Season of acquittals has come: Why can't terrorists be defined as saffron? Is radicalisation only confined to Muslims?


By Adv Masood Peshimam

Prime Minister Narendra Modi recently said that guilty would not be spared but the ground reality is different in our country. The way the accused are set free in the Mecca Masjid blast case, the setting free of Maya Kodnani, an erstwhile minister in Modi cabinet in Gujarat, and the earlier bailing out of Sadhvi Pragya, Colonel Prohit and others in Malegaon blast give the impression that the season of acquittals has come.
The prospect of certain set of accused walking free has brightened with the Modi government at the Centre. They cannot be defined as saffron terrorists as if the radicalisation and terrorism are only confined to Muslims. Only Muslim terrorists are acceptable in day-to-day parlance. The concept of terrorists other than Muslim is not only discarded but treated as offensive.
Eleven years after a bomb ripped through Mecca Masjid, killing nine people, the National Investigation Agency (NIA) Special Court acquitted all the five accused in a much-awaited verdict in a packed court room.
Now the 2007 bombing remains a terror mystery with two premier agencies, the Central Bureau of Investigation (CBI) and NIA failing to gather evidence to nail the accused.
The operative portion of the judgement was read out by the Fourth Metropolitan Session’s Judge, Ravindra Reddy, declaring acquittal of all five accused Swami Aseemanand, head of the Kalyan Ashram, RSS vibhag pracharak Devendra Gupta, RSS karyakarta Lokesh Sharma, Hindu Vichar Manch member Mohanlal Rateshwar and Rajedra Choudhry, a farmer.
The judge said that he had carefully examined documents and material evidence placed on record and declared none of the allegations could be proved against any of the accused. “Hence all five accuses stand acquitted”.
Surprisingly, the judge resigned just hours after pronouncing the judgement. There is a lot of speculation about the possible trigger. It is said that he cited personal reasons in his resignation letter. The judicial officer who was on the verge of superannuation proceeded on 15 days leave.
The abrupt resignation led to the speculation that this was brcause there was corruption complaint pending against him in the High Court. It’s necessary on the part of those on the high pedestal to see that no opportunity is given for their dirty linen to be washed in the public.
The abrupt resignation of the judge smells something fishy. There is the procedure to give three months’ advance notice before leaving the service. The immediate withdrawal of service, that too after pronouncing the Mecca blast verdict, is a matter of deep concern and invited all sorts of speculations.
Even before the speculations died down the judge requested the Hyderabad High Court to allow him to take voluntary retirement apparently to avail of retirement benefits.
It’s not understood as to what made him resign and resume the services. However, notwithstanding the reasons for doing so, the entire scenario looks fishy.
While the judge’s resignation and resumption of service is a mystery, no less mysterious is the course of investigation and the judicial outcome.
Soon after the blast, the Hyderabad police launched probe and arrested several Muslims suspected to be Huji operatives.  The story of the Huji members clandestinely operating in the country ended with the installation of the new government of Sheikh Hasina in Bangladesh. The story of Muslims planting the bomb in the Masjid was not digestible.
There was a clear move to falsely implicate Muslims all over the country during the Congress-rule which was seen as politically motivated and governed with vested interests. Despite huge outcry against the false arrest of Muslims in the terror cases, there was no restraint over this. To add fuel to fire, media was no less active in spreading cock and bull stories.
It was difficult to understand why Muslims were to make the Mecca Masjid in Hyderabad a theatre of violence and kill their own brothers, why should they bomb their own mosques and shrines. There is no sectarian clash or sectarian extremism among Muslims in India to attract such worrisome development.
In the midst all this murky scenario there occurred another dimension to the whole story of Mecca Masjid blast. It so happened that Swami Aseemanand, an accused in the Mecca Masjid blast, came in close contact with one Kalim Shaikh in the jail. He was so impressed by the cooperative character of the accused Kalim Shaikh that he decided to make confessional statement. The story has already come in the media.
Aseemanand made the confessional statement before the magistrate under 164 of CrPC which is admissible in contrast with the statement before the police officer, not admissible u/s 161 of CrPC.
It is significant to note that any such confession has to be recorded in the manner provided in section 281 for recording the examination of the accused and has to be signed by the person making the confession and the magistrate to sign a memorandum to the following effect:
“I have explained to [name] that he is not bound to make the confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him.
[Signed] A.B.
Magistrate"

It is the discretion of the court to take cognisance of the judicial confession. The words used in the memorandum at the footnote defines the discretion of the court and all precautions are to be taken to avoid an element of pressure.
With reference to the withdrawal of the confessional statement or the retraction of the confessional statement of Aseemanand, it can be said that it was made after a long time and there is no police complaint against the CBI for the pressure exerted over him, as alleged by him. He has never made any allegation to this effect to any competent authority.
In the circumstance advocate Abu Zaid practising in the Mumbai Session Court said that a retracted confession can form the basis of conviction if the court is satisfied that it is true and has been made voluntarily. It is neither an inflexible rule of law nor practice nor prudence that in no circumstances the conviction can be made on the basis of the retracted confession without corroboration.
The question of corroborating the retracted confession with other evidences does not arise as the retracted statement was accepted by the court.
It’s not the question of the withdrawal or the retraction of the judicial confessional statement alone but the scenario has emerged that a plenty of witnesses turned hostile in the Mecca Masjid case, as also in the Sohrabuddin case in which BJP president Amit Shah is an accused.
As many as 64 witnesses turning hostile in the Sohrabuddin case -- just as many of them in the Mecca Masjid blast case -- appear to be the mockery of justice. A plenty of witnesses turning hostile is a sorry state of affairs in our justice system.
It’s reflection on the functioning of the prosecution and fractures the credibility of the prosecution. The question arises as to how the weak and vacillating witnesses are produced in the court. It is saddening to note that there is no sense of accountability in the bleak scenario. With such scenario continuing unabated, we have made our justice system a laughing stock before the world.
In the case of retraction of the earlier judicial confession and the witnesses turning hostile, the question arises as to what about those statements. It implies that the earlier statements were false and lacking in strength. Hence it is relevant to quote section 191 of IPC which says,
“Whoever being or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject , makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give a false evidence”.
Then there is punishment for false evidence in section 193 of IPC which may extend to seven years and shall also be liable to fine.
Those giving false statement earlier in Aseemanand and Sohrabuddin case, there is an unbridled flouting of law, justice and fair play. Would such degeneration be restrained by any judicial corrective measure?
The court is to see that pressure is applied over the witnesses turning hostile and retraction of the judicial confession. Many a time, witnesses turn hostile out of deep fear of their lives. Instances galore. Hence the protection of witnesses is all the more necessary.
Terror investigations are not free from flaws and foibles . That apart, people fear to critically analyse judgements due to contempt of the court. In this circumstance, contempt of court needs some relook, but that is another subject.
With the accused left scot free in the terror case, there is the diminishing sense of accountability on failure of the investigative agencies. With the prejudice operating at different layers of decision, many a time to pin down the real culprits is too blatant to ignore. What is no less sickening is the political interference by different components of government which claims its own toll.
To achieve justice it is necessary to see that investigative agencies handle cases without an iota of bias and prejudice and no political interference is made to erode the independence of judiciary. Otherwise the disillusionment with the justice system would be on the rise in our country. One Urdu couplet explains the current murky scenario:
“Mai kis ke hath pe apna lahu talash karun
Tamam sheher ne pehne hue hain dastane”
[On whose hand do I search the stain of blood
Worn are the hand gloves by the entire city]

Justice can only be ensured with the independent judiciary and unbiased investigation.

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