Binayak Sen Judgment: A Critique

At the outset, let me state that the judgment delivered in the Binayak Sen’s case is exceptionally bad. A full book can be written on it. However, I will discuss the most important angle of section 120B IPC; i.e., the criminal conspiracy held to be proved against Binayak Sen. He has been held guilty under section 124A IPC read with Sec 120B IPC for conspiring with Narayan Sanyal and Pijush Guha in spreading hatred against the State vide certain letters held to be written by Sanyal and held to be found in the possession of Guha and held to be couriered by Sen from Sanyal to Guha, and vide various other documentary materials found to be in possession of Sen and Guha. Out of the above, the letters written by Sanyal are the biggest bone of contention because other materialper se may not stand the test of the Kedarnath judgement.

Vide para 112 of the judgment, the conspiracy has been proved by two set of facts: first by the fact of movement of letters from Sanyal to Guha via Sen, and secondly by pre-existing relationship between Sanyal and Sen. Out of these, Sen acting as a courier is the real bone of contention as existing relationship per se doesn’t mean anything; criminals have every right to undertake perfectly legal activities of getting married, opening bank accounts, renting houses, taking up teaching jobs, etc., and can seek help from non-crimkinals persons for the same.

As far as the fact of Sen being a courier of Sanyal is concerned, it has been proved by two types of evidences: First by the circumstantial evidence of meetings between Sen and Sanyal in the jail linked with the forensic evidence of the letters written by Sanyal found in the possession of Guha, and secondly by the corroborative evidence of the witness of Anil Singh, who heard Guha stating it in the presence of the police officer that the said letters were delivered by Sen to Guha. Vide Para 16 of the judgment, the objection of the defence counsel to the inclusion of the statement of Anil Singh wrt to the statements made by Guha in presence of the police as being inadmissible, has been overruled finding the same to be relevant evidence under sections 8, 10, 17 and 21 of the Indian Evidence Act. Here, the evidence found relevant under section 10 is important. The evidence found relevant under sections 17 and 21 is inadmissible as the statement by Anil Singh about the admission of Guha convicting Sen is hearsay evidence. The evidence found relevant under section 8 is inconsequential without the evidence proving the main facts. So, the evidence found relevant under section 10 is the only relevant evidence. But, the evidence under section 10 is admissible subject to the proof of the prima-facie conspiracy. But, in the above judgment, the fact of Sen acting as a courier has been used as a main fact to prove the “Unity of Mind” vide para 112 of the judgment. And, as already stated, the evidence led to prove pre-exisiting links between Sen and Sanyal and Sen and others don’t prove any pre-existing conspiracy.

Moreover, vide para 27 of the judgment, the linkage of Guha with Naxals has been proved on the basis of an FIR, and no other evidence has been produced. This once again is a very weak evidence of the involvement of Guha in Naxal activities. Rather, the proof against Sanyal is also very weak: Most of the evidence against him are the general opinions, not factual statements, of the police officers about his involvement in Naxal activities and/or Naxal groups, and thus they are inadmissible. The strongest evidence against Sanyal is that of some intelligence report prepared by the AP police, but nothing much has been said about it in the judgment; i.e., whether the facts mentioned in the report were proved by the examination of the investigators, etc. BTW, the announcement of award against Sanyal by the AP government is no proof of his involvement in Naxal activities. Evidence against Sen is the weakest, all of it being either hearsay evidence or opinions.

So, when the prosecution has not even prove the involvement of Sanyal and Guha Naxal activities, where is the question of any conspiracy? Subject to the belief in the finding of the Judge that the affidavit filed by the prosecution in the Supreme Court was a genuine typological mistake, the letters written by Sanyal have been proved. It is also true that Guha has not been able to prove the bonafide source of possession of the letters. But, the prosecution has not been able to arrange the missing links. It seems Sanyal’s name has been added just to somehow solve the puzzle, and the story has turned out worse than a third grade Bollywood movie.

Seriously bad judgment! I empathize with Ilinia Sen when she says that the judgment would have been ridiculous if it had not happened to them. After reading this 92 page judgment, that too in Hindi, I am amused at the state of affairs in this country but at the cost of several lives lost in prisons. What has happened to my sense of humour?

©2010 Ankur Mutreja

About the Author

Ankur Mutreja
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored six books: "Kerala Hugged"; "Light: Philosophy"; "Flare: Opinions"; "Sparks: Satire and Reviews"; "Writings @ Ankur Mutreja"; and "Nine Poems"; which can be downloaded free from the links on the top menu.

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