PEOPLE’S UNION FOR CIVIL LIBERTIES
270-A, Patpar Ganj, Opposite Anand Lok Apartments, Mayur Vihar I, Delhi
110 091
Phone 2275 0014 PP FAX 4215 1459
Founder:
Jayaprakash Narayan; Founding President: V M Tarkunde
President: Prof. Prabhakar Sinha; General Secretary: Dr. V. Suresh
18th
February, 2015
PUCL
Statement
Stop
Persecution, by False Prosecution, of Teesta Setalvad and Javed Anand!
The PUCL welcomes the Supreme
Court granting an immediate stay on the Gujarat High Court order permitting the
custodial interrogation of journalists and Human Rights Defenders, Teesta
Setalvad and Javed Anand, while refusing to grant them anticipatory bail. The
Gujarat High Court passed its order on the 12th of February in the
FIR of alleged misappropriation of funds collected for building a memorial for
the 2002 and other riot victims of the Gulbarg Society in Ahmedabad. In the
same matter it also granted bail to three other accused of the same charge.
This is not
the first time that Teesta Setalvad is being targetted through false FIRs.
Earlier too in the Best Bakery case of Vadodara and the Exhumation case of
Panchmahals, there were efforts to malign the name and credibility of
journalists Teesta and Javed Anand; however, both were stayed by the Supreme
Court. It also cannot be ignored that it was through the efforts of Teesta,
Javed and other activists of Gujarat and outside, that 117 people have been
given life imprisonment for perpetrating the 2002 Gujarat mass killings,
including Bajrang Dal leader Babu Bajrangi and former Gujarat minister Maya
Kodnani. Incidentally Gujarat state is the only one where so many victims of
communal violence have got justice, thanks to the untiring efforts of human
rights defenders like Teesta Setalvad, Javed Anand, CJP and others.
PUCL had brought to the
attention of the NHRC the type of persecution and prosecution by Gujarat police
of Teesta Setalvad and Javed Anand and the CJP for persistently seeking justice
for the victims of the communal holocaust in Gujarat in 2002 following the
Godhra incidents. We had pointed out that the, “allegations of financial impropriety are easy to make; but the damage
such allegations cause to individual reputation and self respect is
irreparable. Very often though nothing much comes out of such allegations
finally, the allegations would well have achieved their purpose of putting the individuals
and organisations concerned on the defensive and force them to necessarily
participate in an endless spiral of litigation trying to prove their innocence.
Apart from diverting defenders from the main task of protecting, promoting and
preserving human rights work, immense amounts of time, physical and emotional
energy, and finances are lost in fighting malicious prosecutions and
litigations”.
Seen in this backdrop the dogged and repeated demand of the
Gujarat police seeking the arrest and “custodial interrogation” of Teesta and
Javed is a matter of grave concern.
Firstly, we would like to
highlight that legally the direction of the Gujarat High Court seeking
custodial interrogation is in violation of the fundamental right under Art.
20(3) of the Constitution that “No person accused of any offence shall be compelled to
be a witness against himself”.
Secondly, we would like to point out that factually during
the pendency of the anticipatory bail before the Gujarat High Court, Teesta and
Javed in obedience to the directions of the court had presented themselves
regularly before the investigation officers. They were subjected to hours of
questioning each time during which they fully cooperated. Reportedly all
documents including audited accounts, bank statements of the individuals and
the Trust, resolutions of trustees and so on were submitted. Voluminous
documents were filed before the Gujarat High Court as well. Hence the
insistence of the Gujarat police for `custodial interrogation’ appears to be
more a veiled threat of third degree methods and torture than any genuine
necessity for investigation.
PUCL would like to point out
that the SC has clearly spelt out the law relating to arrest and custodial
interrogation in the landmark case of `Joginder
Kumar vs State of UP’ (1994). The SC has pointed out that arrest and detention in police
lock-up of a person can cause incalculable harm to the reputation and
self-esteem of a person and therefore no arrest can be made in a routine manner
on a mere allegation of commission of an offence made against a person.
Pointing out that it would be “prudent for a police officer in the interest of
protection of the constitutional rights of a citizen and perhaps in his own
interest that no arrest should be made without a reasonable satisfaction
reached after some investigation as to the genuineness and bona fides of a
complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest”.
Stressing that denying a person of her / his liberty is a serious matter the SC
said, “A person is not liable to arrest merely on the suspicion of complicity
in an offence. There must be some reasonable justification in the opinion of
the officer effecting the arrest that such arrest is necessary and justified. Except
in heinous offences, an arrest must be avoided if a police officer issues
notice to person to attend the Station House and not to leave the Station
without permission would do.” ((1994) 4 SCC 260 at page
267, emphasis ours).
Very importantly, the apex court also
pointed out that “No
arrest can be made because it is lawful for the police officer to do so. The
existence of the power to arrest is one thing. The justification for the
exercise of it is quite another. The police officer must be able to
justify the arrest apart from his power to do so”. The court thereafter pointed
out that arrest and custodial interrogation that follows should be only in the
following circumstances: (i) if the accused persons will flee justice or (ii) tamper
with evidence or (iii) intimidate witnesses. The ruling of the Supreme Court is
now a statutory safeguard incorporated in section 41 of the Criminal Procedure
Code as amended in 2010.
None of these three situations exists in the case of Teesta
and Javed, who have been regularly appearing before the authorities. They have
always produced required documents even when it was clear that the police were
on a fishing expedition desperately trying to find some evidence to pin against
them. It is necessary also to point out that the accusation against Teesta and
Javed are not of having committed heinous offences but financial ones, all of
which can be established or disproved mainly on documentary evidences.
PUCL
is disturbed by the other sweeping and unwarranted comments made by the Gujarat
High Court about the role of individuals and NGOs. We are however confident
that the Hon’ble Supreme Court will ensure that justice is eventually done as
the judiciary is the only bulwark against
abuse of power by the executive against human rights defenders.
We also hope that the SC will consider ordering an impartial enquiry into
the matter by an independent agency under the direct supervision of the Supreme
Court as was ordered in other cases related to Gujarat communal violence. This
will help establish the truth.
Prof.
Prabhakar Sinha Dr.
V. Suresh
President,
PUCL General
Secretary, PUCL
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