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A day after the death of activist Father Stan Swamy, who had been under arrest in the Bhima Koregaon case under UAPA for alleged Maoist links, a report by Arsenal Consulting, an American forensic agency, has claimed that evidence was 'planted' on the computer of another activist, Surendra Gadling, another accused in the case, also currently under arrest.
Arsenal Consulting's report, dated June 2021, published in Boston, asserts that Gadling's computer had been targeted for over two years via emails, on which several of the Bhima Koregaon accused, including Stan Swamy, were also copied. Arsenal's analysts deep-dived into Gadling's hard drive and claim to have found proof that incriminating evidence had been 'planted' on his computer system, which was compromised (read 'hacked') between February 2016 and November 2017.
Yes, there are multiple remedies available to the Bhima Koregaon accused on how to use the Arsenal report to get relief even before the case goes to trial. However, considering the source of the report (a private company based in USA), and the gravity of the accusations (terror offences), this would seem extremely difficult.
However, high courts are expected to be extremely cautious in exercising their inherent powers under Section 482 of the CrPC. Even in its recent judgment in Neeharika Infrastructures Ltd vs State of Maharashtra (2021), the Supreme Court reiterated that "criminal proceedings ought not to be scuttled at the initial stage".
It is expected that this recent ruling of the apex court would deter high courts from having a more liberal approach towards quashing criminal proceedings under Section 482.
The accused could also explore the option of moving an application for discharge before the Special NIA Court, relying on the scathing observations of the Arsenal report. However, the existing law of charge (which allows the accused to challenge the charges invoked against him) prevents them from doing that as the Arsenal report is not part of the charge sheet filed by the NIA.
While seeking discharge or quashing of criminal proceedings might be difficult, the accused in the Bhima Koregaon can use the Arsenal report to seek a probe into the allegations of hacking, planting malware, and planting 'false evidence' on computer systems belonging to them.
Superior courts could also take cognizance of the charge sheet and can direct the NIA to further investigate the case under Section 173(8) of the CrPC. However, even if such a direction is passed, the investigation will be conducted by the NIA, which has already discredited the Arsenal report and has so far refused to pay any heed to it.
While it is quite difficult for the Bhima Koregaon accused to seek complete exoneration at pre-trial stage on the basis of the Arsenal report, they can use the report to the fullest during trial.
Section 243 of the CrPC allows an accused to produce his own evidence or give a written statement. Even after making his defence, the accused can move an application before the Magistrate seeking production of any witness or document for the purpose of examination or cross-examination.
Therefore, the Bhima Koregaon accused can very well produce the Arsenal report as evidence in their defence during trial. They can also call on expert witnesses to corroborate the findings of the report.
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