A peon in the municipal corporation, a technician working in a government hospital and a medical college clerk are among the Pune residents who signed off as witnesses to the raids on the homes of activists in six cities last week.
The raids ended with the arrest of five activists in Delhi, Faridabad, Mumbai and Hyderabad. In all five cases, the witnesses had travelled from Pune. Two witnesses told Scroll.in that Pune police had asked their offices to send them. One said he travelled by train with the police.
By taking witnesses all the way from Pune, Maharashtra police has brazenly flouted the law. Section 41B of the criminal procedure code states that the panchnama or memorandum of arrest must be signed by “a member of the family of the person arrested or a respectable member of the locality where the arrest is made”.
Delhi High Court underlined this on Thursday while hearing a petition filed by Gautam Navlakha, one of the five activists arrested in the raids, who alleged procedural lapses on the part of the police during the search on his house in Delhi.
The raids have taken place in a case which began as an investigation into caste violence in Bhima Koregaon village near Pune on January 1. It has now turned into a probe into an alleged Maoist conspiracy. The police claim the arrested activists are “urban Naxalites” who are part of a plot to assassinate Prime Minister Narendra Modi and overthrow the Indian government. Ten activists have been arrested in the case – five on June 6, another five on August 28.
Scroll.in has reviewed five panchnamas – three for activists arrested on August 28, two for people who were raided that day but not detained. In all five panchnamas, the witnesses are shown to be residents of Pune. The lawyer for two other activists arrested that day confirmed the witnesses came from Pune.
Two witnesses – both junior government employees – told Scroll.in that the police wrote to their offices, asking for them to be sent. Both said they have signed panchnamas in police cases in the past.
“You can’t have such stock witnesses,” said Kamini Jaiswal, a criminal lawyer. “You can’t bring your own people. [The suspicion would arise that] you have told them what is to be done... How can you rely on such people as panches?”
Another criminal lawyer, who did not want to be identified, said: “A witness taken along is a very convenient witness, he may even be under their [police] influence. The police may be investigating that fellow, can say if you come and depose a false seizure, I will drop any case against you. All that is ruled out by taking someone from the locality.”
Both the lawyers said the law relating to search and seizure witnesses is the same for the Unlawful Activities (Prevention) Act, the anti-terror law under which the activists have been arrested.
What the police says
The police, however, defended the use of witnesses from Pune. “In Maharashtra, there is a practice that whenever raids are to be conducted within or outside the state, a government servant is taken along,” said Shivaji Bodakhe, the joint commissioner of Pune police. “A government servant has some sort of accountability and the ability to understand certain procedures... The only thing is his consent must be taken for presence in the raids through a notice.”
The criminal lawyer dismissed this claim. “That is only done when they are trapping people in a case where they have to create decoy witnesses. That does not apply for recovery witnesses,” he said. Recovery is another term used for searches that result in seizures. “For recovery witness, the idea is that some information may come that a weapon is here. You take people from the locality to witness the seizure of the item.”
Bodakhe also claimed that relatives of those arrested had signed as witnesses. But the accused and their families said they could not understand the panchnama since it was written in Marathi. Two of them, Gautam Navlakha and KV Kurmanath, in fact, recorded this in writing. “Signing under protest as language is not legible,” Navlakha wrote at the bottom of the panchnama.
While Bodakhe insisted Pune police had not violated any law and had followed the protocol while making arrests, even his counterparts from other states expressed doubts over this. Both Delhi and Haryana police maintained Pune police did not inform them while making raids in their jurisdictions.
Who are the witnesses
For the raid on the house of Sudha Bharadwaj, a human rights lawyer, the witnesses were two employees of the Pune municipal corporation: Ravidas Thene, 21, a junior clerk in the Vishrambaug ward office, and Harshal Kadam, 29, a peon in the same office.
Kadam said his office received a letter from the Pune police commissioner’s office a day before the raid. It asked for two people to be sent to Delhi. Kadam said he had signed panchnamas 2-3 times, but only in Pune city. This was the first time he had travelled outside the city, he said.
The witnesses to the arrest of Varavara Rao, a writer and poet who has served six years in prison in cases which have resulted in acquittals, are Pune residents: Gajendra Kamble, 49, and Altaf Bagvan, 51. Their profession is listed as ‘naukri’ [service]. More details are not mentioned.
Apart from the fact that the panchnamas are signed by “stock witnesses”, N Venugopal, Rao’s nephew, pointed out two other problems. “It is in a language [Marathi] that cannot be understood by the person whose house is being searched,” he said. While the police had signed on all seven pages of the panchnama, Rao and his wife Hemalatha’s signatures were taken only on the last page. “Thus, it implies that the first six pages can be replaced. Anything could be added at a later date and therefore this is also not tenable.”
The house of Rao’s son-in-law KV Kurmanath, deputy editor at a leading business daily, was also searched. The witnesses are Pune residents listed as service professionals: Jagdish Yelvekar [age unclear] and Bajrang Dhavle, 50.
“I have been a journalist for 24 years and worked for four newspapers,” Kurmanath said. “Of my 2,000 books, they picked only about 40 trying to project a reduced distorted image of my personality.” He signed the panchnama with a protest note stating he could not understand Marathi.
The witnesses to the raid on the house and office of Stan Swamy, priest and social activist, are two employees of Pune’s largest government hospital and medical college. Nandkishor Agarkar, 57, is senior clerk at BJ Medical College, while Mohan Ginule, 56, is an orthopaedic technician at Sassoon Hospital.
Ginule said he was informed on August 24 that he had to travel to Ranchi. Agarkar and he travelled by train with a senior inspector and a head constable of the police. “This was the first time I have travelled so far [for a panchnama],” he said. “This is the third time I have done a panchnama. The other two times were in Pune city itself.”
The witnesses to the arrest of Gautam Navlakha, a journalist and activist, are two Pune residents: Ramdas Shelke, 34, and Apparao Rathod, 27. Their professions are not mentioned in the panchnama.
Mumbai and Thane
Vernon Gonsalves was raided in Mumbai, while Arun Ferreira’s house was searched in Thane. Lawyer Susan Abraham, who is married to Gonsalves and was present during the raid, confirmed the witnesses were from Pune. She said the witnesses to Ferreira’s arrest were also from Pune.
Corrections and clarifications: An earlier version of this article incorrectly identified some witnesses as businessmen from Pune.