An investigation into whether the highly acclaimed crime thriller had an element of truth on the basis of real cases from Indian Courts.

[SPOILER ALERT]

When Pataal Lok released on Amazon Prime, it received raging reviews for its fast-paced, engrossing narrative and stellar acting performances. The crime-thriller also irked a section of people who got offended at the “abusive, minority oppressive and anti-national” content of the show and sought redressal before the court. The show ends with four people, who were initially arraigned for attempting to murder a journalist, going on trial for being part of a larger terrorist conspiracy.

In Paatal Lok, we see that when the case got transferred from Delhi Police to the CBI, the CBI weaved a story linking the four criminals as being members of a terrorist organization. All of this was done with the help of fabricated evidence, such as planting arms and ammunition and fake passports in the place of residence of the accused.

In this blog post, the authors attempt to discover whether fabrication of evidence to build up a terror case as done in Pataal Lok was merely a sensationalised account in fiction or whether it has an element of truth to it. The aim of the authors is to investigate cases in the past where the evidence produced by the prosecution was dismissed by the courts as being fabricated highlighting the botched up nature of the investigation.

Real Examples of concocted stories in terror-related cases

The authors first take the case of State (GNCT) Of Delhi v. Saqib Rehman @ Masood & Ors. (MANU/DE/3620/2012), in which the facts were uncannily similar to the narrative of Pataal Lok. Prosecution asserted that in 2005, police received secret information that the accused had made their base in Delhi and were about to commit an act of terror in Delhi. An arrest was made on the basis of this ‘secret information’. Huge quantities of arms and ammunition, fake currency notes were recovered the car of the accused. The accused had stayed in a hotel in Karol Bagh, a fact which was verified by the hotel owner. As per the investigation, the accused did not clarify the purpose of visit and their stay in Delhi. The accused stated that they had been illegally detained and that it was a case of a false implication and fake encounter.

Here, the Delhi High Court Division Bench acquitted the accused of charges under Explosives Act, Arms Act and Indian Penal Code. The conclusion was that “the encounter alleged to have taken place… did not take place at all and an absolutely false encounter was projected. The story of encounter was carefully scripted… [the four police] officers acted in advancement of their self-interest in total disregard to the demands of their solemn duty. … In the opinion of the court the innocent accused were framed in a false criminal case.” (emphasis supplied)

In another case in 2010, the Special Cell had received secret information that a Kashmiri member of Lashkar–e–Taiba would be coming to Delhi and collecting funds for the military outfit. On receiving information concerning the whereabouts, a team from the police went to apprehend him and recovered arms, ammunitions and currency from him. Upon further investigation, the accused was charged under the provisions of Prevention of Terrorism Act, 2002 (now repealed). However, the Additional Sessions Judge dismissed the narrative of the prosecution stating that it did not inspire “credibility and confidence” and seemed to be “doubtful and unacceptable”. In 2011, in another cases relating to a terrorist conspiracy, the Sessions Judge court noted that there was “no evidence to prove the existence of conspiracy” except the version of police officials who were interested witnesses.

Chintan Chandrachud’s book “The Cases That India Forgot”, while discussing cases under anti-terror legislations, notes that in such cases the burden of proof is shifted from the prosecution to the defendants and certain procedural safeguards such as non-admissibility of confession to police officials are not observed. Despite the odds being against the defendant, the conviction rates turn out to be only between 1-4%.

One of the common trends noticed in such cases is the lack of public witnesses to corroborate the prosecution story. The above cases have the common thread of “secret information” being received by the authorities, the trail of which could not be traced back and the end result of acquittal of the accused on grounds of lack of believable evidence.

Differentiating Terror Cases from Ordinary Criminal Cases

The Unlawful Activities Prevention Act, 1967 (UAPA) is the governing law on terror related cases with its provisions on arrest, detention, presumption and confessions being vastly different from the provisions of Code of Criminal Procedure, 1973 (CrPC) governing ordinary criminal cases. While the CrPC amendments to §§41 and 41A-D have made arrest provisions more stringent in line with the constitutional guarantee under Art. 22 of the Constitution of India, §43A of the UAPA, inserted in 2008, stipulates that any officer of the Designated Authority may arrest a person on the basis of belief “from personal knowledge” or information furnished by another person, or “from any document, article or any other thing which may furnish evidence of the commission of an offence”.

43D(2) of UAPA allows detention in police custody up to 180 days upon fulfilment of certain requirements given in the proviso, which is more than the number of days permitted in ordinary criminal cases. Moreover, in a departure from the settled principles of evidence regarding the presumption of innocence[1], the provisions in UAPA[2] and Maharashtra Control of Organized Crime Act, 1999[3] permit the court to draw adverse inference and presume guilt against the accused, unless the contrary is proved.

Anti-terror legislations highlight a jurisprudential debate. Such legislations represent a crossroad between the security of the state and the liberty of an individual. They contain extra-constitutional principles, which have been declared constitutional by the Supreme Court.[4] Admittedly, there is a need to strike a balance between ensuring security of state and safeguarding a person’s fundamental rights. However, the manner in which India has chosen to strike that balance does not bode very well for a person who might be falsely implicated in a terror case.

The Way Forward

From the afore-mentioned discussion, a recurring trend of “framing and acquittal” in terror-related cases emerges. This trend points towards two problems: (1) the eagerness of authorities to falsely implicate persons with fabricated evidence leading to prosecution and illegal detention of the accused for years without recourse; and (2) the impunity enjoyed by the police despite fabricating evidence. While the provisions of the terror laws may not be amenable to amendment on account of the special nature of terror cases, the authors propose a two-fold solution to the problems:

A right to compensation for wrongful prosecution:

Section 358 of the CrPC stipulates a paltry compensation of only hundred rupees to a person who has been groundlessly arrested. This, in the authors’ opinion, is prohibitively unfair to a person who had to expend years in battling a trial where he had been falsely implicated. Although, the courts have, in certain instances, granted a compensation of upto ₹50 Lakhs, the authors contend that this scheme of ex-gratia grant of compensation merits criticism for promoting a charity based rather than a rights-based approach to social justice. This is because to get compensation, the victim of wrongful prosecution would again be required to seek justice by approaching the courts (¶¶ 9-17). Thus, a rights-based approach should be adopted to grant compensation to the victims of wrongful actions of the State. The amount of compensation must be decided on a case to case basis taking into account both pecuniary and non-pecuniary losses.

Legislative reforms to increase accountability

The police officials involved in such cases must be held accountable. A departmental inquiry must be conducted against them and, where proven guilty, they must be made criminally liable for the malicious acts done in official capacity. To this extent, the provisions of the Code of Criminal Procedure should be amended to keep a check on the erring officers.

A starting point in this endeavour would be the implementation of the recommendations of the 277th Report of the Law Commission titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies (277th LCR). In its report, the Law Commission had highlighted the need to hold the public servant involved in the cases concerning miscarriage of justice responsible (¶ 4.80). The 277th LCR had also recommended compensation for the loss of years, trauma and social stigma faced by such “victims of the system” (¶ 6.3). Till date, no heed has been paid by the legislature to the recommendations of the 277th LCR.

Therefore, the authors suggest that till a policy decision is made by the legislature, the judiciary must fulfill a pro-active role to protect the rights of the victims in such cases of wrongful prosecution. To this extent, an opportunity has presented itself before the Supreme Court. Recently, a public interest litigation (PIL) has been filed seeking compensation for those who had been incarcerated only to be acquitted later. In the authors’ opinion, the Supreme Court ought to take this PIL as an opportunity to direct implementation of the recommendations of the 277th LCR.

Conclusion

In this post, the authors have attempted to highlight the wrongful nature of prosecutions in India, focusing on how investigating agencies often falsely implicate innocent persons by concocting evidence. A look beneath the surface reveals mainly political and personal motivations behind the charges. Despite there being a trend of concoction of false accounts by the police, especially in terror-related cases, it is extremely rare when the courts have outrightly held that the evidence produced by the investigating agencies was fabricated. As DCP Bhagat says in the finale of Pataal Lok, the system is a well-oiled machine in which each cog knows its place.

What is at stake here is the integrity of the criminal justice system. If a system of justice is seen as putting innocent people’s lives through the ordeal of a long trial only to end in acquittal, the faith in this system will be eroded. It is imperative that the criminal justice system be perceived fair and efficient, but at the same time it must also have the capacity to make reparations in instances where it has failed to act in such a manner. Under the social contract theory, citizens accept the law and the jurisdiction of those authorised to administer it, in return for protection from the criminal acts of other citizens.[5] This also includes a right of citizens to not to be convicted of crimes of which they are innocent. For this reason, payment of compensation to those who are wrongfully convicted and holding the officers involved accountable may be justified as a remedy for the state’s failure to fulfill its side of the social contract.

The trend of “framing and acquittal” may end in acquittal for the accused, however, it also means that the true culprits perpetrating the terror activities are still at large. The criminal justice system not only fails the victim of wrongful prosecution but also the families of the victims of the act of terror. Those families also spend years awaiting justice for the ones that they had lost. The implication of an innocent civilian in such terror prosecutions would be a grave loss to such families who find out after years of waiting that the person accused is actually not the real perpetrator. Steps to bolster the police investigation by allowing for more accountability are needed to re-instate faith in the criminal justice system.

[1] Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, MANU/SC/0268/2005, ¶35.

[2] §43E, Unlawful Activities and Prevention Act, 1967.

[3] §22, Maharashtra Control of Organized Crime Act, 1999.

[4] See, Zamir Ahmed Latifur Rehman v. State of Maharashtra & Ors., 2010, Civil Appeal No. 1975 of 2008, Decided on: 23/04/2010; Sarbananda Sonowal v. Union of India (MANU/SC/0406/2005).

[5] Kaiser, “Wrongful Conviction and Imprisonment: Towards an end to the Compensatory Obstacle Course” (1989) 9 Windsor Yearbook of Access to Justice, p. 207.

The article has been written by Mayank Udhwani and Ragini Agarwal 

This article was first published in the Blog namely The Criminal Law Blog