Thanks to Delhi Police goof-up, Ghandy cleared of charges
by Jiby Kattakayam, The Hindu
But he will face trial for assuming fake identity and forging documents
New Delhi, March 28, 2012 — Communist Party of India (Maoist) leader Kobad Ghandy earned a reprieve on Wednesday when a Sessions court here discharged him of offences under the stiff Unlawful Activities (Prevention) Act (UAPA), thanks to a defective prosecution sanction obtained by the Delhi Police. However, he will stand trial for impersonation, cheating, forgery and criminal conspiracy charges under the Indian Penal Code for assuming a fake identity and forging documents. He faces a maximum of seven years’ imprisonment for these charges against life imprisonment under the UAPA charges from which he was discharged.
Additional Sessions Judge Pawan Kumar Jain said: “I am of the considered opinion that there is sufficient material on record to make out a prima facie case for the offence punishable under Sections 20 and 38 of the Unlawful Activities (Prevention) Act against accused Kobad Ghandy. But since the cognisance order dated February 19, 2010, qua the offences punishable under the UAPA was not in accordance with the mandatory provisions of Section 45(2) of the UAPA, I hereby discharge accused Kobad Ghandy for the offences punishable under Section 10/13/18/20/38 of the UAPA. Similarly, I also discharge accused Rajinder Kumar for the offences punishable under Section 10/13/18/19/20 UAPA. However, there is sufficient material on record to make out a prima facie case against both the accused for the offences punishable under Section 419/420/468/474/120B Indian Penal Code.”
Ghandy’s counsel Rebecca John had pointed out that the investigating officer had violated Section 45(2) of the UAPA by not submitting the evidence he gathered to an independent authority constituted by the Central or State government, which after vetting the documents was to recommend the sanctioning authority (the Lieutenant Governor) to grant sanction for prosecution. Realising the blunder committed, the prosecution, last week, belatedly submitted a fresh prosecution sanction as per the Act in the form of a supplementary charge sheet.
“There is nothing to show that the evidence collected by the investigating officer was independently reviewed by any authority appointed by the Central government or that after review of collected evidence, such authority had ever made any recommendation to the Central government … Needless to say, the main object of imposing condition of independent review is to prevent the misuse of the stringent provisions of the UAPA by the law-enforcing agencies … Since provisions were inserted by Parliament, thus the State cannot take the plea that State was not aware of the provisions …. By obtaining the fresh sanction, prosecution is trying to cure an incurably bad sanction order, which in the absence of any provisions of law is not permissible,” Mr. Jain said.
The court said it was clear that Ghandy was an “active member” of the CPI (Maoist) and it appeared that “his role was to persuade people and exhort them for Maoism.” The court also noted that he had prepared forged documents in the name of Dilip Patel in order to conceal his identity and avoid arrest.
Mr. Jain added: “There is sufficient material on record to hold prima facie that accused Ghandy was a vibrant member of CPI (Maoist). Since the CPI (Maoist) is a declared terrorist organisation, presumption will [be] that [the] CPI (Maoist) is involved in terrorist acts. Accordingly, I am of the view that prima facie a case is made out against the accused Kobad Ghandy for the offence punishable under Section 20 and 38 of the UAPA.”
The judge further said there was no evidence on record to show that Ghandy had committed any terrorist act and hence he could not be called a “terrorist.” This finding also helped co-accused Rajinder, who was discharged for offence under Section 19 of the UAPA for harbouring a terrorist.