New Delhi: A Gauhati High Court judge has approached the Supreme Court requesting the removal of certain “disparaging remarks” made against him by two other high court judges in a judgment passed this August.
The comments of the high court judges centre on a judgment issued by the petitioner judge in May 2017 — when he was heading a special NIA court — in an alleged multi-crore terror-funding scam in Assam’s Dima Hasao district.
The case pertained to allegations that several crores of development funds meant for the North Cachar Hills Autonomous Council (NCHAC) — which runs the administration in Dima Hasao — were siphoned off to Dima Halam Daogah (Jewel) or ‘Black Widow’, an Assam-based terror outfit now disbanded, for procurement of arms from abroad.
The accused included Jewel Garlosa, former chairman of the DHD (J), its former commander-in-chief Niranjan Hojai, as well as Mohet Hojai, a former chief executive member of the NCHAC, and R.H. Khan, a senior government officer.
While the NIA court convicted 13 accused in May 2017, the Gauhati High Court set aside the trial court judgment this August.
In doing so, the division bench, comprising Chief Justice Sandeep Mehta and Justice Mitali Thakuria, not just criticised the prosecution, but also took objection to the trial court’s approach in the case.
“The approach of the trial court was at every stage of proceeding having a deep-rooted bias in favour of prosecution,” the bench said. “It had no control over the proceedings and irrelevant, inadmissible and extraneous evidence was permitted to be brought on record whereas, essential evidences were left out.”
The investigation agency and the prosecution, it felt, “were absolved of blunders of humongous magnitude without a demur”. In his plea, the former NIA judge has demanded “expunction of certain disparaging remarks made in the impugned judgment attributing deep-rooted bias in favour of the prosecution and of committing rank judicial impropriety, while delivering the judgment”.
The judge has also made an application for filing the petition without disclosing his identity. This application was allowed by the Supreme Court earlier this month.
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‘Government funds siphoned for terrorism’
The case first came to light in April 2009, when Assam Police arrested two DHD-J cadres in Guwahati with Rs 1 crore allegedly meant for procuring arms and ammunition “so as to wage war against the Government of India”.
The case was transferred to the NIA in June 2009.
A chargesheet was filed against 15 accused, alleging development funds meant for the NC Hills Autonomous Council were diverted for procuring arms and carrying out other activities of the Dima Halam Daogah (Jewel) between 2006 and 2009.
While one of the accused pleaded guilty, another became an approver and was granted pardon.
The major thrust of the prosecution’s allegations was that a few officials of the NCHAC facilitated the illegal transfer of funds to ineligible firms of the accused — in the guise of work or supply orders — through fraud and forgery.
The question before the court was whether the accused who were members of the DHD(J) entered into an agreement with NCHAC officials to siphon off government funds for illegal activities including procuring arms and ammunition to wage war, cause death of innocent people, terrorise people, extort money, kidnap for ransom, and disrupt construction of east-west corridor of the four-lane National Highway.
The conviction of DHD(J) members named as accused was primarily based on allegations that they conspired with Mohet Hojai, and that — with the assistance of NCHAC officials — their firms were granted ante-dated illegal work or supply orders even though the firms’ licences with the council had expired or the firms were not registered or the firms did not exist at the given address.
The prosecution alleged that advance cheques were given and money was transferred to non-existing or unlicensed firms being operated by two of the accused, who then withdrew the amounts and facilitated their transfer to DHD(J).
While Jewel Garlosa, Niranjan Hojai and Mohit Hojai were sentenced to life imprisonment in May 2017, others were awarded jail terms of 8 years and 10 years.
They were convicted under the Unlawful Activities (Prevention) Act, 1967, and Arms Act, 1959, along with Section 120B (criminal conspiracy) of the IPC.
The accused subsequently approached the high court, which acquitted the 13 and came down heavily on the NIA court judge.
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‘Deep-rooted bias’
In its judgment dated 11 August, the high court ruled that the prosecution had “miserably failed to lead reliable admissible and legally acceptable evidence to establish its primary allegation that DHD(J) was a terrorist gang involved in any kind of violent activities or that the funds allegedly siphoned off from the NC Hills Autonomous Council were routed to the cadres of DHD(J) for the purpose of procuring arms and ammunition so as to facilitate the so-called terrorist activities of DHD(J)”.
Setting aside the 2017 judgment, the division bench of the high court opined that the “entire case set up by the prosecution/investigation agency is full of loopholes, embellishments and is tainted by pre-determined efforts to somehow by hook or crook and even by unethical means, target and entangle the accused persons”.
The trial court, the bench added, “acted in an absolutely slipshod manner by allowing the prosecution to bring on record flimsy, fabricated and inadmissible evidence and exhibited photocopies of documents despite valid legal objections by the defence”.
The high court pointed out several gaps in the probe. For instance, it noted that the arrest memos of the accused were not exhibited in evidence. Despite this, it said, the disclosures made by the accused to police officers were relied on heavily. The court explained that for proving discovery of an incriminating fact through a disclosure statement made by the accused, the prosecution has to first prove that the accused was actually in the custody of that police officer — a fact that can be proven by the arrest memo.
It further opined that certain findings in the trial court judgments showed “the partisan bent of mind of the trial court”.
The high court also said “the trial court, without giving a second thought and by total non-application of mind to the actual evidence available on record, appears to have accepted the fictional story”.
The “fictional story” that the high court was referring to was the prosecution’s claim that one of the accused, Ahshringdaw Warisa, was arrested from a Bengaluru flat where he was living with Jewel Garlosa. The high court said there was no evidence on record to support this “baseless conclusion”.
The findings recorded by the trial court against Warisa “are on the face of it perverse and are based on misreading of evidence and distortion of facts”, it added.
‘Disturbed his peace of mind’
The former NIA judge approached the Supreme Court on 6 October, with his petition listing the “disparaging remarks” he sought to be expunged.
His petition, seen by ThePrint, says that the observations and remarks were “not necessary” for deciding the appeal, and have “deeply hurt the petitioner’s reputation before his colleagues, lawyers and litigants, and is disturbing his peace of mind besides affecting him in discharging his judicial duties with calm and confidence”.
He has said the remarks can also adversely affect his career in the future.
The judge has said this is a “complex and voluminous case”, and “the use of expressions against the petitioner like ‘absolutely slipshod manner’, ‘mute spectator‘, ‘total non-application of mind ‘etc. is henceforth (sic) unwarranted”.
The high court had directed that the copy of its 11 August judgment be sent to the director general of police, Assam, the senior most officer of the prosecution department, Assam state, and also the Assam State Judicial Academy (a statutory institution established under the National Law University and Judicial Academy, Assam Act, 2009) — “for future references and guidance so that cases with such serious allegations may not meet the same fate on account of grave lapses noted by us on the part of the investigation agency, prosecution and the court”.
Referring to this, the petitioner judge has told the apex court that the “critical remarks” against him “have promoted, beyond all probability, irreparable harm to the petitioner” in light of the fact that the high court’s judgment was widely circulated in accordance with the high court’s direction.
The Supreme Court issued notice to the NIA on 20 October, and the matter will come up again next month.
(Edited by Sunanda Ranjan)
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