P.P.S. Gill In The Tribune
Judicial officers here feel that the imposition of an emergency and the passing of harsh laws will not make any difference to the situation in Punjab as the judicial system itself has been “dislocated”.
According to these officers, the security forces, instead of dealing with terrorists, take advantage of these laws to frame cases in such a manner that even petty crimes, family disputes, individual offences, which have no element of terrorism, are tried under these “draconian laws”.
After the “special courts” were folded up in 1985 came the “designated courts” in which only cases under the Terrorists and Disruptive Activities (Prevention) Act are tried. The most common of all is booking a person under section 3/4 of the TDA (P) Act. The experience of these courts shows that the police had failed to frame proper cases under this Act.
It is believed that there are over 300 challans pending in the designated court here. So far only about 75 have been disposed of; the accused were bailed out for want of proper evidence against them and for want of witnesses. The court found that in 90 per cent of the cases the police theory was not even admissible under the Act to be proceeded in the court.
Consequently, the accused who are either bailed out or acquitted are usually picked up again by the police. For an accused person to remain “free” one has to “buy” that freedom after striking a “bargain”. The judiciary knows this and is helpless; such is the law. In its eyes such a “bargain” is no less heinous a crime than the “extortion” of money being done by gunmen, whom the police claims to be fighting.
The judiciary does not subscribe to the police version that there had been a spurt in violence following the release of a large number of “boys” who went back to the underworld of terrorism
The designated court has found that in over 80 per cent cases the police has fabricated the facts, including the actual date of arrest and even the place of arrest of an accused person. It cannot produce witnesses to have its claim supported. The courts find that even if all the allegations made by the police against the accused were to be believed even then a proper case could not be made for booking section 3/4 of the TDA (P) Act because no offence qualifies the police story.
The police say even if a gunman kills someone before the eyes of his own father, the latter would not be a willing witness in a court, to this the judicial officers’ reply that the witness does not open up because he is not sure of the police protection.
Moreover, the judicial officers say, the police verdict of “guilt” is based not on evidence but on suspicion, which can never take the place of proof in the court.
Further, speedy trial is an acknowledged fundamental right of citizens, but through manipulation it is being negated here. Usually, a trial once begun must continue day today until concluded but this never happens. The reason: the police never produce witnesses. The judicial officers say often the accused are not produced in the court because of the “insufficient police force” to escort them. This also happens because an accused person is booked in some other cases also, including those under the National Security Act.
The police has obtained orders to prevent the production from jails to courts under Section 268 and intentional snapping of the link between the trial court and the jail authorities.
In fact, to overcome the excuse of insufficient manpower to escort under trials or the accused from jail to the courts, the Government has now declared the central jail here as a “high security risk” jail on the pattern of the Nabha and Sangrur jails.
A part of the Amritsar central jail is now being converted into a high security prison where all those to be tried under the antiterrorist law will be lodged. It is said that there are about 500 such under trials to be tried by the designated court.
With the court expected to be set up in a month or two, additional staff has already arrived and necessary alterations are being made to house the court and make room for lawyers and litigants and witnesses.
The capacity of the central jail here is 999 but the total number of inmates at present is around 1,800. Overcrowding has denied the inmates adequate civic amenities, accommodation and proper care, including food. A case for construction of additional barracks is with the Government.
The judicial officers and the members of the bar are unanimous that the existing laws and the Indian Penal Code cover all offences like sedition, waging war against the State and acts of terrorism. It is no good trying to convince the public about the guilt established before a court of law.
The judicial officials say when the police collects insufficient evidence which fails in the court, it prompts the police to look for loopholes in the judicial process. In an ideal situation, the police should be equally committed to securing the verdict of guilt as the prosecutor is. But, of late, this link and cooperation between the investigator and the prosecutor has also disappeared.
It is just case of a witness. The judiciary says there is a deep and widespread sense of insecurity among the members of the bench as well as the bar because of the prevailing law and order situation where the State has failed to provide protection. The measures taken in the court compound to beef up security remain porous. “Despite all the barbed wire enclosures there have been shootouts and freeing of gunmen”.
What do the courts do when witnesses are not produced despite production warrants being issued? This is so despite numerous opportunities. The prosecutor witness is closed, even where witnesses are well known to the police and where these witnesses refuse to support the prosecutor.
Most importantly, the accused has no opportunity to defend himself in the investigation, which is one sided. However, the accused has a right to be produced before a Magistrate within 24 hours of his arrest and thereafter the detention comes under the direct supervision of a judicial officer but not so the investigation against him which right up to the time of presentation of the final report remains in the hands of police investigators.
Article extracted from this publication >> April 8, 1988