05 | May | 2013 | kracktivist

26 years on, HC orders fresh probe into tribal activist’s murder

Mumbai: Twenty-six years after an activist was murdered for fighting a battle against the land mafia of Vasai-Virar belt in neighbouring Thane district, the Bombay High Court has ordered a fresh probe.

The real culprits were not put on trial and instead a wrong accused was put behind the bars, the Court said.

Bombay High Court. Reuters

Yadav Mhatre, actively involved in the welfare of the Adivasis (tribals), was killed on June 29, 1987 allegedly at the behest of the land mafia.

Police had arrested a wrong person named Dilip Tumbda who was finally acquitted by the Sessions Court in 2009 after spending 22 years in jail.

On the other hand, eight persons of a family who were named accused by the victim’s family were discharged by the Court after police filed an application seeking their release on the ground that evidence against them was deficient.

The High Court observed, “real culprits were being shielded although they are named by the prosecution. The criminal case, therefore, could not have been disposed of perfunctorily and hastily and without application of mind, when the allegations are as serious as of causing murder.

“These are not routine and ordinary criminal cases involving petty offences. The aspect of delay, though material, is not always fatal. The administration of justice can never become a casualty. Even after delay, if real culprits are brought before the Court, thereafter the Courts cannot become a silent spectator and dispose of criminal cases casually and light heartedly,” Justice S Dharmadhikari said.

The judgement rendered in this Court, therefore, falls short of the required standards. It has resulted in serious miscarriage of justice.

“In the Sessions Case, where the material placed before the Court show that the real accused were not apprehended, arrested and put up for trial, then, the learned Judge should have been cautious and careful in evaluating the material,” Justice Dharmadhikari remarked.

“Even if he (Judge) was not inclined to convict those who are arraigned as accused, still he was obliged to consider the seriousness of the matter.

“The learned Judge failed to take cognisance and note of the request of the applicant and the prosecution, that the real culprits are now traced and they be named as accused in the case and put up for trial,” the High court bench observed.

“Without deciding that application in accordance with law and straightway delivering a Judgement of acquittal has resulted in miscarriage of justice. This is complete mockery of criminal justice delivery system.”

“I would be failing in my duty as a higher court if I do not interfere with such an acquittal. In revisional powers and equally in exercise of this Court’s inherent power, such acquittals can be set aside,” Justice Dharmadhikari said.

“No doubt, powers have to be exercised sparingly and in exceptional circumstances. However, when there is a glaring defect of procedure, manifest error on the point of law and a flagrant miscarriage of justice, then, there is a obligation to step in,” he observed.

On June 28, 1987, the deceased, Yadav Mhatre, was on his way to Bhabha Atomic Research Centre where he worked as a fitter.

He was accompanied by his brother Ganghadhar, the lone eyewitness in this case. According to Gangadhar, eight persons fired shots at Yadav and escaped after committing the crime.

Gangadhar filed a police complaint and identified the accused as Govind Patil, Mahadev, Kisan, Baban Gharat, Kanti Dhumal, Atmaram Yadav, Kisan Patil and Baban Patil.

The police arrested them and also recovered the weapon. The case was then handed over to CID.

However, CID probe set free these accused and police instead arrested Dilip Tumbda, a young labourer. Dilip’s father and two brothers were also arrested but released later.

After 22 years, Tumbda was finally acquitted on June 29, 2009 by a Sessions court.

While ordering a fresh probe now, the High Court has made it clear that Dilip shall not be arraigned as an accused in this case since his acquittal has not been disputed.

PTI

Soni Sori, Kodopi acquitted of murder charges #Goodnews #Justice (kractivist.wordpress.com)

Joint Statement on Sixth meeting of the India-Pakistan Judicial Committee on Prisoners to Pakistan

May 03, 2013

Members of the India-Pakistan Judicial Committee on Prisoners visited Pakistani Jails in Karachi, Rawalpindi and Lahore from April 26-May 1, 2013. The members of the Committee, Justice (Retd.) Mr A.S Gill and Justice (Retd) Mr. M.A Khan from the Indian side and Justice (Retd) Abdul Qadir Chaudhry, Justice (Retd.) Mr. Nasir Aslam Zahid and Justice (Retd.) Mian Muhammad Ajmal from Pakistan side visited the Jails.
A total number of 535 Indian prisoners including 483 fishermen (including 11 juveniles) and 8 civil prisoners, believed to be Indian nationals at District Jail Malir, Karachi, 8 Prisoners, believed to be Indian nationals at Adiyala Jail, Rawalpindi and 36 Prisoners, believed to be Indian nationals at Kot Lakhpat Jail, Lahore were presented before the Committee.
The Committee also visited Jinnah Hospital, Lahore and saw Indian prisoner Sarabjit Singh, who was admitted in the Intensive Care Unit of the Hospital on April 26, 2013 following an assault on him by few other inmates in the prison and is in a state of coma. The Committee interacted with the doctors about the prognosis of the case. The Committee noted the unfortunate incident of violent attacks on two Indian prisoners at Kot Lakhpat Jail, Lahore and recommended that Jail authorities to ensure adequate security for all Indian prisoners to avoid any such incident in the future; and would review the arrangements during its next visit to Kot Lakhpat Jail, Lahore. The Committee also recommended that detailed report of the official inquiry conducted by relevant Pakistani authorities on the assault on Sarabjit Singh on April 26, 2013 be shared with the members of the Committee at the earliest.
The Committee was also informed about escape of one under-trial Indian fisherman from District Jail, Malir, Karachi on February 11, 2013 and detention of the crew of the two Indian wooden vessels along with its cargo, off Pasni, Pakistan on April 18/19 by Pakistan authorities and requested Pakistan side to apprise about these two incidents to Indian side at the earliest.
The Committee noted with satisfaction that as per the Agreement on Consular Access signed on 21st May 2008 between the two countries, the list of prisoners was exchanged on 1st January 2013. The Committee appreciated the release of 684 Indian fishermen and 30 Indian civil prisoners by Pakistani authorities and 96 Pakistani fisherman and 59 Pakistani civil prisoners by Indian authorities since January 2012 till date.
On the conclusion of the visit, the Committee made the following recommendations:

a) The “Consular Access Agreement” of May 2008 signed between two governments be implemented in letter and spirit and consular access must be provided within three months of the arrest and not after completion of the prisoners’ prison term. Complete details of charges on the prisoners and a copy of court’s judgment of the sentence be shared in each case. The prisoners must be repatriated within one month of confirmation of national status and completion of sentences;it was noticed that in District Jail Malir, Karachi, there were 29 Indian prisoners who had completed their sentence more than a month ago; it was recommended that they be released and repatriated before May 17, 2013 and the two Governments should make all efforts that the time schedule is complied with strictly.

b) Consular access must be provided immediately to all those prisoners who have not been given consular access so far and the process of nationality confirmation should start immediately after consular access is provided;it was found that there were 459 fishermen and 10 such civil prisoners in the three jails for whom consular access was not provided. The Committee recommended providing consular access to all such prisoners and fishermen before May 17and the Pakistani side agreed for the same.

c) Consular access be provided to all prisoners/fishermen who are believed to be Indian, in Pakistani jails and vice versa, every year, at least four times, namely in the first week of February, first week of May, first week of August, and first week of November.

d) The Committee noted that several names of prisoners had been dropped from the successive lists of prisoners, believed to be Indian, which were shared by Pakistan side twice every year. It is recommended that Pakistan side provide a formal verification to Indian side and vice versa if any names were left out from the previous list of prisoners, so that each side could follow up on each case and discrepancy in list maintained by each side reduced.

e) A mechanism should be developed for compassionate and humanitarian consideration to be given to women, juvenile, mentally challenged, old aged and all those prisoners suffering from serious illness/permanent physical disability;Indian prisoners (like Pakistani prisoners in Karachi jail) should be allowed to make phone calls to their relatives in India at least once a month. The Indian prisoners appreciated the provision of basic necessities to them by the Prison and further demanded that they should be given some additional facilities. It is recommended that the existing facilities be continued and additional facilities required be provided by the Prison Authorities. Further, High Commission of India is allowed to supplementing any such requests for Indian prisoners.

f) It was also recommended that serious/terminally ill, mentally challenged and deaf and mute prisoners must be kept in appropriate hospitals/special institutions irrespective of confirmation of their national status and offence;it would noticed that 1 prisoner in District Jail, Malir, Karachi, 2 prisoners in Adiyala Jail, Rawalpindi and 20 prisoners in Kot Lakhpat Jail, Lahore were mentally challenged; additionally, copies of the FIR, medical report and photograph at the time of their detention, to be shared with the High Commission of India, so that renewed efforts could be made to confirm their nationality; moreover, effort should also be made to rule out that these prisoners are not Pakistani nationals.

g) While noting that mortal remains of Mr Chambail Singh, Indian prisoner at Kot Lakhpat Jail, was repatriated to India after a lapse of nearly 2 months after his death on January 15, 2013, the copy of the post mortem report has not yet been shared with Indian side. It was recommended that post mortem report of Mr Chambail Singh be shared with the Indian side without any further delay.

h) Prisoners involved in minor offences like violation of Foreigners’ Act, visa violation and inadvertent border crossing deserve compassion from both the sides.

i) The Committee noted that the respective courts must be requested for expeditious trial of all “under trial” prisoners. Respective High Commissions should create a panel of good repute lawyers/firms to pursue the cases of their prisoners in the local courts to locate, identify and defend such prisoners at all stages of their cases, if the prisoner(s) so wishes.

j) The Committee also endorsed the recommendations of the Home/Interior Secretary level talks held on 28-29 March 2011 at New Delhi to task the Pakistani Maritime Security Agency and Coast Guard of India to work on setting up a mechanism for release of inadvertent crossers (fishermen) and their boats, on the same lines as the inadvertent crossers on land; It was recommended that the fishermen should be repatriated by sea lanes along with their boats;a delegation of boat owners could visit Pakistan within the next 3 months to inspect all the Indian fishing boats detained in Pakistan so that decision could be taken regarding their return to India or sale in Pakistan, in consultation with concerned authorities and the same action be taken for return of Pakistani fishing vessels detained in India.

k) It was suggested that, subject to the confirmation of dates by both the sides through diplomatic channels, the next visit of the Committee to Indian jails will be arranged during the second half of September 2013 for at least 7- 9 days to ensure that the Committee is able to see each case in detail.

l) The Committee will review the action taken report on the earlier recommendations when the Committee meets next in India.

Justice (Retd.)Mr A.S Gill                                                             Justice (Retd.) Abdul Qadir Chaudhry
Justice (Retd.) Mr. M.A Khan                                                        Justice (Retd.) Mr. Nasir Aslam Zahid
                                                                           Justice (Retd.) and Mian Muhammad Ajmal

Lahore
April 30, 201