Samjhauta Blast Judge Could Have Done Much More to Ensure Justice

Judge Jagdeep Singh blames NIA’s prosecution, but why didn’t he use special powers to call and examine witnesses?

The judge failed to use powers under Section 165 Evidence Act and Section 311 CrPC that could have led to conviction of Swami Aseemanand and others.

(Photo: Arnica Kala/The Quint)

Finance Minister Arun Jaitley on Friday, 29 March, attacked the Congress party for its failure to catch the “real culprits” behind the Samjhauta Express blast case of 2007, and blamed the investigation conducted during the UPA’s tenure for the recent acquittal of all four accused.

“During the tenure of the UPA and the Congress, when there was no evidence, the theory of Hindu terror was floated for the first time in the history of the country to tarnish the Hindu community. Three-four similar cases were made but none of them could stand in the court.”

Arun Jaitley at a press conference on 29 March

Jaitley’s comments came a day after the judgment in the Samjhauta Blast case from 2007 was finally made public. The special NIA court had acquitted all four accused including Swami Aseemanand on 20 March, with the judge claiming the National Investigation Agency had botched the prosecution and investigation.

“I have to conclude this judgment with deep pain and anguish as a dastardly act of violence remained unpunished for want of credible and admissible evidence,” the judge reportedly said.

However, while there were certainly flaws with the investigation, what the NIA really has to answer for is its shockingly poor prosecution of the case – which largely happened under the NDA government.

And for all special judge Jagdeep Singh’s anguish, he cannot escape some of the blame too, for failing to utilise the special powers granted to judges to ensure that justice is done in such circumstances.

The Powers of the Court to Ensure Justice

“A Judge, who at trial merely sits and records evidence without caring so to conduct the examination of the witnesses that every point is brought out, is not fulfilling his duty.”

Delhi High Court in <i>Ved Parkash Kharbanda vs Vimal Bindal</i> (2016)

The trial courts in India are often viewed as mere umpires in cases, who listen to both parties and then decide which side has won based on the evidence presented by them.

In criminal trials, however, the court has been given special powers to call, examine and cross-examine witnesses, and make sure essential evidence is put on record, under Section 165 of the Indian Evidence Act 1872 and Section 311 of the Code of Criminal Procedure 1973.

The objective behind this power was explained by the framers of the Evidence Act in a Report of the Select Committee published on 31 March 1871:

“In many cases, the Judge has to get at the truth, or as near to it as he can by the aid of collateral inquiries, which may incidentally tend to something relevant; ... We have accordingly thought it right to arm Judges with a general power to ask any questions upon any facts, of any witnesses, at any stage of the proceedings, irrespectively of the rules of evidence binding on the parties and their agents, and we have inserted in the Bill a distinct declaration that it is the duty of the Judge, especially in criminal cases, not merely to listen to the evidence put before him but to inquire to the utmost into the truth of the matter.”

The Supreme Court has elaborated on the importance of these powers in a number of cases as well.

• In Ram Chander vs State of Haryana (1981), it said that these are wide powers that require the courts to “actively participate in the trial to elicit the truth and to protect the weak and the innocent.”
• In Ritesh Tewari vs State of Uttar Pradesh (2010), the apex court held that the purpose of this power is to “secure justice by full discovery of truth and an accurate knowledge of facts.”
• In Zahira Habibulla Sheikh vs State of Gujarat (2004), the court clarified that the powers under these two provisions conferred vast and wide powers on the court to ensure that they had all the necessary materials to arrive at the truth. The judgment also explains how Section 311 of the CrPC includes a mandatory duty on the court to examine any witness if their evidence is “essential to the just decision of the case.”

What this all means is that if a trial judge can see that the prosecution is making a dog’s dinner of the case, and they can see that there is important evidence that isn’t being placed on record despite being available, the judge can step in and do whatever is needed to make sure the evidence can be considered by them.

Moreover, where that evidence looks like it is crucial to ensure justice is done, this is no longer just a matter of discretion, but something they must do.

What Should the NIA Judge Have Done Differently?

The ‘Gaping Holes’ in the Prosecution Case

Judge Singh identified a number of flaws in the prosecution case that led to the acquittals, including the withholding of crucial evidence which was not brought on record, the failure to examine certain witnesses, and cross-examine hostile witnesses.

Some specific examples include:

1. Covers of the suitcases used for two unexploded bombs were bought from the same tailor in Kothari market, Indore, who stitched them. Despite finding this out, the NIA never conducted a ‘Test Identification Parade’ (TIP) of the suspects for the tailor or other people from the market to identify them.
2. Call records of one of the accused, Sunil Joshi, showed he was in the Kothari market area on 14 February 2007. Call records of the suspects show links between them during February and March 2007. None of these call details were brought on record during the trial.
3. 51 witnesses turned hostile, changing their testimony from what they’d told the police previously. One such hostile witness was Dr Ram Pratap Singh, the only witness from a meeting in Bhopal in 2008 where Aseemanand spoke of revenge by Hindus against other communities. The NIA did not cross-examine him or confront him with his old statement.
4. The NIA claimed the accused had stayed at railway dormitories in Delhi; one of the prosecution witnesses claimed that the records of the dormitories were available. Despite this, the NIA never brought the entries from these records as evidence in the court.
5. CCTV footage from the Old Delhi Ralway Station was not investigated or entered as evidence.

What the Judge Could Have Done to Plug the Holes

The powers of the trial court under Section 165 of the Evidence Act and Section 311 of the CrPC are not silver bullets, and we cannot say for sure that using them would have meant that all these serious flaws in the prosecution case could have been overcome and convictions ensured.

However, utilising them could have helped address at least four of the five examples listed above.

The only real restriction on the judge in exercising these powers is that they can’t generally summon witnesses who haven’t been examined by the police or given a statement to the police, and that they can’t conduct a detailed inquiry without notifying the parties to the case. The court can even call witnesses not named in the charge sheet to give evidence.

As a result, Judge Singh could have very easily ensured that much of the crucial evidence he says wasn’t brought on record was actually entered.

1. If the tailor who had stitched the suitcase covers was identified by the NIA and had spoken to them, there was no reason he/she, could not have been summoned as a witness to give his testimony in court and even identify the accused in court – a TIP is not essential.
2. The call records had been accessed by someone in the NIA. Therefore, the judge could have asked for the relevant officer to be summoned to the court, and then asked for the documents to be produced as well under its Section 165 power. These calls may not have been conclusive, but they would have ensured that strong circumstantial evidence to back up the tailor’s testimony was taken on record.
3. If the NIA failed to treat the hostile witnesses as such, the judge could have done so himself. He could have presented them with their older statements to contradict their new testimony, and could have drawn the relevant adverse inferences from the contradictions. These witnesses were all produced in the court by the prosecution, so there could have been no grounds to oppose their re-examination; provided the defence got to cross-examine them as well.
4. Since a witness claimed the records of the dormitories were available, again, the judge could have called for the production of the records. While the judge may not have been able to do a detailed investigation on the basis of the records, they could have been used to confront the accused, and question their statements and alibis.

The CCTV footage doesn’t appear to have been collected or investigated at all by the NIA, which makes it difficult for the court to go into it. However, taking action on the other points may have been sufficient to avoid this fiasco – especially if this meant the testimony of crucial witnesses like Dr Ram Pratap Singh could have remained admissible. And this isn’t even a comprehensive list of the possible evidence that could have been brought on record.

Can Anything Be Done About This Now?

While the trial judge may have failed to do the needful, the high court could step up if the case is appealed. Appellate courts also have the same powers under Section 165 and Section 311 – under Section 391 of the CrPC they already have the power to take on additional evidence.

Alternatively, the high court could also send the case back for a retrial by the trial court and even direct that a further inquiry be made – to some extent this could even try to address some of the avenues that weren’t investigated properly in addition to the prosecution failures.

One roadblock to this, however, is that the Home Ministry indicated that they may not be filing an appeal against the Judge Singh’s judgment. One can only hope that this isn’t the case, and that Home Minister Rajnath Singh takes the advice of Finance Minister Jaitley and makes sure everything is done to ensure the case is investigated and tried properly.