Four years after arrests in the Bhima Koregaon – Elgar Parishad Case, the National Investigation Agency has said that it will provide remaining copies of electronic evidence seized, but the trial in the case should go on.
Responding to pleas by lawyer Sudha Bharadwaj and journalist Gautam Navlakha to stay the proceedings or defer framing of charges until the clones copies are not provided, NIA claims they have yet to receive copies from the Forensic Science Laboratory.
Once the copies are obtained, it will be given to the accused in compliance with Section 207 of the CrPC, the NIA has said.
However, the defence claims that denying them clone copies of the electronic data vitiates the right to a fair trial under Article 21 of the Constitution of India and affects the appellant's defence, the pleas claimed.
"..The appeal praying for clone copies of electronic evidence u/s 207 of CrPC is going to be supplied to the accused persons; however, the interim prayer for stay of the trial proceedings is strongly objected," the NIA's affidavit states.
The affidavit states that while NIA has provided clone copies of some of the electronic devices, a few copies recently received from the FSL would be submitted in the court soon and given to the accused. "Five pending clone copies in respect of the electronic devices of the appellant and her co-accused are yet to be received from the FSL."
Even as a forensic consultancy firm in the US has concluded that co-accused Rona Wilson's laptop was infected with malware, the NIA claims that allegations of vulnerability to tampering and manipulation are "fanciful submissions."
Bharadwaj and Navalakha sought HC's indulgence after NIA submitted the draft charges before the Special NIA Court against the 15 accused on August 9.
The accused have challenged the Special Court's order rejecting their plea for clone copies of the electronic evidence before the trial.
Based on letters primarily retrieved from accused Rona Wilson and co-accused Surendra Gadling's computer, the NIA has accused 15 civil liberties activists of being members of the banned CPI (Maoist) organisation and conspiring to overthrow the government. They are booked for offences under the stringent Unlawful Activities (Prevention) Act (UAPA).
Months, after investigators gave Wilson a clone copy of his hard disk, he approached the HC buoyed by a report by Arsenal Consulting, which concluded that his computer was infected with malware, called NetWire (available for $10 online). It was planted through an email on June 13, 2016, two years before his arrest on June 6, 2018.
The firm has released two other reports regarding documents on Gadling's laptop as well.
The petitioner states that the authenticity of the evidence cannot be tested on a mere digital copy, and a clone copy would be required.
Regarding the violation of Article 21 of the constitution, NIA states that the right to a free and fair trial is subject to the procedure established by law. The procedure to provide copies to the accused is mentioned in sections 173 and 207 of the CrPC.
"Thus, the supply of few pending electronic documents which are already relied on against the accused cannot be an alleged non-curable violation of fundamental rights," their affidavit claims.
The agency further states that the accused are "mixing up and controverting crucial facts without much basis and confusing the Hon'ble court to frustrate the trial proceedings as is the ulterior motive of accused-appellant and her co-accused persons of the CPI(Maoist)."