Madan B. Lokur

Appalling. That’s the only way to describe the manner in which the proceedings against Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha have been conducted and are being conducted by the police and prosecution till now.

In the process, the underbelly of our criminal justice system stands exposed in some respects, and it’s a pretty ugly sight. No comment is being offered about the recent judgment by the Delhi high court in their case, but certainly about the process, which has shown scant respect for human rights, rule of law and justice.

A brief background of the cases

Devangana Kalita

Of the four FIRs against Devangana Kalita, the first is FIR 250/2019 registered on December 21, 2019 – she was arrested under this FIR on May 30, 2020 (a year later) but was later granted bail on June 2. On the day of her arrest, Kalita was already in jail in connection with a fourth FIR.  The allegation against her is primarily of rioting with a deadly weapon. There is no allegation of sedition.

The second is FIR 48/2020 dated February 24, 2020, for which she was arrested on May 23, 2020, but bailed out the very next day. The essential allegation against her is that of rioting and when she was granted bail, the order passed by the trial judge noted that the “accused was merely protesting against the NRC and CAA and accused did not indulge in any violence”.

The third FIR against Devangana is FIR 50/2020 in which she was arrested on May 24. The Delhi high court has observed that “Immediately upon being released on bail by the learned Duty Metropolitan Magistrate [in FIR 48/2020], then-and-there in the same court-room, the appellant was re-arrested by police officers from P.S.: Crime Branch in FIR No. 50/2020.” She got bail in this case on September 1. The basic charge against her is that of rioting with a deadly weapon. Usually, defendants are not arrested in the courtroom – the last time this happened was in Amitabh Bachchan’s Shahenshah!

The fourth FIR against Devangana is 59/2020 dated March 6, 2020. This FIR is the subject matter of the bail recently granted by the Delhi high court. She was arrested in this case on May 29 (three months later) while she was already in jail. A chargesheet was filed against her in connection with this FIR on September 16, 2020, and cognizance of the offences was taken on September 17.

To put it into perspective, Devangana was first arrested on May 23, 2020, then on May 24 and May 29 and finally on May 30. How desperate can the police and prosecution get?

Be that as it may, Devangana filed an application for bail in November 2020 in connection to the case relating to FIR 59. Quite obviously, it was filed before the charge sheet was served to her since the bail application was rejected by the trial judge on January 28, 2021 and the charge sheet served to her on or around March 25, 2021. Interestingly, there are copious references in the order of the trial judge to statements of some protected witnesses like Beta, Delta, Echo, Jupiter, Smith, Johny and Gama (where’s Charlie?). None of these statements are in the knowledge of Devangana or shared with her. Is this fair?

This order was under consideration in the Delhi high court.

Natasha Narwal 

There are three FIRs against Natasha Narwal. The first is FIR 48/2020 dated February 24, 2020. She was arrested on May 23 in connection with this FIR but bailed out by a common order on May 24.

Again, as in the case of Kalita, Narwal was arrested from the courtroom itself on May 24 in connection with a second FIR, FIR 50/2020 dated February 26. The essential charge was of rioting with a deadly weapon. Narwal was granted bail by the trial judge on September 17.

The third FIR against Natasha is FIR 59/2020 dated March 6, 2020, in which she came to be arrested on May 29 when she was already in jail. She applied for bail in this case in September 2020 and obviously before the charge-sheet was served upon her. The bail application was rejected on January 28, 2021. The decision of the trial judge is the subject of discussion in the judgment of the Delhi high court of June 15.

Asif Iqbal Tanha

On December 16, 2019, an FIR 298/2019 was registered against Asif Iqbal Tanha for rioting. There was no allegation of sedition or terrorism. The FIR was registered in connection with peaceful protests against the Citizenship (Amendment) Act (CAA). In our constitution, a peaceful protest is called a peaceable assembly and without arms. It is a fundamental right guaranteed under Article 19(1)(b) of our constitution. Except section 144 of the Criminal Procedure Code (CrPC), there is no law that places any reasonable restriction or prohibits, in the interest of the sovereignty and integrity of India or public order, peaceable assembly without arms.

The exercise of power under section 144 of the CrPC is hedged in with conditions about which the administration doesn’t care. But that’s another story. So, notwithstanding the peaceful protest by Tanha against the CAA, he was charged with rioting and that too of being armed with a deadly weapon. He was also accused of attempted murder. For these alleged offences, he was arrested sometime in May 2020 but granted bail by the district judge on May 28, 2020.

Contumacious denial of charge sheet to the accused

During this entire period, three important events occurred. First, there were riots in North East Delhi in late February in 2020. Soon thereafter, an FIR 59/2020 dated March 6 was registered against Devangana, Natasha and Asif for rioting. Second, on April 19, a charge of terrorism under the Unlawful Activities (Prevention) Act (UAPA) was added to the FIR along with a charge of sedition while the three were still in judicial custody. Third, Asif was arrested on May 20 and Devangana and Natasha were arrested on May 29 in connection with FIR 59.

On conclusion of investigations relating to FIR 59, a charge-sheet was filed on September 16 against the three accused (and others) and the trial judge took cognisance of the offences on the next day, except the offence of sedition since the necessary sanction had not been received by the prosecution from the concerned authorities. On September 17, the trial judge passed the first order for supply of a copy of the charge sheet to Devangana, Natasha and Asif.

As a matter of right, they are entitled to a copy of the charge sheet filed against them. Section 207 of the CrPC provides for it. It was supplied to them in a pen drive on September 21 in compliance with the order of September 17 passed by the trial judge. A soft copy having been supplied to them, were they – and others – given free and unlimited access to a computer in jail, whenever they desired?

Has the prosecution tried reading a 17,000- or 19,000-page document on a computer to ascertain how convenient or inconvenient it is? It is not the letter of the law, but the spirit that has to be complied with, particularly in a matter of liberty. But, does the prosecution care or even acknowledge the existence of statutory rights?

On the next date, September 19, while explaining why a physical copy of the charge sheet could not be supplied to them, it was submitted by the prosecution that the charge sheet has thousands of pages and there are 15 accused persons and some approvals including financial have to be taken. Obviously, disapproving of such a submission, the trial judge proceeded to pass a second order for the supply of the charge-sheet to the accused clearly mentioning that a physical copy of the charge-sheet will be supplied to all the accused persons in the jail itself.

Continuing the harassment, a physical copy of the charge sheet was still not supplied to the three. On October 21, the prosecution submitted before the trial judge that it needed government sanction of funds for supplying a hard copy of the charge-sheet to the accused. This submission was made one month after the trial judge had passed an order for supply of the charge-sheet. Was it not possible for the prosecution to seek sanction during this period? More importantly, is government sanction required for compliance with natural justice principles? Amazing, isn’t it?

The trial judge rightly rejected this submission of the prosecution while observing that it is “not impressed” with this submission. It was noted that “Once the charge sheet has been filed by the Investigating Agency, as voluminous as it is, with some alacrity, a copy of it has to be provided in hard copy to every accused which was also a direction of the court. They may require sanction of funds for the said purpose; however, they were supposed to act promptly.” It was then directed, for the third time, that a physical copy of the charge-sheet be supplied to every accused before the next date of hearing “without fail”.

If the prosecution chooses to file a voluminous document and needs financial sanction for photocopying it, it is entirely the prosecution’s concern but it must supply the charge-sheet to the accused persons. Photocopying 17,000 or 19,000 pages and getting financial sanction may be a hassle for the prosecution, but depriving a citizen of his or her constitutional right to liberty does not seem to be a problem.

Seemingly the supply of a physical copy of the charge sheet became a prestige issue and as a continuation of its caprice, the prosecution challenged the orders of the trial judge by filing a petition in the Delhi high court. The petition was entertained by the high court on November 4 and it passed an order on November 10 staying trial in the case. The petition suffered several adjournments and eventually on March 23, 2021, it was submitted to the high court that a complete hard copy of the charge sheet was ready and the accused were at liberty to collect it from the trial court on March 25, 2021.

In view of this statement, the petition was disposed of by the high court. In other words, a charge sheet that had been filed on September 16, 2020, was actually made available to Devangana, Natasha and Asif only on March 25, 2021, after a gap of six months, and all this while they remained in jail without knowing the actual allegations and charges against them.

Bail hearing without charge sheet and relevant documents

In the meanwhile, the three accused persons independently filed an application for bail, pending completion of investigations, but they were was rejected. Also in the meanwhile, the police continued with their investigations and filed the first supplementary charge sheet on November 22, 2020, and the second supplementary charge-sheet on March 1, 2021. What this really means is that investigations overall were not completed but those who were initially accused of a crime – such as Devangana, Natasha and Asif – were required to be detained until the investigations are complete.

Theoretically, there is nothing to prevent the prosecution from filing a third, fourth and fifth supplementary charge-sheet since investigations can go on and on for another one or two years and this can be used as a ground by the prosecution for continuing the detention of the accused in jail since it is possible that they might influence investigations. In fact, this was noted as a submission (though not in as many words) made by the prosecution. It was stated in this regard that, “As regards further investigation, it was pointed out [by the prosecution] that it is still going on till all the perpetrators are apprehended and all evidence collected.”

Question 1: Why should those against whom the investigation is complete and charge-sheet filed remain in jail “till all the perpetrators are apprehended and all evidence collected”? Is it not possible to segregate their case and close the chapter as far as they are concerned? Supplementary charge-sheets can be filed against others as when more facts get revealed on further investigation, but why punish others?

Be that as it may, the bail applications were filed before the charge-sheet was filed and cognisance taken of the offences. They were rejected. But what is more important is that a bail application was also filed after the charge-sheet was filed and cognisance taken. These applications were rejected by the trial judge (in the case of Devangana and Natasha on January 28, 2021 and Asif on October 26, 2020).

When the subject bail applications were filed and decided, the prosecution and the trial judge had a copy of the charge-sheet but the accused did not – despite a legitimate statutory demand. The three accused had to argue the bail application without knowing the alleged facts and charges against them. Remember, a copy the charge-sheet was supplied to them in accordance with section 207 of the CrPC only on March 25, 2021. Supply of the charge-sheet on a pendrive was meaningless.

On the other hand, both the prosecution and the trial judge had a grossly unfair advantage of having a copy of the charge sheet and were entitled to use, and did use, the material against the accused without their knowing the contents of the charge-sheet. Statements of Beta, Delta, Echo, Jupiter, Smith, Johny and Gama were within their knowledge, were used against them and evidently would have influenced them. Clearly and obviously, the dice was heavily loaded against the three accused and under these circumstances they certainly could not have expected that the bail application would be allowed. They had to fight the bail application with their hands virtually tied behind their back against an ‘armed’ prosecution.

Question 2: Do you think fair play died guttering, choking and drowning during the bail hearings? What does justice mean in matters of personal liberty? Is justice important?

Implementing the orders of the Delhi high court

Naturally feeling aggrieved by the denial of bail, an appeal was filed by the three accused before the Delhi high court sometime in January or February 2021 and which came to be decided by the judgement and order dated June 15, 2021. Soon after pronouncing the judgment and granting bail, the high court directed that information be sent to the trial judge for information and compliance forthwith.

A constitution bench of the Supreme Court has interpreted “forthwith” as meaning without undue or unreasonable delay. But as will be seen a little later, the prosecution and police contumaciously did everything possible to cause undue and unreasonable delay in releasing the accused. Perhaps, the prosecution and police believe that they are above the law.

Contumacious conduct part II

Having lost the battle of the charge sheet, the prosecution and police decided to devour time. First it was submitted before the concerned judge that the address of the three accused had to be verified. Believe it or not, these three accused had been arrested more than once each and had been in jail for more than a year and yet the police had no time to verify their address. Natasha had been released from jail soon after her father had passed away and Asif had been granted interim bail to study for his exams, and one would assume that the police had verified their address at that time. As for Devangana, the police wanted to take the Rajdhani to Assam, while, if you remember, Disha Ravi was brought by plane (specially chartered?) from Bangalore to Delhi. Did the police have the financial sanction for the train or plane journey?

Question 3: Is this an admission by the police that maybe they had arrested the wrong Devangana Kalita, the wrong Natasha Narwal and the wrong Asif Iqbal Tanha? It’s a question worth asking, no?

Then the police said that they wanted to verify their Aadhar cards and that they need to consult the Unique Identity Authority of India. What if an accused does not have an Aadhaar card? Does it mean that he or she can never be released on bail? What if the UIDAI does not confirm their Aadhaar card?

Then the verification of the sureties. Brinda Karat, a former Member of Parliament (Rajya Sabha) stood as a surety for Natasha. Who is she, by the way? What is her address? Does she have an Aadhaar card? What is her bank balance? Absolutely mind-boggling filibustering by the police. This is what Karat had to say: “I was in (trial) court all day and it was a shameful day when the Delhi Police … did everything to subvert and sabotage the Delhi High Court judgment granting bail to the UAPA detenus. My surety for Natasha was double-checked by the Delhi police – once yesterday and then today in the morning – as they did with the others. Despite this, the Delhi Police said in court that their verification was still incomplete.” Can you imagine?

What did a former judge of the Delhi high court (Justice Jaspal Singh) have to say about this entire episode? He said, “In my long years as a judicial officer since 1964 and as a high court judge for eight years, I have never seen a magistrate ask the police to verify a bail bond or a surety being verified. Courts see if the surety has proper control of the accused … so he does not abscond. This is entirely in the domain of the court.”

During the years I spent in the Delhi high court, the practice would be to sacrifice a few minutes of one’s lunch and tea so that a bail order could be dispatched immediately and hopefully the prisoner released before the prison gates closed. There was no need to specify in the bail order that it should be complied forthwith. I believe this practice continues even today, the only change being that now the honourable judges have to direct immediate compliance, and that direction is disregarded at the whims and fancies of the police and prosecution.

Question 4: Is it possible for the police and prosecution to sink to lower depths? Would this ‘show of strength’ amount to disrespect, if not contempt of court?

The conduct of the police suggests that they were desperate to file an appeal in the Supreme Court before Devangana, Natasha and Asif were released. They are entitled to file an appeal, but with undue haste? They did use every trick to stall the release and prepare an appeal overnight and get it ready for filing.

Contrast this alacrity with the speed at which the trial is being conducted. Not one witness has been examined so far by the prosecution. The reason is that the investigation is not complete. When will it be complete? Nobody knows and until then some of them will remain in jail as undertrial prisoners. Assuming the trial starts quickly. When will it conclude? Nobody knows. The prosecution has cited 740 witnesses. If one witness is examined every day, it will still take three years to conclude the trial. Aisi bhi kya jaldi hai?

Question 5: Did the police get the financial sanction for appealing to the Supreme Court and if so, when? How did they manage it so quickly? Assuming everything in their favour, did the police assume that the Supreme Court would stay the release of the activists for the asking?  When does the prosecution expect to begin and conclude the trial? Any guesses?

Sorry, but the manner in which the processes in the criminal justice system has been footballed around, someone deserves a direct entry to the Euro Cup. Clearly, in some ways the scales of processual justice are heavily loaded in favour of the state and the victims are ordinary people like you and me – not the privileged few. That is why people spend years in jail as undertrial prisoners in inhuman conditions. We need to seriously think about these gaps in our constitutional and human rights. We also need to think about the dignity of the citizen. We have miles to go before we sleep. And miles to go before we sleep.

Madan B. Lokur is a former judge of the Supreme Court of India.

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