Wednesday, 13 June, 2007

Notes on Binayak Sen case

Since there appears to be some confusion about the exact status of the case against Binayak Sen, this note is being circulated to fill in the gaps in information.

1. Binayak has been in custody since 14.5.2007 in case FIR No. 44 of 2007 at Police Station Ganj, Raipur alleging offences under Sections 10(a)(1), 20, 21, 38, 39.2(b) & (d) of the Unlawful Activities (Prevention) Act, 1967 and Section 2(b) (d), 8(1)(2)(5) of Chhattisgarh Vishesh Jan Suraksha Adhiniyam 2005.

2. The above FIR, in fact, was lodged on 6.5.2007 against Pijush Guha who was searched on suspicion at the Raipur Railway Station and found carrying three letters written by “some senior Commander of Naxalite Organization from jail to two other leaders of Naxalite Organization”, and Rs.49, 000/- in cash.

3. But Pijush Guha, at the first production before the Magistrate on 7.5.2007, recorded the fact that he had been illegally detained since 1.5.2007. It is upon a protest having been made regarding his illegal custody and a fax sent to the media in that connection, that this FIR was hurriedly recorded and the custody acknowledged in this illegal fashion six days later.

4. The FIR does not give any details of the dates of the letters, their contents, the names of the writers or the recipients, nor the name of any (banned) organisation that the writers or the recipients belong to. There is no recovery or search memo, or independent witnesses. The FIR, if filed correctly, should have contained these details. Even as per the prosecution, arguing before the Session’s Court, the letters speak of nothing more than mere boycott of the Lok Sabha elections.

5. The conjecture on which Binayak has been arrested is that he had carried the letters, which were allegedly recovered from Pijush Guha, from jail to Pijush Guha. This seems to be based on the fact that Binayak had made visits to the jail as part of his PUCL-based jail reforms and legal aid work. But all these visits were made with the express permission of the Deputy Superintendent of Police and Jail Superintendent and conducted in the presence of the jail officials.

6. Although not mentioned in the FIR, it was argued by the state during the hearing of Binayak’s bail application at the Session’s Court on 25.05.2007, that he had been helpful in getting a house on rent for Anita Srivastava, an academic from Allahabad University, who is now branded by the state as a Naxal. However, while Binayak denies being instrumental in procuring the house, this cannot be construed to be an “illegal” activity.

7. The Sessions Court, while rejecting bail, said that there was reason to believe that Binayak was acquainted with Narayan Sanyal, Anita Srivastava, and Pijush Guha. Pijush Guha had also given a custodial statement, but that cannot be used as evidence in a court. In this respect, the Sessions Court does not seem to have applied the well settled principles of law to determine whether mere acquaintanceship can lead to an inference of guilt.

8. As far as Narayan Sanyal goes, he is an undertrial prisoner held for offences under Sections 302 and 147 of the IPC, and not either under the Unlawful Activities Prevention Act or the Chattisgarh Vishesh Jan Suraksha Adhiniyam – although Sanyal seems to be the pivot around which a spate of arrests has taken place recently under these two Acts. In fact, in January 2006 the State of Chattisgarh had stated before the High Court that he was not held by it. He was held in the State of AP and released on bail by the AP High Court but the State of Chattisgarh arrested him in connection with FIR 9/2005 in a pre-existing case.

9. The Sections under which Binayak is sought to be prosecuted are:? Being a member of an unlawful association, but the name and details of the organisation are not specified.? Being a member of a terrorist gang or organisation; again no details are given. ? Holding the proceeds of a terrorist act, which is not even alleged? Giving support to a terrorist organisation; again without substantiation. ? Soliciting contributions, and aiding an unlawful organisation, which is equally unsubstantiated.

10. In the search that was conducted of Binayak’s home on 19.5.2007, the police seized articles on jail reforms, the Naxal movements, and on American Imperialism, written in respectable journals. The police have made insinuating statements, carried widely by the media, that PUCL is an organisation supporting Naxals, and that Binayak was a virtual absconder. The truth is that PUCL is a perfectly legitimate organisation, and Binayak voluntarily went to the police station on his return from Kolkata, when he was arrested in spite of previous assurances by the police.

11. Binayak was produced before the court on 05.06.2007 and remanded to another 15 days in judicial custody. This was the first occasion on which the lawyer from Delhi (Nitya Ramakrishnan) could argue before the court and thus get an opportunity to inspect the entire case file. A petition for bail, prepared on the basis of the case file and the details given above, is now going to be filed before the High Court on 11.06.2007, at which time a date shall be fixed for the hearing.Some more updateThe bail petition for Binayak could not be filed before the High Court on Monday 11th even. It is now going to be filed tomorrow, 13th and the date for hearing will not be before 25th. This, apparently, is because there is a consensus amongst the laweyrs in Chhattisgarh that "that is the way the Courts function in Chhattisgarh and the High Court is not willing to give early hearings".Ilina was also being threatened with arrest according to newspaper reports, but she now has got anticipatory bail yesterday because, when faced with the newspaper reports, the police made a statement in Court that they had no plans to arrest Ilina and the newspapers had printed their own version of the news.

By Dunu Roy

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