Miscarriage of Justice in Kandhamal Courts

From John Dayal

12 November 2009

I have just come back from Orissa, very depressed at the way the criminal justice system is working in that benighted state.

I had gone to take part in a rare Civil Society meeting with victims, some law experts and some Human Rights activists on 3rd November 2009 in Bhubaneswar. In truth, barring some leaders of various Left parties and Women’s groups, there is not much of a civil society in Orissa as far as violence on Christians or Muslims is concerned. Fortunately, there are activists – and Dhirendra Panda is one such – who are determined to press for justice. Fortunately again, there are some more activists working in the defence of the rights of Tribals and workers whose very existence is threatened by the entry of global mining giants trying to profit from the underground riches of Orissa. About them, in another note.

Advocate Rasmi Ranjan Jena says “As we know in most of the cases already tried in the Fast Track Courts in Kandhamal the accused persons have been acquitted. This is nothing but a great failure of the criminal justice system which has miserably failed to give justice to the victims of the communal violence. At this juncture there is an urgent need of critical analysis of the factors responsible for the failure. Though nothing much should be expected from a judicial forum in a communal society, but we need to have a self introspection to develop a strategy for the upcoming days.”

The following is a more urgent situation report on meeting convened under the banners of the Common Concern and Orissa Manavik Adhikar Suraksha Abhijan on justice delivery crisis. The report’s authors include Dhirendra Panda and Fr Ajay Singh. While this report is critical of the legal support systems for the victims, I must acknowledge the work done by the Human Rights Law Network and the Christian Law association who have had to work with young local lawyers and limited resources in the face of official machinery that is determined not to pursue justice with honesty.

I quote from the report:

“In the context of regular acquittals of the persons accused of criminal involvement during Kandhamal violence by Fast Track Courts on the ground of non-availability of witnesses, a meeting was held at Lohia Academy, Bhubaneswar to listen the experiences of the victims and their witnesses seeking justice. About seventy five persons including the victims, activists, representatives of left/democratic political parties and civil society organisations, advocates, media persons, civil society

members, church leaders and others participated in the Meeting.

Agenda

• Sharing of experiences/concerns by victims and witnesses in and outside courts

• Sharing on challenges faced by Lawyers and organizations engaged in legal aids

• Observations/Suggestions by the Participants

Among the participants, Prafulla Samantara, renowned activist and an ardent advocate of people’s rights and movements, Radhakant Sethy, former MLA and leader of CPI-ML Liberation, Dr. John Dayal, Member of National Integration Council, Sudhir Patnaik, Editor, ‘Samadrusti’, John Nayak, former DG of Police, Orissa, Prasant Paikray and Ramakrishna Panda – leaders of CPI, Smt. Tapasi Praharaj, CPI-M leader, Smt. Saila Behera, Shanti Ranjan Behera – Senior Social Activist, Ms. Lalita Missal – Woman Rights’ Activist (NAWO), Hemant Nayak – Social Activist, Mahendra Parida - Social Activist and Trade Union leader, Pradip Pradhan – RTI Activist and many others shared their observations regards to the approaches to the problems faced by the victims.

Observations

• Public Prosecutors are mostly found biased against the victims

• In comparison with the skills, influences, clouts, numbers of advocates favoring the accused persons, the strength of advocates need to be improved

• Faulty and biased methods of police investigation, framing the charge sheets and presentations in the Courts weaken the cases

• Absence of social and physical security of the victims and witnesses inside and outside the Court

• The provision that in GR cases only Public Prosecutors can argue, while the victim parties can not appoint their own advocates privately, does not help the victims in cases where PPs are biased.

• Show of extra-favour to the accused ones by some judges harass the victims and their counsels

• Lawyers counseling the victim parties are even persuaded not to continue their legal assistance

• Witnesses are threatened/allured to turn hostile

• Absence of democratic and left parties in comparing to the dominance of BJP and RSS helps the culprits and corrupts the atmosphere of the courts

Suggestions

• Appeal to transfer the cases to outside Kandhamal, preferably to Bhubaneswar and Cuttack courts.

• Christian Lawyers’ Association, Human Rights Law Network and other groups engaged for legal aid should work in a coordinated manner

• Assistance from senior and experienced lawyers should be taken up

• Engagement of other lawyers to assist the P.Ps\A.P.Ps in GR cases and submission of written arguments by other lawyers

• Mobilisation of activists to be present in the court will help in building confidence among the victims and influence the PPs/APPs and judges to be careful to some extent

• A Public Hearing/People’s Tribunal can be organized..

• Lawyers should be smart enough to intervene at the right manner at the time of necessity

• Local people need to create their own defense mechanism

• Secular minded organizations/activists, particularly the people participating in this programme, need to evaluate the ongoing legal actions and decide upon appropriate measures to respond to the current situation collectively.

• At the state level a joint committee involving people from various sectors need to be formed to keep regular watch on legal matters and monitor the actions being taken up by the organizations engaged in legal aids

• It is necessary to document the court proceedings and situation of witnesses and victims, which can be used in future for raising the issue before higher courts and media

• A Kandhamal level committee should be formed for monitoring justice delivery processes and for looking after mobilizing social supports for the victims and witnesses

• Extensive media campaign has to be taken up to expose the illegal and biased behavior and functioning of PPs/APPs and judges.

• Referring to the deposition of Police officers before the Sarat Chandra Mohapatra Commission, information will be collected from their respective offices using RTI and a letter can be sent to the Governor with a copy to the Commission can be sent mentioning the concerns and position of the civil society

Decisions

• An ad hoc state level joint solidarity committee was formed involving the participants to coordinate

o Interaction with political parties for their support for the victims in getting justice

o Media campaigns

o Keeping watch on legal processes

o Documentation of justice delivery processes

o Social Mobilisation for backing the victims inside/outside courts

,;

Footnote:

To understand the different factors responsible for the failure it will be convenient to have a minimum idea on the chain/ stages on which the justice delivery process runs.

The stages of criminal cases in series:

(1)Occurrence of the Incident--- (2)FIR--- (3)Investigation (includes arrest of the accused & Submission of Charge-sheet)--- (4) Magistrate( who commits the case to the competent court)--- (5)Trial (includes Framing of Charges, Summon to Witnesses, Testimony by the witnesses, Argument & Judgment)--- (6) Appeal

Difficulties & Lacunas in different stages

(1) Occurrence of the Incident

- Many of the victims are not eye witnesses as they fled away to the jungle just before the incident happened.

- As the investigation started very late the proofs and marks of violence had disappeared or washed away.

(2) FIR

- Non- registration by the police

- The names of the accused persons are not mentioned

- Delay in filing

- In some FIR the offence in specific is not disclosed

- In most of the cases copies of the FIR not given to the victim

- The informant himself is hostile in some cases.

(3) Investigation

- No proper investigation but a stereotyped process adopted by the police.

- Non-examination of the important witnesses

- Accused examined as the witnesses.

- Non-arrest of the accused persons ( particularly the kingpins) till date

- The property of the absconding accused persons could have been attached ( Sec 83 of Cr.P.C.) which could compel them to surrender.

- Proper sections of IPC not mentioned in the Charge-Sheet

- Delay in filing of Charge-sheet helped the accused persons to get bail.

(4) Magistrate

- The lawyers for the victim could have put their objection before the magistrate, before whom the charge-sheet is submitted, on the non- mentioning of appropriate sections of IPC in the Charge-sheet. ( Section 216 of Cr.P.C)

(5) Trial

- Most of the independent witnesses were hostile as they were threatened by the accused persons in the village.

- The court atmosphere is not conducive for free and fair trial.

- The judge and the public prosecutors lacks judicious mind.

- Deficiency of trained lawyers in comparison to the number of cases.

- Lacuna in the part of the lawyers engaged on behalf of the victim. No effort to build up the case in favor of the victim, only tutoring of the witnesses on their previous statement of the police is done. The lawyers could have done as the following.

- Effort could have been made to cover up the lacuna in the FIR as well as the statement before the police, while giving testimony before the trial court.

- The witness/ victim could have been prepared on the point on which the defense lawyer is striking.

- Proper caution could have been taken to avoid major discrepancy between the testimonies of the major witnesses.

- Petition could have been laid to examine the important witnesses who are not charge-sheeted. ( Section 311 of Cr.P.C)

- Written argument could have been filed in each case at the time of final argument. ( It must be kept in mind that if the lawyer has not filed the Vakalatnama from the initial stage then he may not be allowed to file written argument in the final stage.)

- Even though most of the witnesses are becoming hostile, the victim and the family members could have been properly guided before giving testimony. Because law is well settled, the sole testimony of the victims / the eye witnesses, if inspires confidence and appears to be natural and truthful and also corroborated by the documentary evidences, is enough to convict the accused.

(6) Appeal

- No appeal preferred in most of the cases where the accused were acquitted.

- Appeal should be preferred in conviction cases as in the said case conviction is done for only few accused persons and most of them are acquitted.

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[PP is Public Prosecutor appointed by the Administration. CrPC is Criminal Procedure Code, IPC is Indian Penal Code, FIR is First Information Report, ]