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CASE ANALYSIS: HIMANSHU KUMAR AND OTHERS V STATE OF CHATTISGARH AND OTHERS

INTRODUCTION

This case is important in understanding the tussle between the Naxalites and the armed forces. This case considers the case of extra-judicial killings of tribal persons by security forces in the state of Chhattisgarh. This case considers the question of false charges leveled on the armed forces, manipulation of the witness list, and their statements, and the chilling effect of the judgment on further appeals by these activists.

FACTS OF THE CASE

A writ petition was filed under Article 32[1] of the Indian Constitution in which there was an allegation on the armed forces for the massacre of the tribals in the villages of Gachhanpalli, Gompad, and Belpocha, all of which were part of the district of Dantewada which is situated in the State of Chhattisgarh on September 17, 2009, and on October 1, 2009. Petitioner no. 1, Himanshu Kumar who claims to be the founder and director of the non-profit organization Vanvasi Chetna Ashram in Kanwalnar situated in Dantewada in Chhattisgarh is the one who has filed the petition on behalf of petitioners nos. 2 to 13 who are the kith and kin of the persons who have been killed in the alleged massacre. The claim made is that the paramilitary forces including the CRPF and CoBRA Battalions, Special Police Officers, the Chhattisgarh Police, and the activists of Salwa Judum, a group backed by the Chhattisgarh government were the ones that carried out this brutal massacre of the tribals. The Union of India in response to the petition rejected all the allegations made on the armed forces and asked the court to issue an order directing CBI/NIA, or any other investigating agency/committee as the case may be according to the court to file an FIR and to conduct an unbiased investigation to identify the groups and individuals behind this act of making the armed forces their scapegoats. The petitioners are accused of making false accusations of crime and offering false and fabricated evidence under the IPC and CrPC against the armed forces.

ISSUES RAISED

  • Whether the petitioner should be held guilty of levelling false charges and of presenting fabricated and false evidence before the Court?
  • Whether the case should be handed over to CBI or any other investigating agency?
  • Whether the petitioner can be held liable under the charge of perjury?

CONTENTIONS AND JUDGEMENT

The petitioners’ knowledgeable senior attorney, Mr. Colin Gonsalves contented that the armed forces should be held liable for the massacre of the tribals. He argued that even when the eyewitnesses have identified the culprits in some cases no action was taken by the Chhattisgarh Police and the State of Chhattisgarh. He would argue that thus far, not a single eyewitness has been contacted to provide a statement. The petitioners claim that no action has been done by the police as a result of the filing of the aforementioned FIRs. There hasn’t been a thorough examination. The statements of any of the eyewitnesses have not been documented in any way. As a result, the petitioners ask the government to compensate them for the allegedly committed atrocities and massacre.

The learned Solicitor General for India, Mr. Tushar Mehta, has fiercely opposed the current writ petition. The petitioners nos. 2 through 13 are uneducated and rural tribals, claims Mr. Mehta. They might have decided to join as petitioners at petitioner no. 1’s instigation. In response to the information in paragraph 2, he asserted that Madavi Hurre’s name is just mentioned in the list of petitioners and that no harm has been done or loss at the hands of security forces. She is not identified as Madvi Deva’s wife in the Writ petition. The petitioner attempted to establish her legitimacy by using her thumbprint from the vakalatnama, however, the document was not provided as an annexure. It is contended that in this case security personnel have been framed and have been wrongly alleged of false accusations. It is known that few security personnel speaks out to refute such claims because their service policy forbids them from doing so. Mr. Sumeer Sodhi, the counsel of the State of Chhattisgarh, contended that the petitioner stated on Page 9 of the Petition Paper book and Writ Petition on Page E of the Synopsis that security personnel caught and beat Muchki Deva (60 years old) of Ondhepara before dragging him into the village. He was placed in a pot of burning oil and then dumped into it after being suspended upside down from a tree. However, later the Petitioners in the aforementioned Application in Paragraph 18 of the Application retracted the Hot Oil Theory and claimed a translation error was to blame. Now it was said that Muchki had wires attached to his head and was electrocuted, causing burns. It is important to note that Petitioner No. 1 (Himanshu Kumar) filed the current petition on behalf of Petitioners Nos. 2 through 13. However, there is no affidavit on file that proves that Petitioners from no. 2 -13 have given Petitioner no. 1 their approval.

The court held that there were many instances from which it can be said that the charges were false as there were times when the names of the petitioner in the paragraph do not match the list of petitioners in the cause title of the Writ Petition. This brings about ambiguity about the claims made in the petition. The petitioner has used articles from a magazine that does not form primary evidence in the court. The reliance on these articles cannot be used as evidence before the court. The very fact that all the complaints are made in the same manner and worded in the same style arose suspicion and no petitioner has confessed to seeing the killings with their own eyes by the army officials. All these facts were considered, and the writ petition was accordingly dismissed with exemplary costs of Rs. 5,00,000, according to the SC (Rupees Five Lakh Only). The petitioner no. 1 shall pay the necessary sum toward the costs, i.e., Himanshu Kumar.

As for the investigation by the CBI Supreme Court stated that a request for a CBI probe should only be made when the High Court determines that there is enough evidence to support an investigation by the CBI or a comparable agency on the basis of the material in the record.[2] No one has the right to demand that a specific agency look into a crime. We wholeheartedly concur with the decision’s point of view. An offended person can only demand that the alleged offence be thoroughly investigated; he is not entitled to demand that it be probed by the agency of his choice.[3] Regarding the allegations of perjury, it is evident that the court should open an investigation or initiate contempt proceedings in unique circumstances if it feels that in order to get a favorable ruling from the court the party has committed perjury on purpose. To start a proceeding of perjury there must not be a mere passing hunch or suspicion. There must be distinct evidence of the commission of an offense by such a person as mere suspicion cannot bring home the charge of perjury.[4] The SC said that for Section 211 of IPC[5] to be invoked, a person must have been wrongfully accused of committing an offense in the complaint. The complainant must have been aware that there was no legitimate or reasonable basis for charging the individual at the time the complaint was made. This grievance must have been made with the aim to harm someone. In light of the assertions made in the interim application as outlined above, this court defer to the State of Chhattisgarh and CBI to take the required actions according to the law. The court made it clear that the charges that can be brought are limited to Section 211 of IPC. A case of criminal conspiracy or any other IPC-related offense may also emerge. This court has left it up to the State of Chhattisgarh/CBI to take suitable action while taking the seriousness of the matter into consideration.

CONCLUSION

This case is important in understanding the situation in the Naxal areas as we are already aware of the continued tussle between the armed forces and the Naxalites. This case was also important as it talked about when an investigation can be carried out by the CBI or any other investigation agency and when the charge of perjury can be brought against someone. However, many of the activists believe that the decision might have a chilling effect on further cases that would be filed against state impunity as the exemplary charges of 5 lakhs and the freedom given to the state to proceed according to their discretion in case of different charges can have a counter effect on the voice of the public.

Author(s) Name: Hitika Agarwal (National Law Institute University, Bhopal)

Reference(s):

[1] Constitution of India 1950, art 32

[2] Secretary, Minor Irrigation & Rural Engineering Services, U.P. v Sahngoo Ram Arya & Anr (2002) 5 SCC 521

[3] CBI & Anr v Rajesh Gandhi and Anr (1997) Cr.L.J. 63

[4] R.S. Sujatha v State of Karnataka and Ors (2011) 5 SCC 689

[5] Indian Penal Code 1860, s 211