The Hindu : 'Charges against Geelani unsustainable in law'

Online edition of India's National Newspaper
Saturday, May 10, 2003

National

National

'Charges against Geelani unsustainable in law'

By Our Special Correspondent

NEW DELHI MAY 9. Most of the charges filed in the December 13 Parliament attack case ``are unsustainable in law and without appreciation of evidence'', Ram Jethmalani counsel for S.A.R. Geelani told the Delhi High Court today. Some charges were ``so ridiculous that the proceedings were deprived of the solemnity of a serious criminal trial'', he said.

Citing the example of charge number 15, he said that this was the ``highest absurdity you can ever encounter''. Under the charge, Shaukat Hussain and Mohammed Afzal were accused of offences under Section 6 of POTA, for being found in the possession of ``the proceeds of terrorism''.

Mr. Jethmalani said Section 6 did not define such an offence. It only set out the mechanism the police should employ to recover the proceeds of terrorism from an accused.

The sanction to prosecute Geelani under POTA and under provisions of the IPC, he said, was granted by the Delhi Lt. Governor without the required ``application of mind'' and with ``unforgivable frivolity''. It must clearly state what facts had been found, on consideration of specified material, and which called for a prosecution. The sanction order before the court did not fulfil this requirement.

The alternatives were also not satisfied. The Lt. Governor should have been examined in court, but was not. Another ``less satisfactory'' means was to exhibit the written records pertaining to the sanction in court and supplement this with the oral evidence of the Lt. Governor's representative. This was also not done, Mr. Jethmalani said.

The oral evidence of the Deputy Secretary (Home), Delhi Government, regarding the Lt. Governor's sanction amounted to hearsay.

The Deputy Secretary had told the court that since it was the Lt. Governor who had taken the decision, he could not say what material had been considered.

Mr. Jethmalani said the trial judge had disallowed cross-examination on the issue of whether the Lt. Governor was aware that ``waging war against the state'' was a distinct offence from ``terrorism''.

He said that legal notions of the sanctioning authority were relevant, and disallowing cross-examination meant that nothing was proved.In regard to the third sanction to prosecute under the Explosive Substances Act, granted by the Delhi Police Commissioner, Mr. Jethmalani said that this was wrongfully granted, since the order authorising it was signed by the Deputy Superintendent of Police.

The rules did not permit the Police Commissioner to delegate his authority down the line. Justice Usha Mehra said that the DCP's letter was only communicating the Commissioner's order. Mr. Jethmalani said that its wording did not show that it is merely a communication, rather it was the order of sanction itself.

The hearing will continue on Monday.

Printer friendly page
Send this article to Friends by E-Mail

National