Over a decade after the tragic murder of rationalist Narendra Achyut Dabholkar, a special CBI Court in Pune on May 10 sentenced his assailants Sachin Prakashrao Andure and Sharad Bhausaheb Kalaskar to life imprisonment for murder. A fine of ₹5 lakh was also imposed.  The court however, acquitted three other accused — alleged mastermind Virendrasinh Sharadchandra Tawade, lawyer Sanjeev Punalekar and his assistant Vinay Bhave due to the failure of both the Maharashtra police and the Central Bureau of Investigation (CBI) to procure sufficient evidence.

Harsh words and comments on the conduct of the probe by India’s prime investigative agency, the CBI can be found in the 171 page judgement. While castigating the approach of the defence that has brazenly attempted to justify the killing labelling him “anti-Hindu”, the Court recognised the “pre-planning” behind the daylight assassination by “masterminds.” “Unfotunately,” however, states the court, “the prosecution has failed to unmask those master minds. “An overall shoddy and lackadaisical approach on the evidence gathering by the CBI, including the failure to establish the veracity of the confessional statement of Sharad Kalaskar recorded under the KCOC Act, ensured that such evidence could not be considered.”

“In the present case, the CBI ought to have carried out detailed investigation in that angle… The main master mind behind the crime is someone else. Pune police as well as CBI has failed to unearth those master minds. They have to introspect whether it is their failure or deliberate inaction on their part due to influence by any person in powers.” [Para 108, Page 160]

Sessions Judge Prabhakar P. Jadhav therefore concluded that that while the two convicts executed the murder, “the main mastermind behind the crime is someone else”. The two convicts hail from Chhatrapati Sambhaji Nagar (then called Aurangabad district) in Maharashtra. Andure worked as an accountant in a private shop and Kalaskar was a farmer.

The 69-year-old Dabholkar was shot dead on August 20, 2013, by two motorcycle-borne assailants on the Omkareshwar bridge near Pune’s Shanivar Peth area when he was out on a morning walk. Dabholkar’s murder along with three other similar murder cases — that of veteran communist leader and trade unionist, Govind Pansare (February 2015), cholar of Kannada, MM Kalburgi (August 2015) and Bengauluru based journalist, Gauri Lankesh(September 2017) had sparked prrotest and national outrage against the targeting of critics of Hindutva and campaigners against superstition and orthodoxy. Activists and stakeholders over the years have demanded a probe into the possibility of a common conspiracy on the ground that the pattern of execution of the killings were similar.

The judgement is a slight setback to the conclusion of investigators in Maharashtra and Karnataka that a right-wing organisation called Sanatan Sanstha was commonly behind the heinous murder of ideological adversaries between 2013 and 2017, although the question is still alive in three other ongoing murder trials.

Virendrasinh Tawde, an otolaryngologist associated with the Sanstha’s activities, is the one acquitted of the conspiracy charge. He was an aggressive opponent of Dabholkar and his Andhashraddha Nirmoolan Samiti Maharashtra, an organisation campaigning against superstitions. Despite the court finding that Sachin Andure and Sharad Kalaskar, young men associated with the Sanstha, were the ones who shot dead the 69-year-old Dabholkar in Pune, it criticised the failure to “unmask the masterminds”. This meant that the role of the Sanatan Sanstha is yet to be legally established in this case, although the court has noted the manner in which the defence lawyers sought to tarnish the image of Dabholkar and his activities.

Additional Sessions Judge P.P. Yadav’s 171-page judgment points out that the existence of a motive will be insufficient to prove a conspiracy, and that reliable and direct evidence is required to show that the accused had acted on the motive. However, the judge does find it strange that the defence was seeking to establish during cross-examination of witnesses that the victim was “anti-Hindu”.

The Sanatan Sanstha’s role, according to investigators in Maharashtra and Karnataka, was seen in the murders of Govind Pansare, a leftist leader at Kolhapur in Maharashtra (2015), academician M.M. Kalburgi (Dharwad, 2015) and journalist Gauri Lankesh (Bengaluru, 2017).

In fact, it was a ballistics analysis of the gun used to kill Lankesh – by the SIT appointed by the Karnataka government – that disclosed that it was the same weapon used in the murder of Kalburgi. Several common features in the four murders have so far been unearthed, leading the police to conclude that a single syndicate has been active in seeking to eliminate adversaries. The governments in Maharashtra and Karnataka must show greater political will in combating such threats to independent thinkers and activists.

Narendra Dabholkar a crusader leader and activist

Dabholkar was a physician, activist, rationalist and author based in Maharashtra. He founded the Committee for the Eradication of Blind Faith (Maharashtra Andhashraddha Nirmoolan Samiti, or MANS) after leaving his decade-long medical practice. He was also the editor of the weekly Marathi magazine Sadhana which championed liberal thought and scientific temperament. As a prominent crusader against religious superstitions, he was highly critical of godmen who promised “miracle cures” to ailments.

Dabholkar also spent decades advocating for a law to ban fraudulent and exploitative superstitious practices and played a crucial role in drafting the Andhashraddha Nirmulan Bill, 2005 (Anti-Superstition Bill) which was pending before the Maharashtra legislature at the time of his death. This law was opposed by various organisations and political parties for being “anti-Hindu”. In a twist of welcome irony, it was finally passed as an ordinance on August 24, 2013 — days after Dabholkar’s death. In December of that year, the State legislature passed the Maharashtra Prevention and Eradication of Human Sacrifive and Other Inhuman, evil and Abhorrent Practices and Black Magic Act, 2013.

The investigation and case

Over the past decade, various investigating agencies have handled the case starting from the Pune police to the Maharashtra Anti Terrorism Squad (ATS). In 2014, the CBI took over the case following a Bombay High Court direction. The next year, the High Court began monitoring the probe after  members of Dabholkar’s family complained that there that there had been no progress in the investigation. It was only last year that the Court  decided to discontinue monitoring after expressing some satisfaction with the way the trial was progressing. of the trial.

On Friday, May 10, Sachin Prakashrao Andure and Sharad Bhausaheb Kalaskar were convicted under Sections 302 (murder) and 34 (common intention) of the Indian Penal Code, 1860 (IPC), along with charges under the Indian Arms Act, 1959. However, the rest of the three accused were acquitted of charges under the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Section 120B of the IPC (criminal conspiracy).

During the proceedings, the prosecution examined 20 witnesses which included various close associates of the Sanatan Sanstha, an extreme right-wing Hindu organisation which had expressed strong opposition to the 2005 Anti-Superstition Bill spearheaded by Dabholkar. The Court identified this enmity as the primary motive for the murder. Other witnesses included Dabholkar’s son Hamid and activists from the Maharashtra Andhashraddha Nirmoolan Samiti.

The first accused in the case, ENT surgeon Virendrasinh Tawde, was arrested in June 2016 with the CBI claiming that he was a coordinator for Sanatan Sanstha in Kolhapur and had personal differences with Dabholkar. Before his arrest in this case, Tawade had also been arrested by the Maharashtra police for the murder of CPI leader, Govind Pansare. The CBI charge sheet stated that he was the “mastermind” of the conspiracy to commit the murder.

The two convicted assailants — Andure and Kalaskar were arrested only in 2018 when their role in the murder of Gauri Lankesh came up. The ATS apprehended the duo with the help of Karnataka Police’s Special Investigation Team (SIT). They were subsequently named in a supplementary charge sheet filed in February 2019. Eventually, in May 2019, Mumbai-based lawyer Sanjeev Punalekar was arrested along with his close aide Vikram Bhave who was earlier convicted for his role in the 2008 Gadkari Rangayatan Theatre bomb blast in Thane. All the accused were allegedly linked to the Sanatan Sanstha.

According to the CBI, Bhave reportedly participated in a recce along with Andure and Kalaskar about 15 days before the murder. In its charge sheet, the agency claimed that Punalekar had advised Kalaskar to destroy the firearms used in multiple murders – including that of Dabholkar and Gauri Lankesh. On Punalekar’s instructions, Kalaskar had allegedly thrown four country-made pistols into a creek near Thane on July 7, 2018. However, the agency later told the trial Court that efforts to recover the murder weapon had been unsuccessful!

It was on September 15, 2021 that charges were framed against the five accused by the special CBI Court marking the beginning of the trial.

The verdict

In its detailed 171 page judgement the Court has called out the CBI for a failure to investigate thoroughly, a lackadaisical approach to the gathered evidence, ensuring that the “masterminds” are not nabbed and that conspiracy is not proven. “The murder is committed with very well-prepared plan, which is executed by accused Nos. 2 (Andure) and 3 (Kalaskar). Considering the economic and social status of the accused Nos. 2 and 3, they are not the masterminds of the crime. The main mastermind behind the crime is someone else. Pune police as well as CBI has failed to unearth those master minds. They have to introspect whether it is their failure or deliberate inaction on their part due to influence by any person in powers”, it underscored.

Emphasising further that Tawade, Punalekar and Bhave were being acquitted only due to the shoddy investigation conducted by the CBI, the Court observed — “There is evidence of motive for murder of Dr Narendra Dabholkar against accused No.1 Dr Virndrasinh Tawde. There is reasonable suspicion against accused No. 4. Sanjiv Punalekar and accused No.5. Vikram Bhave, showing their involvement in the present crime. However, the prosecution has failed to establish the involvement of accused Nos. 1, 4 and 5 by leading reliable evidence to convert motive and suspicion into the form of evidence showing their involvement in the crime.” Accordingly, terror charges under Section 16 of the UAPA and charges of criminal conspiracy were dropped against the three accused.

The Court also criticised the Maharashtra state authorities for procedural lapses in obtaining appropriate sanction orders for the prosecution of the acquitted accused under the UAPA. The Rules prescribed for the law mandate that the competent authority must submit its recommendation for sanction to the Central or State Government within seven working days of receiving evidence gathered by the investigating officer. However, during the proceedings, it was revealed that Shirish Nagorao Mohod, then Deputy Secretary and Sanjay Kumar Shyamkishor Prasad, then Additional Chief Secretary of the Mumbai Home Department had failed to process the sanction orders on time. [Paras 65-66, Pages 115-116]

“Considering the status of deceased this case is of national importance. Despite the said fact, casual and negligent approach of PW15 (Shirish Nagorao Mohod) and PW19 (Sanjay Kumar Shyamkishor Prasad), is not only shocking but requires condemnation. It shows that even through this case is of national importance, officers on high posts PW15 and PW19 have not shown utmost care and caution expected from them.”State of Maharashtra v. Virendrasinh Tawde and Ors (2024)Sessions Case No.706/2016

“Present case is very serious and is of national importance. Not only, Dr. Narendra Dabholkar is assassinated but an attempt is made to finish his ideology”, judge Jadhav critically noted. He also implicated Sanatan Sanstha and its affiliates—Hindu Janjagruti Samiti, Warkari Sampraday, and others for “nurturing bitter enmity against” the rationalist. [Para 72, Page 125]

The Court also expressed serious reservations over the conduct of defence counsels during the proceedings. It pointed out how attempts were made to imply that Dabholkar was “hated” because he had “insulted Hindu gods”. Calling this approach “very strange and is condemnable”, the Court further highlighted, “The charge sheeted accused and defence counsels have not merely attempted to raise the defence. From unnecessary and irrelevant lengthy cross-examination of the prosecution witnesses and even in final argument, an attempt is made to tarnish image of the deceased. At the same time, the approach of the defence was to justify the killing of the deceased Dr. Narendra Dabholkar, by labelling him as anti-Hindu.”

After perusing the testimonies of eyewitnesses, the Court concluded that Andure and Kalaskar had indeed shot Dabholkar dead.

The battle for justice continues

Speaking to the media the day of the judgement, son and daughter of Dabholkar, Hamid and Mukta, stated that the conviction of Andure and Kalaskar had reaffirmed their faith in the judiciary but they intended to appeal against the acquittals of the other five accused.

“We are satisfied that the two accused have been convicted and sentenced to life, but the masterminds also need to be punished. We are determined to pursue justice and take the case to the Supreme Court. The charge sheets, including those related to murders of Govind Pansare, M.M. Kalburgi, and Gauri Lankesh reveal alarming connections, indicating a broader conspiracy spanning multiple cases. All the cases have a common thread, which is what investigation agencies have been saying. Until the conspirator in all these cases is apprehended, the safety of all rationalists remains in jeopardy.”

The judgement may be read here:

Related:

10 years since Narendra Dabholkar’s murder, protest in Mumbai, SC asks CBI to look into ‘larger conspiracy’

Dabholkar murder case trial to begin soon; Pune court frames charges against accused

Bombay HC disturbed at delay in Dabholkar-Pansare murder investigation

The post Rationalist Murders: Slamming CBI’s shoddy probe & failure to nab masterminds, Pune court slams attempt to “finish off Dabholkar’s ideology” appeared first on SabrangIndia.

These are some visuals showing the shutdown in the region. Reports attest that vehicles were turned away and businesses were shut and barriers were erected by youth to prevent movement.

#Manipur: Indefinite shutdown at #Churachandpur (Lamka) following the arrests of four persons by CBI yesterday. #ITLF pic.twitter.com/ewVr8lcPnk

— Pooja Mehta (@pooja_news) October 2, 2023

The accused arrested by the CBI are 4 people from the Kuki-Zo community, which includes two women, in connection with the abduction and murder of two Meitei students who had gone missing in July. The arrests have stirred unrest and have led to protests and once again rising tensions in the hill districts of Manipur.

According to Outlook India, the agency has obtained five-day custody of the accused persons from a Guwahati court in Assam. The court has notably upon reviewing the records found the arrests to be justified and in compliance with the required procedures and has slated that the accused will appear before the court on October 7.

The arrested accused have been identified as Paominlun Haokip, S. Malsawm Haokip, Lhingneichong Baitekuki, and Tinneilhing Henthang. They were apprehended in Churachandpur, Manipur, as announced by CM N Biren Singh. 

#WATCH | Manipur CM N Biren Singh says “In a major breakthrough today, we have arrested the main culprits responsible for the abduction and murder of two youths in the state. Union Home Minister Amit Shah had sent the Special Director of CBI along with some senior officers to… https://t.co/DI9OqjZEw8 pic.twitter.com/uIUPrrmfjR

— ANI (@ANI) October 1, 2023

I’m pleased to share that some of the main culprits responsible for the abduction and murder of Phijam Hemanjit and Hijam Linthoingambi have been arrested from Churachandpur today.

As the saying goes, one may abscond after committing the crime, but they cannot escape the long…

— N.Biren Singh (@NBirenSingh) October 1, 2023

Thereonwards, they were subsequently transported to Guwahati via a special flight, in coordination with local police and paramilitary forces. The CBI is noted to be intent on extracting information that may lead to the discovery of the victims’ bodies.

On the other hand, the Kuki Students Organisation (KSO) has condemned the arrests and claimed that the two male detainees were the president and general secretary of KSO Leimata block, and have asserted that they are not part of any murder case. They assert that the arrests are arbitrary and “driven by discrimination.” Furthermore, according to a KSO representative, the four individuals, along with two children, were traveling together from Leimata to Churachandpur town when they were intercepted and taken into custody by security forces. 

CONDEMNATION

The Kuki Students’ Organisation Delhi & NCR register its strong condemnation over the arrests of six Kuki-Zo civilians, including two minors by the Central Bureau of Investigation (CBI) on the 1st of October 2023 between Kangvai and Molhoi village, Manipur. pic.twitter.com/P5PaQ8YQ1s

— KSO Delhi & NCR (@KSODelhi) October 2, 2023

The Indigenous Tribal Leaders forum has questioned the alleged swiftness in the arrests, aand ask why no actions has been taken for several incidents of violence against tribals in the state. The Kuki Women’s Organisation for Human Rights has further demanded the release of those arrested. 

AN APPEAL FOR EQUAL JUSTICE

Dear Honourable PM @narendramodi

The Kuki Women Organisation for Human Rights (KWOHR) demands the safe and immediate release of the arrested individuals in connection with the alleged murder of 2 Meitei students in Manipur

The KWOHR is… pic.twitter.com/pwaOgfyx49

— Sumkawn (@Sumkawn) October 3, 2023

The two minor children who had accompanied the accused during their transit from Imphal to Guwahati have been handed over to the District Child Protection Officer, Kamrup Metro District. The children, aged nine and eleven, are the reportedly the offspring of one of the suspects.

In response to these events, the Committee on Tribal Unity based in Kangpokpi earlier announced plans to impose an emergency shutdown on National Highway-37. 

Manipur: Total shutdown in #Kangpokpi hill district begins

The Committee on Tribal Unity (COTU) Sadar Hills begins its 15-hour total shutdown in Manipur’s Kangpokpi district from 6:00 a.m. this morning to mark the fifth-month unrest in #Manipur

Following the commencement of the… pic.twitter.com/AQZFMER41k

— The New Indian (@TheNewIndian_in) October 3, 2023

This is also to put pressure for the release of Satthang Kipgen, a teacher and resident of Bijang village in New Keithelmanbi who was arrested earlier. 

The National Highway-37 is important as it connects Silchar in Assam with Imphal in Manipur and serves as one of the crucial routes for supplying essentials to the valley areas primarily inhabited by Meitei people. Another important highway, Dimapur-Imphal National Highway-2, also traverses through the hill districts of Manipur and has been susceptible to frequent blockades, further complicating the situation. NH-2 has also reportedly been blocked. The block, according to reports, is supposed to last till 9 PM today after the 48-hour ultimatum was given. 

Meanwhile, the CBI and NIA have denied any accusations of partiality against any community, and have said that the arrests are purely based on evidence, and due course of law is being followed. As of official records, around 180 lives have been lost in Manipur ever since the conflict started in May, 2023.

Meanwhile, students of the Kuki-Zo community have demanded a change in administration, arguing that they cannot live under a Meitei dominated polity during a meeting with valley MLAs in Delhi earlier this week. However, their demands were denied. Earlier last month, N Biren Singh also tweeted in clarification that he was not resigning from his post.

However, what is important to note is that their demands reflected the rising undercurrent of dissatisfaction and anger against the government with regards to thee ongoing conflict which seems to be having no end in the near future. Manipur has had N Biren Singh as its. Chief Minister since the BJP formed a coalition government in 2017. Manipur remains on edge, with ethnic tensions reaching a critical height with each incident. The closure of schools and colleges in the state has been declared to continue till October 5. The mobile phone internet ban has been extended till October 7. 

Related

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The post Manipur under shutdown as tribal organisations assert bias appeared first on SabrangIndia.

The said demonstration is being organised to protest against violence and to promote humanity and sisterhood.  The said protest was organised by Maharashtra Superstition Nirmoolan Samiti, Mumbai. Many organisations came together to participate in the said protest, some of whom are Maharashtra Annis, Nashabandi Mandal, Rashtra Seva Dal, Friends of Democracy, Dr. Babasaheb Ambedkar Jayanti Mahotsav Samiti, Rebel Cultural Movement, Mumbai Sarvodaya Mandal, Bhakar Foundation, Jamaat e Islam Hind, CPM, CPI, Samata Parishad, Secular Janata Dal, Chhatra Bharti , Federation of Indian Women (NFIW), Vidyarthi Bharti, Marathi Bharti, Abha Parivartan Sanstha, Stree Mukti Sanghatana, AISF, DYFI, Maharashtra Vaidu Vikas Samiti, Constitution Campaigner Lokchalwal, Malvani Yuva Parishad (Youth Group), Anubhav Shiksha Kendra and Citizen for Justice  and Peace (CJP). 

It is essential to note that the said protest was to be taken out from Veer Kotwal to Chaityabhoomi, while covering Sena Bhavan, Portuguese Church, and Sushrusha Hospital, was stopped by the police and not allowed to proceed as planned. As provided by a participant to SabrangIndia, after people gathered at the first stop, the police came to the spot and provided that the permission to take out procession stood “cancelled” after being initially granted. Citizens were confined inside Kotwal maidan and could not walk to Chaityabhoomi, as was scheduled. But, inspite of this hurdle, protesters continued with their songs of justice and resistance at the same spot. 

Supreme Court asks CBI to look into ‘Larger Conspiracy’ in killings of Dabholkar, Pansare, Kalburgi, Lankesh

On August 18, the Supreme Court told the Central Bureau of Investigation (CBI) to look into whether there was an overarching conspiracy in the killings of rationalist Narendra Dabholkar, activist Govind Pansare, writer M.M. Kalburgi and journalist Gauri Lankesh. Notably, the Supreme Court bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing a plea filed by Dabholkar’s daughter, Mukta Dabholkar, challenging the Bombay high court’s refusal to continue monitoring his murder case.

It is essential to note that in April 2023, the Bombay High Court had refused to continue monitoring the murder probe of anti-superstition crusader Narendra Dabholkar, who was shot dead for ideological reasons in 2013. A division bench of Justices Ajay S Gadkari and Prakash Naik had disposed of two petitions, one of which was filed by Mukta, stating that “…No further monitoring is required.” It is crucial to note that the masterminds behind the said crime are yet to be arrested. 

Senior Advocate Anand Grover, appearing for the petitioner argued that the CBI investigation was not completed when the impugned order of the High Court was passed. Advocate Grover further highlighted that even perfunctory evidence indicated that the murders of Govind Pansare (killed in 2015), Dr. Narendra Dabholkar, Professor MM Kalburgi (killed in 2015), and Gauri Lankesh (killed in 2017) are interconnected. Grover also contended that this issue was agitated before the Bombay High Court. To provide a link, the court was informed that emphasized that Dabholkar was against superstitious practices, Pansare had written a book on Shivaji Maharaj, Kalburgi propagated separation of Lingayats from Hindus and Lankesh was disliked for her views.

When Justice Dhulia asked what was wrong with the high court’s observation that it will not monitor the case in which trial was ongoing and several witnesses had been examined, Advocate Grover stated that the absconding accused had not been arrested yet – despite which a trial was afoot, as reported by LiveLaw.

When asked about the “larger conspiracy” angle, the ASG said that among the five accused sufficient evidence is not there against three, and the other two are not connected. Another five accused are undergoing trial, she said as reported by LiveLaw.

On this, as per LiveLaw, the bench told Additional Solicitor General Aishwarya Bhati, appearing for the CBI, that the CBI could examine the issue of a larger conspiracy on the basis of additional documents filed by Dabholkar’s daughter. The bench asked for clarity from the CBI on whether the accused who are on trial have no common thread between them.

“The accused who are facing a trial, according to you there is no common thread in those four murders? Right? That is what you are saying?” Justice Dhulia had enquired, as per LiveLaw. 

Brief Background of the case:

The present case pertains to Narendra Dabholkar, a rationalist and social activist, who was shot dead by extremist elements on his morning walk in 2013.

In 2014, the High Court transferred the probe to the CBI from Pune police following a petition by activist Ketan Tirodkar and later by Mukta Dabholkar. Since then, the court has been monitoring the progress of the case.

In 2021, the special Pune court framed charges against alleged mastermind Virendra Sinh Tawde. It charged him and three others for murder, conspiracy and terror-related offences under the Unlawful Activities Prevention Act. The fifth accused, Advocate Sanjeev Punalekar was charged with destruction of evidence. The accused were allegedly connected to the right-wing religious outfit Sanathan Sanstha. 

Related:

Dabholkar murder case trial to begin soon; Pune court frames charges against accused

Bombay HC grants bail to accused Vikram Bhave in Narendra Dabholkar murder case

Trial in Dabholkar and Pansare murders to begin; Bombay HC to monitor

Bombay HC disturbed at delay in Dabholkar-Pansare murder investigation

Narendra Dabholkar and his immortal ideas

Gauri Lankesh Assassination: Accused denied bail by Aurangabad HC

Five years since we lost Gauri Lankesh

Gauri Lankesh Assassination Trial: Hearings to resume before KCOCA Court today

Firing at the Heart of Truth: Remembering MM Kalburgi

Gunman in Kalburgi murder case also Gauri Lankesh murder accused?

From Kalburgi to Gauri Lankesh: Silencing Rational Voices in Karnataka

The post 10 years since Narendra Dabholkar’s murder, protest in Mumbai, SC asks CBI to look into ‘larger conspiracy’ appeared first on SabrangIndia.

On October 29, a Delhi CBI Court held that the CBI cannot force the accused to reveal the password of his computer as it would amount to self-incrimination. Since there is always an apprehension that the data accessed could be evidence that could eventually be used to prove the accused guilty in court. The court also considered a 2021 Karnataka High Court’s judgement which had held to the contrary, allowing the investigating agency to seek the password from the accused while stating that the High Court had not considered an important Supreme Court precedent.

Background

In this case, the CBI sought the password of the computer as well as some software used by the accused, which he opposed. Hence the CBI filed an application before the District Court. The investigating agency relied upon Karnataka High Court judgment in Virendra Khanna vs. State of Karnataka, (decided on 12.03.2021 in W.P. No. 11759 of 2020) where the court had held that investigating agency has a right to seek password and biometrics from an accused for accessing/opening his computer system and mobile phone which was/were seized during investigation and no constitutional right of the accused is violated.

The accused opposed the CBI’s application stating that he has the right to remain silent under Article 20(3) [No person accused of any offence shall be compelled to be a witness against himself] of the Constitution of India as well as Section 161 (2) Cr.P.C [Such person shall be bound to answer truly all questions, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture], also adding that the CBI demand interferes with his right to privacy. He also refuted the application of the Virendra Khanna judgement due to territorial limitation and also on grounds that it was a judgment per incuriam i.e. a judgement applied without due application; wherein a judgement of a court has been decided without reference to a statutory provision or an earlier judgement which may or would have been relevant.

Right against self-incrimination

The right against self-incrimination finds its origins in Latin maxim nemo tenetur seipsum prodere (i.e. no one is bound to accuse himself) and the evolution of the concept of “due process of law” enumerated in the Magna Carta.

In Selvi v. State of Karnataka, (2010) 7 SCC 263, the Supreme Court held thus, “the right against self-incrimination” is a vital safeguard against torture and other “third-degree methods” that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course.

The major crux of this right lies in the principle that during the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and hence, this right is a vital protection to ensure that the prosecution discharges the said onus.

The US Constitution incorporates the “privilege against self-incrimination” in the text of its Fifth Amendment.

Article 14(3) (g) of the International Covenant on Civil and Political Rights (ICCPR) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that “everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

With the right against self-incrimination also comes the provision that a person’s right to remain silent cannot be adversely used against him to prove his guilt. Section 161(2) CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and proviso (b) to Section 315(1) of the Code, adverse inferences cannot be drawn on account of the accused person’s silence during the trial stage.

Jurisprudence

In Selvi, the Supreme Court held that although certain provisions of CrPC such as section 39 (places a duty on citizens to inform the nearest Magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes) are intended to ensure the citizens’ cooperation during the course of investigation, they cannot override the constitutional protections given to the accused persons.

The person being interrogated can resort to Section 161(2) CrPC which prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture.

In Nandini Satpathy case [(1978) 2 SCC 424 : 1978 SCC (Cri) 236], Justice VR Krishna Iyer held, “Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station.”

 What does not count as self-incrimination?

There are other instances where issue of self-incrimination has been argued before courts and the courts have liberally allowed investigations holding certain investigations to be compatible with Article 20(3) which means that not all investigations or seeking of evidence from an accused can amount to self-incrimination. While interpreting Article 20(3), the Supreme Court in Selvi held that Constitution-makers could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice.  The giving of finger impression or of specimen signature or of handwriting, does not amount to self-incriminating evidence.

“Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge,” the court held.

in Jamshed v. State of U.P. [1976 Cri LJ 1680 (All)], the Allahabad High Court held that the phrase “examination of a person” under Section 53 CrPC should be read liberally so as to include an examination of what is externally visible on a body as well as the examination of an organ inside the body and thus held that a blood sample can be compulsorily extracted during a “medical examination”.

In Mahipal Maderna v. State of Rajasthan [1971 Cri LJ 1405 (Raj)], the Rajasthan High Court held that an order requiring the production of a hair sample comes within the ordinary understanding of “investigation”

Revealing password is self-incriminating?

The court, relied upon the Selvi judgment where the apex court laid out a test to identify whether a particular fact/information/testimony/evidence comes within the category of “testimonial fact” as protected by Article 20(3) of the Constitution of India which an accused is not bound to give. The oral or written statement which convey the personal knowledge of a person in respect of relevant facts amount to “personal testimony” and may be based on oral or written statement of an accused but they can still be compelled for the purpose of identification or comparison with facts and materials which are already in the possession of the investigating agency.

The court held that Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or “furnish a link in the chain of evidence” needed to do so but not for comparison/identification with other evidence.

“…a testimony in oral (like voice sample) or written form (like specimen hand writing or signature) though may be personal yet they can be taken under compulsion from an accused if it is to be used for the purpose of identification or comparison with already available voice recording or signature/handwriting which is/are obtained from other sources like seizure of document or chance print, finger prints of the scene of crime, etc,” the court said.

Since the CBI was seeking password of the computer from the accused for accessing his data and not for comparison or identification, the court held that narco-analysis of an accused cannot be done without his consent since such procedure involves personal knowledge of the accused. On the same principle, the court held that similar logic applies to a password as it involves the import of personal knowledge.

When statements are likely to lead to incrimination by themselves or “furnish a link in the chain of evidence”, then bar of Article 20(3) of the Constitution would apply.

Password vs Biometrics

Computer sources or mobile phones these days can also be unlocked by use of biometrics such as thumb print or face scan. In the Virender Khanna judgment, password and biometrics have been treated as one and the same thing. However, the district court in this order observed that as per the Criminal Procedure (Identification) Act, 2022 (w.e.f. 18.04.2022) a different approach is required to be taken.

The court observed that biometrics such as finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan are included in the definition of “measurements” as are physical, biological samples and their analysis, behavioural attributes including signatures, handwriting. Thus, during investigation such “measurements” can be taken by the police and the Magistrate can also given directions to the accused to provide such measurements. However, the Act does not mention words like password or user id in the definition of “measurements”. “Therefore, it is clear that the aforesaid Act does not apply to the password/User ID of an electronic record (which may be contained in a computer system, mobile phone, hard-disk, memory card, email etc.) or any other documentary evidence (like a suit-case locked with some number code),” the court held.

The court has thus inferred that an accused can be asked or directed to give his biometrics (in the form of his finger impressions, face or iris recognition) for the purpose of opening of his electronic device.

At the same time, the Criminal Procedure (Identification) Act, 2022 under section 3 has an exception that “any person arrested for an offence committed under any law for the time being in force may not be obliged to allow taking of his biological samples under the provisions of this Section” unless the offence is against a woman or a child or when the offence is punishable for more than 7 years. Which means if a person is charged with minor offences he/she can refuse to provide such “measurements”.

“…said biometrics can be taken from an accused and used for opening of mobile phone/computer system/email/software applications, etc. by the police agency, wherever such need arises for a fair investigation,” the court opined.

Further, if password is required by police not for accessing data but for comparison of the said password (as a physical evidence) with the other available evidence, then the same is permissible.

Password is a testimonial fact

The court was of the opinion that when an accused is asked to disclose his password to the investigating agency, he is required to apply his mental faculty and/or memory to recall said password and it is purely based on his personal mental effort or knowledge, therefore, said information comes within the category of “testimonial fact” which the accused cannot be forced to give.

“…a password does not itself constitute a ‘self-incriminating testimony’ against an accused who gives such password, but from practical point of view, the said password alone is not the sole objective of the IO and in fact he wants to use it for the purpose of accessing the data which is contained in a computer system or a mobile phone which is/are seized from the accused and, therefore, the said password is to be taken as integral part of the said computer system/mobile phone which is/are not severable from it. While considering the status of such information being incriminating or not, this Court cannot consider password alone in isolation.”

Even if there is apprehension that the data revealed after entering the password may be incriminating, the accused has the right to not give such password to the investigating agency as per section 161(2) of CrPC which uses the words “tendency to expose him to a criminal charge or to a penalty or forfeiture.”

Evidence obtained by illegal means can still be used in the court in certain circumstances, hence if after being forced to reveal password, incriminating data is revealed, it will amount to self-incrimination by the accused.

Conclusion

The court thus held that the accused cannot be compelled to provide any password to his computer as he is protected by Article 20(3) of the Constitution of India as well as Section 161(2) of Cr.P.C. However, at the same time the Investigating agency is at liberty to access the data in the computer with the help of specialised agency or person at the risk of accused for loss of data, if any.

This being an order of a district court, it will not have an impact on jurisprudence, unless affirmed or upheld by at least, a High Court. However, the order has decided upon an important aspect of investigation since electronic devices are often seized by investigating agencies in the course of investigation when those accused are not aware of their right against self-incrimination. Even if this order cannot have the force of law to be applicable in all cases, it can become matter of contention to be decided by higher courts eventually to protect an accused person’s right against self-incrimination.

Relevance to The Wire raids

This order also came at a time when multi-city raids were conducted by Delhi Police at the homes of editors of The Wire, an independent online news portal based on a criminal defamation complaint filed by BJP’s IT cell chief, Amit  Malviya. The FIR was lodged on charges of cheating, forgery defamation and criminal conspiracy; none of which are serious offences where the accused can be forced to give any biometric information. Now as per the CBI court’s order, none cannot be forced to even reveal passwords to their devices.

The Delhi  Police Crime Branch, however, arbitrarily conducted search and seizure operations at the homes of The Wire’s founding editors, Siddharth Varadarajan, M K Venu and Sidharth Bhatia as well as the deputy editor, Jahnavi Sen and product-cum-business head, Mithun Kidambi, relying on notice under Section 91 of the Criminal Procedure Code, 1973.

According to media reports, a total of 16 devices were seized from the office of The Wire. Two phones, a tablet and a laptop from Varadarajan, a phone and a laptop each from Venu, Bhatia, Sen and Kidambi, and two hard disks from the accounts department’s computers were among the devices seized. A reporter’s phone and the computer he worked on at the Wire’s office were also taken away in Delhi. In addition to these devices, the Delhi police also asked the four editors and Kidambi to remove passcodes from their phones and laptops, and to provide passwords to their official and personal email accounts. Three staffers were asked for passwords to their official email accounts while another staff member was told to give passwords to both official and personal email accounts.

Siddharth Vardarajan told Sabrangindia that they had opposed the seizure of these devices without providing (the safeguard of) any hash value (ie numeric value that uniquely identifies data lodged in any device at a particular point of time. The Wire has given objections of this violation of procedure in writing to the Delhi Police contingent and Investigating Officer (IO). They were all however compelled to surrender all devices and divulge the passwords without the requisite safeguards of protecting the integrity of the data seized.

Independent analysis and investigation of a cloned hard disc of one of the accused in the famed Bhima Koregaon case has revealed how data implants on computers are indeed a possibility. Arsenal Consulting, a Massachusetts-based digital forensics firm has analysed an electronic copy of activist Rona Wilson’s laptop and arrived at the conclusion that an attacker used malware to infiltrate the laptop and place incriminating evidence on it, reported The Washington Post. To date this has not been examined by the courts in this case.

Meanwhile the PUCL statement condemning the raids in The Wire noted that the Crime Branch did not follow the requisite procedure as it took away devices from the news portal’s New Delhi office and from the homes of those raided without providing any hash value, i.e., the numeric value that uniquely identifies data lodged in an electronic device at any given point in time.  There are legitimate concerns that absence of a hash value leaves the door open to planting material on the digital devices.

The order may be read here.

Related:

Raids on Wire editors & seizure of electronic devices did not follow law & procedure: PUCL

Raids on The Wire criminalising journalism: DIGIPUB India condemns Delhi police action

The post Revealing the password of your device to the police amounts to self-incrimination? appeared first on SabrangIndia.

The Madras High Court has ruled that the Central Bureau of Investigation (CBI) should be given statutory status, and only then can its autonomy be ensured. By passing an order as an “attempt to release the caged parrot (CBI)”, the High Court has recommended to the central government to make CBI more “independent” like the Election Commission of India (ECI) and Comptroller and Auditor General of India (CAG).

The Bench of Justices N. Kirubakaran and B. Pugalendhi said, “Whenever any sensitive, heinous crimes are committed and there is no proper investigation by the local police, there is a demand for CBI investigation and the said demand for CBI investigation is increasing day by day due to the credibility of the Central Bureau of Investigation. People revere CBI as a premier trustworthy agency, which could investigate the cases impartially and fairly and prosecute the case before the Court efficiently and properly.”

But the court also observed that the CBI has been “dragging its feet” whenever there is a demand for enquiry, citing paucity of resources and personnel that restricts them from conducting investigations. “This is the usual stereotype version/defence of the CBI before the Courts,” the Bench remarked.

Limited manpower

The Bench observed that CBI has very limited manpower available with them. Here’s the list of officials across different years as per CBI’s records:

5,796 in 2000

6,526 in 2010 

7,274 in 2015 

7,273 officials as on December 14, 2020. 

The Bench also opined that the facilities in the CBI must be enhanced so that it can be equated with the Federal Bureau of Investigation (FBI) in the United States, and Scotland Yard of the United Kingdom.

“India is a thickly populated country with more than 130 crore people, the second largest in the World, next only to China. More offences are being committed including serious offences, corruption cases, act of terrorism having international ramifications. In view of that the facilities in the premier agency have to be enhanced, so that it could be equated with the Federal Bureau of Investigation (FBI) of the United States of America and Scotland Yard of the United Kingdom”, read the order. The court reiterated that the independence of the body is essential for an “impartial, neutral, credible investigation of the cases investigated by it.”

The court also referred to the Supreme Court judgment Vineet Narayanan v. Union of India 1997 (1 SCC 226), wherein it was observed that the “CBI is a caged parrot speaking in its master’s voice”. The High Court said, “The said observation of the Hon’ble Supreme Court is fortified by the statement made by the CBI Director before the Hon’ble Supreme Court in the Coal allocation case that a former Law Minister meddled with the statement of CBI filed before the Hon’ble Supreme Court.”

Further, the Bench listed the high-profile cases of sensitive nature like- The Jain Hawala Scandal, Bofors Scam, Sohrabuddin case, Sant Singh Chatwal case, Fodder case, Bhopal gas tragedy, 2G Spectrum case, Coal allocation scam, Noida double murder case, Nithari multiple murders, Rajiv Gandhi Assassination case, and said that the CBI’s work is restricted only to a few cases, due to lack of man power and resources.

In order to rectify this issue, the court said that a special act by which the CBI could be granted a statutory status, is necessary. “Though, very sensitive and complicated cases are being investigated or handled, the number of cases handled by CBI is just equivalent or less than the cases handled by a single police station in the country. Therefore, CBI has to take up more cases by increasing its manpower and other resources”, ordered the Bench.

CBI’s high acquittal rate

In its earlier order passed on December 8, 2020, the court seemed anguished about the high acquittal rate in CBI even when the crimes investigated by them are serious in nature.

The Bench had recorded, “When serious cases are coming up before Courts, there is always a glamour to seek for transferring the cases to the Central Bureau of Investigation, as the Central Bureau of Investigation has got a reputation as a premier investigation agency. It is known for investigating economic offences, corruption cases and sensitive cases. However, many cases which are investigated by the Central Bureau of Investigation, even serious cases, have ended in acquittal. It reflects badly upon the investigation of CBI. Hence, time has come to look into problems faced by CBI. Investigation of CBI needs to be improved by adding experts and modern gadgets.”

Directions issued to the Centre

The Central government is expected to consider and take a decision for enactment of a separate act giving statutory status with more powers and jurisdiction to CBI “at the earliest”. The Bench has also directed for a separate budgetary allocation for CBI.

The High Court has directed the Central government to take a decision on the comprehensive proposal for cadre review and restructuring of CBI within a period of “one month”. This direction was issued in light of the submission made on September 9, 2020 for comprehensive cadre review and restructuring of CBI, and for creation of 734 additional posts in different ranks that are pending with the Central Government.

It was also observed that officials and staff should be independently recruited by the CBI and given proper training instead of depending upon the deputation from police forces. “Therefore, in this regard the CBI shall send a comprehensive proposal to the Central Government for approval”, ordered the Division Bench.

Another very important direction that came from the High Court is that the Director of CBI shall be given powers as that of the Secretary to the Government and shall directly report to the Minister/Prime Minister without going through DoPT. (Department of Personnel and Training). The DoPT has been directed to pass orders on the CBI restructuring letter after consulting with other departments, if necessary, within a period of “six weeks” from the date of receipt of a copy of this order.

Other directions issues include:

– CBI should file a well thought out Policy within a period of six weeks from the date of receipt of a copy of this order, for permanently recruiting (i) Cyber Forensic experts and (ii) Financial Audit experts, so that all the branches/wings of CBI should have these experts available with them and not on case-to-case basis.

– The details of cases wherein charges have not been framed by the Trial Courts despite the charge sheets having been filed by CBI for more than one year, should be shared by Director, CBI with the respective Registrar Generals of the High Courts.

– CBI should send another detailed proposal seeking further increase in the divisions/wings as well as strength of Officers in CBI to the Government of India within a period of six weeks from the date of receipt of a copy of this order and Government of India should pass orders on the same within a period of three months of its receipt.

In 2018, CJP (SabrangIndia’s sister publication) Secretary, Teesta Setalvad had raised similar issues about CBI and its lack of autonomy stifling their freedom. In a video titled “Unshackle the CBI from political control”, she had said, “We need a CBI with self-respecting officers, who are well equipped and most importantly who are independent officers.” She had also raised the same issue that has been addressed by the Madras High Court about recruitment of officers through police forces instead of independent exams and subsequent training. The entire video may be seen here:

The judgment may be read here:

Related:

Unshackle the CBI from political control: Teesta Setalvad

With Asthana as Interim CBI Chief, CBI Resembles the Gujarat Bureau of Investigation

CBI U-Turn against its own chargesheet in the Sohrabuddin case, the caged parrot syndrome?

The post Give autonomy to CBI: Madras HC to GoI appeared first on SabrangIndia.

The Central Bureau of Investigation (CBI) has withdrawn its appeal against the Calcutta High Court order granting the liberty of house arrest to four senior All India Trinamool Congress (TMC) leaders in the Narada bribery case.

On May 21, the Calcutta High Court had said, “Considering the age and health issues of the accused, three of whom are said to be admitted in hospital, instead of custody in jail, all the accused persons can be put under house arrest in their own homes.”

Justices Vineet Saran and BR Gavai opined during the hearing that the “liberty of a person is the first thing to be seen” and that the issue of personal liberty cannot be mixed with other issues such as Chief Minister’s dharna and public protests against the CBI arrests, reported LiveLaw.

The Bench clarified that all other parties also have liberty to raise such contentions before it, and that their order to allow CBI to withdraw their appeal was not based on merits. Bar & Bench quoted the Bench saying, “We are not passing anything on merits. SG (Tushar Mehta) has accepted that the issues are being looked into by a 5-judge bench of Calcutta High Court. Thus, permission is sought to withdraw the plea and raise all such issues before the High Court. All other contentions remain open. All other parties shall also have liberty to raise such contentions before the High Court. It is clarified that we are not passing any order on merits.”

Solicitor General Tushar Mehta (appearing for CBI), reportedly contended that the conduct of West Bengal Chief Minister Mamata Banerjee and other top leaders of TMC after the CBI arrested Firhad Hakim, Subrata Mukherjee, Madan Mitra and Sovan Chatterjee, had ‘vitiated the atmosphere’ and the order of special CBI court granting bail could not be sustained on that ground. Mamata Banerjee had visited the Nizam Plaza office of the CBI and stayed there till the men were granted bail by a special CBI court. On the same day, CBI moved the Calcutta High Court, and the High Court stayed the CBI court’s bail order.

The top court Bench, however, disagreed with the Solicitor General stating that those incidents involving actions of TMC ministers have to be seen separately and cannot influence grant of bail to the accused.

Bar & Bench quoted Justice Gavai saying, “We have to see if bail has to be granted or not. For other issues, other remedies are there. Take action against such officials. We also have been pressured. I was hearing an anticipatory bail plea in Aurangabad in 2013 and mahila morcha people came inside court…police asked me not to pass orders but I passed orders in an open courtroom.”

The Calcutta High Court has been hearing this matter since May 19 and since the judges on the Division Bench, Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee, disagreed on the issue of grant of interim bail to the four accused leaders, it decided to refer the matter to a larger Bench for consideration.

In the meanwhile, the Division Bench directed that the four TMC leaders be placed under house arrest, directing, “During their house arrest, while being in home comfort, they shall be entitled to all medical facilities and shall be bound by all applicable restrictions, however, it shall be the duty of the jail authorities in the State to enforce the conditions.”

The jail authorities have also been directed to instal CCTV cameras at the entry point of the houses in which the accused persons reside and the recordings shall be kept for record to ascertain the persons who visit the accused.

Related:

CBI arrests TMC leaders in Narada sting case
Calcutta HC stays bail to Narada sting accused
Narada case: House arrest for four accused, HC divided on bail

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Chief Minister Captain Amarinder Singh led Punjab Government has revoked general consent orders issued to the Central Investigation Agency (CBI) under the ‘Delhi Special Police Establishment (DSPE) Act, 1946′. Now the CBI, which reports to the Central Government, will need to seek the consent from the State Government before investigating each case in the state. 

Punjab has now become the eighth state to revoke this blanket consent after Maharashtra, West Bengal, Rajasthan, Jharkhand, Kerala, Tripura and Mizoram that also withdrew the general consent, alleging that the BJP-led government at the centre was misusing the agency to harass political opponents. 

As reported earlier, according to Section 3 of the DSPE Act the Central Government may issue a notification to specify the offences or classes of offences, which are to be investigated by the Delhi Special Police Establishment, that is the CBI. Section 5 of the DSPE Act empowers the Central Government to extend to any area the powers and jurisdiction of the CBI for investigation of any offences specified in a notification under Section 3. However, as explained by news reports, the power under Section 5 of the DSPE Act is subject to Section 6, which provides for the consent of State Government to exercise powers and jurisdiction by the CBI under Section 5 read with Section 3. 

Section 6 of the DSPE Act reads: “Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area], without the consent of the Government of that State.]”.  Under Section 6 of the Act, all states except Delhi and the Union Territories have the discretion to give their consent to the for a probe in the state. Except in Delhi, Law and Order, including  the police are under state governments’ purview.  

These are the states which recently withdrew the general consent:

November 8, Punjab 
The Punjab government notification issued on Sunday, November 8 stated,”…the Government of Punjab hereby withdraws the general consent accorded to the members of the Delhi Special Police Establishment, anytime herein before. In view of revocation of all previous general consents issued earlier, prior consent of the Government of Punjab shall be required, hereinafter, on a case-to-case basis for investigation of any offence or class of offences…” 

November 5 Jharkhand 
Jharkhand government’s order withdrawing general consent to CBI to conduct investigations in the state said: “The powers vested on CBI were given dated 19th February 1996 by the erstwhile then Bihar Govt to CBI… the governments of West Bengal, Rajasthan and Chhattisgarh and earlier Mizoram had recently withdrawn the general consent to the Central Bureau of Investigation (CBI), a kind of blanket nod for the agency to probe scheduled offences specified in the Delhi Special Police Establishment Act (DPSE) Act, 1946.”  Jharkhand government is a coalition of the JMM, Congress and the RJD, and defeated the BJP  in December 2019. Jharkhand Chief Minister Hemant Soren had announced that the “order has been issued by the Government of Jharkhand to the members of the Delhi Special Police Establishment to withdraw consent to use powers and jurisdiction in the state under a law. There will no longer be a consensus for the use of powers and jurisdiction in Jharkhand Which was given under an order issued by the Government of Jharkhand (erstwhile Bihar) on 19 February 1996. Now CBI will have to take permission of the state government to investigate any case.”

November 4 Kerala
Kerala Chief Minister Pinarayi Vijayan, withdrew the blanket ‘general consent’ given to the Central Bureau of Investigation (CBI) to conduct probes in its territory. The  Kerala cabinet met and took this decision. According to news reports the immediate provocation for the decision was the CBI case being registered to probe ‘life mission’ housing project, a flagship initiative of the Kerala government to provide shelter and housing to the homeless. The project was stalled temporarily after the CBI registered a case to probe alleged irregularities in the ‘Life Mission’, forcing the state government to approach the high court. The high court stayed the CBI investigation for two months reported News18. On November 2 Chief Minister Pinarayi Vijayan had said that various central investigating agencies probing into the gold smuggling case were “exceeding their jurisdiction in a concerted effort to malign and destabilise the constitutionally elected government in the state.

October 21, Maharashtra 
Maharashtra Chief Minister Uddhav Thackeray withdrew a blanket consent given to the CBI to investigate cases in the state. States not run by the Bharatiya Janata Party (BJP) have been alleging a step-child treatment by way of a constant erosion of federalism by the central government. Uddhay Thackeray-led Shiv Sena is in power in Maharashtra in alliance with the Congress and the Nationalist Congress Party (NCP). Two of the most high-profile cases in the state are already with central agencies: Bhima-Koregaon/Elgaar Parishad case is being investigated by the National Investigation Agency (NIA). Alliance partners, especially the NCP have been extremely vocal about the turn the case took after the NIA took over. From arrests of cultural activists of the Kabir Kala Manch, activists and lawyers like Surendra Gadling, Sudha Bharadwaj, Gautam Navlakha, Anand Teltumbde, even octogenarians like poet Varavara Rao and Fr. Stan Swamy, it has become clear that the case is being used to exact political vendetta against dissenters by finding new excuses to keep them in captivity. The Sushant Singh Rajput case saw a tussle over jurisdiction with Bihar police, following which the Supreme Court cleared the path for the CBI to take over. But even after all the drama that unfolded with both, the Narcotics Bureau and the Enforcement Directorate were drawn in, and the public shaming of a young woman amidst a media circus continues.

Related:

Now, Jharkhand withdraws general consent to CBI to conduct investigations in the state
Kerala Govt withdraws blanket consent to CBI for probes in state
Uddhav Thackeray withdraws consent; CBI can’t just swoop in any more

The post Punjab Government revokes general consent orders to the CBI appeared first on SabrangIndia.

On Wednesday, Kerala Chief Minister Pinarayi Vijayan, followed the footsteps of his counterpart in Maharashtra. The Kerala government will withdraw the blanket ‘general consent’ given to the Central Bureau of Investigation (CBI) to conduct probes in its territory. The CBI will now have to take the state government’s permission before registering any cases in Kerala, reported News18 and others.

Kerala’s cabinet decided today to withdraw general consent given to the CBI, curtailing its powers in the State. Following this decision, CBI will require permission from State government on case-to-case basis to conduct probe. @ddnewslive

— DD News Malayalam (@DDNewsMalayalam) November 4, 2020

With this crucial decision, Kerala government  joins the growing list of non-Bharatiya Janata Party government states Maharashtra, West Bengal, Rajasthan and Chhattisgarh which have  withdrawn the general consent to the Central Bureau of Investigation. The CBI also lacks a “general consent” from Mizoram, added  an India Today  report.  This ‘consent’ is akin to a blanket nod for the agency to probe scheduled offences specified in the Delhi Special Police Establishment Act (DPSE) Act, 1946.  Unlike the National Investigation Agency (NIA), which has countrywide jurisdiction to take over any case related to terrorism, the CBI requires the consent of the state government concerned under Section 6 of the DPSE Act, the law that governs the agency’s functioning, stated the report.

The  Kerala cabinet met on Wednesday and took this decision. India Today and News18 cited sources, to report that the immediate provocation for the decision was the CBI case being registered to probe ‘life mission’ housing project, a flagship initiative of the Kerala government to provide shelter and housing to the homeless. The project was stalled temporarily after the CBI registered a case to probe alleged irregularities in the ‘Life Mission’, forcing the state government to approach the high court. The high court had stayed the CBI investigation for two months reported News18.

Kerala Chief Minister Pinarayi Vijayan on November 2 had said that various central investigating agencies probing into the gold smuggling case were “exceeding their jurisdiction in a concerted effort to malign and destabilise the constitutionally elected government in the state”.

“Investigation is what an agency should do privately. People from outside the agency are announcing through the media about how the agencies will work, what they will do next. The agency works the next day exactly how these people announce beforehand. Selective leakage of statements is happening based on agenda,” Vijayan had said, adding that  a professional investigation should be conducted with an open mind. “Investigative agencies don’t have the right to interfere in government projects while they are being implemented reported News18. As part of the constitution, there is CAG to look into the income and expenses of the government. If the investigation agencies look into the state government projects while they are implemented, they are interfering with the project and it affects the common man. The CAG is there to look into this,” he said.

Vijayan said the state government’s right to take policy decisions and their authority will not be surrendered before anyone. A day later the  Kerala government issued an order withdrawing general consent to the Central Bureau of Investigation (CBI) to investigate cases without prior permission.

Meanwhile, Kerala BJP president K Surendran alleged that the Kerala CM took the decision to “to protect himself” reported Mathrubhumi. “The CM has come under the scanner after probe into cases including gold smuggling. Names of people who received a share of the swindled money are being unveiled. Amidst this, the government has decided to ban CBI,” Surendran told  mediaperons, adding that the “central investigation agencies will continue the probe until the truth comes to light.”

Related:

Uddhav Thackeray withdraws consent; CBI can’t just swoop in any more

The post Kerala Govt withdraws blanket consent to CBI for probes in state appeared first on SabrangIndia.

On October 21, Maharashtra Chief Minister Uddhav Thackeray withdrew a blanket consent given to the Central Bureau of Investigation (CBI) to investigate cases in the state. Was this just some dull bureaucratic formality or a carefully calibrated power move?

Already states that are not run by the Bharatiya Janata Party (BJP) have been alleging a step-daughterly treatment by way of a constant erosion of federalism by the central government. Is Uddhay Thackeray, whose Shiv Sena is in power in Maharashtra as a part of an alliance with the Congress and the Nationalist Congress Party (NCP), now standing up to the centre?

Look at two of the most high-profile cases in the state that are already with central agencies;

Bhima-Koregaon/Elgaar Parishad case is being investigated by the National Investigation Agency (NIA). Alliance partners, especially the NCP have been extremely vocal about the turn the case took after the NIA took over. From arrests of cultural activists of the Kabir Kala Manch, to the vilification of activists and lawyers like Surendra Gadling, Sudha Bharadwaj, Gautam Navlakha, Anand Teltumbde, even octogenarians like poet Varavara Rao and Fr. Stan Swamy, by allegations of Maoist links, it has become clear that the case is being used to exact political vendetta against dissenters by finding new excuses to keep them in captivity.

Sushant Singh Rajput case saw a tussle over jurisdiction with Bihar police, following which the Supreme Court cleared the path for the CBI to take over. But even after all the drama that unfolded with both, the Narcotics Bureau and the Enforcement Directorate being drawn in, and the public shaming of a young woman amidst a media circus, that case too appears to be falling apart.

But herein lies the difference. While the NIA has jurisdiction across the country and does not require consent from the states to conduct or take over investigations. However, in case of the CBI, which comes under the provisions of the Delhi Special Police Establishment Act. Therefore, it needs consent from the state having jurisdiction over the crime scene. A general consent was given to the CBI by the state of Maharashtra in 1989.

But yesterday, Uddhav Thackeray withdrew this consent via a gazette notification that said, “In exercise of the powers conferred by Section 6 of the Delhi Special Police Establishment Act, 1946, the Government of Maharashtra hereby withdraws the consent accorded to the members of the Delhi Special Police Establishment…to exercise powers and jurisdiction under the said Act.”

What this means is, that now every time the CBI wants to investigate a case in Maharashtra, it would need permission from the state government. ‘Law and Order’ is a state subject and Uddhav Thackeray appears to be taking that power back, so that his state at least cannot be drawn into a vile vortex of political vendetta and power-play.

It is no secret that despite having allied with the BJP to form a government in the state in the past, the bond driven primarily by ideological reasons, Thackeray’s Shiv Sena now appears to be at odds with the party. Perhaps his decision is driven by the desire to be seen as a leader worthy of running a state increasingly wants to shut the door on its communal past and wants to stride confidently towards an inclusive culture that respects plurality and values secular and democratic principles. A recent taunt by Governor BS Koshyari asking Uddav Thackeray, “Have you become secular”, in wake of the Chief Minister’s decision not to permit places of worship to re-open amidst the Covid-19 pandemic is an example of this.

Though Thackeray’s decision will not affect the cases that are already under investigation, it will impact those that are yet to be taken up by the CBI. The most immediate impact of Thackeray’s decision will be on the TRP scam. On October 8, Mumbai Police Commissioner Parambir Singh had revealed that three channels; Republic TV, Fakt Mumbai and Box Cinema were allegedly involved in a TRP manipulation scam.

Singh said that Mumbai Police had discovered that a set of households where these meters were installed were paid money to tune to a particular channel. The households were allegedly paid about Rs 400-500 every month.

The scam involves manipulation of TRPs by influencing households where ‘peoplemeters’ have been installed by the Broadcast Audience Research Council (BARC). At present such meters are installed in over 44,000 homes across India, but their details are never revealed in order to prevent manipulation. But it appears that a few former employees of Hansa, a company hired by BARC to install these ‘peoplemeters’ were the ones who leaked this information and made the scam possible. Police investigations were initiated after Hansa found out about it and filed a police complaint.

After a key member of the ring involved in the scam was arrested from Uttar Pradesh, the CBI took over investigations in that state. However, in Maharashtra the case remains with the Mumbai Police. And while Republic TV editor-in-chief Arnab Goswami has left no stone unturned in projecting himself as a victim, he has found little reprieve. Even when he approached the Supreme Court, the court refused to entertain his plea and asked him to approach the Bombay High Court. In fact, the Mumbai Police reportedly told the SC that Republic TV was turning the TRP scam into a “media spectacle”.

According to Bar and Bench, the police affidavit states that Republic TV had been conducting debates regarding the TRP scam and has been “contacting witnesses” who are being summoned by the police to investigate the case and that “petitioners are directly interfering and intimidating the witnesses by issuing news releases,” adding, “Such a media trial is antithetic to the process of free and fair investigation as also administration of justice.”

Goswami’s Republic TV and its Hindi sister-channel Republic Bharat have been perceived as always marching to the regime’s tune, quickly labelling dissenters as ‘anti-national’ and often engaging in a willful campaign to vilify such people. Their reportage on the nationwide anti-CAA-NRC-NPR protests, especially the one by women at Shaheen Bagh, the vilification of Umar Khalid and Safoora Zargar, and their reportage on the Tablighi Jamaat case and the killing of two ascetics in Palghar, are but a few examples of this.

Perhaps Uddhav Thackeray fears that if CBI takes over the TRP scam case, Goswami might get some wiggle room on account of his perceived political allegiance and eventually escape justice. Either way, now the CBI needs to politely knock on his door instead of just barging in whenever it wants.

Related: 

Republic TV, two others accused of TRP fraud

Republic TV making TRP scam a “media spectacle”: Mumbai Police to SC

Delhi High Court tells Arnab Goswami to calm down and stop his media trials

Bombay HC stays FIRs against Arnab Goswami

The post Uddhav Thackeray withdraws consent; CBI can’t just swoop in any more appeared first on SabrangIndia.

The Central Bureau of Investigation (CBI) has registered as many as 30 First Information Reports (FIR) in connection with a chit fund scam in West Bengal. According to the Economic Times, FIRs have been registered for frauds ranging from Rs 5,000 to Rs 1 crore. This showcases the agency’s rather vigorous commitment to nab perpetrators in a case that is not devoid of political ramifications.

Over the years the CBI has come under fire several times for allowing itself to be bent to the will of its political masters who allegedly use the agency to coerce political rivals and dissidents alike.

Brief background of the case

The Saradha Group, an umbrella organisation of over 200 private players started a chit-fund, promising investors high returns. It was launched in the early 2000s by businessman Sudipto Sen. But eventually it turned out to be just a ponzi scheme aimed at small investors. The fund collected over Rs 2,500 crores from 1.7 million investors spread across not just West Bengal, but also Assam, Tripura and Odisha.

In 2012, the Securities and Exchange Board of India (SEBI) asked Saradha to first get the regulator’s permission before accepting money from depositors. In January 2013 it was discovered that the group’s cash outflows exceeded its inflows. After that it was all downhill and the scheme collapsed quickly. Estimates of the total amount of the fraudulent fund vary but are said to be in the vicinity of Rs 10,000 crores.

The Bengal government first set up a Special Investigation Team (SIT) headed by then Kolkata Police Commissioner Rajeev Kumar to probe the case. In 2014, after Supreme Court intervention the case was handed over to the Central Bureau of Investigation (CBI). The Enforcement Directorate (ED) also questioned several accused and witnesses in the case.

Sudipto Sen was arrested in Jammu and Kashmir in April 2013, and then his custody was transferred to the Bengal Police. Another key player was Debjani Mukherjee, a close associate of Sen.

Allegations of political bribery via fee for celebrity endorsements

Several influential politicians, many of whom were celebrities such as actors and sportspersons, were allegedly involved or at least connected with the scam in some way. It is alleged that they were given lucrative endorsement deals as a part of an elaborate method to bribe the All India Trinamool Congress (AITC).

Perhaps the most high-profile association was that of Bengali actor Shatabdi Roy who is also an AITC Member of Parliament (MP) from the Birbhum Constituency. Roy was alleged to be a brand ambassador for the fund.

However, in an April 2013 interview to ABP News, Roy clarified, “My image appears in endorsements for many brands and I perform at various events for which I charge a performance fee. I was only present at one event where Sudipto Sen was said to be present.” She also added, “I did not get involved with any of this in my capacity as an AITC member, but in my capacity as an actor. The allegations of political bribery are false.”

Roy was questioned by both, the ED as well as the CBI. In September 2019, Roy reportedly returned the fee she had charged for her association with the brand.

Another high-profile celebrity to be associated with the brand was yesteryears actor Mithun Chakraborty who was also a Rajya Sabha MP from AITC. He had reportedly appeared in promotional videos and advertisements and also on one of the television channels funded by the Saradha group. He maintained that his association too was purely in his capacity as an actor.

Moreover, after being questioned by investigation authorities, Chakraborty returned the brand fee of over Rs 1 crore in June 2015. He also resigned from his position as MP in 2017 citing health concerns, but many speculate it might have had to do with the mental trauma he suffered on account of his name being dragged into the scam.

Who’s who of AITC allegedly involved in the case

Sudipto Sen reportedly bought paintings by West Bengal Chief Minister Mamata Banerjee for a whopping Rs 1.8 crores. However, he denied having purchased the paintings. This however, drags Banerjee into the case making her the most powerful politicians to be allegedly associated with Sen.

Another AITC MP Kunal Ghosh was appointed CEO of a media group in which Saradha had invested over Rs 900 crores. Though the party subsequently suspended Ghosh, it wasn’t before he allegedly implicated Mukul Roy (who was then a close confidante of Banerjee) and 12 others in the case.

Another AITC heavyweight Srinjoy Bose was also allegedly involved in the media operations of the Saradha group. WB Transport Minister Madan Mitra allegedly headed the employee’s union of the group.

Those who jumped ship

Since the scam broke two key players; Mukul Roy and Himanta Biswa Sarma have jumped ship and joined the BJP. Roy, as mentioned earlier, was one of Mamata Banerjee’s closest confidantes and was in fact one of the founding members of the AITC. Roy was questioned by the CBI for 8 hours in 2015. He maintains that he had been questioned by investigation authorities not as a suspect, but as a witness. After the questioning, Roy, who had been the General Secretary, was reduced to just being a member and Banerjee reportedly started distancing herself from Roy. He joined the BJP in November 2017.   

But the case of Himanta Biswa Sarma is quite different. At present he is the Deputy Chief Minister of Assam and holds several key portfolios including Health, Finance and Education. He is often said to be the most powerful man in Assam, with his influence said to even exceed that of Chief Minister Sarbananda Sonowal.

At the time when the Sarasha scandal broke Sarma was a Congress politician and a close associate of veteran leader Tarun Gogoi. It is alleged that he played a key role in helping the group expand its operations in Assam and was paid handsomely for his efforts. However, nothing has been proved conclusively so far, though Sudipto Sen allegedly named him in an 18-page confession letter that was released by Mamata Banerjee in February 2019 during the infamous tussle with the center involving Rajeev Kumar. Mamata had then said that she had enough evidence against Sarma and dared PM Modi and Amit Shah to take action against Sarma. In August 2015 Sarma joined the BJP and many say it was this move that helped the BJP establish itself in the state and come to power in 2016.

Political ramifications

It remains to be seen if the fresh vigour with which the CBI is approaching the case will have any impact on any other AITC members. Would they then jump ship and would this finally help BJP win the assembly elections next year? West Bengal has been a coveted state for the BJP, and though they have steadily made inroads into the state consistently improving their tally in different elections, victory has remained just out of their grasp so far. Will they be able to finally dig up enough dirt on Mamata Banerjee to oust her from power or will the veteran Bengali leader hold on to her bastion next year?

Related:

The connect between criminal cases of politicians and their switch to BJP

Mamata VS CBI: Whose Fault Is It?

What has the BJP done to set the CBI free from its parrot’s cage?

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