A new report that says that “evidence” on Stan Swamy’s computer was planted would not be of much use to the accused persons in the Bhima Koregaon case until the trial starts, legal experts point out.

The report by United States-based digital forensics firm, Arsenal Consulting Limited, says that Swamy, an 83-year-old Jesuit priest who died in July last year, was a target of a malware campaign for close to five years, according to The Washington Post. During this time, the report staid, hackers had access to his computer and planted material used by the authorities against Swamy.

Swamy was among the 16 activists, academics and lawyers, who are accused in the Bhima Koregaon case. They are accused of provoking caste-based riots near Pune in January 2018. These 16 people have also been accused of conspiring to kill Prime Minister Narendra Modi and of having links with the banned Communist Party of India (Maoist).

However, several reports have claimed that “evidence” against the Bhima Koregaon accused was planted on their computers remotely. Despite this, many of the accused persons are still in jail. Legal experts say that since the trial has not begun, the defence has limited scope to present evidence. When the accused seek bail, the court largely relies on material the prosecution has presented. The scope for citing these reports about the malware is further restricted because the accused people have been arrested under the stringent Unlawful Activities (Prevention) Act, 1967.

These reports will only be relevant once the trial begins. Although the accused have been in jail for more than four years, the trial is yet to commence. In August, the Supreme Court directed the National Investigation Agency court to decide on framing charges within three months and then start the trial. However, the court did not comply with this deadline and is yet to frame charges.

Planted evidence

This is not the first report that questions the veracity of the “evidence” used against the people accused in the Bhima Koregaon case.

In June, cybersecurity firm SentinelOne found that there was a “provable connection” that the Pune Police hacked the email accounts of Rona Wilson, Varavara Rao and Hany Babu and planted material on devices belonging to Rao and Wilson, Wired magazine reported.

In 2021, Arsenal Consulting Limited had also released a report claiming that key evidence against two accused in the case, Surendra Gadling and Wilson, was planted using malware.

In December last year, reports also suggested that the smartphones of several Bhima Koregaon accused, along with their associates, were infected by Pegasus, a military grade spyware that is only sold to governments. A forensic analysis of Wilson’s phone found evidence that it was hacked using this spyware.

People hold posters next to candles outside the church holding memorial mass for the Indian rights activist and Jesuit priest Father Stan Swamy, in Mumbai on July 6, 2021, who was detained for nine months without trial under Indian anti-terrorism laws and died on July 5 ahead of a bail hearing, officials said. Credit:  Indranil Mukherjee/AFP

In court

Two accused, Wilson and Shoma Sen, approached the Bombay High Court in 2021 asking that a special investigation team look into the hacking reports by Arsenal Consulting. They have also sought a stay on the proceedings against them and asked for their release.

However, the National Investigation Agency has challenged the maintainability of this petition. It argued that these reports can only be considered at the time of the trial.

“The NIA [National Investigation Agency] or the government should get to the bottom of this,” said advocate Susan Abraham, who is part of the defence team for some people accused in the Bhima Koregaon case. “We are not saying that you take the Arsenal reports on face value, but when a damming report like this is brought to the notice of the court then there should be an independent investigation by experts.”

In addition, Abraham said that under the Unlawful Activities (Prevention) Act, the state government has to do an independent review of the evidence gathered by the investigation agency and give a sanction for the prosecution to move forward. “In this case, the court must see if the sanction itself is flawed because of the documents planted using malware,” she said.

The hearing of this case has been delayed due to multiple recusals by judges. The case is listed next for December 23.

In February, seven people accused in the Bhima Koregaon case also submitted their phones to a Supreme Court-appointed committee that was investigating Pegasus. The committee’s report is not available publically. However, it was read out in court. It said that of a total of 29 devices that were submitted, traces of malware was found on five. However, it is not known whether this was Pegasus and if the five phones belonged to people accused in the Bhima Koregaon case.

Delhi Police personnel stand on duty as activists from various organisations stage a protest pertaining to the arrest of five activists, in connection with the Bhima-Koregaon protests, in New Delhi on August 29. Credit: PTI

Effect at this stage?

Apart from the plea before the court on these malware reports, legal experts believe that they may not have much value in the Bhima Koregaon case for now.

Before a trial starts – during the stage of bail or framing of charges – the court has limited scope to enter into the evidence presented by defence. Once the police files its chargesheet and if a court believes that there is insufficient ground to proceed with the trial against the accused people, it can discharge them.

“Defence evidence is not looked at during bail or discharge,” said criminal lawyer Yug Mohit Chaudhry, who represented Babu and another accused, Sudha Bharadwaj.

“[These reports will have] no impact on bail or on discharge,” he continued, pointing out that these reports are defence evidence that have not been tested in court yet. “It will only come into play during the trial.”

Another criminal lawyer, Vrinda Grover, said this was a gray area.

“It is a complicated legal terrain, which stands further aggravated and skewed in prosecutions under UAPA,” she explained.

She pointed out that there are Supreme Court judgements that say that the evidence by the accused demonstrating their innocence will be examined at the end of the trial and not at the stage of bail or framing charges.

“However, it is also settled law that if certain documentary evidence establishes that no prima facie case is made out against the accused then those should be considered at the stage of the charge,” she clarified.

Therefore, according to Grover, the relevance of these documents at the present stage is left to the discretion of the National Investigation Agency court.

Anti-terror law

Even this limited scope of using defence evidence during bail is further restricted under the anti-terror law Unlawful Activities (Prevention) Act, lawyers point out. Section 43(D)(5) puts a higher threshold for the defence to get bail. It says that on the basis of the “case diary or the [police] report”, if the court thinks that there is a reasonable ground to believe that the accusation against a person is prima facie true, then it should not grant her bail.

The Supreme Court, in a judgement from 2019, has further curtailed the evaluation of the evidence that the court can undertake. In that case, the court held that during bail it cannot consider the prosecution’s evidence in depth, but can only look at the evidence broadly. According to this case, even evidence that may be inadmissible cannot be used to reject bail.

“Thus, these documents might have been relevant at bail stage if there was no UAPA invoked,” said Delhi-based criminal lawyer Abhinav Sekhri. “Getting out on bail or discharge is extremely difficult under UAPA. Thus, the state can incarcerate a person for years and keep delaying the trial so that the case against the accused is not put to test.”

Until now, only one person accused in the case, Anand Teltumbde, has got bail on merits. Wnother accused, Varavara Rao, has got bail on medical grounds. Bharadwaj got “default bail” because the investigating agency did not file the chargesheet on time.