Elgar Case: Court Lambasts Prosecution for not Providing Cloned Copies of Evidence to Navlakha

ON Tuesday, the National Investigation Agency (NIA) admitted to not having supplied cloned copies of all electronic evidence it relies on to journalist and human rights activist Gautam Navlakha.

Navlakha is an accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case and is charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

The NIA court was hearing Navlakha’s application seeking cloned copies of evidence on an electronic device seized by the investigating authorities and relied upon by the prosecution. 

During the previous hearings, the accused persons had raised the grievance that despite filing several applications with the investigating authorities under Section 207 of the CrPC, they had not been allowed access to the compact disks which are an important piece of evidence furnished by the NIA in the case.

According to the accused persons, a portion of cloned copies of the electronic evidence is yet to be furnished in accordance with Section 207 (supply of a copy of the police report and other documents to the accused) of the Code of Criminal Procedure, 1973.

Section 207 provides for supply to the accused of police reports and other documents relied upon by the prosecution, under principles of natural justice.

Today, the NIA filed its reply to Navlakha’s application, and submitted that only two sets of cloned copies were received from the Forensic Science Laboratory (FSL)— one of which is submitted to the court and the other is with the prosecution, not sealed. 

Advocate Shifa Khan, appearing for Navlakha, pointed out that that the NIA has previously filed an affidavit stating that it has provided cloned copies of all materials relied upon by it to the accused persons in the Bhima Koregaon case. 

Special judge Rajesh Kataria expressed his staunch disappointment towards the special public prosecutor appearing for the NIA, Prakash Shetty, and the investigating officer present in court for not providing the cloned copies to Navlakha.

The special judge furiously emphasised that the issue of non-compliance with Section 207 of the CrPC has been pending for the past four years, even after the present judge as well as the predecessor judge have passed several Orders directing the NIA to comply.

Notably, the special judge remarked and recorded in the roznama, “The prosecution is casual on compliance under Section 207 of the CrPC, due to which the matter is prolonged.”

The NIA is set to move an application for sending sealed cloned copies, deposited before the court, to the FSL to prepare further copies for Navlakha on  the next day of hearing scheduled on January 25.

Navlakha’s application

The application, filed on behalf of Navlakha, submits that in order to proceed with the trial and prepare his defence, he wishes to peruse the contents of the cloned copy and test their veracity through experts of his choosing.

According to the application, the present case against Navlakha is based entirely on electronic evidence where the primary incriminating evidence is in the form of letters purportedly seized from various devices.

Explaining the purpose of requiring a cloned copy of the evidence, the application avers that a cloned copy, as opposed to an ordinary copy, allows inspection of meta-data, such as hash values, sources and date of creation. Such inspection, in turn, helps in ascertaining the authenticity of the data, the application states.

The application further states that the accused persons should be allowed to seek opinion of an independent expert agency and reassure themselves of the genuineness and credibility of the contents of the electronic device.

The application relies upon the case of Gopalkrishnan versus State of Kerala (2020), which states that all documents, including electronic records, which are produced in a court for inspection and relied upon by the prosecution, should be furnished to the accused under Section 207 of the CrPC.

Background

During Navlakha’s custody as an undertrial prisoner, a chargesheet was filed on October 9, 2020; charges are yet to be filed in the court.

In May 2021, the Supreme Court rejected Navlakha’s default bail on the ground that the 35 days which he spent under house arrest in 2018 did not constitute custody in order to compute the 90-day period as provided under Section 167(2)(a)(i) of the Code of Criminal Procedure.

According to the Section, the chargesheet should be filed within 90 days from the day the accused is arrested, failing which he is entitled to default bail.

On October 12, 2021, Navlakha was shifted to the ‘anda circle’ (high-security zone) from the barracks at Taloja.

On April 26 last year, the Bombay High Court dismissed Navlakha’s petition that sought to shift him from the Taloja jail in Navi Mumbai to house arrest.

On May 23, Navlakha approached the NIA to be provided with a mosquito net, which he was previously allowed but which was subsequently taken away by the prison authorities.

Earlier, prison authorities had refused his request for a new pair of spectacles, which were given only after media and legal intervention.

The Maharashtra prison authority has also barred Navlakha from availing telephonic communication facilities in Taloja.

This was done in accordance with a circular signed by the state’s inspector general of police that provides that undertrial prisoners booked under charges of terrorism or other “serious charges” cannot make telephone calls from the prison.

On November 10 last year, the Supreme Court allowed Navlakha to be placed under house arrest for a period of one month under certain restrictions.

On November 19, after hearing and incorporating further concerns of the NIA, the Bench dismissed the petition filed by the NIA to vacate the Order granting house arrest.

The court directed for the house arrest Order to be implemented within 24 hours of its pronouncement.

Since then, his house arrest has been periodically extended by the court.

On December 19, the Bombay High Court granted bail to Navlakha. The high court, however, stayed the bail Order for three weeks to allow the NIA to appeal in the Supreme Court.

On January 5, a Supreme Court Bench comprising M.M. Sundresh and S.V.N. Bhatti extended the stay on the bail Order, following a request by the NIA.

The prosecution in the case has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Eleven of the 16 accused persons are presently incarcerated, having now spent between two to almost five years in judicial custody without trial.

Five co-accused persons, Sudha Bharadwaj, Varavara Rao, Dr Anand Teltumbde, Vernon Gonsalves, Arun Ferreira, have been released on bail. Navlakha and Raut have been granted bail but wait pending decision on the stay Orders by the Supreme Court.

Another accused, tribal rights activist and Jesuit priest Father Stan Swamy, passed away in judicial custody in July 2021 after contracting Covid in prison while awaiting bail on medical grounds.