Today
the appeal filed by us against BJP Varun Gandhi for Hate Speech —
spewing venom to garner votes — an offence under 153, 295 and 505
of the IPC as also 125 of the Rep of People’s act was admitted
before the Sessions Court Pilibhit. Will be heard along with the
state of UP’s appeal on
July 15. Advocate Asad Hayat
petitioner and Advocate Attaullah argued the case.
On the
last date of hearing we had argued points on locus of any person to
agitate a point of criminal law especially when crimes against a
society have taken place. The state of UP had objected to us filling
the appeal.. Yesterday we placed several judgements of the Gujarat
and Bombay High Court recognising a victim citizens right to
independently of the state agitate an appeal. The Court accepted our
detailed arguments filed in the question (under article 24(8)(2) and
372 of the CRPC).
The
acquittal of BJP Member of Parliament, Varun Gandhi was challenged
through a revision application filed by Mohammed Assad Hayat, Awaami
Council for Democracy and Peace and the hearings took place at 2
p.m. in Pilibhit today. Arguments were heard and have been placed
for further hearing on May 29, 2013. Accused Nos 2 Varun Gandhi who
was recorded by television channels, in May 2009, spewing venom in
the speeches that won him his election in May 2009 had refused to
give his voice sample to the authorities in the course of the trial.
Under the law, the petitioner argued, an adverse inference should
have been drawn by the Court since the authenticity of the CDs has
been established. With all 34 witnesses turning hostile, the Court
should have exercised its powers under the law (section 311 of the
CRPC) to summon all witnesses (over 50 were dropped by the
prosecution) including the district magistrate Mahendra Prasad
Agarwal, SP Rajendra Prasad and director of the FSL Shri Jain. The
state of UP has opposed the revision on the grounds that the
appellant was not a victim. The revision application has been filed
under Sections 372, 378 CrPC challenging the Order of the Chief
Judicial Magistrate Pilibhit dated 5.3.2013 on May 25, 2013. Two
cases had been filed against BJP MP Varun Gandhi (Cases Nos
255/2009, 2339/2009 against Varun Gandhi under section 153, 295
505(2) of the IPC) and this revision has been filed in case nos
2339/2009. On May 14, 2009, NDTV news channel had intervened filing
an application that authenticated the CD telecasting the infamous
speech on the network.
The
Citizens for Justice and Peace is closely associated with the
Awaami Council for Peace and Justice since 2008 and is working
together with the Council and advocate Hayat in many cases in Uttar
Pradesh. On November 9, 2012 in an open letter to chief minister
Akhilesh Yadav, CJP had expressed anguish at the lax approach of the
state government in prosecuting the hate speech of Varun Gandhi, BJP
Member of Parliament and Accused Nos 2 in these cases.The CJP would
like to emphasise that communal hatred and violence has been
actively fomented by hate speech and hate writing especially at the
time of electoral mobilisation. It poses a grave threat to
constitutional governance and the health of Indian democracy. Varun
Gandhi had won his elections after inciting communal hatred. Sting
operations by the Tehelka magazine (May 31, 2013) telecast on
Headlines Today and Aajtak showed how he had colluded with officials
and office bearers of the ruling party in Uttar Pradesh to subvert
the process of justice, influence and intimidate witnesses. All 34
witnesses who had testified in Court had turned hostile. In February
2013, advocate Assad Hayat had intervened under section 311 of the
CRPC praying for the Court to summon more witnesses and record
further evidence. This application had been rejected by the trial
court.
A
translation of the grounds contained in the revision appeal filed on
May 25 and heard today are given below. Attached to this press
release are the Revision Application made today (Hindi), Application
made by NDTV bef the Chief Judicial Magistrate dated May 14 2009 and
Report of the US Based Forensic Laboratory that authenticates the
CD.
Teesta Setalvad, Secretary
Other Trustees:
I.M. Kadri, Taizoon Khorakiwala
Nandan Maluste
Cyrus Guzder Javed Akhtar
Alyque Padamsee
Anil Dharker Ghulam Peshimam
Rahul Bose
Javed Anand Cedric
Prakash
Translation
Grounds
for the appeal:-
1.
The decision of this Court
dated 5.3.2013 is against public justice and the rule of law. Hence
it requires to be reversed.
2.
The decision of 5.3.2013
is also against the evidence available on record.
3.
The decision violates the
due process of law.
4.
The decision violates
principles of law and renders serious allegations against he
accused which are crimes against society, meaningless.
5.
Due appreciation of the
evidence on record was not undertaken and the Court did not utilise
its powers before passing the order dated 5.3.2013.
6.
Supplementary evidence
against Accused Member of Parliament Varun Gandhi clearly
establishes proof of offences committed under 153, 295 and 505(2) of
the Indian Penal Code as also 125 of the Representations of PeopleÂ’s
Act. Despite that, without declaring witnesses as hostile, the
judgement dated 5.3.2013 has been passed.
7.
Supplementary evidence
also clearly establishes that inflammatory speeches were made by
accused no. 2 with a clear view to inflame sentiments of hatred
between the Hindu and Muslim communities due to which all sections
of the Muslim community have experiences grave and deep insecurity.
Hence it is critical for all the reasons cited above that the
decision dated 5.3.2013 is reversed.
8.
Immediately after the
decision Mohammed Assad Hayat had under Section 311 filed an
intervention before the judgement dated 5.3.2013 which had been
rejected. In this intervention the prayer for examining new
witnesses and fresh evidence had been made. In this application it
had been urged that the Court should order that Varun Gandhi be
ordered to give his voice sample and if he refuses, then an adverse
inference should be made. However, the Court chose to ignore these
critical issues that had been placed before the Court and had
rejected the appeal and intervention made by the appellant before
the judgement was passed before giving any reasons. Section 311
gives the trial court the power to examine witnesses and evidence
at any stage of the trial especially when in the interests of public
justice such evidence and calling of such witnesses is necessary.
These precedents have been established in judgements, Zahira
Shaikh, AIR 2006, SC pages 1367 and Hanuman Ram (2008) 15 SCC page
652.
9.
The prosecution did not
perform its duties and functions lawfully and with full rigour which
led to the witnesses turning hostile.
10.
Accused Nos 2 has not
denied his presence at the spot. Moreover Varun Gandhi has in
response to the application made by appellant Mohamad Assad Hayat
under section 311 before this Court that in the criminal petition
4950/2009 before the Allahabad HC he prayed for the quashing of the
FIR related to this case, in which petition at para 21 he has stated
that the voice in the compact disc which he heard on television is
not his but someone elseÂ’s voice has been dubbed on the disc.
Accused No 2 BJP MP Varun GandhiÂ’s interviews to Deepak Chaurasia of
Star News state that the CD shown by television channels is doctored
and the voice contained therein is not his. The interviews given by
Accused No 2 BJP MP Varun Gandhi can even today be viewed on
You-Tube. Varun Gandhi has stated in his statement under Section 313
of the CrpC that a doctored CD has been placed before the Court.
11.
The Ld Court has failed to
appreciate the significance of the following:-
a)
That under sections
101.102 and 103 of the Evidence Act, the burden of proof shifts to
Accused No 2, Varun Gandhi because he has not denied his voice on
the tape/CD but states that anotherÂ’s voice has been dubbed in its
place. Despite this he is refusing to give his voice sample hence an
adverse inference should have been drawn against him.
b)
The Ld Court should have
ordered that Accused No 2 give his voice sample but this was ignored
and the truth has therefore not been sought by the Court.
c)
The powers under section
313 are vast and the statements/information elicited are not a mere
formality but have been provided to get to a true understanding of
the truth. If Accused No 2 Varun Gandhi is testifying about the CD
being doctored, he should have been examined thoroughly on this and
his voice sample should have been ordered to be taken by the Court.
The appellant too had also prayed for this under his application
under section 311 of the CRPC. However the Court erred significantly
in failing to ensure this and get to the truth.
12.
That
it is for Accused No 2 to prove that the voice on the CD is not his;
he has refused to
give
his voice sample to the police. Hence the FSL report could not
match samples. The Ld Court significantly erred in not
ordering Accused Nos 2 Varun Gandhi to give his voice sample.
13.
The principle CD
submitted before the Court stands proved under Section 65a and 65v
of
the
Indian Evidence Act since no contrary evidence has been placed by
Accused No 2 Varun Gandhi that in anyway places questions or doubts
on the CD before the Court under section 65v of the Indian Evidence
Act. Under Section 106 of the IEC too it was for Accused Nos 2 BJP
MP Varun Gandhi to prove that the voice on the CD was not his.
14.
The available FSL
report in evidence states that C-1 Compact Disc which have two video
films
9.27 minutes long and DVD Model DVM-60V-1 has a film of 57.47
minutes long which witness Tariq Nayyar and his associates had
prepared. The Accused Nos 2 BJP MP Varun Gandhi had t o match his
voice samples with these. The cassette made by prosecution witness
2, Shariq is not of the location where the inflammatory hate speech
was made by Accused Nos 2. Assistant Director CFSL SK Jain was not
produced as witness by the prosecution and with a view to benefit
the accused this evidence was deliberately ignored. This too defeats
the purpose of fair trial and the administration of justice. Shri SK
Jain was not a mere formal witness because he was an important
prosecution witness who had in his statement under section 161 CRPC
admitted that he had observed a similarity between all three
cassettes. In this connection, in the CFSL report prepared by him he
has written that there is a continuity of recordings in these
cassettes which suggests that these are original. However by not
producing him and clarifying the position on the recordings in the
three CDs, deliberate confusion on the CDs has been created by the
prosecution and left unclarified. Witness Tariq Nayyar too was not
properly examined on this point. In reality the speeches of Accused
Nos 2 was recorded in part, with gaps in time, at the same spot was
recorded. Because during the rally of Varun Gandhi there was a
ban/restriction on recording his speeches, therefore in hiding,
journalists were recording this which was unlikely or improbable in
continuity with one continuous shot. Even Shri Jain has stated that
these recordings cannot be falsified, moreover voices can be matched
only if the voice sample of Accused Nos 2 BJP MP Varun Gandhi is
made available. In any case, the objectionable words
and phrases (inflammatory and hate speech) used are in continuation
in which there is no sequence defect. The Ld Court ahs erred
grievously by ignoring this.
15.
Journal Tehelka,
in its issue published
May 31, 2013 states that the
relevant CDS with
inflammatory speech were sent for verification by NDTV to an
independent forensic lab,
Digital Evidence Legal Video Services. The report of this agency
states that the CDs are
genuine and no tampering has been done. This report by NDTV is
annexed to this
application before this Court.
16.
That the appellant is the
affected victimised party. Accused Nos 2 BJP MP Varun GandhiÂ’s
speeches have been heard and accessed by the appellant on You-Tube
and several TV channels. The offence committed by Varun Gandhi is an
offence against society through which communal harmony has been
seriously affected and a sense of insecurity is felt by the Muslim
community. According to the principles of this case
and the FIR, whoever is adversely affected by this FIR and who feels
an insecurity is affected person. Hence the appellant has a locus
to intervene in this case, give evidence etc.
17.
The application under
section 311 was rejected on grounds of locus. This is wrong in law.
The appellant had presented himself as an independent witness before
the Court. The appellant had raised all those questions on which
the prosecution was colluding with the accused, important witnesses
and evidence was being avoided and fair trial was being thwarted.
After the intervention application was rejected on 27.2.2013 an
appeal has been preferred before the Allahabad High Court. Prayers
were made to stay the judgement of this Court till this appeal was
heard. However despite this Court acquitted Accused Nos 2 BJP MP
Varun Gandhi on 5.3.2013. Justice has been denied.
18.
Justice has been thwarted
and not done in this case. Deliberate attempts were made to foment
ill will and hatred between communities and hatred towards the
Muslim community.
19.
The Ld court s decision
dated 5.3.2013 and the proceedings reveal that 34 witnesses were
produced all turned hostile. Government servants and official
witnesses have also not supported their statements taken under
section 161 neither have they performed their public duty.
20.
Accused Nos 2 BJP MP Varun
Gandhi is a national level political leader and office bearer of his
party. He has great influence in this area, he tries to misuse his
influence. Hence witnesses under fear and manipulation have turned
hostile. Fair trial has not taken place. Additional witnesses and
evidence needs to be taken in the interests of justice. Under
section 391 of the CRPC additional evidence can be recorded.
21.
That this Court must be
ordered immediately to give his voice sample so that the appeal is
disposed off meaningfully and the demands of justice are met. The
CFSL Report G-62, exhibit C-62 also demonstrates that Accused Nos 2
Varun Gandhi ought to have given voice samples due to which he
proper process could not be completed and voice samples could not be
matched. Hence this faulty rather incomplete report was submitted.
The appellant had intervened making an application under Section 311
which was wrongly dismissed. Ignoring this was an error. It is not
in the interests of justice that the verdict of this Court is
allowed to stand, it must be reversed.
22.
That the judgement of this
court is erroneous, unlawful and against the principles of justice.
23.
Two criminal complaints
had been lodged against accused Nos 2 BJP Varun Gandhi and in both
witnesses have been turned hostile. This is evidence of his
mal-influence in this area.
24.
That the Sting Operation
that exposed this was telecast on the television channels headlines
Today and Aaj Tak etc on 14-15 May 2013 that revealed that several
witnesses due to the influence and pressure of Accused Nos 2 BJP MP
Varun Gandhi were made to turn hostile. That there is a collusion
between the state prosecution and Accused Nos 2 Varun Gandhi (Tehelka
Hindi,
May 31, 2013, pages 36-55). This
exposure also explains how the witnesses were made to turn hostile.
The appellant had also stated in his application
under Section 311. The Court should have investigated why all
witnesses turned hostile; why key witnesses FSL director Shri Jain,
and important police witnesses, DM Mahendra Prasad Agarwal and SP
Rajendra Prasad were not examined; that the voice sample of BJP MP
and Accused Nos 2 was not taken—all establish that fair trial was a
casualty in this critical case.
Prayer that in case 2339/2009 the Order dated
5.3.2013 would be reversed and this revision appeal allowed.