Booked but not guilty

Every terror strike brings agony and annoyance, and challenges counter-terrorism response as well as the democratic reach. The latest - last month’s twin Hyderabad blasts - were no different.

. They revived a raging debate on illegal detentions by the police on the basis of suspicion. Some members of the minority community, arrested but released later in the aftermath of the 2007 Mecca mosque blast in Hyderabad, were picked up again.

As many as 30 Muslim youths had been falsely implicated in the terrorist attacks that occurred at Mecca mosque, Malegaon im Maharashtra and Ajmer Sharif. The Andhra police alone had arrested 21 for Mecca mosque blasts.

All these 30 youth are now on bail after the National Investigation Agency (NIA) picked yawning holes in police probe as the sleuths, on the contrary, pointed out the involvement of right-wing elements.

The fear of police excesses has been chronicled in cases other than terrorism as well – specially when it comes to handling naxalism or organised crime such as smuggling. Consider this - Irshad Ali and Maurif Qamar were branded as Al-Badr terrorists and arrested by Delhi police’s Special Cell in January 2006.

In the last seven years, the trauma faced by them has instilled fear in the duo from Bihar. But, they have not given up the fight to come out of the stigma they still carry. They continue to appear at Delhi’s Tis Hazari courts to get themselves declared innocent.

Their fault: They defied the police which tasked them to work on a secret mission in Jammu and Kashmir. Prior to their arrest, they claimed to have been working as Intelligence Bureau (IB) informers.

Their glimmer of hope was the Delhi High Court, on their plea, directing the CBI to probe their charges that they were framed in the case. The CBI concluded that the Special Cell planted explosives for falsely implicating them.

Despite the clean chit, the accused police officers are seemingly beyond the reach of law. The trial court did not take cognisance of the CBI’s closure report. When their case travelled to the apex court, it directed the trial court to consider all material before deciding whether the two were wrongly framed.

The case is still dragging on.

In a more recent case, journalist Muthi-Ur-Rehman Siddiqui and his associate Yusuf Nalaband were among 15 persons arrested last year from Bangalore on charges of plotting terror strikes. The NIA dropped the charges against them after six months in jail, due to lack of sufficient evidence. An associate of their’s, DRDO scientist Aijaz Ahmed Mirza, however, was granted bail as the NIA failed to file charge sheet within the stipulated time.

Similarly, Dileep Patidar, went missing since 2008 after he was picked up by the Maharashtra ATS in the Malegaon blasts case. The CBI which conducted the probe, charged that the ATS detained him in illegal custody for nine days in 2008 but it could not be established whether he is alive.

Without question, life for all these people can never be the same again. Irshad, however, has resumed driving his taxi and Maurif is back in his workshop making bags. Can these persons get back prime time lost behind the bars since they were falsely implicated in cases? Or, should not the police be made accountable for the blemish put on their career? Do we have adequate laws to counter terrorism? The Supreme Court fiercely guards the right to life and liberty that the Constitution guarantees to its citizen as it has demonstrated in several judgments.

So far, courts have been very reluctant to interfere whenever any person is arrested by the police during investigation on the premise that it is prima facie domain of the investigating agency. Court will not interfere unless there is something very glaring, believes Supreme Court advocate Sishir Pinaki.

But, in the case of State of Haryana vs Bhajan Lal, the apex court laid down the law and gave illustrative categories for the High Court to exercise its power under Section 482 of the Criminal Procedure Code to quash a proceeding.

Advocate M S Khan, who has argued terror-related cases, blames intelligence agencies for creating “rumour network” at the institutional level. “The Intel agencies are not accountable to any authority. Many innocent people are picked up at their instance by the police. If the poor accused is acquitted after years, he is left with no option but to try to pick up the threads of his life again,” he says.

Delhi High Court advocate M Sufian Siddiqui too points out that these secret agencies are not accountable under any law and often go overboard in their rush to solve a case. “Since, their promotion and allocation of funds all depend on their agility to solve cases, they provide inputs, which at times, go horribly wrong,” he said. That’s why, probably, a PIL filed by advocate Prashant Bhushan on behalf of NGO Centre for Public Interest Litigation (CPIL) in the apex court raises a question mark over the functioning of the Intelligence Bureau (IB), Research and Analysis Wing (RAW) and National Technical Research Organisation (NTRO).

It wants direction to regulate the intelligence agencies in line with the supervisory mechanisms maintained in the US and the UK and put them under “parliamentary and independent scrutiny”.

As part of counter-terror mechanism, the government brought stringent laws like TADA and POTA. But the tough laws were mostly abused against members of minority community, prompting the government to repeal them.

“The police have to act against odds. Despite all constraints, if we fail to prove charges against some of the accused or fail to file charge sheet against them, it is not that they are all innocent. Instead, it is primarily because we don’t have enough prosecutable evidence against them,” a senior police officer said. “We pinpoint people on the basis of certain inputs only,” he adds.

Instances of unjustifiable detention are not confined to terror suspects alone. Investigating a criminal case, police can pick up anyone on mere suspicion. At times, it can keep persons under preventive detention on apprehension of his future involvement in an offence.

For example, to prevent smuggling, a person having propensity and potentiality to indulge in such an act in future can be detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974. Sometimes, the security agencies invoke harsher laws like the National Security Act or the Maharashtra Control of Organised Crime Act to ensure the arrested accused do not get released easily.

In Rekha Vs State of Tamil Nadu (2011) case, the Supreme Court said, “Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time).”

Dealing with the cases of foreign-origin prisoners languishing in Indian jails even after completing their sentences, the Supreme Court has maintained, state cannot take away liberty of any person on technical or legal pretexts as it is the protector of the rights of every citizen.

As for the options available for a victim in case of violation of his right to personal liberty, advocate Amit Kumar says, he can file a writ petition seeking compensation from the state. A civil suit for defamation and demanding damages is another option. He can also file a criminal complaint against a particular officer for misusing his official position, Kumar adds.

Booked but not guilty

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