[Reader-list] confessions-dec 13 case

[basharat peer]

An HTML attachment was scrubbed...
URL: http://mail.sarai.net/pipermail/reader-list/attachments/20041017/719b1800/attachment.html 
-------------- next part --------------
  
Confessions were forced in Dec. 13 Case


In his submission before the Supreme Court in the Parliament attack case, the senior counsel Mr. Shanti Bhusan argued on Thursday that the confessions made by the accused Mohammad Afzal and Shaukat Hussain Guru were extracted from them by the Special Cell of the Delhi police under torture. Afzal and Shaukat were given death sentences by the High Court in its judgment of 29 October, 2003. Their confessions formed a crucial evidence against them. In fact, Afzal’s confessional statement is the only evidence for the identity of the terrorists who died in the attack, the names of organizations they belonged to, the hatching of the conspiracy from Pakistan, and the details of arms and ammunition brought from Kashmir.

The appeal against the High Court judgment by the defence is currently being heard by Justice Reddy and Justice Naolekar at the Supreme Court. On the fifth day of his submissions in defence of Shaukat Hussain Guru, Mr. Shanti Bhusan focused mostly on the validity of the confessions. He pointed out that the disclosure statement of the accused recorded by the police on 16 December 2001 soon after their arrest already contained all the details of the official confession made later under POTA on 21 December 2001. If the disclosure statements were voluntarily made, they clearly showed that the accused were eager to confess to their alleged crime. Hence the accused could have been produced before a judicial magistrate on the 17th itself for a recording of the confession under the Criminal Procedure Code. Instead of taking this course, the police waited till the 19th when the POTA clauses were officially introduced in the case, and the confessions were recorded befor a police officer on 21 December. This suggests that the police wanted to use the convenience of POTA, and avoid the safegurds against forced confessions provided in the Code. So the possibility that both the disclosure statements and the confessions were extracted under torture can not be ruled out.

Mr. Shanti Bhusan also pointed out that the Deputy Commissioner of Police, who was empowered to record the confessions, gave a written order to his subordinate Assistant Commisioner of Police to produce the accused before the DCP at 11.30 A.M. on 21 December 2001. As such, Mohammad Afzal, Shaukat Guru and SAR Geelani were produced at the appointed time. However, Geelani refused to make a confessional statement, and his statement to this effect was recorded by 11.55 A.M. Then, instead of producing the next accused before the DCP for the confessions, they were taken away and brought back over three hours later when the recording of Shaukat’s confession started at 3.30 P.M.; recording of Afzal’s confession started at 7.30 P.M. The only explanation, according to Shanti Bhusan, is that, after Geelani refused to confess, the other two accused were subjected to further torture so that they fell in line before the recordings were resumed.

In view of these and other infirmities in the said confessions, and the long series of legal pronouncements that discouraged the use of confessions before the police, the bench asked if there was an explanation as to why such a confession was allowed under POTA. Interestingly, the bench itself reflected that this method could be needed only in those exceptional circumstances, such as operations in remote areas, in which a judicial magistrate may not be easily available. The case under discussion, in contrast, was handled in New Delhi.

Earlier, Mr. Shanti Bhusan had already pointed out that many individual statements in these confessions were in contradiction with other evidence produced by the prosecution. Mr. Shanti Bhusan’s submission will resume on 26 October after the autumn recess.

Nirmalangshu Mukherji, Department of Philosophy, Delhi University