[Reader-list] Critique of the Judgement against Dr. Binayak Sen by the 2nd Additional District and Sessions Judge, Raipur

[Shuddhabrata Sengupta]

Dear all,

The judgement against Binayak Sen pronounced by the 2nd Additional  
District and Sessions Judge, Raipur defines a new low in the history  
of justice in India.

There is a citizens protest against the judgement tomorrow afternoon  
at Jantar Mantar in Delhi at 2: 30 pm, those in Delhi, please join in  
large numbers, Please find below, a critique of the judgement written  
by Ilina Sen, Sudha Bhardwaj and Kavita Srivastava. Read and  
circulate widely.

best

Shuddha

------------------

This note (posted on kafila.org) critiquing the judgement that  
setences Binayak Sen for life has been written by ILINA SEN, SUDHA  
BHARADWAJ and KAVITA SRIVASTAVA

Raipur, 26 December, 2010

As you are aware the Second Additional District and Sessions Judge of  
Raipur Sh. B. P. Verma convicted Binayak Sen, Pijush Guha and Narayan  
Sanyal for rigorous life imprisonment on the 24 December, 2010. A  
ninety two page judgement was delivered by Judge BP Verma on the 24  
December, 2010. What follows is a quick analysis of the facts of the  
case and the judgement that has finally been delivered.

Important Dates of the case

The FIR was lodged on the 6th of May, 2007, when Pijush Guha’s arrest  
was shown. Dr. Sen was arrested on the 14th May, 2007 from Bilaspur  
and Narayan Sanyal was only made an accused in July 2007, who was  
already an under trial detained in the Bilaspur Jail in another case.  
The Charge sheet was filed in August, 2007. The charges were framed  
on 27th December, 2007 and subsequently the trial began. The trial  
lasted for two years where 97prosecution witnesses and 12 defence  
witnesses deposed. Many of the prosecution witnesses were policemen.  
Three judges presided over the two year trial. They were Judge  
Saluja, Judge Ganpat Rao and finally Judge B P Verma (a judge  
awaiting confirmation in the lower judiciary). The judgement would  
have taken longer had it not been for the Supreme Court, which on a  
bail application filed by Pijush Guha ordered in October, 2010 that  
the trial be completed in three months.

The Analysis of the Judgement

The Second Additional Sessions Judge, Raipur B.P. Verma has sentenced  
human rights defender Dr. Binayak Sen, Kolkata businessman Pijush  
Guha and Maoist ideologue Narayan Sanyal for rigorous life  
imprisonment and shorter prison terms, to run concurrently under  
Sections 124A read with Section 120B of the Indian Penal Code,  
Sections 8(1), 8(2), 8(3) and 8(5) of the Chhattisgarh Vishesh Jan  
Suraksha Adhiniyam, 2005 (Chhattisgarh Special Public Safety Act) and  
Section 39(2) of the Unlawful Activities Prevention Act, 1967.  
Narayan Sanyal has been additionally sentenced under Section 20 of  
the UAPA Act, 1967. Briefly put Section 124A read with Section 120B  
of IPC pertains to sedition and conspiracy for sedition; CSPSA, 2005  
makes culpable membership of, association with, and furthering the  
interests, financially or otherwise, of organizations notified and  
banned under the Act as unlawful. UAPA, 1967 seeks to penalize  
membership of a terrorist gang or association, holding proceeds of  
terrorism, or support given to a terrorist organization.

To hold the three accused guilty under the above mentioned laws, the  
judgment had to establish beyond reasonable doubt that the accused  
were either directly indulging in seditious activities as individuals  
or as members of an organization, or conspiring to abet and further  
seditious activities of individuals or organization. Also, the  
judgment was to establish beyond reasonable doubt that the accused  
were either members of organizations notified as unlawful under CSPSA  
or/ and UAPA, or conspiring to abet and further the activities of  
such unlawful organizations. Judge Verma’s verdict weaves a flawed  
legal narrative trying to establish the aforementioned links.

Judge Verma’s narrative hinges on the following points:

Narayan Sanyal is a member of the highest decision making body,  
Politburo, of CPI (Maoist) a seditious organization and notified as  
unlawful under the CSPSA and UAPA. As a basis for this, the judgment  
cites the content of certain journals purported to be organs of the  
CPI (Maoist) and certain cases lodged against him for Maoist  
activities in the states of Andhra Pradesh and Jharkhand. The above- 
mentioned magazines have been reportedly seized from co-accused  
Pijush Guha who has contended that they were planted on him by the  
police. The judge has unquestioningly accepted the version of the  
police on the basis of the supposed testimony of the seizure witness  
Anil Singh, ignoring the objections of Pijush Guha and co-accused  
Binayak Sen to the effect that the seizure witness had claimed to  
overhear a conversation between Guha and the police in a situation  
where the police had Guha in their custody, and any statement made by  
Guha to the police in a custodial situation is inadmissible as  
evidence under the Indian Evidence Act, 1872. It should not be  
forgotten that the seizure witness Anil Singh did not accompany the  
police when they came to apprehend and search Guha, but was  
supposedly a passerby, who was stopped by the police when Guha was  
already in their custody. The judge has held Narayan Sanyal to be a  
member of CPI (Maoist) on the basis of cases against him in other  
states in which he has not yet been pronounced guilty.
The central point around which the verdict’s narrative is woven is  
the arrest and seizure of certain articles, including the  
abovementioned journals and three letters supposedly written by  
Narayan Sanyal to his party comrades, handed over to Binayak Sen when  
he met Sanyal in jail, and then handed over by Sen to Pijush Guha who  
was supposed to pass it on to Sanyal’s party comrades. This  
supposedly establishes a chain binding the three in a conspiratorial  
relationship. According to this supposed conspiratorial chain,  
Narayan Sanyal is a leader of a seditious organization also notified  
as unlawful and as such banned; Binayak Sen conspires with Sanyal to  
pass on his letters to his party comrades through Guha, thus both Sen  
and Guha assist in the activities of a seditious and unlawful  
organization. In constructing this conspiratorial chain, the Judge  
has relied on forensic evidence testifying that the letters were  
indeed written by Sanyal, but for them being in possession of Pijush  
Guha, he has relied solely on the evidence of police officers and  
seizure witness Anil Singh whose versions have been contested by Guha  
but ignored by the Judge. Guha’s statement before the Magistrate  
which was recorded when he was produced on the 7th of May, 2007 says  
that he was arrested on 1.5.2007 from Mahindra Hotel, kept in illegal  
custody blindfolded for six days and finally produced before a  
Magistrate only on 7.5.2007. The Judge has ignored even Guha’s  
statement to this effect made before the Magistrate as soon as he was  
produced. Judge Verma has said in his verdict that Guha has failed to  
produce any evidence in favour of his statement, thereby putting the  
onus of proof on the accused and not the prosecution, which is bad in  
law. (Neither the CSPSA or UAPA (2004) puts the burden of proof on  
the accused.
The Judge has also ignored the contradiction between the police  
affidavit filed before the Supreme Court while opposing the bail  
application of Binayak Sen and the police version presented in the  
charge sheet filed in the sessions court. In the Supreme Court the  
police said that Guha had been arrested from Mahindra Hotel (which  
Guha has alleged in his testimony) but in the sessions court the  
police have said that Guha was arrested from Station Road where the  
police supposedly seized the aforementioned incriminating articles in  
the presence of seizure witness Anil Singh. The police’s flimsy  
argument, that the discrepancy was because of a typographical error  
in the affidavit filed before the Supreme Court, has been fully  
accepted by Judge Verma. Actually, the police officer responsible  
should be tried for either filing a false affidavit in the Apex  
Court, or lying in the Sessions court under oath. Accepting Guha’s  
testimony would have rendered the seizure witness’s statement  
implausible on which the Judge has centrally relied for his  
narrative. This would have in turn resulted in a complete collapse of  
the case against all the accused, especially so against Guha and  
Binayak Sen, against whom there was no material evidence of either  
being a member of CPI (Maoist) or being in conspiratorial  
relationship with  Narayan Sanyal, the principal Maoist character in  
Judge Verma’s narrative.
Once the central conspiratorial point and incident has been  
constructed in the judicial narrative, conspiratorial linkages  
between the three accused and their common causes and actions before  
the incident also needed to be established. This has been attempted  
in Pijush Guha’s case by a reference to his frequent visits to Raipur  
and a case pending in district Purulia, West Bengal. Judge Verma has  
ignored the fact that Guha was made an accused in the Purulia case  
after 6.5.2007, the date on which he is said to have been arrested in  
Raipur. This fact strongly generates a suspicion of afterthought by  
the police of the two states acting in collusion. Judge Verma’s  
verdict also naturally ignores the fact that Pijush Guha’s frequent  
visits are explained by his being a tendu leaf trader trading in the  
areas of Chhattisgarh.
Binayak Sen’s supposed conspiratorial relationship with Narayan  
Sanyal and his seditious Maoist causes is sought to be established by  
the following:
1. Testimony of the so called Landlord of Narayan Sanyal

Deepak Choubey’ in his testimony stated that he accepted Narayan  
Sanyal as a tenant in his house on the recommendation of Binayak Sen  
some time before Sanyal’s arrest.

The Judge has ignored the fact that Deepak Choubey did not own the  
house but acted on behalf of his brother in law. More crucially, the  
Judge set aside Sen’s objection that Choubey’s assertion came in  
response to a leading question by the Public Prosecutor. Judge  
Verma’s verdict makes no reference to Sen’s objections against this  
witness going beyond his statement under Section 161 of the Cr.P.C.,  
and the fact that the witness admitted in cross examination that an  
earlier statement recorded by the police at the time when allegedly a  
Maoist leader was arrested from his house was not brought on record.  
This casts doubt as to the veracity of the statement made  
subsequently since the same could be manipulated so as to suit the  
Prosecution story.  Judge Verma rejected Sen’s contention that  
Choubey’s statement was made under duress because the police  
threatened to implicate him in context of the said arrest. It also  
does not take into account the contradiction with the police’s own  
version that Narayan Sanyal was arrested from Bhadrachalam in Andhra  
Pradesh to which effect police officers of Andhra Pradesh have  
testified.

2. Binayak Sen’s thirty three meetings in eighteen months with jailed  
Narayan Sanyal.

The judge without giving any reason has ignored Sen’s contention that  
he was merely performing his duty as a human rights activist and a  
physician in addressing the legal and health issues of an ailing  
undertrial prisoner on the request of the undertrial’s family. The  
Judge has not considered the documents exhibited by the defence  
showing that Sen had permission from the Senior Superintendent of  
Police for his jail visits. Instead, Judge Verma’s verdict makes a  
convoluted argument by holding that Sanyal’s sister-in-law’s (Bula  
Sanyal’s) phone calls to Binayak Sen in this regard proved a  
conspiratorial relationship between him and Narayan Sanyal, whereas  
Bula Sanyal is a housewife absolutely unconnected with any kind of  
Maoist/ unlawful activity. Since the prosecution failed to produce  
even a single jail official or any other eye witness testifying to  
any letter or message, oral or written, being passed by Narayan  
Sanyal to Binayak Sen in their jail meetings, the verdict makes much  
fuss about certain entries in jail registers referring to Sen being  
Sanyal’s relative, ignoring the defence contention that these entries  
were filled in by the jail officials, and not by either the visited  
or visitor, as apparent from the face of the record. On the contrary,  
all the applications Binayak Sen submitted to the jail officials,  
requesting a meeting with Sanyal, were written on the letterhead of  
his organization – PUCL (a Civil Liberties and Democratic Rights  
organization founded by leading Sarvodaya leader Jayprakash Narayan).  
These visits were duly permitted by the jail officials and transpired  
in their full view and hearing.

3. Binayak Sen’s relationship with the CPI (Maoists)

3.1 That Binayak Sen had a close relationship with CPI (Maoist) is  
sought to be established by the unsubstantiated testimonies of police  
officials claiming that Sen and his wife Ilina Sen had assisted  
alleged hard core Maoists Shankar Singh and Amita Srivastava. Sen has  
not disputed that Shankar was employed by Rupantar – an NGO founded  
by his wife Ilina. Nor has he disputed that he and Ilina knew Amita  
Srivastava whom the latter, on the recommendation of a friend, had  
helped find a job in a school. But the Judge has just accepted the  
police’s word, without any other testimony or material evidence  
whatsoever that Shankar and Amita were Maoists.

3.2 Judge Verma has also wrongly concluded, on the basis of hearsay  
by the police, that one Malati employed by Rupantar was the same  
person as Shantipriya, also using the alias Malati, a Maoist leader’s  
wife convicted for 10 years in a case tried in another court in  
Raipur. The judge has not even mentioned or verified the defence  
evidence put on record that the Malati employed by Rupantar was  
actually Malati Jadhav, whose address was provided by defence witness  
Prahlad Sahu.

3.3. Judge Verma’s narrative seems to have a particular fondness for  
police hearsay as he has blindly accepted, without any corroboration  
by another witness or any material evidence, wild allegations made by  
police officials Vijay Thakur and Sher Singh Bande, officer in charge  
of Konta and Chhuria police stations respectively that Binayak Sen,  
his wife Ilina Sen and other PUCL members and human rights activists  
attended the meetings of Maoists in their respective areas.  These  
officials have gone well beyond their Section 161 statements  
introducing documents not earlier annexed with the charge sheet, and  
all defence objections in this regard were overruled by the Judge.

3.4 But a certain planted letter, exhibit A-37, takes the cake in  
Judge Verma’s narrative. This unsigned letter, supposedly written by  
the Central Committee of CPI (Maoist) to Binayak Sen, was claimed by  
the police to have been seized from Sen’s house when the police ran a  
search there. But this letter finds no mention in the seizure list,  
neither has it been signed by Sen nor the investigating officers nor  
the search witnesses as per proper procedural requirement. The said  
letter was also not part of the copy of the charge sheet received by  
Sen in the court. But the Judge has completely overlooked this  
obvious planting of evidence, accepting the ridiculous explanation  
provided by investigating officers BS Jagrit and BBS Rajput that the  
Article A-37 probably stuck to another article (chipak gaya tha) and  
hence could not get signed by either Sen or the investigating officer  
or search witnesses. It is no surprise that the judge has also  
ignored the very valid testimonies of defence witnesses Amit Bannerji  
and Mahesh Mahobe in this context.

3.5 The verdict lets the cat of its ideological bias out of the bag ,  
however, when it accepts above the Supreme Court’s wise judicial  
pronouncements which were brought on record in the case by Sen, the  
testimony of a mere district collector KR Pisda in charge of  
Dantewada district that Salwa Judum was a peaceful and spontaneous  
protest movement of the tribals against the atrocities committed by  
the Maoists, and not a brutal and armed vigilante operation sponsored  
by the state. Later in his judgment Judge Verma insinuates that  
Binayak Sen’s principled opposition as a human rights defender to  
such a non-legal, repressive, brutal vigilante operation indulging in  
mayhem and violence put him in the Maoist camp against whom the Salwa  
Judum was targeted.

Not taking into cognizance the evidence provided by the Defence


The statement made by Binayak Sen, the evidence that he brought on  
record as to his work as a human rights activist, and the newspaper  
reports which were exhibited by the defence carrying statements of  
the then DGP Police threatening to take human rights activists to  
task, which reveal prima facie malice and motive have not been taken  
into consideration by the Judge, who appears to have considered and  
relied only upon that interpretation of the evidence that supported  
the prosecution case without a reasoned consideration of the lacunae  
and contradictions therein, the objections of the defence and the  
evidence adduced by Sen, or even the well settled legal principles on  
which the defence rested its  arguments.

Using the legal provision of sedition as a political instrument

While weaving a narrative of sedition against Binayak Sen and other  
accused in the case, the Sessions court verdict violates a well laid  
judicial principle of the Supreme Court in matters of sedition.  
InKedarnath Singh Vs State of Bihar the Supreme Court has held that  
the provision of sedition in the Indian Penal Code must be  
interpreted in a manner consistent with the fundamental freedom of  
speech and expression guaranteed by the Indian Constitution. In this  
regard the Supreme Court held that the offence of sedition, which is  
defined as spreading disaffection against the state, should be  
considered as having been committed only if the said disaffection is  
a direct incitement to violence or will lead to serious public  
disorder. No speech or deed milder than this should be considered  
seditious. The Sessions court verdict in the case against Binayak Sen  
and others fails to establish that the words or deeds of the accused  
were a direct incitement to violence or would lead to serious public  
disorder. This would be the case even if it was established beyond  
doubt that Binayak Sen had passed on Narayan Sanyal’s letters to  
Pijush Guha, or Pijush Guha was likely to pass on these letters to  
other members of the CPI (Maoist), or that Narayan Sanyal was a  
politburo member of the CPI (Maoist).

END
----------------
Shuddhabrata Sengupta