[dropcap]T[/dropcap]HE Bhima Koregaon case is perhaps one of the most discussed cases in which every known violation of the law and procedure by the prosecution has been deployed to deny justice to the arrested activists.

Consider this: It could take 2300 days for the prosecution to supply copies of the evidence that is being used against the arrestees. The actions of the State over the past year certainly point to this.

Last year, the Pune Police, after conducting raids all across the nation, arrested nine prominent human rights activists and said to be after three more. From the start, the State showed all the characteristics of bias and prejudices – an opinion that was vindicated by Justice Chandrachud’s dissenting judgment in Romila Thapar, who termed the Pune police to be unworthy of any trust.

After over a year since the arrest of the first set of activists, their struggle for just their basic necessities continues. Even though under the Constitution a person’s liberty cannot be compromised except in accordance with the due process of law, the failure on the part of the State to act in accordance with due process is there for all to see.

 

Serious prejudice; errant prosecution

 

On November 15, 2018, the Pune police hurriedly filed a 5000-page charge sheet against the first set of arrestees. Though more than 90% of the charge sheet was based on the material allegedly derived from seized electronic evidence, such as hard disks, memory cards, etc, it did not provide copies of the same to the arrested persons, nor did it file mirror copies or originals with the charge sheet before the court. Needless to say, this caused serious prejudice to the persons arrested.

While filing the charge sheet, the investigating officer gave an undertaking that “along with the report of forensic laboratory, annexure hard disk have been supplied, however owing to certain technical issues copies of same could not be made, and therefore as and when copies become available, same shall be supplied to the accused.” The investigating officer stated in court that he would be supplying the same within 15 days.

Two months later when they were not supplied with copies of the evidence against them and that evidence was still being relied upon in the bail hearing, the activists sought copies of the annexure hard disks by moving an application, but to no avail.

Reminder applications were moved and, on each occasion, the investigating officer used excuses such as the forensic lab is short of human hands, or copies of the best quality are being prepared to wriggle out of providing the disks to the arrestees.

When the demand was pressed hard in March 2019, the investigating officer said in his written reply that providing the annexure hard disks to the accused would result in the leakage of evidence to some of the accused who were absconding.

The activists then moved an application saying that material that was not supplied to them could not be relied on when considering their bail application given that a rebuttal would not be possible. That application remains pending till date without any order or reply.

Such non-compliance ought to have resulted in stringent action and a strict order against the prosecution. Instead, the learned judge took it upon himself to shoulder the responsibility of supplying copies of the hard disk

 

Deliberate delays; false information

 

As per his order, an officer his court would ensure the making of copies in his office, in the presence of all the accused, their counsel, public prosecutor, investigating officer, forensic expert, and to be recorded on camera. Once all the copies were made, the same would be supplied to the activists for their analysis. And thus, the process of copying was initiated.

The officer with the help of forensic experts, in the presence of all, began copying the hard disks one by one. Each copy took 5-6 hours, thanks to the machine that is being used. As per the orders of the court, the matter was fixed at intervals of an average of 10 days.

Though the prisoners were supposed to be brought at 11 am, prison authorities would make sure that they did not reach court any time before 1 pm. At the last hearing, the presiding officer was told by the prison superintendent that the prisoners were deliberately not showing up at the gates on time – a version that the judge readily accepted and used to reprimand the prisoners.

The activists then demanded that CCTV footage be called for where it showed without exception that they were present at the gates much before the appointed time and that action be taken against the concerned officer for giving false information to the court. Ultimately the activists and their lawyers had to file pursis (written statements) bringing the action of the prison authorities on record.

 

No bail hearings without evidence copies

 

What made it more prejudicial was the stand of the public prosecutor that unless such copies of the hard disks were provided to the accused persons their bail application could not be heard. The court, shockingly, accepted this demand, resulting in the abeyance of the bail application, pending since July 2018.

Thus, a calculation began about how much time it would take to get all the copies of all the annexure hard-discs. The results are astonishing.

There are 23 annexure hard disks, and a requirement of 10 copies, making it a total of 230 copies. How much time will it take to make so many copies? With an outdated copying system deployed by the prosecution, it can make only one copy at a time, and each copy takes close to six hours.

Given that the court meets every ten days for this matter, it will require close to 2300 days, since only one copy can be made in a day. At any rate, it will take nothing less than six years, even if this method is followed religiously. Incidentally, since May 2019 the prosecution has been able to make just four copies of the first hard disc.

On July 6 when this situation was pointed out to the court, the judge said the charge sheet, being incomplete for want of electronic evidence, ought not to have been accepted in the first place. But now that orders had been passed it would be best to find a solution. He then went on to invite suggestions from the bar.

Even if the court decides to hear the bail application, which is unlikely, will it consider the material which has not been supplied to the accused?

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