Production of electronic evidence delayed: Student activists to Delhi Court, 2020 Violence

Devangana, Natasha and Asif have alleged that the Prosecution is delaying in providing evidence that they have relied upon in the chargesheet

Delhi riots

The eighteen accused persons in the Delhi Violence alleged conspiracy case appeared before the Additional Sessions Judge, Amitabh Rawat today, on September 10. They have been booked under the relevant provisions of the Unlawful Activities (Prevention) Act, Indian Penal Code, Arms Act and The Prevention of Damage to Public Property Act. (FIR 59 of 2020)

Advocate Adit S. Pujari, appearing for Natasha Narwal and Devangana Kalita, argued that they filed an application under section 207 of the Criminal Procedure Code (supply to the accused of copy of police report and other documents) seeking copies of electronic evidence way back in April, but the Delhi Police has not responded to it.

He said, “We moved this application in April. Five months have passed. We haven’t received a reply yet. Where is the scope of section 207 application if there is no speedy redressal?”

Additional Public Prosecutor, Amit Prasad, appearing for Delhi Police, argued that the volume of data procured from all accused persons and witnesses is huge and hence, it will take time. He said, “What they are asking for is all the digital data that pertains to all devices that have been seized. During the investigation, various people and witnesses were called, and their devices were seized. Some are accused, some are witnesses and some are neither of the two. The volume of data is huge. That data contains personal things so now, if I am to supply all that data, I will be infringing their privacy.” He argued that the State will need to analyze each data, and without that analysis, they can’t file a reply.

He added, “The relevant data has been provided. I will file a reply, it will just take time.” Advocate Tusharika Mattoo, also appearing for Natasha and Devangana intervened and said, “Atleast they (Delhi Police) can supply a list of documents about the un-relied documents as per the directions of the Supreme Court.” The APP clarified that the evidence they have relied on, has already been supplied to the accused and contended that what the defense has been asking for is “over and above the chargesheet.”

Advocate Mattoo argued further that even if the prosecution has used confidential data, they should provide it to the accused persons. “Even if confidential data is part of the chargesheet, they need to provide it to us. Our application [under section 207 of the CrPC] was filed on April 8, we have sent repeated emails to the prosecution. They can at least indicate which files they are referring to!”

The Prosecutor then informed the court that he will file a preliminary reply to this grievance. He then referred to the application filed by accused Asif Iqbal Tanha who has sought for a clone copy of his mobile phone that has been used as evidence. Prasad submitted, “I cannot give a clone copy of the mobile phone as the same is with the Forensic Science Laboratory (FSL)”.

Advocate Sowjhanya Shankaran, representing Asif, argued that the prosecution has relied on this material to frame charges against him in the chargesheet, and that it is the duty of the State to provide for the same. She submitted, “The prosecution said they found something incriminating from my (Asif) phone and that material was sent to FSL and the result is awaited. Prosecution has filed 3 chargesheets, there are at least 65 odd pages which they claim they have recovered from my phone, these are data, WhatsApp chats, and alleged speeches already relied on by them. I need to know the entire content relied on by them. It is not the job of the prosecution to pick and choose what to rely upon.”

She further argued that it is the duty of the State to ensure a fair trial, investigation, and also fairness of disclosure. “This is my phone, it’s not about my privacy, give me access to my own records. I am not asking for my phone, just the materials the state has relied upon”, she argued.  

Amit Prasad refuted these arguments and said that in the middle of the investigation, he cannot disrupt the process. “I cannot keep distributing material against the accused.” The court then asked him to inform the court about the status of the FSL report. Judge Rawat orally remarked, “Please ask when the FSL report will come and inform me on the next date otherwise I will have to pass some orders. I will pass a direction that FSL may expeditiously do this.”

According to a SabrangIndia report, during the previous hearing in connection with co-accused PhD scholar Sharjeel Imam, APP Prasad had argued that Imam delivered a speech Aligarh Muslim University (AMU) on January 16, 2020 where he started his speech with “As-salamu alaykum” (a common way of greeting in the Muslim community) which means that the speech was meant for only one particular community. “The fact that the address starts from As-salamu alaykum itself states that the speech is addressed to a particular community. The tone and tenor are kept in fine balance,” he had said.

Referring to this argument, co-accused and United against Hate founder, Khalid Saifi told Judge Rawat, “I read in the papers something on starting a speech with As-salamu alaykum was illegal? I should stop if it is illegal. I always greet my friends with salaam.” The Judge said that it was an argument placed by the prosecution and not the court’s word.

Saifi replied, “Once I am out [on bail], I will file a case in the NGT [National Green Tribunal] because the Delhi police has wasted 2 million of precious papers on this chargesheet”.

Before adjournment, Advocate Mattoo requested the court to record all submissions made today. She said, “Kindly all the submissions made today be recorded. Last time, we were not supplied replies by the prosecution so at least our replies will be recorded.”

The court marked the presence of all accused persons and posted the matter for hearing on September 30.


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