Cops won’t give up on Geelani

The Delhi police today challenged the acquittal of lecturer S.A.R. Geelani in the Parliament attack case by blurring the distinction between...

The Delhi police today challenged the acquittal of lecturer S.A.R. Geelani in the Parliament attack case by blurring the distinction between POTA and its notorious predecessor, TADA. In its appeal filed before the Supreme Court on the second anniversary of the December 13 attack, the police challenged the high court’s verdict exonerating Geelani and Afsan Guru, wife of one of the convicted persons.

The main argument of the appeal filed under POTA is, however, derived from two provisions of TADA under which the confession made by a co-accused to the police can be used against the accused.

Section 21 of TADA said the trial court shall ‘‘presume’’ the accused to be guilty if a co-accused had confessed against him. This was later toned down to some extent in Section 15 of TADA which said the confession of a co-accused shall only be ‘‘admissible’’ in evidence against the accused.

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But since the very notion of using one man’s confession against another remained controversial, the Vajpayee Government dispensed with it altogether when, in the wake of September 11, it enacted POTA. Section 32 of POTA clarified that the confession of an accused to the police can be used only against himself.

Despite this reform, trial judge S.N. Dhingra found a way of awarding the death sentence to Geelani early this year on the basis of what the co-accused, Mohammad Afzal and Shaukat Hussain, said against him while confessing their own involvement under POTA in the conspiracy.

Though they did not ascribe any active part to him, the two co-accused told the police that Geelani generally knew of the conspiracy. But since Section 32 of POTA denies the leeway that TADA offered, Dhingra used the confessions of the co-accused to convict Geelani under the Indian Penal Code.

On October 29, the Delhi High Court set aside Geelani’s conviction on the ground that confessions of the co-accused recorded by the police under POTA cannot be used against the accused under the ordinary law. This is because the ordinary law takes cognisance of a confession only when it is recorded by a magistrate.

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Comparing the language of Section 32 of POTA with the TADA provisions, Justice Pradeep Nandrajog said ‘‘the legislative intent was quite clear’’ and ruled that ‘‘the confession of a co-accused before a police officer under POTA would not be admissible in evidence against the accused’’.

Geelani’s fate will now depend on whether the apex court upholds Justice Nandrajog’s approach of deciding the case within the parameters of POTA or allows the prosecution’s plea to bring TADA through the backdoor.