New Delhi: It has been almost 45 months since the police began investigating the theory of a larger conspiracy in the cases emanating out of the Bhima-Koregaon violence of January 2018. 

In this time, 16 persons have been arrested on allegations of conspiring to not only incite the specific violence but work towards overthrowing the government altogether—almost all of them coincidentally having a reputable record of working towards empowering those most marginalised and disenfranchised in society. 

One person, an octogenarian, died in judicial custody, while his bail application was pending. Another, a septuagenarian, was granted medical bail only after nearly reaching death’s door due to serious medical ailments. Only one has been granted bail on a consideration of the merits of allegations. 

Allegations that have been demonstrated with chargesheet upon chargesheet being filed, with documents running into thousands of pages. However, trial is yet to begin, with not even charges framed as of yet.

In the thousands of pages that the state police, now the National Investigating Agency, will want to lead as evidence, a bulk of the most relevant (purportedly) incriminating material is sourced from the digital devices of the arrested accused persons. 

Letters and emails, showing active links with banned terrorist organisations and support for their causes. At the same time, repeated news stories have appeared indicating that independent experts analysed the copies of those digital devices and found sufficient basis to conclude that there had been concerted efforts to sabotage the devices to plant the evidence being relied upon today. 

The earliest of these probably being news of the mobile numbers of many of those arrested in the case being on a list of numbers found by investigative journalists probing the use of the notorious ‘Pegasus’ spyware, with enough material to show that the device connected with one of these numbers (belonging to Rona Wilson) was indeed, hacked. 

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Then came news in July 2021 of a consulting firm finding that  the computers of another accused, Advocate Surendra Gadling, were hacked to place incriminating emails that were now being relied upon to prosecute him. The most recent news report from December 2022 raised similar concerns in respect of the computers of the deceased Father Stan Swamy. 

In short, the suggestion is that these persons were framed, and one of them died on the basis of these fabricated charges. 

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These are explosive suggestions but surprisingly it has not led to a flurry of activity in the trial court itself—either demanding discharge or at least for bail. The only activity in courts was a petition filed by Rona Wilson asking for a further investigation in the case and agencies to consider the findings of the consulting firm’s findings regarding the hacking of his phone. This petition has not yet been heard, and even that news has gone silent after the initial story broke out. 

Why? 

I offer two possible explanations here. The reasons are not peculiar to this particular prosecution itself, but due to the rules of a criminal trial which place severe restrictions on when accused persons can introduce material. In addition to which, the restrictive bail provisions of the Unlawful Activities Prevention Act (UAPA) 1967 add further restrictions, which create hurdles to rely upon such material even for bail. 

Let us take a closer look at both, in turn.

Defendants & Documents

The criminal process is a tightly regulated exercise in India, best imagined as a series of sieves to filter cases. The sieves are different stages in the life of a case, with judges subjecting the file to varying levels of scrutiny. 

Cognizance is the least stern test, followed by summoning, charge, and only after charge does a trial begin, with its hallowed notions of proving the case beyond reasonable doubt. At cognizance and summoning, the accused is not even afforded an opportunity of hearing.

Charge is the stage when the accused makes an appearance to address the court on the merits. But even so, the Supreme Court has held that the defence has no right to introduce any material even at this stage; the accused must stick to the material that is filed by the state. 

You may ask for the state to file material that it had held back, but you cannot introduce new material altogether. In exceptional cases where material of ‘sterling’ quality (usually government documents) is brought, then an accused may contemplate moving the High Court to seek a discharge on their basis. 

Leading material to establish innocence is thus a right that the accused can trigger very late in the day. But what about other reliefs? In ordinary cases it is open to the defence to rely upon materials to convince a court to grant bail. Not only for, say, medical issues but even on the merits of a matter—the Delhi High Court expressly ruled in favour of this view. 

Courts have granted bail in UAPA cases on medical grounds with accused persons introducing documents to substantiate their claims, Bhima-Koregaon being a good example of this. But when we come to using new material to deal with the merits of allegations, we run into a section- 43-D(5)-shaped hurdle. 

The clause requires the court to not grant bail if upon a reading of the ‘case diary’ or ‘police report’ it appears that the accusations are prima facie true—seemingly excluding the option to the accused for introducing any other material.

Testing The Assumptions

Is the rule barring accused persons from introducing material prior to any stage other than trial in general cases a fair one? 

In theory, it makes some sense. The police and prosecution are not truly ‘adversarial’ in India contrary to the American notions of the phrase and are tasked with finding the truth. Prosecutors are thus seen as being officers of the court and not mouthpieces of the police. It is reasonable, then, to assume that the state would have taken a look at even the exculpatory material during the investigation. 

The Supreme Court has invoked this idea to hold that the police, upon concluding their investigation, must not only file the material that they propose to rely upon but all the material that they considered.

This was meant to provide the court—and the accused—a complete picture. It is at the stage of charge that the accused inspects the police material to determine if anything might have been held back and asks for it.   

With this context, it appears reasonable to assume that allowing the defence to introduce material at any stage prior to trial would further delay an already protracted process. A similar justification can arguably be mounted for the rule specific to bails in the UAPA context, as enabling accused persons to lead material would transform what is already a merits-heavy determination into a veritable mini-trial.

Leaving aside the truism that theory rarely meets practice—for instance, there is still a lot of fog on just what material must be provided to an accused by the police at the stage of charge—this logic fails to account for situations in which the material led by the state is (knowingly or unknowingly) false or fabricated. 

The tragedy of being prosecuted on such material is worsened precisely because of how protracted the process is in the first place. 

Consider the Bhima-Koregaon case itself as an example—arguments on charge are yet to be concluded, and if charges are framed then years of prosecution evidence follow. Only after this, and the recording of statements by accused persons (under section 313 of the Code of Criminal Procedure 1973), will the opportunity come for leading the material that hypothetically brings down the house of cards. 

These concerns equally apply In respect of the restrictions cast by section 43-D(5) of the UAPA, accompanied by another set of problems. Consider a situation where the police concluded their investigation but did not file the entirety of the material that they gathered, or claimed the material would only be introduced  as part of a supplementary chargesheet to be filed after further investigation is concluded. 

While the accused certainly would have a right to demand whatever is held back, this would only trigger (at the earliest) at the stage of charge, and would take significant time of its own account as a court will hear both sides on the issue and then pass an order. 

It would not remedy the irreparable prejudice that is caused to the accused being unable to get bail because a court remained convinced that the accusations were prima facie true on the basis of the incomplete material placed before it.

The assumed reasonableness of the general rule preventing accused persons from introducing documents at any stage prior to trial, and the specific rule seemingly preventing such material at the stage of bail in UAPA, proceeds on a ‘floodgates will open and delay the process’ argument. 

But the issues identified above make it plain that the remedy is akin to throwing the baby out with the bathwater—rather than a general rule, a proportionate response would confer judges with discretion to hear such pleas and permit them where the circumstances require. 

Weaving in such a process at the trial court level would also prevent unnecessary delays in petitions being filed before the appellate courts which result in stay of proceedings.  

The Project Of Memory Creation

As Article 14 reported in March 2022, there is evidence the Bhima-Koregaon case appears to have become part of a larger security playbook used by the State elsewhere. Issues regarding the introduction of documents by an accused bring into sharp relief the existence of a deeper, more philosophical point, being at play here. 

Trials have long been accepted as official exercises in memory creation and not only truth-finding. Especially in cases where the state is aggrieved, such as alleged attempts to overthrow the state, the prosecution version is not only speaking to court but also setting the record down for posterity to learn the official version of ‘what’ happened. 

The assumptions that the Indian criminal process sponsors of the prosecutors and police presenting the truth through a chargesheet lends itself to this project of memory creation by the state. The ability to continue an investigation after filing one chargesheet empowers the state to continue looking for, and moulding that truth as time goes on.

Allowing an accused person to introduce material might seem necessary to us, especially because of just how unfounded the assumption of the police pursuing a truth might seem, but giving the accused an unfettered right to introduce her version threatens this overarching premise of what a trial is meant to achieve for the state.

Is this the correct balancing of the scales, where the individual’s personal liberty must remain subservient to overarching state interests? Cases like the ongoing Bhima-Koregaon prosecution force us to confront these questions and reexamine these collected, untested, assumptions that form the bedrock of our criminal process. 

A willingness to meaningfully engage with these issues is what ensures the legal system can continuously evolve and deliver on its promise of fairness. More often than not, that is not the choice we have made.  

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(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)