On March 7, 2017, the Court of the Ld. Sessions Judge Gadchiroli, passed the judgment and order on sentence in State of Maharashtra v. Mahesh Tirki & Ors. [Session Case No. 13 of 2014, and 130 of 2015]. The essence of the 837-page long document is that the Court convicted Mahesh Tirki, Pandu Narote, Hem Mishra, Prashant Rahi, Vijay Tirki, and Dr. G.N. Saibaba, for offences punishable under Sections 13, 18, 20, 38, and 39 of the Unlawful Activities (Prevention) Act, 1967 [UAPA] read with Section 120-B of the Indian Penal Code, 1860 [IPC]. Except Vijay Tirki, whose highest sentence was a 10 year prison term, all the other defendants were sentenced to life imprisonment. News reports suggest that some of those convicts have preferred appeals.
Considering recent developments, where the Maharashtra police has been in the news for conducting pan-India investigations into Maoist activity, I tried to search for any analysis of the 2017 decision which had similar overtones. Despite that case generating much attention, I only found one article by Susan Abraham in the Economic and Political Weekly discussing the verdict. These posts are largely an attempt to fill that gap. This initial post lays out the broad contours of the allegations and explains the offences involved. The next post discusses how the prosecution proved its case, and points out some issues with the conclusions arrived at by the Court.
The Investigation
According to the prosecution case, Asst. Police Inspector Atul Shantaram Awhad [PW-6] at P.S. Aheri, received "secret information" that Accused Nos. 1 and 2 - Mahesh Tirki and Pandu Narote - were working for banned organisations as couriers, providing information to underground naxalites and taking them to places of safety [Para 5]. On 22.08.2013, around 6 PM, the officer went with staff to Aheri Bus Stand and saw the two accused. Around 6:15 PM, they were joined by another person and "started talking with each other suspiciously". The officers made their move, making "enquiry" with the persons who gave evasive answers. Because of this, PW-6 arrested them and took them to P.S. Aheri [Para 6]. Personal searches revealed Accused Nos. 1 and 2 revealed had a platform ticket dated 29.05.2013 for Ballarshah Railway Station, a cellphone, and several identity papers. Accused No. 2 had an umbrella and a newspaper (dated 20.08.2013). Accused No. 1 also had papers allegedly concerning CPI (Maoist) and Revolutionary Democratic Front [RDF]. The third arrested person was Hem Mishra, Accused No. 3, and his search yielded a newspaper (dated 19.08.2013), a camera, a memory-disk, and a railway ticket from Delhi to Ballarshah dated 19.08.2013.
Based on this, an FIR was registered at P.S. Aheri, under Sections 13, 18, 20, 38, 39 of the UAPA, read with 120-B of the IPC, and the investigating was handed over to Deputy S.P. Suhas Bawche, PW-11 [Para 7]. Interrogation of Accused Nos. 1 and 2 disclosed that they went to the Bus Stand to meet Accused No. 3 and take him to Murewada Forest under instructions from one "naxal lady DVC Narmadakka". Accused No. 3 disclosed that he had been given a memory card for Narmadakka by a person in Delhi who "who was [an] active member of banned organisation[s] CPI Maoist and RDF". He also "expressed his desire" to show police his Facebook account (done on 26.08.2013). Accused No. 3 also divulged details about the involvement of one Prashant Rahi, Accused No. 4, and based on this Rahi was apprehended at Chichgad on 01.09.2013 together with Vijay Tirki, Accused No.5. Both were searched on arrest in the presence of witnesses. Both had a copy of "Dainik Bhaskar" and a cellphone. Accused No. 4 also had "eight papers relating to naxal literature along with type written papers of under-trial prisoner Maoist leader Narayan Sanyal" [Paras 8-9]. They were brought to P.S. Aheri early next morning and searched again.
Based on this, an FIR was registered at P.S. Aheri, under Sections 13, 18, 20, 38, 39 of the UAPA, read with 120-B of the IPC, and the investigating was handed over to Deputy S.P. Suhas Bawche, PW-11 [Para 7]. Interrogation of Accused Nos. 1 and 2 disclosed that they went to the Bus Stand to meet Accused No. 3 and take him to Murewada Forest under instructions from one "naxal lady DVC Narmadakka". Accused No. 3 disclosed that he had been given a memory card for Narmadakka by a person in Delhi who "who was [an] active member of banned organisation[s] CPI Maoist and RDF". He also "expressed his desire" to show police his Facebook account (done on 26.08.2013). Accused No. 3 also divulged details about the involvement of one Prashant Rahi, Accused No. 4, and based on this Rahi was apprehended at Chichgad on 01.09.2013 together with Vijay Tirki, Accused No.5. Both were searched on arrest in the presence of witnesses. Both had a copy of "Dainik Bhaskar" and a cellphone. Accused No. 4 also had "eight papers relating to naxal literature along with type written papers of under-trial prisoner Maoist leader Narayan Sanyal" [Paras 8-9]. They were brought to P.S. Aheri early next morning and searched again.
The investigation revealed that Accused No. 5 was acting under instructions from one Ramdar, and was to take Accused No. 4 to meet senior Maoist cadre in the forest area. Subsequent interrogation revealed that the person in Delhi mentioned by Accused No. 3 was Dr. G.N. Saibaba, and so DSP Suhas Bawche applied to the Judicial Magistrate First Class, Aheri, for a search warrant on 04.09.2013. He got the warrant on 07.09.2013, left for Delhi on 09.09.2013, and on 12.09.2013 he searched the house with the help of P.S. Maurice Nagar. [Paras 10, 13]. Accused No. 6 and his wife were at home and present throughout the search, which revealed numerous electronic devices, books, magazines, and other articles [Para 14]. After a "thorough study of seized devices and documents", which involved sending them to the Central Forensic Science Laboratory in Mumbai, DSP Bawche sought to arrest Accused No. 6 but couldn't due to protest by "members of banned organisation". He got an arrest warrant on 26.02.2014 and arrested Accused No. 6 on 09.05.2014 who was then remanded to custody [Paras 16-17].
The Alleged Offences
It was alleged that the accused persons committed offences punishable under Sections 13, 18, 20, 38 and 39 of the UAPA, read with Section 120-B of the IPC (the conspiracy offence). I've extracted the essential content of the UAPA offences below:
- Section 13 UAPA has three sub-clauses. Section 13(1) punishes anyone who takes part in, or "advocates, abets, advises or incites" commission of any "unlawful activity" with a maximum of 7 years in prison. Section 13(2) punishes persons assisting "in any way", unlawful activity of an organisation after it has been declared unlawful under Section 3 UAPA. This carries a 5 year maximum sentence.
- Section 18 UAPA punishes anyone who "conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates" the commission of "terrorist acts" or any acts preparatory to their commission. It carries a 5 year mandatory minimum sentence, the highest sentence being life imprisonment.
- Section 20 UAPA punishes being a member of a "terrorist gang or terrorist organisation which is involved in a terrorist act", with a maximum sentence of life in prison.
- Section 38 UAPA punishes someone "associated, or professes to be associated" with a terrorist organisation, "with intention to further its activities". It carries a maximum ten year sentence.
- Section 39 UAPA punishes giving "support" to terrorist organisations, support here going beyond financial assistance to encompass a range of acts done with the intention of furthering the activity of the organisation. It carries a maximum ten year sentence.
Basics
The UAPA, enacted in 1967, originally dealt only with "unlawful activity". By enacting the Terrorist and Disruptive Activities (Prevention) Act in 1985, and the Prevention of Terrorism Act in 2002, Parliament left no doubt in suggesting the UAPA didn't cover acts of terrorism. But by 2004, both had been repealed. To prevent a potential vacuum, the terrorism offences in those statutes were grafted onto the UAPA. Thus, today the UAPA deals with two qualitatively different kinds of criminal acts - "unlawful activity" and "terrorist acts". The former is defined in Section 2(1)(o) and is concerned with acts adversely affecting India's sovereignty and territorial integrity. The latter, defined under Section 15(1), has a more complex definition. It specifies certain kinds of acts (involving violence or a show of violence), but only if these are done with the intent of affecting the unity, integrity, security, sovereignty and economic security of India, or, with intent to strike terror.
Allegations Based on Conduct
This focus on violent conduct is one way to try and understand the different scope of "unlawful activity" and "terrorist act", suggesting that even when there is violence, only the most serious cases will be defined as a "terrorist act". The problem, though, is that one needn't be accused of actually committing a terrorist act. The scope of liability is stretched far beyond that under Section 18 UAPA. This covers a conspiracy to commit terrorist acts, or attempts and participatory conduct such as abetment, incitement, and knowing facilitation. It also punishes conspiring, attempting, abetting, inciting, and knowingly facilitating, acts preparatory to the commission of terrorist acts. Crucially, the provision does not differentiate between the two in terms of sentence: everything carries a mandatory minimum 5 years and a possible life sentence. Theoretically, this allows the prosecution to stretch the scope of liability as per its imagination. The only thing stopping such flights of fancy from resulting in serious oppression is active judicial scrutiny, which throughout the world historically, has not always been most apparent in matters of national security.
Allegations Based on Membership / Association / Support
The other offences being discussed are similar insofar as they depend on having some connections with an organisation, either an "unlawful organisation" or a "terrorist organisation" as the case may be. The Central Government has powers to ban such organisations under the Act. For our discussion, what matters is that in 2009 the Central Government amended the First Schedule to the UAPA to add "Communist Party of India (Maoist), all its formations and front organisations" in the list of "terrorist organisations". Note, that while some organisations such as SIMI and ULFA have been declared as both, Terrorist Organisations and Unlawful Organisations, the CPI was not banned as an "Unlawful Organisation". Note, also, that the term "front organisation" is not defined in the UAPA itself. Having clarified this, what is the conduct being dealt with in Sections 20, 38 and 39? Membership, association, and support are not statutorily defined and the provisions have no illustrations. How their content is determined, again, is at the mercy of police imagination. What is clear, though, is that the UAPA imagines that support, professing association, and actual association, all imply a certain distance from the organisation itself. This is why, in Sections 38 and 39, there is a need to separately show that a person intended to further the organisation's activities by her acts, and those provisions carry a relatively lighter sentence. Membership, though, assumes shared intent with the organisation, and so doesn't ask for intent to be separately established and carries a life sentence reflecting the seriousness of this proximity. Now, in cases of terrorist acts and conspiracies, where direct evidence is unlikely, it is obvious that drawing these fine distinctions between support, professing association, association, and membership is a very difficult task. The UAPA makes matters worse as it provides no safeguards by way of evidentiary rules that would help judges decide what evidence is sufficient to label someone as a member of a terrorist organisation, as opposed to a supporter or associate, with the possibility of a life sentence. Nor does it clarify whether a member can also be convicted for the lesser offence of being associate or professing to be one.
Charges and the Trial
The formal order on charge is not part of the 837 page long judgment. Instead, at different places, this lengthy extract can be found summarising the prosecution allegations:
The UAPA, enacted in 1967, originally dealt only with "unlawful activity". By enacting the Terrorist and Disruptive Activities (Prevention) Act in 1985, and the Prevention of Terrorism Act in 2002, Parliament left no doubt in suggesting the UAPA didn't cover acts of terrorism. But by 2004, both had been repealed. To prevent a potential vacuum, the terrorism offences in those statutes were grafted onto the UAPA. Thus, today the UAPA deals with two qualitatively different kinds of criminal acts - "unlawful activity" and "terrorist acts". The former is defined in Section 2(1)(o) and is concerned with acts adversely affecting India's sovereignty and territorial integrity. The latter, defined under Section 15(1), has a more complex definition. It specifies certain kinds of acts (involving violence or a show of violence), but only if these are done with the intent of affecting the unity, integrity, security, sovereignty and economic security of India, or, with intent to strike terror.
Allegations Based on Conduct
This focus on violent conduct is one way to try and understand the different scope of "unlawful activity" and "terrorist act", suggesting that even when there is violence, only the most serious cases will be defined as a "terrorist act". The problem, though, is that one needn't be accused of actually committing a terrorist act. The scope of liability is stretched far beyond that under Section 18 UAPA. This covers a conspiracy to commit terrorist acts, or attempts and participatory conduct such as abetment, incitement, and knowing facilitation. It also punishes conspiring, attempting, abetting, inciting, and knowingly facilitating, acts preparatory to the commission of terrorist acts. Crucially, the provision does not differentiate between the two in terms of sentence: everything carries a mandatory minimum 5 years and a possible life sentence. Theoretically, this allows the prosecution to stretch the scope of liability as per its imagination. The only thing stopping such flights of fancy from resulting in serious oppression is active judicial scrutiny, which throughout the world historically, has not always been most apparent in matters of national security.
Allegations Based on Membership / Association / Support
The other offences being discussed are similar insofar as they depend on having some connections with an organisation, either an "unlawful organisation" or a "terrorist organisation" as the case may be. The Central Government has powers to ban such organisations under the Act. For our discussion, what matters is that in 2009 the Central Government amended the First Schedule to the UAPA to add "Communist Party of India (Maoist), all its formations and front organisations" in the list of "terrorist organisations". Note, that while some organisations such as SIMI and ULFA have been declared as both, Terrorist Organisations and Unlawful Organisations, the CPI was not banned as an "Unlawful Organisation". Note, also, that the term "front organisation" is not defined in the UAPA itself. Having clarified this, what is the conduct being dealt with in Sections 20, 38 and 39? Membership, association, and support are not statutorily defined and the provisions have no illustrations. How their content is determined, again, is at the mercy of police imagination. What is clear, though, is that the UAPA imagines that support, professing association, and actual association, all imply a certain distance from the organisation itself. This is why, in Sections 38 and 39, there is a need to separately show that a person intended to further the organisation's activities by her acts, and those provisions carry a relatively lighter sentence. Membership, though, assumes shared intent with the organisation, and so doesn't ask for intent to be separately established and carries a life sentence reflecting the seriousness of this proximity. Now, in cases of terrorist acts and conspiracies, where direct evidence is unlikely, it is obvious that drawing these fine distinctions between support, professing association, association, and membership is a very difficult task. The UAPA makes matters worse as it provides no safeguards by way of evidentiary rules that would help judges decide what evidence is sufficient to label someone as a member of a terrorist organisation, as opposed to a supporter or associate, with the possibility of a life sentence. Nor does it clarify whether a member can also be convicted for the lesser offence of being associate or professing to be one.
Charges and the Trial
The formal order on charge is not part of the 837 page long judgment. Instead, at different places, this lengthy extract can be found summarising the prosecution allegations:
On or before 12.09.2013 the accused hatched criminal conspiracy to wage war against the Government of India and to collect people with the intention of waging war against the Government of India, to overawe by means of criminal force the Government of Maharashtra and the Government of India, to shake and reduce the faith of the common citizen in its democratic Government by large scale violence destruction of lives and property and thereby destabilise the system of Government established by law, to organise the spread of secessionist and rebellious thoughts by holding covert and secret meetings, to collect money in India for the said conspiracy, to continue unlawful acts of the CPI (Maoist) and Revolutionary Democratic Front (its frontal organisation), to continue activities of Terrorist Gang, banned terrorist organisation, to conspire advocate incite abet and knowingly facilitate the commission of terrorist act and unlawful activities by violence / other unlawful means, to take part or commit or advocate, abet or incite the commission of unlawful activities, being the member of banned terrorist gang. (emphasis mine) [Para 2. Para 936 carries the same text with the date as 12.09.2009]
Despite the omnibus nature of this paragraph, note that (i) "preparatory" is absent, suggesting that the conspiracy allegation was for committing terrorist acts and not something preparatory; (ii) the words "associate / profess to associate" are also absent. "Support" is also absent, but there is a mention of organising meetings. Besides these possible omissions, there is some doubt about the inchoate offence alleged: what did they do, out of "conspire advocate incite abet and knowingly facilitate"? The repeated reference to "conspiracy" suggests it might be the allegation. And, finally, note that the RDF has been specifically labelled as a "front organisation", relying on the language in relevant entry from the First Schedule of the UAPA banning the CPI (Maoist).
The prosecution proved these allegations by leading 23 witnesses and many documents, photographs, video-clips in evidence. The defence chose to lead no evidence. How did the Court conclude that the case was proved beyond reasonable doubt? I discuss that in the next post.
The prosecution proved these allegations by leading 23 witnesses and many documents, photographs, video-clips in evidence. The defence chose to lead no evidence. How did the Court conclude that the case was proved beyond reasonable doubt? I discuss that in the next post.
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