‘Death penalty is a deterrent punishment,it should be retained’

Public prosecutor Ujjwal Nikam speaks on a range of issues,including death penalty,the low conviction rate in the state and the 26/11 investigation

Written by Express News Service | Published: April 1, 2013 2:11:35 am

Shubhangi Khapre:Would you say people generally have more faith in judiciary than in the political system?

Ujjwal Nikam:People have absolute faith in the judiciary. Of course,there are certain ifs and buts. The Chief Justice of India has,on several occasions,said judicial officers should exercise restraint while making statements. In one case,a Supreme Court judge said in court that a certain person was ‘corrupt’ and that he should be hanged. Such a statement,made in a lighter vein,can have a different impression on the common man. Judicial officers should be cautious about making certain statements.

Sukanya Shantha:In such a scenario,when Justice (Retd) Markandey Katju says Sanjay Dutt should be pardoned,what would you say?

Justice Katju has the right to form an opinion in his personal capacity. However,he should have considered that he (Dutt) has been convicted for unlawfully possessing an AK-56. He acquired it from persons who were closely involved in the bomb blasts conspiracy. Later,he asked a friend to dispose of the weapon in a clandestine manner. Had he earlier given the information about these weapons to the police,perhaps the blasts could have been averted. Being a public figure,he should have been more careful.

Sagnik Chowdhury:How much of a say does a prosecutor have while the investigation is going on?

As per Indian law,the public prosecutor is an independent officer. However,in the US,the prosecutor guides the investigating agency. In India,till the filing of the chargesheet,police officers make various statements and,at times,make a mess of things. The reason why a prosecutor should not interfere in investigations is that a prosecutor should not become a persecutor. If he finds that a person has not committed an offence,he should say so to the court.

Mayura Janwalkar:You have often said terrorists prepare themselves for court trials. How do prosecutors prepare for such terrorists?

A prosecutor’s role depends on the material collected by the investigating agency. He has to find out the motive for committing such acts. In cases that are built on circumstantial evidence,he has to see that the chain of circumstances is completed. In Ajmal Kasab’s case,I was astonished that he tried to provide an explanation for injuries suffered by him. He also took up the plea of being a juvenile.

Sagnik Chowdhury:When so much evidence has come out about David Headley,why have you been reluctant to bring it on record?

Kasab had said he had been shown maps and videos,but that he had no knowledge about who provided those video tapes. Headley’s name was never revealed during investigations. Later,the case was taken up by the National Investigating Agency. However,we were ready to implicate Headley.

Sukanya Shantha:Do you believe that the prosecution failed on account of Faheem Ansari and Sabahuddin Ahmed’s acquittal in the 26/11 case?

One has to say that we could not establish our case against them. The trial court acquitted them on ten grounds. The High Court reversed seven grounds,but held on the basis of three grounds that the view taken by the trial court was also possible.

Smita Nair:What are the problems faced by the prosecution in terror cases?

Normally,the main perpetrators remain behind the scenes. They take care not to appear in CCTV footage. We don’t have a law that gives a long rope to investigators. The media puts pressure on investigating agencies. We should allow them to do their job.

Sagnik Chowdhury:Do you think that the absence of a witness protection programme also creates difficulties?

This is a nice-sounding terminology to be used in public meetings and speeches. But in the Ajmal Kasab case,many people came forward to give evidence. A witness protection programme is not the only solution. People must realise that they must support the truth.

Shubhangi Khapre:How do you explain the low conviction rate in Maharashtra?

Often,investigation papers are not up to the mark. Crimes are detected,the accused are arrested,but when it comes to paperwork,mistakes are committed. Investigating staff must be properly trained. They must be trained on how to record witness statements,conduct identification parades and so on.

Sagnik Chowdhury:There is talk of a second judicial commission from Pakistan coming in connection with the 26/11 case. What was the point of the first commission coming to India when the two countries could not agree on what was to be done?

It was our mistake. When the first commission came,we did not allow them to cross-examine the witnesses. They wanted to use this evidence before the court in Pakistan trying the perpetrators of 26/11. But the state government may have thought it inappropriate perhaps because the appeal was pending in Supreme Court. As a result,the court in Pakistan rejected that evidence. It is then that they made another move saying that they should be permitted to cross-examine the witnesses.

Shubhangi Khapre:When we were so confident about our case,what were the government’s apprehensions? Did they think it would delay the case?

The delay could be there. I don’t know if the government of Pakistan is really interested in making progress in this matter. In three-four years,they had examined only 11 witnesses. Their progress is slow,it is not on day-today basis and it is strictly on camera.

Sukanya Shantha:In the 1993 blasts after Sanjay Dutt was convicted under the Arms Act and acquitted under TADA,why was his acquittal not contested?

I was not the prosecutor in the Supreme Court. The investigating agency was the CBI. They did not seek my advice after the verdict.

Mayura Janwalkar:There are many voices for abolition of the death penalty. What are your views?

Death penalty is a deterrent punishment. But if it is not executed within a certain time frame,the purpose is frustrated. Unfortunately,in several cases,the final confirmation of death sentence comes after ten or twelve years. The trial court must complete the matter within say six months,the High Court and Supreme Court should confirm within three months. The death penalty should be retained.

Neerad Pandharipande:Do you agree that there is ambiguity in what constitutes rarest of rare offences?

That is true. We don’t have any strict formula as such. Every judge defines rarest of rare according to his notions and discretion.

Sukanya Shantha:How and how much do approvers help the prosecution?

The 1993 bomb blasts was the first case where I had approvers. The selection of approvers is done by the police officers,I just endorse it. An approver is a self-confessed traitor. He reveals information about his aides and there are chances that he may turn hostile. So you are running a risk. But approvers helped us in unfolding the criminal conspiracy. In the 1993 bomb blasts,the approvers disclosed minute things about how the conspiracy was hatched in Dubai,who attended and how they went to Pakistan. That is the reason we could say how Pakistan had supported the accused. That is the reason that Supreme Court in its judgment came down heavily on Pakistan.

Smita Nair:When were you informed about Kasab’s execution? What happened behind the scenes?

After the Supreme Court rejected Kasab’s appeal and confirmed his death sentence,the Supreme Court order came to the sessions court in Mumbai. Immediately,the jail authorities prepared everything,including the warrant. I knew the President had rejected his mercy petition but did not know the exact date of his execution. I came to know the same morning,around 6.30 am.

Smita Nair:What was your reaction when you heard that Kasab was going to be hanged?

I was happy for a simple reason — that the efforts I made had materialised. I wanted him to be hanged. He killed so many innocent people. Why should I feel pity? I am not a human rights activist.

Mayura Janwalkar:The 1993 bomb blasts trial took a long time. In 2013,how prepared are we to carry out trials more expeditiously?

Kasab’s trial is an example. We tendered the evidence in the form of affidavit. For the first time,I used the provision under section 296 of the Criminal Procedure Code and tendered formal evidence in the form of affidavits of 300 witnesses.

Vaidyanathan Iyer:Why do you think the media should exercise restraint? It’s because the media is proactive that there is seriousness.

The media must exercise restraint when the crime is not detected. Otherwise,it puts pressure on the investigating agency.

Mayura Janwalkar:Did the trial court and then the Supreme Court go soft on Sanjay Dutt?

I thought Sanjay Dutt should have been convicted under section 5 of TADA. In fact,I argued like that. But the court felt that his was not a terrorist act,he had no such intention. The Supreme Court has endorsed it.

Zeeshan Shaikh:Do you think there is a need for laws such as POTA and TADA to increase the conviction rate in the state?

There is no doubt these laws were useful to the police machinery in tackling terrorism but sometimes they were misused by the police. But we could have had checks. The TADA Act was rampantly misused in Mumbai. They had invoked it against knives and daggers and even against a particular community.

(Transcribed by Neerad Pandharipande & Mayura Janwalkar)

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