POTA & Dec 13: High Court hangs up on phone taps

This is because the charges framed against them are essentially based on the transcripts of a telephone conversation each is alleged to have had with others a day after the attack on Parliament.

Today’s judgment unravels the prosecution’s attempt, first brought to light by The Indian Express on July 25, to use POTA’s provisions of telephone interception selectively without abiding by any of the elaborate safeguards provided by that law.

POTA is the only Central law which, subject to the fulfilment of the prescribed procedure, makes telephone interceptions admissible in evidence. Though the FIR registered on December 13 said that there was ‘‘a planned terrorist attack with intent to undermine the integrity of India by killing VIPs,’’ the police invoked POTA in the case only on December 19 by when the telephone interceptions had already been made.

The police tried to pass off those interceptions as evidence even though they they had been carried out before the case was brought under the POTA regime. The high court therefore ruled that the telephone interceptions in the Parliament attack case violates Chapter V of POTA.

‘‘Admissibility of intercepted evidence in this case for proving charges under POTA is specifically barred by Chapter V of POTA,’’ Justice Khan said, adding that it would also compromise the right of the accused to a fair trial.

As regards the other two accused, Afsan’s husband Shaukat Hussain and Mohammad Afzal, the prosecution’s case relies more on the confessional statements they are said to have made to the police under POTA.

Given the fact that the December 13 incident is a textbook case of terrorism, Khan conceded that the allegations against the accused are of ‘‘a very grave and serious nature.’’ But he emphasised that ‘‘while considering the aspect of fair trial, the nature of evidence obtained and nature of the safeguards violated are both relevant factors.’’

The high court today set aside an order passed in July by the trial judge, S N Dhingra, who had ruled that the telephone interceptions were very much admissible under POTA in the Parliament attack case.

Dhingra has since concluded the recording of evidence and the final arguments are due to start shortly.

But as telephone interceptions have now been excluded from the case, Dhingra may at this advanced stage of the trial have to modify the charges framed under POTA. Justice Khan said that the trial court may in the light of his judgment ‘‘recast or modify or delete or reframe any of the charges.’’

Defence counsel Nitya Ramakrishnan believes that Dhingra has no option but to drop the charges against Afsan Hussain and Geelani because without those telephone interceptions ‘‘the prosecution has no means of linking them to the Parliament attack.’’ Significantly, this is the first ruling by the higher judiciary on the innovation contained in POTA of making telephone interceptions admissible in evidence.

The high court left open the question whether the interceptions in the Parliament attack case can be said to be in accordance with the Indian Telegraph Act and therefore made admissible as evidence for proving charges under laws other than POTA such as the Indian Penal Code.