State Repression
http://combatlaw.org/print.php?article_id=1214&issue_id=42
Binayak Sen was arrested last year under the Chhattisgarh State Public Security Act, and film maker Ajay TG was arrested thereafter. Sen’s trial is going on in Raipur. PUCL’s Kavita Srivastava presents the events in the third phase of Binayak Sen’s trial and the incidents preceding Ajay TG’s bail
he third phase of the trial of Dr Binayak Sen case began on July 29 and lasted till July 31. The key witnesses, the material witnesses had already deposed in the first two phases of the trial and some were tendered off. The subsequent witnesses were to be mostly seizure witnesses or police and jail personnel. Since most of the 20 witnesses who had deposed in the first two rounds of the trial had in no way confirmed the police case, the prosecution in an act of desperation had filed an application for recalling three of the witnesses who had deposed in the second phase between July 1 and July 4. This was slated for argument in the course of these three days.
This was also the period when it became clear that the chargesheet was not being filed in the Ajay TG case and that statutory bail was imminent. There was sudden hope that perhaps the case itself would be closed as Ajay had not committed any criminal act and hence there was no evidence to that effect.
July 29, 2008: No hearing happened as a senior member of the Bar had passed away. Before we reached the court, Binayak Sen, Pijush Guha and Narayan Sanyal had been already taken away to the jail. We were very disappointed that we had missed him.
Earlier in the day, along with Dipankar Sen (Binayak Sen’s brother) and his friends, we met the Chattisgarh DG police. The conversation centred around Dr Sen. Towards the end I asked him about the release of Ajay TG and he told me that as promised he had gone and met Ajay TG in Durg Jail and there seemed to be little doubt that Ajay had any kind of Maoist involvement and thus the case would close eventually. He stated that a few statements had to be taken in order to close the case.
| Since Binayak Sen’s trial is disproving the prosecution’s case the police is openly trying to fabricate evidence both inside and outside the court. The police even tried to use Ajay TG’s legitimate release against Sen |
That evening Mahendra Dubey, who is the advocate for both Ajay TG and Binayak Sen, was called by one government official in connection with the closure report that had to be presented in the Ajay TG case. I also decided to accompany him. When we reached the place the friendly officer immediately told us that since the seniors had planned to file a closure report in Ajay case, they were keen that Ajay give a statement which could be the basis of filing the report.
When we read the two page statement we were both shocked to learn that the contents of the letter had statements against Ilina, Binayak and the PUCL—sentences which made Ilina and Binayak appear very undemocratic and arbitrary and an ambiguous statement about PUCL being with Maoists. Supposedly it was a statement speaking about Ajay’s association with the PUCL and Binayak and Ilina and how the camera had been borrowed by him to make a film on Laurie Baker, the incident which happened in 2004 when his camera was taken away and the subsequent events that followed it.
We knew that this was no innocent act and that making Ajay sign a statement with such references against Binayak, Ilina and the PUCL, could be used as evidence against the Sen’s and the PUCL at a later stage. It just exposed the murkiness of how police functions. Not only was the police still after Binayak and the PUCL but somewhere they were after Ilina. Even in the court they brought up Ilina’s reference frequently. Now it was being tried through Ajay.
| The court room was stunned by Chhattisgarh police’s attempt to tamper with sealed evidence even in such a high-profile case. Present in court that day was Abhay Shukla, a member of the NHRC core group, who had been sent on a reconnaissance visit to examine whether Sen’s trial needed monitoring |
Our lawyer firmly stated that there was no need for an “accused” to sign any statement as in any case there was no meaning of a statement taken by the police of an accused in custody and secondly because Ajay was in judicial custody in any case the police would have to apply for it in the court.
He also emphasised that final reports on cases do not happen with a statement of the accused denying his involvement in the crime act but they close because of lack of evidence, a call which the police needs to take.
The official agreed to everything that we said and then revealed that Ajay’s entire case was made from above and given to a middle ranking police official on May 5 to file and arrest the man without delay. He also added that the official argued vehemently that he felt that there was no case against Ajay and he was not interested in fixing anybody. According to this official, if ever there ought to have been a case against Ajay then he should have been booked January 2008 when the letter about the camera had been obtained from the house of Gudsa Husendi (the spoke person of the CPI (Maoists). Lodging the case five months later made no sense. What angered the official when he spoke to us was that now that the top officials wanted the case closed they were making use of that same middle ranking official who would face the brunt of the court of law in case Ajay should decide on legal action against the Chhattisgarh police for his baseless arrest.
We left the place with a sinister feeling that there was much more up the sleeves of the police than we were being told. The Chhattisgarh Police could not be trusted at all. The process of closure of the case involved great manipulation with a view to using Ajay against Binayak, Ilina and PUCL.
What worried us most was the Chhattisgarh state’s desire to continue to harass Binayak Sen. Despite the fact that they had put him in prison for over fifteen months on baseless charges, they had not had their fill. Now even the release of Ajay TG was being converted into an exercise for further fixing Binayak Sen and the PUCL.
July 30, 2008: Tampering of evidence : Seziure packet containing “incriminating evidence” obtained from the house of Dr Binayak Sen has an extra-document.
In the morning we were at the trial court in Raipur and it seemed that the witness to be examined was inconsequential. Shyam Sundar Rao was involved in the body search prior and after the search of the residence of Binayak Sen. But hardly were we ten minutes into his chief examination when the special public prosecutor (SPP) read out the existence of a letter written by the Maoists politbureau to Binayak Sen. This caught the attention of all of us in the court room who knew by heart the list of documents that were seized by the police from the house. Mahendra Dubey, the lawyer, who was keeping track of the items being produced, double checked the seizure memo, which had no such letter and then vehemently objected that a new document had been introduced.
The SPP first defended his stance but when the judge also said that there were only ten items, put it down to the indecipherable handwriting of the chargesheet. He insisted to the court that the Investigation Officer, BBS Rajput be called so that he could get him to read his writing. Our lawyer objected to this and the Court also agreed that there was no need for any assistance.
Then came Dubey’s turn for cross-examination. He placed each document and cross examined Rao regarding his signature. Each seizure document had the signature of Binayak Sen, the Investigation Officer (IO), BBS Rajput and the two search witnesses but this eleventh document had no signature of Binayak Sen or the other witness. It only had the signatures of Shyam Sundar Rao and the IO. Binayak Sen’s signature was conspicuously missing. Interestingly, the letter which they had slipped in was a computer typed letter with no signature of the sender also.
The cross examination brought on record all these facts but could not go beyond raising doubts on how the packet could have been reopened after it was sealed in Binayak’s house on May 15. The IO would have to be made accountable about the tampering whenever he would come for his witness statement. Important questions got raised about where the tampering happened, whether in the police store room or in the court store room?
| When Ajay refused to sign on the statement the SP turned round and issued the bizarre statement that they would register a case against him “on the basis of the evidence that we have from the films that your wife went and gave the DG police”. |
The entire court room was stunned by this act of the Chhattisgarh police, who dared to tamper with sealed evidence in a case like that of Binayak Sen which was under everybody’s glare. The court room that day had the presence of Dr Abhay Shukla, a member of the NHRC core group who had been sent on a reconnaissance visit to examine whether Dr Sen’s trial needed monitoring. It left no room of doubt as to how the police must be regularly doctoring evidence in cases of the poor and fixing them.
It also brought back memories of another incident of tampering of evidence which was brought to light on the day when the first witness deposed. Supposedly an “independent witness” who signed the seizure memos after the arrest of Pijush Guha on the evening of May 6. (In reality Pijush was arrested on May 1). In the court room the prosecution and the witness continuously talked about the existence of a black and blue bag on the shoulder of Pijush Guha which the police claimed they had seized and was in the seizure memo. A sealed trunk was brought in and opened in front of the judge by a court employee and much to the amazement of the judge, the other lawyers, the accused and observers present in court, the trunk was empty. The police tried to cover up that too.
July 31, 2008: Ajay TG’s remand hearing was fixed for this date. Binayak Sen’s trial had a crucial witness that day who never came and others too did not make it on time. So before the court closed for the day’s hearing, the Judicial Officer Mr Saluja decided to hear the arguments on the “recall of witnesses” application placed by the prosecution. They were keen to recall (i) Deepak Choubey, the relative of the landlord where Narayan Sanyal lived along with Amita Srivastava (ii) Prakash Magaria the landlord, (iii) Veena Shivpuri the principal of the school where Amita Srivastava had worked.
The argument presented by them was that since Venna Shivpuri was unable to recognise Amita in a group photograph, during her deposition in court, the prosecution wanted her identification done on the basis of a “larger” photo. All this was important for a just decision of the case.
Lawyers Mahendra Dubey for Sen, Bhishm Kinger for Narayan Sanyal and Amit for Pijush Guha, all three vehemently argued that Amita Srivatava was not a relevant person for this case. She was not even made an accused in the case, therefore, proving or disproving her identity did not help the case. Citations from various judgements were provided to back their argument.
Judicial Officer Saluja decided to withhold the order. We were free for the afternoon from Sen’s trial and quickly embarked on our journey to Durg as Ajay was to be produced. We also wanted to understand whether Mahendra Dubey’s insistence that Ajay would sign no statement would have got the police to give up their plan.
Remand hearing of Ajay TG
When we reached Durg court an impressive team of three lawyers consisting of Sudha Bharadwaj, Bose Thomas and Dilip Ingley were already present. The happiest was Aman, son of Ajay and Shobha, who could not believe that he would actually get a glimpse of his father who was in the lock up in the court. He was clucking away happily. A couple of kind policemen earlier in the day had also let father and son hug each other. Three young women stood in one corner of the corridor and later when we were introduced we were told that they were from the Basti where Drksakshi ran its Bal Angan. Shobha, her brother and a few other friends were all waiting for us.
Ajay was brought in for the hearing. An entourage of about fifteen of us followed Ajay, the police and the lawyers through the corridors of the court, up the steps to the court room in one corner. Of course as expected the reader and the clerk tried to tell all of us to stay out of the court room. We insisted and since it was a short business of merely being produced in court and taking Ajay’s signature, we tried to tell them that they should let us stay. But for them it was the remand hearing of a “Naxalite prisoner” so every outsider was suspect including family and friends. We stood outside knowing that it would be over in a few minutes.
The police kept telling us that since they would be filing the Final Report they just needed a couple of more days. So it was not just statutory bail which would become Ajay’s right two days later but he would also be vindicated that he was wrongly arrested. The stipulated 90 days period in which the police had file a chargesheet failing which the dourt could grant bail to the accused was also August 2.
It was in the course of this meeting with Ajay that he told his lawyers that the previous evening, on July 30, the SP of Durg, Kabra had come to meet him in jail and wanted him to sign a statement which had a sentence/sentences against the PUCL. When Ajay refused to sign on the statement the SP turned round and issued the bizarre statement that they would register a case against him “on the basis of the evidence that we have from the films that your wife Shobha went and gave the DG police”. Incidentally the DG police had asked for Ajay’s films from Shobha when we met him on July 3, which she had gone and given to him a few days later.
Ajay refused to succumb to the threat. Instead, he replied, ” che mahine ya ek saal rah jaonga par kisse ke meharbani par bahar nahi aaonga”. ( I will stay for another six months or a year in jail but I do not want to be released because of anybody’s mercy).
Why was Ajay being made to sign a statement? As our lawyers had explained, the statement of the accused had no meaning. And if the police had no evidence then that was sufficient to file a closure report. Then why was this statement being made into such an issue that the SP travelled to jail to meet Ajay? Was it that they were so desperate that since there was no evidence against Sen that they were now trying to create new evidence? We have frequently been told that a supplementary chargesheet would be filed at some stage. Was this part of the process of doctoring more evidence against him?
It was pouring that afternoon that I was unable to meet the SP whom I had thought I would meet and instead we returned to Raipur.
Our journey back with the three women from Drksakshi who had come to court to express solidarity with Ajay, was very interesting. We all sang songs and they talked about the Bal Angan and recited the rhymes that these children are taught there. It was in the course of their conversation in the car that these women told us that the police really harassed them. The police came several times to their Basti and tried to enquire whether Ajay had taken them into the forests areas of Chhattisgarh, whether they been taught by Ajay to make calls of wild animals and that of dogs and cats. They asked whether he had ever brought weapons into the Basti. They said that the only weapon he carried was a nail cutter when he came to the Basti and that he would just put the children on his lap and clip their nails lovingly. The police kept asking for the keys of the Bal Anganwhich they refused and they told the police, “we will not give it to you as you may plant some evidence against Ajay and us”. Even today they had come on the quiet so that the police informers in the Basti would not inform the police about why they were stepping out of the Basti.
They said that the police had tried to vitiate the goodwill that they had in the Basti and tried to tell their families that they must not associate with Ajay and Shobha anymore. They were heart broken that Ajay who had stepped out to do good for the poor was in jail. Nor did they want the Bal Anganto close down. It had become intgeral to their lives and that of their children.
August 1, 2008: I took an appointment with the DG police and lodged a protest in writing regarding the attempt to forcibly make Ajay sign a statement against Ilina, Binayak and the PUCL. The DG police told me that the statement was basically a summary version of his meeting with Ajay on July 19 which he had taped. He said that the statement that had been scripted was the summary of the two hour conversation that they had had. It was jerky as the police had pulled out the questions and just summarised the reply. He said that it could be edited according to our wishes.
So basically the message that was being given to us was that whatever the police was getting Ajay to sign on was on tape. We did not succumb to that pressure knowing that any statement could be pulled out of context with the meaning completely changed in the process. When we asked why Ajay was being pressurised when there was no need for an accused to sign any statement, we were given several unconvincing arguments. We communicated to the DG that Ajay would not sign anything. The meeting ended very cordially but before it closed the DG gave us ample hint that the police would be bringing in a supplementary chargesheet against Sen.
Post Script: Ajay finally got statutory bail on August 5. Even on that day the SHO of Supela police station came with a statement for Ajay to sign. When Ajay refused, the man did not give up.
Two months have passed but neither has a closure report been filed nor has he got his computer and editing machine back. We are being assured that the case will be closed and that the computer will be returned but these are only words. Is Ajay being taught a lesson because he refused to comply with the wishes of the police and sooner or later they will chargesheet him. Or is it that they want to keep up their pressure on Ajay and keep him dangling between freedom and fear.
It is clear that the police is desperate in the Binayak Sen case and thus even in a case which is under the glare of the media and observers from other organisations, the police did not hesitate to tamper evidence. Simultaneously they are using making threats and offering promises to Ajay, so that the closure of his case is contingent on making incriminating statements against the Sens and the PUCL. The Chhattisgarh police can clearly operate in very insidious ways.
Bringing up Ilina Sen’s name every now and then although she is neither an accused nor a witness in the case against Dr Binayak Sen shows the attitude of vindictiveness in the police force.
Getting Ajay to sign a statement with an ambiguous statement about the PUCL’s link’s with Maoists is again a part of the design of the police to discredit PUCL.
The threat of a supplementary chargesheet against Dr Sen, shows that the Chhattisgarh police does not want Dr Sen to be free man.
I delayed writing this up as I was also not sure whether making all this public would add to the victimisation of Dr Binayak Sen, Ilina, Ajay and other members of the PUCL. I am glad that both Rajendra Sail, Ilina and other friends felt that I should write this up and let the world know.