22nd May 2017
The Podiyam Panda ‘surrender’ is the first one being challenged before a court. The entire experience shows the questionable legality of the surrender process in Chhatisgarh.
In the habeas case filed by his wife, Muiye Panda, Podiyam Panda came and went before the High Court under police guard. What value does such a production have? The Supreme Court has held in several judgments that a statement made before a magistrate by someone who is in police custody and thinks they will go back to police custody cannot be relied upon. This applies to the Panda case too.
Podiyam Panda, three term sarpanch of Chintagufa (till 2010) was picked up by the police from near his village in Sukma district on May 3rd. This was reported to his family by tendu patta pluckers who witnessed how security forces beat him up badly while taking him into their custody. The fact that he had been picked up by the police was also reported in the press (Patrika 4.5.2017, Dainik Bhaskar 7.5.2017, The Hindu 7.5.2017).
His family attempted to meet him several times but was not allowed to. Finally, on 12th May, in desperation, his wife, Podiyam Muiye, who is currently the sarpanch of Chintagufa, filed a habeas corpus case in the Bilaspur High Court.
Four other people were picked up with Panda, Podiyam Sushil aka Singha s/o Mooka, studying in 12th standard & staying in PMT hostel Sukma who was home on summer vacation in Minpa, doing tendu patta work; Podiyam Hurra s/o Hidma, studying in school in Gadiras; Vetti Malla s/o Vetti Bodu, and Hadma, r/o Minpa. None of them have been produced before a magistrate. At least two of them are minors.
Panda is a member of the CPI and not a Naxalite. In April 2016, his wife and brother were taken before a Maoist jan adalat for co-operating with the administration and fined.
High Court hearings
At the hearings on May 15 & 16, the judge repeatedly asked the police what law were they were holding him under, even if they claimed Panda had surrendered. The police was unable to answer. On May 17, the police finally filed an affidavit saying that Podiyam Panda had surrendered on May 9, that he had asked for police protection and that he was staying – of his own free will without threat and coercion - in the police transit camp. Upon the police saying he was free to go if he wanted, the Court that day asked for him to be produced in Bilaspur on May 22. This was already ten days since the habeas had been filed, and nearly three weeks since he was taken into police custody.
In the meantime, the police held a press conference in Sukma in which Podiyam Panda was produced and made to ‘confess’ to being involved in the Burkapal, Tadmetla and other Maoist attacks. The SP also claimed that Panda had ‘confessed’ to helping an urban network of journalists, traders, politicians and activists meet Maoists.
On May 22, Panda was brought to the High Court under heavy police escort and not allowed to meet his family and friends. In court, the Judge simply asked him whether he had been beaten or tortured to which he answered ‘no’ in monosyllables. The Judge then asked him whether he wanted to stay with the police or go with his family, to which he said he would stay with the police. The judge did not ask him when he had been picked up. The judge allowed the family to meet him after this, but noted that he would not be allowed to change the statement he had already made in court.
Outside the court, when Panda’s wife and children attempted to meet him, they, along with her lawyers, Shalini Gera and Sudha Bhardwaj, and CPI leader Manish Kunjam were abused by the ASP Sukma, Jitendra Shukla, who told them they would have to file another habeas if they wanted to meet him directly. This is a clear contempt of the High Court order which allowed the wife to meet him. Finally, on the intercession of a court security officer, his wife and children were allowed to meet him briefly.
During this meeting, Panda told his wife that he had been badly tortured. Muiye reported that he was trembling when speaking to her, and it was apparent to her that he was under tremendous pressure. It is apparent that he was severely warned not to tell the truth in court. Muiye is now scared for her own life.
After Monday’s High Court hearing, Jitendra Shukla, ASP Sukma put out a triumphant message on social media saying that Panda had exposed the lawyers in court, and that Panda had told the Court that women lawyers were keeping his wife, Muiye, captive and preventing her from meeting him. Shukla also said that Panda had filed an application with the police asking them to take action against his wife’s lawyers. In fact, no such statements were made by Podiyam Panda in court. Further, Muiye Panda (w/o Podiyam Panda) and Komal Panda (brother of Podiyam Panda) held a press conference in Raipur on May 17 and again in Bilaspur on May 22, and by no means could anyone say they were coerced.
Gaps in Panda’s statement before the Court
The following points must be noted:
· How can the police explain the gap between May 3rd when Panda was picked up and May 9th when he is claimed to have surrendered?
· Why did the Court not ask the police about this?
Why did the Court not enable his family to meet him before giving a statement or allow him to change his statement after meeting his family? It has been held by the SC and is also established procedure that a person should not be taken straight from long duration police custody to give a statement, without a cooling off period where they are not in police custody (see below).
· Are the police claiming that he needs protection from his own wife and children?
· How likely is it that a man would rather stay with the police than with his own wife and children?
· Why did the Court not order a medical examination despite his family’s claim that he was being tortured?
· If he was free, as the ASP Sukma claimed, why did the ASP prevent him from meeting his wife?
The Questionable Legality of Chhattisgarh’s Surrender Strategy
The case of Podiyam Panda also calls into question the entire surrender strategy of the Chhattisgarh government.
· The surrender policy assumes voluntary surrender and only deals with what should be done after surrender in terms of screening eligibility for rehabilitation.
· The screening committee of the Chhattisgarh government has found that 97% of the ‘surrenders’ in 2015-16 are not of Naxal cadre and therefore do not qualify as surrenders. In other words, they have cast doubt on their own police.
· The policy does not provide any means to test whether the surrender is voluntary.
· Unlike in an arrest where a person should, by law, be produced before a magistrate within 24 hours, there is no such requirement for surrenderees.
· This loophole has enabled the Chhattisgarh police to use ‘surrenders’ as a way of keeping large numbers of people in police custody without any legal encumbrance, where they may be coerced or tortured.
· The Podiyam Panda ‘surrender’ is the first one being challenged before a court.
· Since a surrender is analogous to a confession (i.e. in that the surrendered person claims to have been involved with Maoists and now expresses a desire to be with the police instead), it should be given the same status as a statement made to the police in custody. However, under current practice it is never tested before any magistrate.
Supreme Court judgments on statements made before Court while in police custody
The Supreme Court has repeatedly held that a statement made by a person who is in police custody and thinks they will go back to police custody cannot be relied upon as being the whole truth. The fear of return to police custody may inhibit a free and frank statement, even to a court.
In Rabindra Kumar Pal @Dara Singh vs. Republic of India 21 January 2011, the SC held: “Confessions of various accused persons, particularly, Rabi Soren (A9), Mahadev Mahanta (A11) and Turam Ho (A12) under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.') cannot be considered to be voluntary on account of the fact that all the co-accused persons were produced before the Magistrate from the police custody and were remanded back to police custody.”
In the Parliament Attack case, (2005) 11 SCC 600, ruling out the confessions asserted by the state to be “ voluntary” upon the argument that the detenue did not speak of any coercion or ill treatment when produced before the magistrate, the Supreme Court said ““The lofty purpose behind the mandate that the maker of confession shall be sent to judicial custody by the CJM before whom he is produced is to provide an atmosphere in which he would feel free to make a
complaint against the police, if he so wishes. The feeling that he will be free from the shackles of police custody after production in the Court will minimize, if not remove, the fear psychosis by which he may be gripped.” “The very fact that he will not be under the fetters of police custody after he is produced before the CJM pursuant to Section 32(4) would make him feel free to represent to the CJM about the police conduct or the treatment meted out to him. The haunting fear of again landing himself into police custody soon after appearance before the CJM, would be an inhibiting factor against speaking anything adverse to the police.”
Cooling off period needed before statement in Court
In Panda’s case he was produced in Court and made his statement before the judges with the police standing right behind him. He did not have an opportunity to interact with his family or lawyers before making the statement.
(2000) 6 SCC 269, the Court had held "19. “(a) Magistrate who proposed to record the confession has to ensure that the confession is free from police interference. Even if he was produced from police custody, the Magistrate was not to record the confession until the lapse of such time, as he thinks necessary to extricate his mind completely from fear of the police to have the confession in his own way by telling the Magistrate the true facts.”
According to the Punjab & Haryana HC rules, “The examination of an accused person, immediately after the police brings him into court, is not desirable. Ordinarily, the magistrates should remand the accused to a sub-jail for a period of at least 24 hours before his statement is recorded.
It should further be made clear to him that whether he makes or does not make a
confession, he will not be sent back to the police custody, but will be sent to sub-jail, where the police or the investigating officer shall have no control over
him. The fact that this has been done should be recorded.”
The whole Panda case of ‘surrender’ and production before the High Court displays a shocking miscarriage of justice. Podiyam Panda has been in police custody for three weeks and has gone back to police custody.
· The Chhattisgarh High Court should again record his statement free from police custody, after giving him some time in judicial custody.
· The Court must order that a medical test be conducted on Podiyam Panda outside the state.
· The Court must take notice of the illegality of the surrender policy and hold the government to account.
· The press should refrain from publishing scurrilous allegations about Panda and others put out by the police on the basis of so-called confessional statements extracted from Panda in police custody.
· The safety of Panda’s family must be guaranteed.