INDIANKANOON.ORG/DOC/96662098/, VISITED ON 25/08/2016

248 examination, minute details - not based on any information disclosed from the record or not supposed to be known to the accused - have been put to Nafitulla. There is a clear indication of collusion between the accused or somebody interested in affecting the prosecution case on one hand and Nafitulla and the other hostile witnesses on the other hand."408

The five were among nine people convicted and 10. Conviction Caused by: sentenced to life imprisonment.

"On July 9, 2012, the Bombay High Court 11. Innocence Proved By: acquitted Baria, Gosavi, Rajput, Vasava, and Tadvi on the basis of insufficient evidence,"

As from the survey and report submitted - false charges and complaints lodged in the Indian Criminal System. Out of 40 lakh cases 2 lakh were identified as being false and in the remaining cases 20 lakh were such that in which no charge sheet was filed. False charges have three effects- first increases in arrest, then overcrowding in jails, and then increase in the burden on judiciary. He cited the provision under the CrPC that can be used to quash proceedings based on false charges. Cases Rajesh Sharma, Hymawathi v State of Andhra Pradesh. Raj Talreja v Kavita Talreja- Baseless allegation amounts to cruelty, which can form the basis of divorce. State of Haryana v Bhajan Lal: article 226 can be invoked to quash proceedings based on false charges.

IV. Sattar Battery Abdulgani409

Facts and Summary: - Abdul Wahab Abdul Majid Khan was captured on a charge of murder. On being put through police interrogation , all things were considered, he made startling and stunning disclosures. He uncovered that the person arrested i.e. Yusuf Laplap, who is engaged with illicit business of alcohol and running a betting sanctum is in control of four remote made bombs , pistols and AK-47 rifles. The origin of the weapons, as indicated by the snitching was the criminal i.e. Abdul Latif Shaikh and came on account of blaming Yusuf Laplap through his nearby partner who

408 IBID, PARA 554 409 ASHRAFKHAN @ BABU MUNNEKHAN PATHAN VS. STATE OF GUJARAT CRIMINAL APPEAL NO. 482 OF 2002 (SUPREME CT. OF INDIA, DECIDED ON SEPT. 26, 2012

249 was charged i.e. Abdul Sattar @ Sattar Chacha. Sattar gave the arms and explosives to person arrested as Siraj @ Siraj Dadhi, a constable deputed to Vejalpur Police headquarters. He thus transported those arms and explosives to accused person , Imtiyaz Nuruddin, the worker of Yusuf Laplap at last's occasion. The aforementioned data was passed on to A.K. Suroliya, the Chief of Police. The police team looked through the place of the charged Yusuf Laplap in the night and discovered him going out with two sacks. From one of the sacks one gun with ISI stamp and five outside made hand explosives were recuperated and from another pack five detonators having cuts joined to it were found.

1. Name Sattar Battery Abdulgani

2. Gender male

3. Crime Terrorist Activities

4. Period of jail Five Years

5. Period of time stayed in jail Four Years

6. Date of Offence 23/11/1994

7. Year of conviction 2002

8. Year of exoneration 2012

9. Area of crime State of Gujarat

10. Area Ahamdabad

11. Fact and result Legally Exoneration

12. What the bench said CHANDRAMAULI KR. PRASAD, J. : - ―Invocation of TADA without following the safeguards resulting into gives an opportunity to many and also to the enemies of the country to propagate that it has been misused and abused. District Superintendent of Police and Inspector General of Police and all others entrusted with the task of operating the law must not do anything which allows its misuse and abuse and ensure that no innocent person has the feeling of sufferance only because

250 My name is Khan, but I am not a terrorist‖.410

The facts of the case might induce mournful reflection how an attempt by the investigating agency charged with the duty of preventing terrorism and securing conviction has been frustrated by what is popularly called a technical error. ―

13. Conviction caused due to Police and prosecutor misconduct

14. Innocence how proved It was proved that the police didn‘t do its job at the time of investigation and it was addressed and identified by the court. No proper procedure under TADA were followed.

It was a precise case description in a tabulation form but in general, Structural study needs to done. Even in the prison system it has an effect. Structural approach needs to be followed not an individualistic approach. It should be considered that psychological effect of wrongful prosecution is also equally important to be understood.

V. Ramesh Bhatia411

Facts & Summary - "Ramesh Bhatia, Naresh Prithiani, Ramesh Madhwani and Kumar Jaisinghani were codefendants wrongly convicted in November 2004 of murdering a journalist named Raju on September 12, 2001 outside a shop in Ulhasnagar, a city in India's stat of Maharashtra. The conviction of the four men was based on the testimony of a single person, the travelling companion of Raju who identified him after his murder -- but who didn't tell the police until the next day that he had witnessed the crime. Another eyewitness who immediately came forward said the four men were not the persons who assaulted Raju. The four men were sentenced to life in prison. On September 25, 2013 the Bombay High Court quashed the four defendants convictions and ordered their release based on the unreliability of the

410 HTTPS://INDIANKANOON.ORG/DOC/140891030/ VISITED ON 25TH AUGUST, 2016 411 STATE OF MAHARASHTRA VS DEVAHARI DEVASINGH PAWAR & ORS., CRIMINAL APPEAL NO.1525 OF 2004, BOMBAY HIGHCOURT, MAHARASHTRA

251 alleged eyewitness who waited a day before telling the police he had witnessed the crime. The four defendants were released after almost 12 years of incarceration."

1. Name Ramesh Bhatia

2. Gender Male

3. Charge Murder

4. Sentence Life Imprisonment

5. Year Imprisoned 11 years and 10 months

Year in which crime was 6. 2001 committed

7. Year of conviction 2004

8. Year of exoneration 2013

9. Region of crime Maharashtra

10. Conviction caused due to False eyewitness testimony.

"On September 25, 2013 the Bombay High Court quashed the four defendant's convictions and ordered their release based on the unreliability of the alleged 11. Innocence how proved eyewitness who waited a day before telling the police he had witnessed the crime. The four defendants were released after almost 12 years of incarceration."

A bench observed that the eyewitness had acted as a panch witness of the body of the scribe. He did not inform police while acting as a panch that he was also an eye witness to the killing in Ulhasnagar town of Thane district.

12. What the bench said "His belated disclosure about the incident to the police on the next day (about witnessing murder) would affect his credibility as an eye witness," said a bench, headed by Justice PV Hardas and PN Deshmukh on September 25.

"We have also noted that the evidence of this eye witness Paresh

252 is not of such quality as to impel the Court to implicitly rely on his testimony. The conduct and behaviour of Paresh is highly unnatural and, therefore, belies his claim at having witnessed the incident," observed the bench.

"Unfortunately, he is the sole eye witness as another eye witness, Dilip, did not support the prosecution and was declared hostile. Be that as it may, the evidence of Paresh does not inspire confidence of the Court and according to us, conviction of the appellants cannot be sustained on the basis of the testimony of Paresh," Judges further said.412

VI. Shiney Ahuja : - Shiney Ahuja was booked for the charge of rape of his maid by the Mumbai police in June 2009. It was also stated by some sources that he admitted that he had consensual sex with the maid and it was not rape. In the court when the maid was asked for witness, she also submitted that it was a consensual sex and not a rape but the trial court refused to accept the retraction and convicted Ahuja on the basis of circumstantial evidence. Ahuja filed an appeal in the high court.

Veracity of presumption of innocence in a crime

What is before the prosecution?

Presumption of Innocence: - cardinal principle integral to the Criminal procedure. Can we say the courts are sole repository? The investigation agency are also liable to follow the principles. The accused remain outside the jurisdiction. The enquiry under 202 can be said to be safeguard to accuse. But, how many ratios have magistrate taken

412 HTTP://ZEENEWS.INDIA.COM/NEWS/MAHARASHTRA/BOMBAY-HC-QUASHES- LIFER-OF-FOUR-CONVICTS-IN-JOURNO-MURDER-CASE_879876.HTML. VISITED ON 24 AUGUST,2016

253 cognizance into. Applicability of Section 156(3). Misuse of this section in as noted in priyanka Srivastava.

When the investigation is started by the PO, it actually starts on the notion that we have collect

The recording of the FIR after lalita kumari. Sexual assaults case there are so false reporting of the case. The stricter laws are there after the amendment. The more strict we made the punishment the more its misuse will be. Lalita kumari said that there must be an fir.

In a case of sexual assault case the police officer blindly records an fir without conduction any further enquiry. Next stage comes is arrest, despite the fact that Supreme Court has again and again said that and Section 41A is there don‘t fall into unnecessary arrest.

The police has got the power to know whether the arrest should be made or not. The things have to be written in black and white. The PO has stepped aside the direction of the case inarnesh kumar. They said as they thought necessary they made an arrest. At the state of framing of the charges, the prima facie case whether exist or not. The lawyers knowingly procrastinate the case.

Framing of the charges need not to be supported by the facts but by the reasons. There was dacoity case 6 persons were there, in which 4 acquitted 1 died and 1 arrested. The session court went ahead in framing the charges just because it was the case of dacoity. Malicious prosecution there are certain attitude.

Facts and Summary : -

1. Gender Male 2. Charge Rape 3. Sentence 7 years 4. Years Imprisoned 4 years (Including under trial ) 5. Year of conviction 2011 6. Year of exoneration 2012 7. Region of crime Mumbai

254 False complaint by the prosecutrix who 8. Conviction caused due to later denied from her own statement. Prosecutrix turned hostile and was 9. Innocence how proved charged with purjury Bombay Highcourt : - Serious disregard of benefit of doubt concept and total 10. What the bench said failure of the reliability of the statement of the prosecution.

VII. Mufti Abdul Qaiyum Mohd Bhai

The Case that took place in , Gujarat on 24th- 25thSeptember, 2002 killed 33 people and wounded 80 others. Both the attackers were killed by the National Security Guards. Six accused were later arrested by and charged with providing local support to the accused. All the accused arrested were convicted of involvement in attacks in POTA court, and their sentences were upheld by the High Court. In May 2014, the Supreme Court acquitted all the six prisoners of all charges and pulled up the Gujarat Police for shoddy investigation in the case. The Supreme Court also expressed concern over the manner in which the POTA court and the High Court had pronounced the convictions.

1. Gender Male

120-B, 302, 307, 153-A, 451 of the Indian Penal Code, 1860 read with Charge Arms Act, 1959 (Section 25, 27 and 2. 29) and Explosive Substance Act, 1908 (Section 3,4 and 6) and Prevention of Terrorism Act, 2002

3. Sentence Under POTA

4. Years Imprisoned 11 years

5. Year of exoneration 2014

6. Region of crime Gujarat

7. Conviction caused due to Fake arrest and confessions

 After the transference of the case to ACP SInghal, Crime Branch; 8. Innocence how proved managed to apprehend five suspects in a single day when the ATS had clearly found nothing to

255 link them to the case in 10 months. It remains unclear as to how as to where the information came from was not revealed and since the DG Vanzara, on whose basis, the were made, was not a witness; the information was not discussed in the courtroom.

 There was no other evidence than the confessional statement, whose validity was questioned by the Supreme Court as they were later retracted by the accused on the grounds of being obtained through torture.

"an independent analysis of fact in consultation with the investigating officer"

"This would go to show clear non- application of mind by the Home 9. What the bench said Minister in granting sanction."

"perversity in conducting this case at various stages, right from the investigation level to the granting of sanction by the state government".413

Illegal custody without evidence and false accusation. The reasons of how malicious prosecution has plagued our criminal justice system. The plight of Under trial prisoners who are not only in judicial custody, but are kept in same prison where other convicted and hardened criminals stay in India. Delay is the most prevailing issue in trial of the cases. The delay caused in the trial of cases is the main human rights issue of under trials. The main purpose of keeping the under trials under custody is to ensure fair trial so that they cannot be able to influence or induce the witnesses. In the Indian Prisons, under trials constitute more than 65% of the prison population which is a major indicator of gross violation of human rights. The delay in the trial of the cases of the under trials causes them to spend a considerable period in the prisons. The landmark judgment of Hussainara Khatoon & Ors vs Home Secretary, State of

413 IBID 15

256 Bihar414 where recommendations for speedy trial were given. Some of the reasons for the problem of wrongful prosecution such as racism, ineffective counsel, faulty forensics, false confessions and coerced witness. New provisions should be added in law having more severe punishment for the authorities and to make them fear the practice of malicious prosecution.

VIII. Abdul Azim Abdul Jameel Shaikh (Aurangabad Arms Haul Case )

At about 6 am on 9 May 2006, the ATS team led by officer Singal noticed one Tata Sumo bearing registration no. MH14X4380 coming from Manmad side. After prolonged chase of about 70-80 kilometers, they were successful in intercepting the same near Ghrushneshwar temple, which is situated on Verul Aurangabad road within the limits of Khultabad taluka, district Aurangabad at about 17.45 hrs. On return near the said Tata Sumo, the team found that there were brown colour corrugated boxes kept on the middle and the rear seats of the said Tata Sumo. Each corrugated box contained black coloured computer server cabinets. Each computer server cabinet was found containing one AK-47 rifle, a packet, four magazines, around two hundred live cartridges, one magazine pouch and a packet of about three kilogram of black colour sticky substance. Thus, in all ten AK47 rifles, ten packets containing 40 magazines, ten packets containing approximately 2000 live cartridges, ten magazine pouches and ten packets containing approximately three kilogram of black colour sticky explosive substance were found in the said corrugated boxes on which prominent letters ATX were written.

1. Gender Male

2. Charge POTA , MACOCA

3. Sentence Terrorist Activities and MACOCA and Arms act

4. Years Imprisoned 10 years

5. Year of exoneration 2016

6. Region of crime Maharashtra

7. Conviction caused due to a) the confession of accused no.1 Mohd. Amer which mentions the name of Abdul Azim and

414 1979 AIR 1369, 1979 SCR (3) 532

257 also acknowldges that he was driving the car.

b) The evidence of PW 1 witness which strengthened the Prosecution claim that Abdul Azim was the one who hired the car for the above mentioned conspiracy.

However, in the final judgement it was noted that Abdul Azim only introduced accused no.4 Jabiuddin to the car owner. It states: ―it is clear that the Tata Sumo was hired by both the accused 8. Innocence how proved and not Abdul Azim..‖ It further notes that Abdul Azim, being acquaintance to Jaleel, just introduced him to the car owner and volunteered to drive without any knowldge of conspiracy.

The judge makes following observation,

―The most important aspect of the above statement is the fact Judgment in MCOC 16/06 495 that at no place accused Azim admitted being part of either larger conspiracy or of procurement of arms, ammunitions and explosives. In the entire statement he has mentioned overt acts on the part of other accused, suggesting that they have committed the offence. He does not admit having committed any offence. He also has not admitted any of those facts which if taken together, would 9. What the bench said constitute any offence. Thus, claiming that others have done some acts amounting to offence but he, that is accused Azim has not committed anything, is not and cannot be termed as confession. It is entirely exculpatory statement in which the accused is blaming others and is pleading his innocence. He merely claimed his acquaintance with accused Jabiuddin@ Zabiuddin @ Jabi @ Zabi, absconding accused Fayaz and Ijaz. Mere such acquaintance will not make accused Azim as a person guilty of charge. Therefore, admission of such acquaintance cannot be said to be a confession i.e. admission of guilt.‖

Observation - The procedural aspect of wrongful prosecution. 100 may go free but 1 innocent should not be punished. The wrongful prosecution is the biggest epitome of this bridge. The prolonged trials for wrongful prosecution, the low conviction rates under Section 211 of the Indian Penal Code and the even lower fines imposed against

258 offenders are crucial to wrongful prosecution. The lack of finality and lack of effective method of estimation while deciding the amount of compensation. At the lower level, risk of error cannot be precluded.

Wrongful prosecution can also be dealt with as a tort under article 21. The procedure for fixing a price for compensation of wrongful prosecution. The first kind is when State makes ex gratia payment to victims and the second kind is when victims make a positive application to the state and then the state decides after considering various factors such as loss of reputation, loss of family life, earning capacity etc.

This judgement highlighted some of the very critical aspects of our criminal justice system. It explored the various loopholes and lacunas that have led to victimization of thousands, perhaps more, under the claws of illegal arrest, malicious prosecution and wrongful conviction. A detailed discussion on every such factor is very relevant and suggestions to remodify the existing situation of our system. Various kinds and techniques of deciding the compensation for these secondary victims were debated. The need for statutory reforms and effective accountability of the wrong doers was conclusively suggested.

IX. Dr. Farookh Makhdoomi (The Malegaon blast Case )

Four bomb blasts took place on 8th September, 2006 in Malegaon, a town in Nasik district in Maharashtra. The blasts took place on the day of shab-e-baraat, an important Muslim religious festival, and the explosions left 31 people dead and 321 injured, most of the victims being Muslim Pilgrims. Out of the four bombs one was placed at the entrance gate of Hamidiya Masjid and Bada Kabrastan, second on the bicycle parked in the parking lot situated inside the compound and third was hung on the wall of the power supply room situated in front of waju khana inside the compound and the fourth bomb was planted at Mushawart chowk which is a crowded place upon a bicycle near an electric pole. The incident was followed by series of investigations, which were initially carried on by the local Malegaon police. But the case was then handed over to the Anti-terrorist squad on 23 October, 2006, head investigator being K.P.Raghuvanshi. The first charge sheet was filed by ATS. The second supplementary charge sheet was filed by the CBI, which only did the work of

259 corroborating the investigation done by ATS. The case, however, took a drastic turn when one of the accused arrested in Mecca Masjid Bomb blast case, Swami Aseemanand‘s confession report was brought to the lime light. Even though, two charge sheets were already files, Government of India directed NIA (National Investigation Agency), in 2011, to carry on the investigation. Therefore, the case was re-opened and further investigations were carried on. The investigation done by NIA found a completely different set of accused to be responsible for the blasts and has raised many doubts and questions regarding the investigations done by ATS and CBI. The case stands solved with the final charge sheet filed by NIA and on the basis of the NIA investigation the accused initially arrested were discharged from the case. (Special court Greater Mumbai)

1. Gender Male

CHARGES under Sections: 302, 307, 326, 325, 324, 379, 212, 295, 121[A], 153[A], 2. Charge 505[II], Sections 5 and 6 of the Prevention of Damage to Public Properties Act r/w. 3(2), 3(4) of MACOCA

3. Sentence UAPA , MACOCA

4. Years Imprisoned 5 Years

5. Year of exoneration 2016

6. Region of crime Maharashtra

The ATS declared nine Malegaon residents – all of them allegedly members of SIMI – to be the masterminds behind the attack. According to the investigating agency, they had carried out the blasts with the intention of provoking Muslims into committing communal riots against the Hindu community. 7. Arrested due to The main evidences found by ATS were the mud samples collected from the place of the offence and from the godown of on the accused. The samples were sent to the SFSL, Nasik for analysis. The report revealed that the samples contained traces of RDX and both the samples from both places were found with the same contents.

260 The other main evidence, on which ATS confirmed their proposition of the accused being the members of SIMI were the literature of the same found in their possession. Recorded phone coversation of accused no.8 and no.9 was also made a basis to show their involvement in the bomb blast.

Soil Sample: NIA Investigation showed that the panch witnesses of the panchnama showing collection of soil sample were actually not present at the time of collection of the samples.

Confessional Statements: The NIA Investigation found that all the accused had retracted their confessions and claimed that the confessions had been obtained under duress. Witness A-369 also retracted his statement. Accused no. 9 claimed that he 8. Innocence how proved and his wife had been in illegal police custody before his formal arrest and that he had turned approver only as a result of torture by the ATS.

Call Records: The court analysed the content of the recorded conversation between two of the accused and concluded that even if the recording was admitted to be true as presented, there was nothing in its content to link the accused with the bomb blast.

The investigation done by NIA found a completely different set of accused to be responsible for the blasts and has raised many doubts and questions regarding the 9. What the judge said investigations done by ATS and CBI. The case stands solved with the final charge sheet filed by NIA and on the basis of the NIA investigation the accused initially arrested were discharged from the case.

X. Shoeb Jagirdar and Imran Syed Khan (The Mecca Masjid Blast Case)

On 18 May 2007, a bomb exploded in the courtyard of Mecca Masjid, Hyderabad. 9 people were killed and 40 injured. Another bomb was later found live next to the

261 ablutions pool. In the ensuing panic, amidst frantic efforts to get the injured to the hospital, the police opened fire at the people exiting the overcrowded mosque. Another 6 people were killed and 21 injured. In the immediate aftermath of the blast more than 300 people were detained from different parts of the city. 39 were finally chargesheeted in 4 different cases. All of them were acquitted after spending more than a year in custody. They were severely tortured. Asingle man Commission headed by Advocate Ravi Chander was set up by the state government to investigate allegations of torture. The report seriously indicted some police officers, but was not tabled. All the police officers were later promoted.

1. Gender Male

2. Charge CHARGES under Sections:120(b) r/w 121, 121A, 122, 123, 124A, 125 IPC and Sec 4 & 5 of explosives substances act

3. Sentence Terrorism

4. Years Imprisoned 1.5 years

5. Year of exoneration 2014

6. Region of crime Andhra Pradesh

7. Arrested due to ―The investigation conducted in this case disclose that A1 hatched a criminal conspiracy with A2 to A4 and others to create internal and external disturbances to the government of India by illegally procuring weapons and explosives, involve in subversive activities at the behest of terrorist outfits. In pursuance of the said conspiracy, A1, A3, and A4 on the instructions of A2 Nayeem came to Hyderabad in the 2nd week of February, provided shelter and negotiated for fraudulently obtaining a passport for Nayeemin the fictitious name of ‗Sohel Sheikh‘.‖ Evidence:The evidence in this case constituted statements given to police and Narco test conducted on Nayeem (A2), ShoebJagirdar (A1), and Syed Imran Khan(A3). Though the entire case rests on obtaining a false passport, the evidence does not include the a passport application form for the said passport, or any other document

262 linking them to the charge.

8. Innocence how proved ―Three charges against the accused allege that they have links with the Mecca Masjid blast. PW-1 said that the Mecca Masjid blast case was investigated by the CBI and then NIA and they finally filed case against some persons and not against these accused. In this trial no witness spoke of any facts indicating acts of waging war of any of these accused. No arms no ammunitions were recovered or seized from any of the accused. As per ex P- 1,ShoebJagirdar (A1) gave to Nayeem (A2)Rs1,000 to procure arms and explosives using contacts in Uttar Pradesh.‖ None of the witnesses corroborated any of the facts in this regard.‖ The other story of the prosecution was that for A2, i.e. Sheikh Abdul Nayeem @sameer all other accused tried to get passport in the name of Sheik Sohail. In order to prove such an accusation primarily the evidence requiredwas to show the real/true name of A2 was Sheikh Abdul Nayeem. If only that could be established can there be consideration of accusation that he tried to get a passport under a different name. Prosecution failed to collect any document which could establish the real/original name of A2. The prosecution also could not produce any witness who knew A2 to state the name of A2. The court observed that ―the evidence on record has not shown any accused forging any document. Thus the above evidence does not prove forgery in any manner...‖

XI Mohd. Nisaruddin (Serial Train Bombing Case (6 and 7 December 1993)

Explosions occurred in different trains amid night interceding fifth and sixth December, 1993. Two people were murdered and 22 others harmed in the impacts. 16 people were arrested and charged. One of the person arrested got away , later captured, in that capacity was charged independently. Ather was an adolescent/Juvenile and hence all things considered was also processed trhough a seperate case . The Hyderabad Police grabbed Nisar, later his sibling Zaheer and their neighbor in Gulbarga, Mohammad Yusuf, an auto repairman. At first, police booked

263 them for a bomb impact that had occurred in October 1993 at a Muslim Madarsa organization at Hyderabad. This case was documented in Abid Street Police headquarters. They were additionally charged in couple of unsolved bomb impacts that had occurred in August and September that year. In this manner, they were charged in a whole chain of blasts. The main proof police created was their affirmed custodial admissions — the arrangements of (TADA) were later summoned to make these permissible. At first, the cases were enlisted at the government railroad police headquarters. Afterward, the examinations were exchanged to the CBI . On February 28, 2004, the assigned TADA Court at Ajmer indicted the other 15 charged, including Nisar, his sibling Zaheer and Yusuf, and condemned them to life sentence . One among them, an adolescent, was later discharged by Supreme Court in 2012. They moved toward Supreme Court and filed an appeal against the decision of the TADA Court.

1. Gender Male

The accused were charged under various sections 2. Charge of TADA, IPC, POTA , MACOCA

3. Sentence Under TADA and IPC

4. Years Imprisoned 23 years

5. Year of exoneration 2016

6. Region of crime Gujarat

In order to prove its case, the prosecution relies on number of exhibits and testimony of various witnesses. Though there is no direct evidence in the form of version coming from any witness implicating any of the accused clearly as regards any of the material stages as aforesaid, according to the prosecution the confessions of various 7. convicted due to accused as corroborated by circumstantial evidence are sufficient to establish its case. Confessions are thus the fulcrum of the case of the prosecution which would then require consideration whether each of those confessions were correctly recorded in a manner known to law and to what extent those confessions can be relied upon.

8. Innocence how proved A. There was no valid invocation of provisions of TADA Act which is necessary as under Section

264 20 A (1) of TADA Act. The documents/orders of invocation as alleged in the present matter were not contemporaneous but fabricated later in point of time.

B. The prosecution was seeking to rely upon confessions of the accused recorded in other crime(s). Though permissible in law, such reliance was not in conformity with the principles laid down by this Court.

C. Confessions recorded in the present matter were not voluntary. They were extracted while the accused were in police custody and in most cases the confessions were recorded by PW 62 H.C. Singh while other competent Officers were available.

D. In any case, such confessions could not be relied upon as substantive evidence to bring home the charge against the confessing accused and for that matter against the co-accused.

E. There was no evidence independent or otherwise which could support the case of prosecution. Further, there was no material on record even to lend support or corroboration to the confessions relied upon by the prosecution.

Justice Uday Umesh Lalit said :

―Nasir‘s ―role is neither referred to in the confessions... nor is there any material other than the confession of (Nisar) himself on record. The conviction and sentence of (Nisar) is therefore 9. What the bench said completely unsustainable‖. The Bench also observed that the confessions of the four accused, including Zaheer, Nisar and Yusuf, were ―without any legal sanction and cannot be relied upon‖. Hence judgement was given in their favour also.‖

XI. Adnan Mulla (The Mulund Blast Case Testimony)

Total of 19 accused were charge-sheeted for alleged act of causing three bomb explosion at places namely Mc Donald Hotel, Mumbai Central Railway Station, Monghibhai Market Vile Parle and in second class general compartment of Kalyan local train. 3 blasts were hereinafter referred to as Mumbai Central Blast, Vile Parle

265 Blast and Mulund Train Blast. The accused Adnan was arrested for his conspiracy in Mulund Blast. Mulund Blast : On 13 March 2003, at about 20.36 hours, Bomb Blast took place at platform No.3 in the 3rd boogie of Kalyan local train. act of three bomb explosion at places namely Mc Donald Hotel, Mumbai Central Railway Station, Monghibhai Market Vile Parle and in second class general compartment of Kalyan local train by way of conspiracy, the act preparatory to a terrorist act with intent to threaten the unity, integrity, security or sovereignty of India and to strike terror in the public at large. Three blasts were hereinafter referred to as Mumbai Central Blast, Vile Parle Blast and Mulund Train Blast.

1. Gender Male 2. Charge POTA , MACOCA , UAPA Act 3. Sentence Terrorist Activities and waging war 4. Years Imprisoned 12 years 5. Year of exoneration 2016 6. Region of crime Maharashtra 7. Arrested due to that he helped in carrying bag containing weapons to Mahuli Hill for training purpose, purchase of chicken and also showed spot Mahuli Hill where training of firearm was undertaken that of sophisticated firearm namely AK47. 8. Innocence how proved There was not a single admissible evidence against Adnan to proceed with trial. Adnan applied for but his application was dismissed. Adnan approached Honourable Bombay HC but even the Bombay HC refused to entertain Adnan‘s plea and he was made to suffer the ardous process of almost 2 years of day to day trial in which not a single independent witness was produced against Adnan. It was finally on 29 th March 2016 he was acquitted of all the charges as there was not a sign evidence against him. 9. What the court said Judicial probe on Illegal Detention : In 2008 Bombay HC ordered a judicial probe for his illegal custody of 35 days. On 8th of july 2008 the Principal Judge Shri T. V Nalawade submitted his report

266 confirming illegal detention by the crime branch. On page No.9 of the said report, the report reads as : ― Adnan was not produced before magistrate from 05/05/03 till 09/06/03 and so in view of section 56, 57 and 167 of Crpc the detention of Adnan during this period was illegal and unauthorised. The arrest was also not made as provided by section 46 to 53 and 58 of Crpc. The procedure was not followed by DCB-CID with intention to avoid creating of record and there is clear probabibility that the investigating agency did not want to make Adnan an accused but it wanted to make him a witness. On page No.10 para 22 of the said report, In view of the aforesaid circumstances, I have no hesitation to hold and report that aforesaid Police officers are responsible for illegal, unauthorised detention of Adnan Bilal Mulla from 05/05/2003 to 09/06/2003.

XII. Wahid Shaikh (The Mumbai train blast 7/11 case)

On 11th July, 2006, 7 high intensity explosions ripped through the 1st class compartments of 7 trains in Mumbai. More than 200 people died and another 1000 were injured. Over the next two weeks more than 1500 people were detained by the ATS from the muslims suburbs of Mumbai. Finally, 13 people were arrested in the case and the police filed the chargesheet 29th November, 2006. However, in 2008 another set of accused (held by the crime branch) confessed to having done the blast.

1. Gender Male

MACOCA , UAPA, Railway Act under various 2. Charge sections

3. Sentence Terrorist Activities , waging war

4. Years Imprisoned 9 Years

5. Year of exoneration 2015

6. Region of crime Maharashtra

267 The chargesheet reveals that the blasts were carried out by members of the Students Islamic Movement of India (SIMI), while the entire operation was overseen by Lashkar-e- Toiba of Pakistan which was guided by the ISI. The conspiracy was being planned since 1999, and all the accused, including the absconding ones have been meeting in several places in India and abroad. In this period all the 13 arrested accused went to Pakistan for training in the handling of arms and explosives. During a meeting in the months of May, 2006, in the house of Faisal Sheikh (A-3) at Bandra, the plan to cause explosions in local trains was finalized. For the 7. Arrested due to purpose 12 Pakistani nationals under the guidance of AzamCheema, LeT commander, carried RDX and entered India through the Bangladesh border, the Bihar- Nepal border, and through Kutch in Gujarat. The Primary evidence in the case is the confession of 11 out of the 13 accused. As the case is under MCOCA the confessions are admissible as evidence in court. Apart from the confession, the case relies on the testimony of a few witnesses- especially taxi drivers who are alleged to have driven the accused to the different stations. Wahid Sheikh (A) role in the conspiracy was limited to harbouring the Pakistani nationals in his house and helping them in hatching the conspiracy.

The only evidence against the accused is the testimony of his relative (P.W 65), MahmoodQureshi, who stated that Wahid Sheikh used to an activist of SIMI. No connection was established between him and the case. ―Senior lawyer Rizwan Merchant, who was appointed as an amicus curiae to assist the court while representing Wahid had argued for Wahid‘s discharge at the time of framing of charges, but it 8. Innocence how proved was not allowed as the judge said that the case was fit for trial. In the judgement, the court pronounced that there was no evidence against Wahid that linked him to the case and acquitted him of all charges. ― It is to be noted that other co-accused in the case (12 in all), have been convicted and received stringent sentences on much the same ‗evidence‘ that was found to be wanting and faulty in the case of Wahid. This is a case of gross wrongful conviction.

268 XIII. Rehan Punthawala (Haren Pandya Murder Case )

Haren Pandya was a minister in the Government of Gujarat up to the assembly elections of 2002. Considered close to former Chief minister Keshubhai Patel and a political rival of then Chief Minister , he was denied a ticket in the 2002 assembly elections. He was found shot dead in his car on 26 March 2003. The murder drew considerable attention due to the political celebrity of Pandya and the fact that his family repeatedly alleged political motivations behind his killing, raising questions over the official investigations being carried out.

1. Gender Male

2. Charge POTA and Arms Act read with IPC

To strike terror was inferred, provisions of 3. Sentence POTA were invoked in the case.

4. Years Imprisoned 8 Years

5. Year of exoneration 2011

6. Region of crime Gujarat

As intention to strike terror was inferred, provisions of POTA were invoked in the case. In April of 2003 five people were initially arrested in connection with the case. Rehan Punthawala was among the five, and he was alleged to be an ISI agent who had gone to Pakistan to receive terrorist training in order to avenge the . He was charged 7. Arrested due to with being a conspirator in the case and not the main shooter. According to the prosecution, the sole eyewitness in the case identified Asghar Ali (accused no.1) as the shooter and further investigations revealed that a total of 15 persons were engaged in the conspiracy to target leaders of the Hindu community to avenge the Gujarat riots.

Mysterious Injury No. 7- There were seven bullet injuries on the body of Haren Pandya. 8. Innocence how proved One of the injuries (No.7) was such that it could only have been inflicted if the shot was fired from below the waist. According to the doctor who examined Pandya‘s body, the injury could

269 only have been inflicted by someone positioned to the left of Pandya and firing from beneath the waist. And yet, Pandya was found in the driver‘s seat and, according to the prosecution, had been shot through the gap in the open window. This gap was accepted by the court to be almost to the measurement of the palm. Therefore, Injury No. 7 being inflicted by someone shooting through a small gap in the window becomes a physical impossibility.

The High Court noted that the eye witness repeatedly contradicted his own statements during cross examination, especially with regard to the time of the incident, his proximity to the car at the time of the shooting and his identification of Asgar Ali as the shooter. Calling the evidence presented by him ―very 9. What the bench said weak and fragile‖, the Court observed that: ―In fact, by the inherent contradictions and improbabilities contained in the version presented by the so-called sole eye-witness, his very status and presence as an eye-witness to the incident of firing upon Mr.Haren Pandya have to be seriously doubted.‖

From the above tabulations, it‘s so inevitable to see that the criminal justice system and its machineries have several number of times faced criticism and its mostly because of malicious prosecution , false misidentification of accused , delay in trial . it has to be appreciated that Invariably, the objective of Criminal Procedural Code is to ensure that justice is delivered on time to the victims of crime. Justice can only be rendered effectively when the actual offender is arrested and charged with offense he committed. This can be ensured by obligating the police, investigating agencies, the prosecutors and the judges to fulfil their responsibilities and duties efficiently as per the laws devoid of any intended error. For establishing faith in the people of any country towards the legal institutions, the veracity and ethos of the criminal justice system need to be safeguarded. This endeavour can only be realized when the guilty are condemned and the innocents are exonerated from punishment. The impartiality principle of the criminal procedure is an established universal norm. The entire criminal justice system would collapse and become meaningless if an innocent person is convicted intentionally or unintentionally resulting from the dodges of the system‘s

270 instruments. The dignity of human beings ought to be treated with high reverence. For this reason, the state shall sanction only legitimate arrest, which should be based on factually ingenuous opinion of the investigating officer supported by impartial arguments by the prosecutor for proving the guilt.

The Supreme Court has evolved certain dynamic and conclusive form of criminal procedures, by applying its judicial mind, in order to establish an effective mechanism to control the abuse of natural justice principles. Rule of law, being an indispensable part of natural justice principles, must be incorporated in the of criminal justice. Rule of law is the core element that ropes and defends the efficacy of natural justice principles. It further promotes the notion that the harmony and unity of a nation rest on the faith of its citizens in the criminal justice system.

The objectives of criminal justice system are accomplished through that the laws delineated under Criminal Procedure Code to help the nation and its people meet justice. The Hon‘ble Supreme Court has replicated the same view in several judgements. Reprimanding that no innocent person shall be charged with the crime of others, it warned that conviction of innocent people will gradually lead towards the failure of the criminal justice system.

The misuse of powers and functions under the criminal procedural law and its grave repercussions have been observed by various judicial bodies in landmark cases such as the Mathura case and D.K. Basu case. Through these cases the apex court, in particular, had the opportunity to expose instances where abuse and manipulation of laws have been done to meet the selfish interest of the investigating agencies, prosecution and the political parties. It also had the opportunity to throw light on the uncontrolled criminalization of certain acts and omission committed by the citizen of our country, that can easily be averted and managed through alternate civil remedies.

―When the wrong person is sent to prison, not only are they and their family sent, but society is at risk from the real perpetrator being left free to strike again, as happened in my case.‖ ―Jeff Deskovic, The Jeffrey Deskovic Foundation for Justice‖

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