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Indian Express
10-08-2025
- Politics
- Indian Express
‘Investigation in the train blast case is a sad comment on how little policing has changed since 1872'
There were two recent judgments in terror cases–the 2006 Mumbai train blasts and the 2008 Malegaon blasts judgments. The high court verdict acquitting 12 people for the train blasts (7/11) called the torture meted out to them as 'barbaric' and 'inhuman'–the use of the judgment as a precedent in cases of MCOCA was stayed by the Supreme Court while not interfering with the high court's findings on the men's innocence. The trial court in the Malegaon case said there was a strong suspicion, but no legal proof against the seven accused it acquitted, citing reasons including the lack of procedure followed by the prosecution. Sadaf Modak speaks with advocates Yug Chaudhry and Payoshi Roy, who represented the accused in the train blasts case, about procedures and safeguards in terror probes. While drafting the Indian Evidence Act, James Fitzjames Stephen had decreed confessions to police officers as inadmissible. This holds equally true today and even the new criminal laws bar the use of confessions and witness statements made before police officers. The investigation in the train blast case is a sad comment on how little policing has changed since 1872, despite the upgrade in resources and technique. In this case, torture was the investigative tool of choice whether it be by obtaining false confessions, or coerced signatures on make-believe recovery /seizure panchnamas concocted in the police station. Superior officers endorsed the use of torture, and often threatened the prisoners with it if they did not cooperate or if they complained to the judges. Remand judges and later the trial judge pretended that there were no signs of torture even when it was staring them in the face. It appears that investigating officers resorting to such fabrication are enabled by the judicial latitude they are assured of receiving in terror cases. The failure therefore is not one of technique or manner of probe but a crisis of impunity. The burden lies not only on courts but also on the State to strictly monitor these investigations and pull up erring officers. This is a case where the High Court has found that the police have tortured the accused to procure confessions and destroyed evidence of CDR that would exonerate the accused. Instead of immediately instituting a wide-ranging review of this botched investigation, the state has denied its falsity. This attitude is a disservice to the victims who deserve an honest investigation, like the high court itself observed, that there is no greater betrayal of victims of terror crimes than fabricated investigations. This judgment should serve as a clarion call to the political leadership that short-cuts in terror investigations are unacceptable. At present, sanction and prior approval for MCOCA (Maharashtra Control of Organised Crime Act) prosecution are given by an officer of the DIG Rank. When a terror offence of this magnitude is committed, officers at the highest level supervise the investigation. Seeking sanction from the DIG or the DGP of the state, who has been actively monitoring the investigation, is like an appeal from Ceaser to Ceaser's wife. In the 7/11 case, the approval for Act was granted without looking at the chargesheets, which allows DCPs to record confessions. One of the reasons the high court rejected the confessions is because prior approval was given without application of mind. Even under UAPA, sanction is sought from an authority appointed by the Central or state government. These safeguards have been reduced to a nullity. The authority granting sanction must be independent and quasi-judicial and must be able to scrutinise the material independently. Section 195 of the Indian Penal Code and now Section 230 of the Bhartiya Nyaya Sanhita penalises giving of false evidence and fabricating evidence with the intent to procure a conviction in a capital case. It is punishable with life imprisonment. It is time this law is implemented. Responsible police officers of the highest to the lowest rank must be prosecuted under the law. Police officers cannot be prosecuted for failing to collect sufficient evidence or if a prosecution fails to prove the accused's guilt beyond reasonable doubt. However, in a case such as the 7/11 blasts where officers have lied on oath about recording contemporaneous confessions, where there is stark evidence of brutal torture, where officers have deliberately destroyed the accused's CDR despite repeated applications by the defence for the CDR knowing that would exonerate the accused–such criminal action from the custodians of the law must be prosecuted under the law. If this is not done, there will be no acknowledgement by the State that they have failed the victims, failed society and undermined national security.
Indian Express
27-04-2025
- Indian Express
Badlapur sexual assault case: ‘Cops may be right about having killed someone in self-defence but there must be accountability'
The Bombay High Court on April 25 rapped the state government for failing to transfer probe papers related to the custodial death of the accused in the Badlapur sexual assault case to the Special Investigation Team (SIT) and not registering an FIR, despite its orders. A 23-year-old janitor arrested for the alleged sexual assault of two minor girls in August 2024, was shot dead by a police team when being transported in a police vehicle for a probe on September 23, 2024. Senior Advocate Mihir Desai, who has dealt with custodial death cases, speaks to Sadaf Modak on the due procedure to be followed in such cases and whether these are complied properly. In light of the High Court rap to the state government in the Badlapur custodial death case, and previous cases where the police have not acted promptly in such cases, what do you think should the response be as per law? Story continues below this ad If the police claim that an accused was killed in an encounter, they are basically saying that they killed somebody in self-defence. Self-defence is a defence taken in a murder case. Therefore, whenever there is an encounter, an FIR must be lodged. An is not an indictment of the people named in it. Once an FIR is filed, a probe can be conducted and if there is no evidence, the police can say so in court or file a chargesheet charging those involved. Once an FIR is filed, the criminal procedure can be followed. The place of the incident should be treated like a crime scene. The weapons involved should immediately be surrendered, there should be finger prints taken, photography and videography done for further investigation by an independent authority. The policemen may be right about having killed someone in self-defence but there must be accountability because ultimately it has caused the death of a person. There have been cases in the past in Mumbai, where encounter deaths have turned out to be cold-blooded killings. There are National Human Rights Commission guidelines as well as provisions in the CrPC, now replaced with the Bhartiya Nagarik Suraksha Sanhita, which lay down procedure in cases of custodial deaths. An inquiry by a judicial magistrate is mandatory. Are these complied with properly? The compliance in such cases is pathetic. A magisterial inquiry is a must. In custodial deaths, the authorities say that the death was caused as the person was already beaten up by the public before his arrest, or that he died while escaping, or that he died by suicide or was unwell. Hence, a magisterial inquiry is necessary as an independent body, who can investigate all these aspects and arrive at a conclusion on the cause for death. It is mandatory for the police to ensure CCTV cameras are installed in all rooms of the police station where the accused will be kept or interrogation will be done for transparency. In cases of custodial deaths at the police station, police often claim that the CCTV cameras are not working. In such cases too, action should be taken against the senior police inspector, as it is their responsibility to ensure that the CCTV cameras are in working condition. If an FIR is filed belatedly in custodial death cases, usually after orders of the High Court or Supreme Court, the police claim that the CCTV footage has been wiped out or not saved. This too will be avoided if the FIR is filed immediately. The magisterial inquiry reports too need to be made accessible by uploading them on a website otherwise they end up being administrative inquiries without any transparency on how they were done and how the conclusion was reached that the death was natural or a suicide or does not involve the police. Unless a family member of the person who has died as certain objection due to any reason, they reports can be made public for transparency. The state government recently announced a policy to grant compensation in cases of custodia deaths. How do you see that decision? I will not say that compensation should not be there. But, it should not allow authorities to wash off their hands or not be held accountable, only on the basis of compensation being paid. The procedures in terms of inquiry into the death and action against erring officers should be priority too.
