Miscarriage of Justice in Fast Track courts in Kandhamal

[cathol...@gmail.com]

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