WHEN THE STORM BLEW AWAY-4

THE JUDGEMENT

Amit leaned forward in his chair to listen carefully to each word being uttered by His Lordship in a husky, barritone voice. The judge had begun:

“ This case had generated more than required media interest, though I doubt it merits so much attention. But I suppose in the INFORMATION AGE, every one wants to create information out of information. We, as a society, are becoming slaves of spicy titibits which media excels in generating”, his lordship had taken the dig at new found ‘Media Activism’ as a rejoinder, probably, to counter media cocncocted phrase of ‘Judicial Activism’.
Amit told himself quietly, “ No doubts, we media-men poke our nose everywhere, whether most of us understand the issue at hand or not. Under the banner of freedom of expression, we comment on issues that the knowledgeable and informed persons can only pull their hairs at our degree and dimension of ignorance.” As he was thinking like this, the heavy voice of the Judge began to resonate his ears, once more:
“ I am a man of law. I do not go by emotions and human passion, certainly not by media created pyramid of reasons and counter-reason. It is not required and the law does not approve of it. All the same, one must remember, judges are also human beings. They ,too, have emotions—both positive and negative. They also react, over-react, and under-react on every piece of information finding its way into the ‘Gossip-Bazaar’of media. But all this is within our selves. Our emotions do not and can not spill out of us. There have been times when I got sick of irresponsible arguments. I never understand as to why each one of us views issues in an isolated manner and not in a holistic manner. Security forces only think of security; Media only of information; politicians only of politics and lawyers only of legalities. Why can not we debate in our inner-self about the impact of our intended act on the other limbs of society and the polity? Why don’t we define our limits to check us from being dubbed as irresponsible in pursuing single-minded objective? Shouldn’t we say, ‘ Thus far I go, for, territory beyond this is a prohibited area ?’ Notwithstanding our well-meaning intentions and motives, but as members of a civilised and a dignified society, we are lacking in self-discipline and self-restraints. Take this case.”, The judge said with a deep sigh and then continued:

“ I have tried my best to keep my personal feelings out of it. As a judge, my job demands a hard solid evidence to separate the chaff from wheat. I can not go by inferred logic and say, “ Lo, behold! It is QED.” That is a mathematician’s job. I am not here to enhance my judicial TRP to swim along with popular sentiments. Well! it is the domain of the TV channels and they are welcome to try all the tricks up their sleeves. As a judge and upholder of our laws, I must note that THE ERRORS LIKE STRAWS UPON THE SURFACE FLOW, THOSE WHO ARE IN SEARCH OF TRUTH MUST DIVE BELOW. I , therefore, had to do deep-sea diving in this raging sea of arguments and counter arguments; followed by counter-counter arguments and counter-counter-counter arguments. I had to sift the real evidence from the heap of non-evidence. I am bound by this evidence in coming to certain conclusions on this case. It might disappoint some and cheer up others. But as I have already said I am not here for a popularity contest”, His lordship stopped a while to take a few sips of water and then resumed.

“ My judgement runs into 148 typed pages. I am going to read only the operative parts of my judicial verdict. It is a unique case. Here, the law enforcement organ of the state was accused of violating the very code of law enforcement. The protectors of citizens were accused of taking lives of the honorable citizens. Alferd hitchcock, the doyen of Horror Movies, had said, ‘I AM NOT ANTI -POLICE BUT I AM AFRAID OF POLICE.’ Is it true in our case, too? Have the policemen become law unto themselves? Do they nourish a notion that they were above law? Then, the questions also rose in my mind as to how the enemies of the state are to be treated, particularly, those who had taken up arms against the state? The biggest question which kept nibbling at my conscience during the hearing was: Why should law and the constitution give refuge to those who not only disrespect it but refuse to accept its validity? The accompanying corrollary to this was: DO THE MEMBERS OF AN ORGANISATION, WHETHER NATIONAL or INTERNATIONAL and LAWFUL or UNLAWFUL, WHO CLAIM TO KILL THE LAW ABIDING CITIZENS OF YOUR COUNTRY IN A COLD BLOOD, HAVE ANY LEGAL RIGHTS TO SEEK THE PROTECTION OF OUR COURTS? I must say that these were emotional questions. But law has no human sentiments and it has its own connotation of so called human rights—whether fundamental or otherwise.”

“ It should be by now obvious that it was not a simple case of double murder. I had to determine if it were law-enforcer’s own brand of justice or it were a murder most cruel and brutal. The death of two persons in encounter or police custody, either at KOLKOTTA or in Punjab was crystal clear? I had to look into the circumstances and assigned motives. This was very important in this case. Even the defendants did not deny the death of the couple? The question, and very important one, was not as to why did ‘the accused’ kill but how did it happen? This was the basic yardstick for my judicial pronouncement.”

“ I asked myself some questions and then answered them. These were: Was it a case of law enforcer’s own brand of justice after his frustration with passivity of the general public in providing witnesses? Is it acceptable? If not, Why not? What should the Law enforcers do? Allow the murderes and terrorists a free run? In my 30 years of judicial sevice, I have never found an accused and guility readily accepting his/her sin. Law lays emphasis on evidence and things have become so horrendous these days that to obtain evidence and a witness in militancy and terror infested areas, it was a nightmare for Law Enforcers. In the judicial parlance of dispensation of justice we continue to standby the maxim: let 100 criminals go scot free but not one innocent be punished. It is a very high moral principle of our legal system acquired from the British judicial system. Unfortunately, what happens these days? Virtually, now-a-days, this principle is made to stand on its head. Ironically,today, due to reasons of expedient witnesses and inept police, 100 innocents might get punished while rarely a single real culprit can be sentenced. Will it happen in this case, too? The question has been bugging my mind. I want to ensure it doen’t.” The judge stopped, surveyed the courtroom in an air of moral triumph for having shed the load from his conscience and began to gulp water down his dried up throat. Amit could feel an air of mental relief around honourable judge’s face. It was a kind of self –belief that says you were on the right track.

“As I pronounce my judgement, some questions will continue to haunt me. Over the last few years, after the incident took place on May 17, 1993, this case has been kicking dust not only in the media but also in the legal circles. Some distinguished members of legal profession have given their verdicts one way or the other.They have raked up moral, ethical,social,legal,political and security issues. I have heard and read a lot, both within the courtroom and outside, on fake and orchestrated encounters by police to eliminate anti social and antti national elements(ANEs). Definitely, in a free, civilised and a democratic society there was no justifications for such acts. But in certain official and administrative circles, this semmed to be the favourite response to deal with the the issue of non-responsive witnesses. All the same, whatever the difficulities in procuring witnesses, such acts can not be condoned at any cost .

I have, also, read about known terrorists organisations making vociferous claims on brutal killings of innocent civilians by their organisation members. We generally know about local members of such organisations, who carry out these gruesome murders. Are they justifiable acts on the grounds that the group or the organisation has not got its dues from the authorities? Does law of any nation permits individuals to attain their objectives or remove grievances through violence and terror? Does it sanctify brutal killings of innocents by these organisations? Unfortunately we do, because we do not take notice of vociferous claims of the heads of these organisations for taking responsibility of brutal killings?It happened in Punjab and Assam. It is happening in J&K. Militant organisations, within and outside India's borders, make claims of gruesome killings in trains, buses, temples and public places with much fan-fare. There is a sense of 'bravado' in such pronouncements.It silences future witnesses. Our security forces are, thus, handicapped. Orchestrated encounters are , therefore, a fall out of the lacuna in our code of criminal procedures, which is exploited by modern out-laws, murderers and criminals. The security forces can be hauled up for violating the law. However, due to inept and outdated policing system and lopsided clauses on ‘CrPC as well as Evidence’, it is extremely difficult to bring to book the organised terrorist and criminal groups who not only ridicule but mock at our social, legal, political and administrative systems. Not only the police but our legal system cries for dynamic reforms to make them more responsive to guiles of law-breakers. Why don’t we try out these organisations and their members in absentia?Why not take ex-parte decisions, if the accused fail to present themselves in the trial courts? It is a food for thought for our law makers and law enforcers” . The honourable judge made a forceful assertion of his point. Amit was further confused as to where the judge was heading. So far his lordship had not given any indication of the shape of things to come.

“ We often go by the edict that all accused are innocent till convicted. But how do we convict a person? The prosecuters have to provide evidence. The problem of the delivery of justice comes when evidence is muzzled, blocked or distorted. It is compounded when law-enforcers, whose job is to collect evidence, resort to adulterating it or ignore it. The worst problem is when the witnesses are silenced or co-erced to give mutilated evidence to save the accused. How about those who do not recognise the law itself? In such cases, what should the policeman do? Should the policeman allow the law breakers or the offenders of law to exploit the principle of ‘INNOCENCE BEFORE CONVICTION’ by silencing witnesses by threat, elimination or the money or Should he dispense his own brand of justice? Is it permitted in a liberal, democratic and a civilised society? Is the modern society, really free and civilised? Does a society, torn by militancy, terrorism and violence qualify to be called a civilised and a free society? Isn’t it allowing itself to be exploited by those who have no respect for its laws? How ironic, those who do not respect law, ultimately take the shelter of the judicial principle of innocent till convicted? There is definitely a case for making our laws and definitions more dynamic to remove these ananmolies. Police reforms is the cry of the day.” The judge had hinted at the shape of things to come.

“Take the instant case of the death of Bashir khan and his wife Sabina Bai. Both of them lived under disguised identity of Lakhmir Singh and Rashmi Singh in the Kailash Nagar colony of Central Kolkotta. Why should they have change their identity? Did their past haunt them? To their neighbours , they were a respectable couple and known as ‘Do-gooders’ in the locality. Evidence before me proves beyond doubts that they had a shady past. ‘Defence’ has reasons to state that they had connections with terrorist organisation of Punjab. If their old identity is correct, then police of Punjab had a large number of cases of extortion, murder and kidnapping against the couple. Could they be the victim of police outrage or harassment? This has not come from the prosecution or the POACHERS. Instead , they have accepted their old identity. This implies there was something fishy about their past before they came to Kolkotta and merged with the normal public. I know the past character can not be taken into account but it is important to look for the motives of Punjab police. As things stand today, they were a law-abiding couple living at Kolkotta but they had violated the law in the past. Again, I am not comfortable to know as to how a low-paid ex-constable of Punjab police could manage so much of funds and live in a posh locality. He owned a taxi and lived a comfortable life. Why did he leave Punjab police? I know the dead can not speak but neither the organisation fighting their case, the POACHERS nor the prosecution, has any viable reasons to explain this. But one can only conjecture. Yet I am not going to base my judgement on mere conjectures.”

“You see the law does not accept violence against the person of anybody unless it is carried out against the enemy of the state. It is a truism that law also accepts that anybody who had taken up arms against the state was her enemy. In the present case my job was to determine if the killed couple were an enemy of the state. Even if I accept their shady past and plethora of accusations by Punjab police, it has not been provem in my court that they had taken up arms against India. I do acknowledge that they had links with some terrorist organisations. But this could be due to the lure of money or sheer blackmail or anyother reason. Therefore, were the accused justified in eliminating the couple as they did on 17 May 1993? I am not deliberating on the fact as to where did the killing take place? It is immaterial for the purpose of this judgement? Fact remains that the said couple was killed. I have no doubts, it took place in Kolkotta. But was it a cold–blooded killing? This is avery important aspect of the case.” The honourable judge was now veering around to his final verdict.

“ Let me recount certain important facts. Firstly, Lakhmir Singh and Rashmi Singh are the same couple of Bashir Khan and Sabina Bai as has been alleged by the accused and not contested by prosecution and POACHERS. Secondly, the couple was killed by the accused, as has been alleged by prosecution and not denied by the accused. Thirdly, the couple had been peacefully staying in Kolkotta over the last few months before their death. Fourthly, Bashir Khan was a constable in the punjab police which he had deserted in 1991. Fifthly , there is adequate proof to suggest his links with some terrorist outfits. Sixthly, it has been proven that the killer squad of Punjab police came in a helicopter to central Kolkotta and engaged the couple in an encounter or probably killed them and took their bodies to punjab where they stage- managed an encounter to cover the incident. All this has been established by CBI, the investigating agency. The guilt of the five accused is proved beyond doubt. But why did they do so? How did the accused get the lead to kolkotta? Why were they provided helicopter by the state of Punjab? Evidence does suggest that Bashir Khan was probably involved in large cases of extortion and some cases of killing innocent people . There are indication of his involvement in the Massacre of bus passengers near Bhucho Mandi, Bhatinda in Punjab on January 15, 1992. But all this does not mitigate the guilt of the accused. However, it does go to suggest the motive. It does establish that there were no personal interests. Yet, the accused are also found guility of taking law into their own hands. Even if I accept defence counsel’s version that accused were arrested in Kolkotta and not killed here but in Punjab, it does not dilutes the gravity of the offence. On their own admission , the couple was in their custody. Therefore, safety of the couple-in-custody was their prime responsibility. They have dithered in their responsibility. I do accept their point that they were performing their duty and killing was incidental in the performance of that duty. I feel they might not be alone in this venture. They were provided helicopter to carry out this operation. I am sure very high level government decision should have been taken to carry out a swift operation to nab them , if not kill. I do not know why there was no central government agency coordinating and controlling such operations. If the central agency was involved, there would have been no gruesome murders and probably the dead couple would have been answering for their alleged crimes in some court of law. I hold the five accused guility of not only homicide but also taking law into their own hands. However I do give them the benefit of doubt that no one had any personal motive. It therefore mitigates the guilt to that extent. I sentence them to 14 years of imprisonment on all three counts. The defendants and the prosecution have seven days to appeal to a higher court. The court now rises for the day”, saying this the honourable judge quickly disappeared into his chambers, leaving stunned silence in the court-room. No one had expected such harsh punishment after the judge had been passing strictures on the media and human rights organisations. In fact, he had once asked the prosecutor as to how would he deal with a person who had been proven to be involved in cold bloded murder of 30 women, children and old men.

Amit felt while the judge gave his judgement based on his head but his heart was somewhere else. What the honourable judge did not say but definitely conveyed that he very well understood the compulsions and helpness of security forces in gathering evidence against faceless prepetrators of most heinous violence, who live in and terroise the very society which provides them human and civil rights while they mock at it. “What a dilemma for a democracy”, thought Amit.

-------------- To be continued in Part-5 “ The Roots”