COMMENTARY

Economic & Political Weekly EPW jUNE 21, 2014 vol xlix no 25
17
Akshardham II
Between Callousness and Complicity
Saurav Datta
The Gujarat judiciarys role in
the Akshardham terror attack
case raises perplexing questions
regarding its commitment to a
fair trial.
I
n its judgment acquitting all the six
accused in the Akshardham terror
attack case Adambhai Ajmeri,
Abdul Qaiyum Muftisaab Mohmed Bhai,
Chand Khan, Mohammad Salim Hanif
Sheikh, Abdullamiya Yasinmiya and Altaf
Malek the Supreme Court expressed
anguish at the cavalier manner in which
the courts had gone about their bounden
duties and castigated the police and
investigating agencies for viciously fram-
ing innocents. However, there is much
more to the case than what meets the eye
or has been a part of popular discourse.
Akshardham Is Not the First
There are several chilling similarities
between the Akshardham attack and
other terror attack cases. The rst is in
the prosecution stories regarding the
culpability of the accused.
First, Chand Khan, Accused No 6 in
the Akshardham case, was alleged to
have transported arms from Kashmir to
Bareilly and thereafter to Ahmedabad.
He was arrested by personnel of the
Navgam Police Station (Jammu and
Kashmir) and during interrogation, con-
fessed to his role in the attack. The Kashmir
Inspector General of Police informed the
Gujarat Anti-Terrorist Squad (ATS) via a
fax message; the latter sent a policeman
to collect more evidence, and all he got
back with him was what the Kashmir
police provided. Compare this with the
Parliament attack case of 2001. In that
instance, the Delhi Polices Special Cell
relied on the Kashmir polices state-
ments to charge Afzal Guru. There was
no independent investigation. All one
needed was a Kashmir link, whatever
that meant.
Second, there were the two letters re-
covered from the trouser pockets of the
slain terrorists on a suicide mission who
were believed to have sneaked into India
from Atok in Pakistan. Written in Urdu
with an Ad Gel pen made in India, these
letters, produced in pristine and spot-
less condition, termed the attack as a
retaliatory measure for the Gujarat riots.
The two dead men were riddled with
bullets there were 46 and 60 external
injuries, respectively, and their clothes
were splattered with blood. The Special
Court (POTA) accepted the authenticity
because a National Security Guards brig-
adier claimed to have recovered them.
The high court held that doubting the
authenticity of the letters would mean
Saurav Datta (sauravdatta118@gmail.com) is a
Mumbai-based lawyer.
COMMENTARY
jUNE 21, 2014 vol xlix no 25 EPW Economic & Political Weekly
18
crediting the police with excessive intel-
ligence, since in the aftermath of a
major terror attack, everybody would
be too shell-shocked to think of manu-
facturing and planting evidence. Now
compare Accused No 4 Abdul Qaiyum
Muftisaab Mohmed Bhai, charged with
writing those two letters, with Fahim
Ansari. He was accused of providing
maps of Mumbai to Abu Ismail, one of
the terrorists killed in the 26/11 Mumbai
attacks in 2008. Ismails corpse was
drenched with blood, but the maps had
neither a speck nor a crease on them.
Ansari was acquitted when the prosecu-
tions story fell at in court.
The second set of similarities can be
found in the judgments of courts that
accepted the prosecutions word and
added sophistry in the guise of convo-
luted legal reasoning to nail the fate of
innocents caught in the cross hairs of the
police, solely because of their religion.
On 27 June 2003, Judge H U Mahida,
presiding over the Vadodara Fast Track
Court for the Best Bakery case, took re-
course to a lengthy and laboured perora-
tion on the British policy of divide and
rule, post-Independence policy of reser-
vation for minorities, and the history of
the Muslims in India. The prosecutions
inability to make out a watertight case
against the accused was not only glossed
over, but the truth was buried. Had the
Supreme Court not ordered a retrial and
transferred the case to Maharashtra, the
killers would never have been brought
to justice.
A bigger contribution to dystopic judi-
cial folklore was Afzal Gurus case.
Writing shortly after Afzal was executed,
this writer had detailed
1
how it was
nothing short of a conspiracy to deprive
Azfal of his fundamental right to
legal representation. This was over and
above the Supreme Courts notorious
to satisfy the collective conscience of
society decision.
In the present case, the high courts
abdication of its role as a gatekeeper of
justice is evident; it is the decision of Judge
S M Padhya of the Special POTA Court
(hereinafter trial court) which merits
close scrutiny and trenchant critique.
To cut a long story short, since the
prosecutions case was built upon the
confessional statements of the accused,
it was imperative for the judge to scru-
pulously ensure that this evidence was
evaluated with the greatest precision
and integrity. More so, since these con-
fessions, which were subsequently re-
tracted, were made while the accused
were in the custody of the ATS and
subsequently, the crime branch. Also,
what should the trial court have started
with in a case of this nature? For almost
a year, from 27 September 2002 to
27 August 2003, the Gujarat Police and
the ATS drew a blank. Things started
moving at breakneck speed from the very
day, 28 August 2003, when the Crime
Branch, then headed by D G Vanzara
(now in prison for allegedly master-
minding fake encounters) took over.
Suspicion of a possible prosecutorial
prejudice would not have been unjust;
rather, such vigilance would have been
the need of the hour.
Two Warning Signs
Two clear warning signs were ignored.
One, that within hours of ACP G L Singhal
being put in charge of the case, the rst
accused, Ashfaq Bhavnagri, had been
nabbed, and his confessional statement
recorded. By the next day, ve more
were arrested and arraigned. Second,
Vanzara did not gure in the list of 126
witnesses called by the prosecution.
How could the court not even care to ask
why the mastermind of the investiga-
tion was kept away from questioning?
How are the courts supposed to weigh
the evidentiary value of confessions under
POTA, or under any other law for that
matter? First and foremost, the court
cannot base its premise on a confessional
statement; it must call for independent
evidence. The confessions should be
used only to substantiate the charges,
not to prove them. Second, if it is the con-
fession of an accused-turned approver,
then Sections 113 and 114 (b) of the Indi-
an Evidence Act mandate a two-tier test
that the approver can be relied upon as
a witness, and there is independent evi-
dence to corroborate his testimony.
POTA was a draconian legislation and
rampant abuse of its stringent provisions
was one of the main reasons for its repeal.
But it is precisely because of this that the
procedural safeguards to prevent in-
fraction of the rights of those arrested
and charged under it assume paramount
importance. The Indian Evidence Act bars
the admissibility of confessions given in
police custody, but POTA was an exception
to that rule. However, Sections 32 (4)
and (5) and Section 52 made it incum-
bent upon the police ofcer recording
the confession and the magistrate certi-
fying it, to ensure that the accused had
not admitted to their guilt under fear or
coercion of custodial torture.
DCP Sanjay Gadhvi (Prosecution Wit-
ness 78) and Chief Judicial Magistrate
Suresh Kumar Padhya (Prosecution
Witness 99) adhered to these provisions
only in the breach. Gadhvi admitted dur-
ing his cross-examination that he made
no efforts to administer the Miranda
warning in writing that the accused
were under no compulsion to confess,
and any statements they voluntarily
make could be used as evidence against
them in court. As for sufcient time to
reect before confessing, all the accused
got were 15 minutes each.
Section 52 lays down strict guidelines
to be observed by the magistrate before
putting his stamp of approval on confes-
sional statements and the Supreme Court
has held these as being non-negotiable.
Not only did Padhya turn a blind eye to
these guidelines for instance, he did
not ask the accused in detail if custodial
torture had been inicted upon them
the accused were sent back to police
custody instead of judicial custody as
mandated by the law.
The trial court deliberately glossed
over these violations, and added some of
its own. Padhyas statement detailing how
he had recorded the confessions of all the
accused in a matter of only 30 minutes
was there on record. So were the state-
ments of two defence witnesses doctors
of the government-run V S Hospital claim-
ing that the medical records which pur-
portedly proved the absence of injuries,
and thereby torture, had been tampered
with. Furthermore, the X-ray plates were
missing from the evidence submitted to
the court. Most glaring of all was the con-
fession of Ashfaq Bhavnagri, Prosecution
Witness 51, who later turned approver. The
law is clear that an approvers statement
COMMENTARY
Economic & Political Weekly EPW jUNE 21, 2014 vol xlix no 25
19
is to be treated with suspicion unless there
is concrete material evidence to substan-
tiate it. In the present case, not only did
Bhavnagris statement starkly contradict
with those of the other accused, but in-
stead of being discarded, it was used as
independent, material evidence to
substantiate the prosecutions charges.
All that the court had to do was to fol-
low settled principles of law. Instead, it
turned the principles of criminal law on
their head. The burden of proof beyond
reasonable doubt was shifted from the
prosecution to the accused, the pleas
and evidence produced by the defence
were brushed aside. A catena of Supreme
Court rulings on Section 32(5) that the
accused must be sent to judicial custody
were ignored, and a distorted interpre-
tation substituted. The court held that
judicial custody was mandatory only if
the accused complain of torture, and the
magistrate was convinced of the same.
Even this distortion was awed because
the prosecutions concocted medical
evidence was granted credibility.
It has recently been reported that all
the six wronged men intend to knock on
the doors of the courts to seek compen-
sation for the prosecutions mendacity.
While one is entitled to reparations for
the violations of his/her Fundamental
Rights by the state, the role of the state
in the present case makes this entitle-
ment appear impossible.
Note
1 http://www.infochangeindia.org/agenda/ac-
cess-to-justice/afzal-guru-case-justice-ended-
up-the-loser.html