‘Investigation in the train blast case is a sad comment on how little policing has changed since 1872’

There were two recent judgments in terror cases–the 2006 Mumbai train blasts and the 2008 Malegaon blasts judgments. The high court verdict acquitting 12 people for the train blasts (7/11) called the torture meted out to them as “barbaric” and “inhuman”–the use of the judgment as a precedent in cases of MCOCA was stayed by the Supreme Court while not interfering with the high court’s findings on the men’s innocence. The trial court in the Malegaon case said there was a strong suspicion, but no legal proof against the seven accused it acquitted, citing reasons including the lack of procedure followed by the prosecution. Sadaf Modak speaks with advocates Yug Chaudhry and Payoshi Roy, who represented the accused in the train blasts case, about procedures and safeguards in terror probes.

The judgment in the train blasts case raises questions on the manner in which probe agency used torture, fabricated evidence. Do you think there are significant changes needed in the way cases of terrorism are probed, as faulty investigations also make victims lose hope?

While drafting the Indian Evidence Act, James Fitzjames Stephen had decreed confessions to police officers as inadmissible. He said, “It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.” This holds equally true today and even the new criminal laws bar the use of confessions and witness statements made before police officers. The investigation in the train blast case is a sad comment on how little policing has changed since 1872, despite the upgrade in resources and technique. In this case, torture was the investigative tool of choice whether it be by obtaining false confessions, or coerced signatures on make-believe recovery /seizure panchnamas concocted in the police station. Superior officers endorsed the use of torture, and often threatened the prisoners with it if they did not cooperate or if they complained to the judges. Remand judges and later the trial judge pretended that there were no signs of torture even when it was staring them in the face. It appears that investigating officers resorting to such fabrication are enabled by the judicial latitude they are assured of receiving in terror cases. The failure therefore is not one of technique or manner of probe but a crisis of impunity.
The burden lies not only on courts but also on the State to strictly monitor these investigations and pull up erring officers. This is a case where the High Court has found that the police have tortured the accused to procure confessions and destroyed evidence of CDR that would exonerate the accused. Instead of immediately instituting a wide-ranging review of this botched investigation, the state has denied its falsity. This attitude is a disservice to the victims who deserve an honest investigation, like the high court itself observed, that there is no greater betrayal of victims of terror crimes than fabricated investigations. This judgment should serve as a clarion call to the political leadership that short-cuts in terror investigations are unacceptable.

There are checks and balances introduced in law, including the need for sanctions by competent authorities, which are supposed to look at the evidence independently. In many cases, courts have questioned the manner in which the sanctions are given ‘mechanically’. How can this change?

At present, sanction and prior approval for MCOCA (Maharashtra Control of Organised Crime Act) prosecution are given by an officer of the DIG Rank. When a terror offence of this magnitude is committed, officers at the highest level supervise the investigation. Seeking sanction from the DIG or the DGP of the state, who has been actively monitoring the investigation, is like an appeal from Ceaser to Ceaser’s wife. In the 7/11 case, the approval for Act was granted without looking at the chargesheets, which allows DCPs to record confessions. One of the reasons the high court rejected the confessions is because prior approval was given without application of mind. Even under UAPA, sanction is sought from an authority appointed by the Central or state government. These safeguards have been reduced to a nullity. The authority granting sanction must be independent and quasi-judicial and must be able to scrutinise the material independently.

Does the law have any provision for fixing accountability in faulty probes?

Section 195 of the Indian Penal Code and now Section 230 of the Bhartiya Nyaya Sanhita penalises giving of false evidence and fabricating evidence with the intent to procure a conviction in a capital case. It is punishable with life imprisonment. It is time this law is implemented. Responsible police officers of the highest to the lowest rank must be prosecuted under the law. Police officers cannot be prosecuted for failing to collect sufficient evidence or if a prosecution fails to prove the accused’s guilt beyond reasonable doubt. However, in a case such as the 7/11 blasts where officers have lied on oath about recording contemporaneous confessions, where there is stark evidence of brutal torture, where officers have deliberately destroyed the accused’s CDR despite repeated applications by the defence for the CDR knowing that would exonerate the accused–such criminal action from the custodians of the law must be prosecuted under the law. If this is not done, there will be no acknowledgement by the State that they have failed the victims, failed society and undermined national security.