Bhima Koregaon: Another hearing and the question of furnishing copies of evidence to the accused under Section 207 CrPC remains unanswered

In a plea for providing the accused copies of police reports and other documents under Section 207 of the Code of Criminal Procedure, a special NIA court has directed the NIA to file an affidavit in respect of the electronic evidence that was seized from the accused persons and ensure compliance by providing them with copies.

—

ON Saturday, a National Investigation Agency (NIA) court of special judge Rajesh Kataria resumed its hearing of applications filed by accused persons in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case.

The plea is for the NIA to comply with Section 207 (supply to the accused of copy of police report and other documents) of the Code of Criminal Procedure (CrPC).

During the previous hearing, on June 18, the accused persons had raised the grievance that despite filing several applications with the investigating authorities under Section 207 of the CrPC, they had not been allowed access to the compact disks which are an important piece of evidence furnished by the NIA in the case.

The court had directed the special public prosecutor appearing for the NIA, Prakash Shetty, to file an affidavit in respect of the electronic evidence that was seized from the accused persons and ensure compliance by providing them with copies.

Also read: Bhima Koregaon: Court asks NIA to provide Surendra Gadling copies of the police report and other documents under Section 207 CrPC

On Saturday, advocate Shifa Khan, appearing on behalf of accused persons— Sudha Bharadwaj, Gautam Navlakha and Hany Babu— filed a pursis praying the court to direct the NIA to submit a chart consisting the details of electronic devices seized in the case, cloned copies of electronic devices that are already supplied by the accused persons, cloned copies that are yet to be supplied and the dates by which the NIA will supply the rest of cloned copies.

Khan referred to the judgment of the Supreme Court in the case of Gopalkrishnan versus State of Kerala (2020), which mandates that all documents including electronic records that are produced for the inspection of the court along with the police report and those that the prosecution seeks to rely upon, must be furnished to the accused under Section 207 of the CrPC.

Shifa argued that the NIA has failed to comply with the order of the predecessor judge of the NIA court, dated May 23, 2022, that had directed the NIA to furnish a chart.

According to the pursis, the NIA's affidavit states that it supplied cloned copies of certain electronic devices. However, it fails to clearly establish which cloned copies were supplied which ones are yet to be supplied.

Shetty was directed to file a reply to the pursis by the next date.

Vernon Gonsalves, trade unionist, activist and academic and co-accused in the Elgar Parishad case, filed an application on behalf of himself and Surendra Gadling, human rights lawyer and Dalit rights activist, emphasising that the NIA must follow a sample chart to provide details on the cloned copies of the evidence seized by it under Section 207 of the CrPC.

Activist and lawyer Arun Ferreira argued that the accused persons in the Elgar Parishad–Bhima Koregaon case have filed applications for cloned copies under Section 207 of the CrPC since the time the case was filed, that is, five years ago. The applications have only met "evasive" replies by the NIA, he submitted.

Ferreira pointed out that while the NIA has stated that five or more boxes of hard disks have been seized as part of the evidence against the accused persons, the question arises whether the boxes of hard disks contain copies of all the cloned disks. The accused persons should be provided with cloned copies of all 798 documents seized by the NIA, he reiterated.

Also read: Bhima Koregaon: Who's who of those arrested

The matter is posted for further hearing on the applications filed under Section 207 of the CrPC on July 18.

Background

In connection with the Elgar Parishad–Bhima Koregaon case, on June 6, 2018, Pune police arrested Surendra Gadling; Dalit rights activist and editor of the Marathi magazine Vidrohi, Sudhir Dhawale; activist and researcher and a member of the Committee for the Release of Political Prisoners, Rona Wilson; former head of English department at Nagpur University, and Dalit and women's rights activist, Shoma Sen; and forest rights activist and former fellow of Prime Minister's Rural Development Fellowship Programme of the Union Ministry of Rural Development, Mahesh Raut.

On August 28, 2018, activist, poet, writer and teacher Dr P. Varavara Rao; trade unionist, activist and lawyer, Sudha Bharadwaj; Arun Ferreira; Vernon Gonsalves and a human rights activist, journalist, Gautam Navlakha were arrested and lodged in Mumbai's Taloja jail.

In subsequent months, scholar, writer and civil rights activist, Dr Anand Teltumbde; tribal rights activist and Jesuit priest, Father Stan Swamy; an anti-caste activist, Hany Babu; musical performers, anti-caste activists and members of the cultural troupe Kabir Kala Manch, Sagar Gorkhe, Ramesh Gaichor and Jyoti Jagtap, were arrested.

Trial is yet to begin in the Bhima Koregaon case. The prosecution has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Several of the accused persons have now spent almost five years in judicial custody without trial.

Three of the accused persons, Sudha Bharadwaj, Varavara Rao and Anand Teltumbde have managed to secure bail so far. Another co-accused, Father Stan Swamy, passed away due to COVID in custody in June 2021 after incarceration of over seven months.

An investigation by Arsenal Consulting, a leading, independent expert firm on digital forensics, has revealed that sophisticated malware was used to plant the digital evidence that forms the basis for the prosecution's case on the devices of two of the accused persons in the case, Gadling and Wilson. Arsenal's findings were published in four reports in 2021.