[Reader-list] pucl statement on prof saibaba

[Asit Das]

http://kafila.org/2013/09/25/pucl-statement-on-the-police-raid-at-prof-gn-saibabas-residence/

24th September, 2013
STOP THE WITCHHUNT!
PUCL STATEMENT CONDEMNING THE POLICE RAID OF PROF. GN SAIBABA'S RESIDENCE

The People's Union for Civil Liberties (PUCL) condemns the illegal raid and
search of the residence Professor GN Saibaba of Delhi University on 12th
September, 2013. Professor Saibaba is a differently abled person and is
wheel chair bound. Ironically, over 50 police persons and intelligence
officers raided his house! Prof Saibaba and his entire family including his
minor daughter and the driver were all locked in different rooms, during
the three-and-half-hour search. It is believed that the raid is pre-cursor
to the imminent arrest of Prof Saibaba.

SEARCH WARRANT ILLEGAL

A perusal of the Search Warrant dated 07.09.2013 issued by N.G. Vyas,
Judicial Magistrate , First Class, Aheri (Maharashtra) for search of the
residence of Mr. Saibaba and four other premises is most shocking and
reveals a total non – application of mind on the part of the Judicial
Officer. The order has been issued mechanically and without any
consideration of the guidelines stressed by higher courts meant to protect
the abuse of such powers.

Firstly, the warrant has been issued under both sections 93 and 94 of the
Criminal Procedure Code (CrPC), 1973. Ss. 93 and 94 CrPC are meant to cover
different situations. A warrant under Sec. 93 is issued in Form 10 whereas
a warrant under Sec. 94 is issued in form 11 of the II Schedule of the
CrPC. Nowhere does the statute contemplate a hybrid warrant as has been
issued in the case of Prof. Saibaba.

S. 93 Cr.PC is for the purpose of searching for a document or a thing which
a person has failed to produce in court after being asked to do so by issue
of summons by the Court or for a general search for the purpose of an
inquiry, trial or proceeding under the Cr PC. Clause 1 of Sec. 94 Cr PC is
for the issue of a search warrant by a Magistrate when upon receipt of
information and after conducting an inquiry he has reason to believe that
any place is used for the deposit or sale of stolen property. Clause 2 of
Sec. 94 is warrant for search of a place which is used for the deposit,
sale or production of any objectionable article. Objectionable article
means counterfeit coins, currency forged documents, false obscene objects
or instruments for the production of any objectionable articles.

In the case of Prof. Saibaba the warrant is not only issued as a hybrid
warrant under both Ss 93 and 94, the first para states that the court has
reason to believe that the residence of Prof Saibaba is used as a place for
the deposit of "stolen property". In the second paragraph the police is
directed to search and seize any property which the police believe to be
"objectionable articles" required for the purpose of investigation. Thus,
it appears that neither the Magistrate nor the police knew what they were
searching for! It is therefore clear from a plain reading of the warrant
that the search warrant is more of a `fishing expedition' or `roving
search' and discloses no reasons or circumstances for the issue of the
warrant and is therefore clearly illegal.

Courts have repeatedly held that the issue of a search warrant is a
judicial function and contemplates an objective determination based on
intelligent care and deliberation. The Court should satisfy itself about
the necessity for issuing it. A Magistrate is expected to give legitimate
reasons for grant of the search warrant. Courts have held that the exercise
of discretion by a Magistrate to grant a search warrant is not unfettered
and cannot be arbitrary, vague or fanciful.
A search warrant is a grave act which invades a person's privacy and hurts
a person's reputation in public eye. Illegal searches are a violation of
the right to life and liberty guaranteed under Article 21 of the
Constitution. It is most unfortunate that the judiciary which is supposed
to be the bulwark against arbitrary state action and which is supposed to
be the sentinel of the constitution has allowed itself to become a predator
of citizen's rights.

ILLEGAL SEIZURE: BRAZEN FLOUTING OF LEGAL SAFEGUARDS

It is learnt that the police have seized pen drives, hard drives, laptop,
mobile etc from Prof. Saibaba's house. Clearly these are not stolen
property nor objectionable materials. As per s. 100 (6) CrPC an occupant of
a house or some person in this behalf should be permitted to be present
during the search. This was not permitted despite the fact that Prof.
Saibaba and his family members were present and available. A large number
of academics from the Delhi University were also present during the search.
Although the law requires that any search should be conducted in the
presence of independent witnesses, none of the academics or professionals
available at the house of Prof. Saibaba's house were asked to witness the
search. Further it is reported that Prof. Saibaba has not been given a copy
of the list of all the things recorded to be seized, as required under S.
100 (7) CrPC. As though these illegalities were not enough, it has also
been reported that the goods seized were not properly sealed by the Police,
therefore leaving the evidence open to tampering.

These are not mere infirmities in the process of search; what has occurred
is clearly brazen abuse of the law and legal procedures by the police. The
police action, under the guise of a judicial order, is plainly meant to
intimidate, silence and threaten rights defenders and a portent to others
who challenge the impunity of state officials nakedly abusing the law.

INDIAN ESTABLISHMENT'S NEW REGIME OF SUPPRESSING CRITICISM AND ITS
CRACKDOWN ON DEMOCRATIC RIGHTS ACTIVISTS

PUCL believes that the officials of Gadchiroli Police, Maharashtra, and
intelligence officials, who came to search Prof. Saibaba's house, are
broadly acting on the Ministry of Home Affairs (MHA) directives and orders.
Recently, on 26th and 27th July, 2013, in a meeting with the Police Chief's
of 27 districts where Maoists are reportedly active, the MHA is reported to
have ordered that the persons and organizations who raise issues of human
rights in Maoist areas must be targeted and arrested as they encourage
Maoists with their human rights interventions. The Government's strategy of
targeting persons and organisations which are doing legitimate human rights
and democratic rights work across India, under the guise terming them as
Maoists, is condemnable and against the letter and spirit of the
Constitution of India and the International principles of Human Rights law
to which India is a signatory.

It needs to be stated that Prof. Saibaba has been an open critic of the
Government's policy on Operation Greenhunt and the incarceration of
hundreds of innocents in the jails of central and East India. His most
recent statements related to the arrest of JNU student Hem Mishra and
Journalist Prashant Rahi, both of whom were doing legitimate Human Rights
work relating to providing legal support to incarcerated prisoners,
arrested in the name of Maoism.

It is PUCL's view that the Indian Government's stand of terming any
dissenter or critic as `maoist' or "terrorist", is a part of a long term
strategy to silence any dissenting voices and the criticism therein. This,
the PUCL believes, is not just an infringement of fundamental and
democratic rights provided under the Indian Constitution but is also
violative of the UN Declaration on Human Rights Defenders, 1998. Article 1
of the Declaration states that "Everyone has the right, individually and in
association with others, to promote and to strive for the protection and
realization of human rights and fundamental freedoms at the national and
international levels."

The PUCL believes that the Government's crackdown on democratic rights
activists is a dangerous trend which imperils democracy and has a chilling
effect on free speech which also includes criticism of Governmental
policies. Human Rights Defenders, such as Prof Saibaba must not be unfairly
targeted by the State's machinery, in consonance with national and
international legal norms.

PUCL condemns the ill treatment of Prof. Saibaba, his wife and young
daughter during the raid by the police. They were reportedly locked inside
their house for several hours, threatened with dire consequences; Prof.
Saibaba was reportedly also not permitted to communicate with his lawyer.
This amounts to committing the offences of wrongful confinement and
criminal intimidation and violating the fundamental right to consult a
lawyer. The fact that the search was a `fishing incident' without any clear
description about what was being searched for or reasons given in the
judicial order as to why such an order was passed makes us concerned that
the entire episode may have been with the ulterior purpose of somehow
implicating Prof. Saibaba in cases of alleged Maoist activities.

ILLEGALITY OF SUMMONS TO APPEAR FOR ENQUIRY U/S 160 CrPC

PUCL learns that theSub-Divisional Polcie Officer, Aheri District,
Gadchiroli District, Maharashtra has sent a summons dated 17.9.2013 u/s 160
CrPC to Prof. Saibaba directing him to appear before the police officer
within 8 days in a palce out of Delhi or in Nagpur. The notice also
conceals a threat that if he did not respond, appropriate action will be
taken against Prof. Saibaba.

PUCL will like to point out to the illegality implicit in the order.
Section 160 CrPC as recently amended in 2013 clearly states in the proviso
that "no male person under the age of 18 years or above the age of 65 years
or a woman or a mentally or physically disabled person shall be required to
attend at any place other than the place in which such make person or woman
resides".

The SDPO and police officials know very well that Prof. Saibaba is
wheelchair bound; AIIMS has by a certificate dated 9.7.2013 noted that
Prof. Saibaba suffers from "post polio residual paralysis of both lower
limbs" and suffers from 90% handicap. Despite knowing his physical
condition, the Gadchiroli police have directed Prof. Saibaba to attend
inquiry outside Delhi and at Nagpur, which is clearly prohibited by law.
The police do not conceal the veiled threat of the consequence if he does
not appear.

PUCL condemns the patent illegality in the order directing appearance for
inquiry u/s 160 CrPC before the police officer. Added to the illegalities
abounding in the search of his house and confiscating objects without
giving search list, the order u/s 160 CrPC makes clear the police intention
to somehow implicate Prof. Saibaba as a Maoist.

Prof. Saibaba is a respected academic of Delhi University as also a well
known activist. Even if the prosecuting agencies will like to question
Prof. Saibaba, PUCL would like to remind the police agencies about the
cautionary words of the Supreme Court in `Joginder Kumar vs. State of UP'
(1994) in which the Apex Court has said that while the power of the IO
(investigating officer) to arrest is one thing, the need to and
justification for effecting arrest is another matter altogether, fully
subject to judicial review. Arrest should be the last resort to be effected
only if the accused person may escape, threaten or intimidate witnesses or
destroy evidence. Apart from such circumstances, if a person will appear on
summons, arrest should be avoided.

PUCL learns that Prof. Saibaba has clearly stated that he is always willing
to participate in the enquiry by the police officials in order to show that
he is not involved in any offence. However, in view of his disability he
has sought the police officials to conduct such enquiry in his residence in
Delhi. This is not only reasonable but also part of the mandate of law.
PUCL therefore demands that the SDPO, Aheri conducts the enquiry of Prof.
Saibaba at his residence in Delhi strictly conforming to procedure
prescribed by law.

PUCL stresses that while the CrPC authorises the Investigating Officer to
prosecute, the same powers are subject to checks and balances provided in
the CrPC itself and these are meant to ensure preventing the abuse of
process of law by investigating agencies. Additionally the Supreme and High
Courts have expounded the legal safeguards through numerous judgements. The
IO and police officials are expected to strictly adhere by not just the
letter but also the spirit of the law.

APPEAL TO THE JUDICIARY

PUCL also would like to point out that in the scheme of separation of
powers, the judiciary is expected to play an independent, neutral,
non-partisan role balancing the need for prosecution with safeguarding the
liberties and fundamental rights of citizens. PUCL is concerned by the
non-application of mind and the non-chalant attitude displayed by the
judicial officers at the subordinate judiciary, which is the cutting edge
of the operation of criminal justice system.

PUCL appeals to the judiciary, to implement not just the letter of the law
but the spirit of the law underlying the separation of powers and
independence of the judiciary. The ordinary citizen only has the judiciary
to protect themselves against a vindictive, aggressive and intolerant state
machinery. As a country we are going through troubled times when all the
protective laws, from the Constitution to state laws, are being trampled
with impunity by police officials, state functionaries and others. We
appeal and have confidence that the judiciary will rise to the challenge
and play the independent, objective and unbiased role it is expected to
play as envisaged by the Constitution of India.

In conclusion, PUCL calls upon the Government of India and Maharashtra to:

1. Immediately return the illegally seized articles from the house of Prof
Saibaba during the illegal raid on 12th September, 2013;
2. To conduct the enquiry u/s 160 CrPC in his residence at Delhi and not to
arrest Prof Saibaba;
3. To immediately stop the witch hunt against Prof Saibaba and other human
rights defenders; and
4. To stop forthwith all attempts to silence and criminalise dissent.

PROF. PRABHAKAR SINHA
PRESIDENT

DR V. SURESH
GENERAL SECRETARY

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