Pota under trial in Dec 13 case

The area of abuse in the Parliament attack case is, ironically, the power conferred for the first time by Pota to make telephone interceptions admissible as evidence.

In a bid to justify this invasion of privacy, Pota lays down elaborate safeguards for intercepting telephone calls. Section 44 of Pota stipulates three conditions for an interception to be admissible as evidence or even to be disclosed in a trial.

One, the police should have applied in writing before a senior bureaucrat designated as the Competent Authority by Pota.

Two, the Competent Authority should have authorised the interception and such authorisation can be post facto in the event of an emergency.

Three, copies of the two documents 8212; the application and the authorisation order 8212; should have been furnished to each of the accused persons at least 10 days prior to the trial.

But when the trial in the Parliament attack case started on July 8, it turned out that none of the four accused persons had received any such material from the prosecution.

This despite the fact that, while framing charges against them, the court took cognisance of the intercepted calls. In fact, the main lead the police are said to have discovered on December 13 on the bodies of the slain terrorists was some mobile numbers.

The police immediately put those numbers under surveillance, leading to the arrests of the persons now being tried under Pota. The police achieved 8216;8216;results8217;8217; alright but they made no pretence of adhering to the procedure prescribed by Pota for telephone interceptions.

Their excuse is incredible. Whatever the whole world might have thought and said about December 13, the police themselves took six long days to realise that it constituted an act of terrorism. It was only on December 19 that the police added provisions of Pota to the case.

The police had by then done all the interceptions they needed and arrested all the accused persons on that basis. Therefore, rather conveniently, the police asserted during the trial that the safeguards stipulated by Pota did not apply to the interceptions made in the Parliament attack case.

They were happy to invoke Pota after December 19 to exercise the special power to record confessions. Since the interceptions were made prior to the invocation of Pota, those were claimed to have been made purely under an ordinary law enacted way back in 1885, the Indian Telegraph Act.

But then, thanks to a 1996 Supreme Court judgment on a petition filed by the PUCL, the police are enjoined to fulfil certain safeguards for tapping wires even under the Telegraph Act. The rules framed in 1999 in pursuance of the judgment forbid the police to intercept any telephone without the authorisation of the Union home secretary.

Strangely enough, the police have failed to comply with this requirement as well. They did produce two authorisation letters under the Telegraph Act 8212; but those were dated December 31, 2001 and January 19, 2002 and each permitted tapping of the telephones concerned prospectively for 90 days.

This despite the fact that the charges framed in the case refer only to two telephone conversations that are said to have taken place much earlier, i.e. on December 14. What makes those letters of the home secretary even more implausible is the fact that they authorise tapping of mobile telephones that were already in police custody, complete with the sim cards.

When the defence counsel pointed out serious lacunae in the interceptions the police claim to have made, the police gave the judge on July 11 a sealed cover containing a letter purportedly written by a joint director of Intelligence Bureau on December 13 ordering two cellular phone companies to monitor the numbers he specified. The sealed cover, they said, was meant to conceal the identity of the joint director lest his life is put to risk.

Whatever the truth, that was the first time the police ever came up with an account of who authorised the interceptions. The chargesheet they filed on May 14 was completely silent on this vital aspect.

But the judge, S.N. Dhingra, accepted the prosecution8217;s belated explanation and ruled that the joint director8217;s letter of December 13 complied with the requirements of the rules framed under the Telegraph Act.

Dhingra may or may not be justified in the given case in not letting the accused take advantage of the lapses of the police 8212; but he is certainly setting a dangerous precedent for the abuse of Pota.