By M Shahwar Khan,
“Terrorism” is always a hot topic for discussions and different people have different ideology about this term. Definitely I am not going to talk about the terrorism but I am going to share my experience of defending those who were labelled as “Terrorists” by the police and who have spent or spending their lives in a place where we can’t even imagine to stay for a second.
Being a Lawyer I had got an opportunity in the year 2001 to conduct terror related cases and since then I have provided and still providing legal aid and conducting trial of about more than 100 accused/prisoners and have handled even a number of cases so far and also as defence counsel in “Batla House Encounter” case and related cases and accused spreading different states.
My experience is that “benefit of doubt” which is always given to the accused in our legal system has different application when it comes to terror related cases – the accused are convicted while giving benefit of doubts to the prosecution and it will not be out of place to mention that in such cases the burden of proving innocence lies on the accused whereas in other cases it is for the prosecution to prove its case beyond reasonable doubt.
People know about encounters but I also witness “Judicial Encounter” which is much more serious in nature. My observations are based on actual experience, which I want to share with you to let you know that how hard life becomes when you are labelled as “terrorist” and there is no justice for you.
Years and years in jail without trial
People are languished in jail for more than the period of maximum sentence in case they are held guilty and courts appear to be instrumental in the hands of the prosecuting agencies. Dilatory tactics are always used by the prosecution to keep a prisoner in jail on one or other pretext. The average period of trial of a case is between 5-7 years and some times it goes up to 8-10 years and there are few more cases in my knowledge which pertain to the year 1996-1997 and still pending and all the accused are in jail. This is the same country where its Supreme Court in number of cases has held that “JUSTICE DELAYED IS JUSTICE DENIED” and has also held “right to speedy trial is fundamental right” and its denial is violative of Article 21 of the Constitution and it is very astonishing that in the same country, the lower trial courts which are bound by the law laid down by the Supreme Court are denying justice to the accused.
Laws ignored at lower courts
“Ignorance of Law” is no excuse, which means that if you don’t know that murder is an offence and commit murder, you cannot say that you did not know it to be an offence and claim innocence, but I noticed during the trial of a case involving Explosive Substances Act that not only the Trial Court but even high court have completely shown “ignorance of law” while deciding the cases. Explosive Substances Act was amended in the year 2002. Section 7 of the act provides that “No court shall proceed to the trial of the accused except with the consent of the District Magistrate”. But it is very surprising that trial courts, high court even defense counsels have badly failed to appreciate that there was no sanction from the District Magistrate and the accused were convicted. I raised this issue during the trial of a case and the accused was acquitted after having spent exactly five years in jail and thereafter, the police and the Govt. of Delhi woke up and they started filing fresh sanctions from competent authority in all pending cases of similar nature. This fact shows that there is no application of mind while convicting the accused. So, where is the delivery of fair and impartial justice because a mistake can be committed only once or twice but when it is repeated it’s a habit.
Biased investigation, prosecution
The role of investigating agency is to collect evidence and to forward the accused with evidence to the Court for verdict. But in our country the role of police is to “create” evidence and innocent persons are being convicted on created evidence. I put question to you people: How many of you will say that our police is honest, disciplined and reliable. When it comes to you the police is dishonest, when you are fined, challaned and even arrested, the police is corrupt and you have been framed and when it comes to a person whose name is Abdul, Karim or Latif you start saying he is terrorist and police has acted rightly and has arrested right person, please think again. The charge sheet speaks for itself and even an average prudent person after having seen the same would definitely say that “HE IS INNOCENT” but we have faith in the Judiciary and will continue to have the same in future no matter what happens next.
I have lot of things to say but time is not permitting me to do the same, so next time, I will share some more facts, till then bye. I am always available for any query, please feel free to interact with me.
The author is a criminal lawyer and practices in Delhi’s Patiala House Court. He can be contacted at Email:[email protected])
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