The Prosecution Case
When the court assembled for the trial, I challenged the jurisdiction of the GCM to try me for the charges on which I was arranged.
I was charged with, committing a civil offence under section 69 of the Army Act read with section 3(1)(c) of the Indian official Secrets Act. The charges were two. In both charges Pak Kandral was the base!
The Indian Official Secrets Act was not applicable to the state of Jammu and Kashmir, was the first ground for challenging the jurisdiction.
In the Army any person subject to its act committing any civil offence other than rape and murder is subject to trial under section 69 of the Army Act. The definition of a civil offence, in the said Act is; "Civil offence" means an offence which is triable by a criminal court. And according to the definition of Criminal Court as per the same Act; "Criminal Court" means a court of ordinary criminal justice in any part of India; (Auth: Ordiance No. 3 of 1975).
An offence under the Indian Official Secrets Act Section 3(1) (C) cannot be tried in the court of an ordinary magistrate, meaning the court of ordinary criminal justice. Therefore the same was not a civil offence within the meaning and scope of section of 69 of the AA. The GCM constituted to try me was illegal and without jurisdiction, was the second ground of challenge.
The third ground was signing of the charge sheet by Lieut. Colonel SS Sohi. He could not be presumed to be the CO of the accused. Because neither had the alleged offence been committed under him nor had he carried out the investigations of the case. My S of E was recorded in his absence by Major Satpati. Major Satpati was not competent to record the same, as he was neither the officer commanding nor was he under the command of Lieut Colonel SS Sohi. According to AR 23 only Colonel SS Sohi could record my S of E or the CO could direct any other officer to do so on his behalf. And the directions can only be given by a commander to a person under his direct command. Since Major Satpati was not an officer under the command of Lieut Colonel SS Sohi, the recording of the S of E by Major Satpati, on which the charges were framed, was illegal; was the fourth ground on which the Jurisdiction was challenged.
The court after some deliberations overruled the challenge and proceeded to try me.
For the safety and the security of the state, the court decided to hold the proceedings incamera!
The place, the duration and the authorities responsible for my arrest and custody were dubiously and surreptitiously suppressed despite repeated efforts of the defence counsel and the court to find out from the prosecution witnesses namely Captain Sudhir, Major S.C. Jolly and P.S. Solanki.
It is obvious for a person obtaining such an important confession, as was alleged to have been given voluntarily by me, to read its contents. Yet, surprisingly, none of the witness said that they had read it. They all denied any knowledge of the contents of a statement on the basis of which the Prosecution demanded the conviction! These were not read even by Captain Sudhir, who said, he had appealed to my sense of patriotism!!
There was no answer either, when the court asked Captain Sudhir why was he detailed to interrogate me, a far more senior officer in service and experience in the Intelligence than Sudhir, especially since Sudhir had no requisite qualification in the art of interrogation.
Not only in Army but in any branch of the Intelligence it is common knowledge and a basic requirement of follow the essentials of an interrogation. An interrogator must have sufficient experience in the work of interrogation. Apart from such experience the interrogator must have a "superimposed personality" over the person being interrogated. Otherwise in all possibility the interrogator would find himself being interrogated; unless of course, the interrogation implied massacre, as had been the case with me.
Why was an inexperienced officer who was junior in service, detailed to interrogate me? Who was the person responsible for taking such a dangerous step? Were there not any senior officers in the MI Directorate? "And Sudhir, how come you were able to appeal to the sense of Rathaur's patriotism and talk him out instead of him talking you out". Such were the questions asked by the court which remained unanswered.
Interestingly a suggestion was extended, that Sudhir was misled by gnr Aya Singh who was still serving the interest of Pakistan by involving innocent officers and men of the Indian Army, in false cases od espionage. Captain Sudhir defended Gnr Aya Singh, and said that the suggestion was incorrect.
How and on what basis Sudhir went to defend an admitted agent, against an officer? How did Sudhir vouch for the character of a profligate like Aya Singh?....
Under the expert cross examination of Mr. R.P. Sethi, Captain Sudhir could not hold on. A time came when instead of ansering a question he started counting his fingers and looking at the ceiling.
Major S.C. Jolly admitted his knowledge of me having operaed class A sources and also the fact that he himself used to brief and debrief these sources. However, he admitted so, with a great amount of hesitation. Probably he visualised that there was no escape from facts and was forced to admit it. He deposed that he had gone to Delhi in the Army Hqs while he was asked by a "superior officer" to go and witness the recording of a confessional statement being written by an officer voluntarily, at the Intelligence Residential Complex. When he went he found it was me whom he already knew so he advised me not to write and if I still wrote it, it would go against me. Since I was insistent to clear my heart. "I witnessed the recording and signed as independent witness." He admitted that he had no knowledge of what was written in the confessional statement.
Major P.S. Solanki also deposed as regard to witnessing the recording as an "independent witness". He too like Jolly, was detailed by a "superior officer". Who the superior was, the name was not revealed by any one. Like Jolly, Major Solanki also did not know the contents of the confessional statement as he had not read it. Nobody knew where I was after 31 August 1978.
Seeing their house of cards collapsing, the army authorities introduced fresh witnesses.
I was clever enough and able to learn certain facts, despite my emaciated mental and physical condition, on the basis of which I expected to prove the statement as involuntary and a direct result of the torture. As per the confessional statement I was, supposed to have passed the details of certain exercise to Pakistan FIU in july or August 1977. One of the two charges levelled against me was concerning passing of details of these exercises. Factually the said exercises were conducted in May 1978. If the exercises were conducted in 1978, then how could I have passed the details of these exercise in 1977, was the question which probably caused insomnia to the concerned authorities. But nothing is impossible for people who are in authority, who are without any intellect for reasoning and first rate cowards, to face the consequences of their blunders.
Major RK Bajaj, an officer of my unit was called as a prosecution witness, and made to depose that though the alleged exercises were conducted in 1978 but due to the similarity of names of the exercise which were conducted in 1977, there was a general confusion. The exercise which were referred to by the officers of the division, were those exercise which were in fact conducted in 1977.
Probably the prosecution wanted to establish that I had mentioned the names of those exercises in my statement under the confusion which was created due to the similarity of names and that the confession was in fact voluntary!
This was obviously thought of and fabricated at the instigation of either the DMI or the Chief of Army Staff himself who alone could pressurise the Divisional Commander to send officers under his command to depose falsely.
The deposition by Major Bajaj was completely false. There was no confusion as he had stated, nor was there any scope for such a confusion. Otherwise also, Major Bajaj was a Captain at that time only a second-in-command of Rifle Company. And maximum an officer in that appointment is required to know, are the events of the unit to which his Company belongs. Also it is very rare for such an officer, in the first place, to come in contact with other officers of the division when such exercise are conducted and in the second, there was no need at all to confuse the names of exercise being conducted in 1978 with those that were conducted in 1977. Apart from this fact, Major Bajaj was away on a Quartermasters Course, at a time when the so called confusing exercises were conducted!
The saddest and the most painful aspect of the incident, for me, was the fact that it was my own Regimental Officer who deposed under the oath knowing fully well that his statement was false! I, could do nothing except laugh at the degeneration of the morality of the persons called army officers!!
Major Bajaj, however could not give the details of exercises, except the confusing names, nor could he state whether any part of the exercises was prejudicial to the safety and security of the state. probably this was left for the members of the G.C.M. to take "judicial notice" of military matters!
While reading the statement of Gnr Aya Singh I did not understand why Aya Singh had said, "... But I told him the risk involved was very serious as some of our Intelligence officers were working for Pakistan. When he asked me who the officers were, I told him about Captain Rathaur, but I did not tell him anything about Captain Nagial..." Infact I had laughed at that ambiguity. How could there be any risk if the Intelligence officers as alleged, were involved in spying? It becomes rather easier for persons like Aya Singh to operate more freely, I had thought.
I was to learn that nothing was ambiguous. Everything was worked down to the minutest detail; with precision. Possibly efforts were being made, at the time when aya Singh's statement was recorded, to induce Gnr Sarwan Dass, as a prosecution witness. Why his statement was not recorded at the S of E was not known.
A notice was issued to the Defence Counsel about producing Gnr Sarwan Dass as a witness with a brief, what the witness was to depose. It read :
"He and Gnr Aya Singh were serving together in 253 Med Regt. Sometime in 1975 gnr Aya Singh disclosed to him that Captain R.S. Rathaur was working for Pakistan. He further stated that he started working for Pakistan in 1975 and knew Captain R.S. Rathaur. He introduced Aya Singh as a Pakistani agent on 20 March '74. In July '75 he escaped from custody while travelling on a train near Jullundur under escort and crossed over to Pakistan via RS Pura sector. Sometime in early Jan '76, while he was at Lahore awaiting to be operated, for skin grafting to change his appearance (Plastic surgery), for subsequently planting him as a Resident agent in India, he went to Sialkot and was staying in the officers accommodation. One day while in Sialkot when he went to look up the ailing Major khan, he was told that two sources from India namely Captain R.S. Rathaur and another person accompanying him had just arrived at Pakistan Post Kandral and since he was not well, he (Sarwan) should represent him and receive these sources to Sialkot. They were debriefed by Major Khan. The other person he came to know was Captain a.K. Rana. After the briefing, he escorted them back to Kandral."
While deposing in the court Sarwan Dass said, 'I was allotted a bunglow in officers lines near Major Khan's residence. It was two or three days before 13 January 1976, that Major Khan sent one of his JCOs, and asked me to collect two very important sources. I remember the time because it was Lohri (A Hindu festival celebrated in North India, which always falls on 13 January) when the incident had taken place.....'
It certainly was a wonderful piece of evidence that the prosecution could produce. It was not only applicable for me but also for Rana. That was how the story was concocted for Rana. It also gave corroboration to a portion of my confessional statement where it was written, `In early January I crossed over to Pak Post Kandral... This time I handed over four files to Major Khan.'
However, the corroboration was instead the contradiction of the so called statement by this witness because Captain Rana's name (infact, no name of any person incriminated by me) was mentioned anywhere in the entire confessional statement.
The stories implicating other persons, obtained from me were separate and were not made part of the statement which was produced in the court. The main Prosecution witnsses (the interrogators) had categorically denied my having made any other statement except the one produced in the court.
From that, two contentions could follow; one, that the interrogators were lying (which of course they were). Why did they lie in the court refuting that I had made numerous statements was not understood, except that they were afraid lest the tortures were proved, which would make the confessional statement valueless. Two, that I had not disclosed the name of Captain Rana while making the confession. This seems highly absured that a person who confesses his crimes after his "sense of patriotism" had been awakened, decides to hide the name of this very important accomplice, who was causing great harm to the national security. Therefore, the absence of the name in my statement was a sufficient indication of the involuntary nature of my statement.
Sarwan Dass also corroborated the statement regarding the handing over of four files of secret nature to Major Khan. As per the disclosure in my statement and the deposition made by Sarwan Dass, these four files were proved still to be in the custody of Pak FIU Major Khan. Since the files were claimed to be of a secret nature, they automatically become accountable documents, the loss of which from the parent Hqs must be reported, investigated and these investigations recorded.
Thus it was the paramount duty of the prosecution to have produced the documents showing the loss but they did not, because they could not do so. As no files were ever lost or any of the information as disclosed, ever passed to the Pak Intelligence.
Sarwan Dass said in the court that in Feb 1976 he came over to India on few days casual leave and surrendered himself to the police at RS Pura. He also admitted to have deposed in the past against a number of army personnel involving them in espionage. He denied the suggestion of the defence, that he did not surrender but was arrested by the police.
Sarwan Dass was arrested on the basis of the information of the Intelligence Bureau alongwith Aya Singh in 1975 but had escaped from custody in transit.
He was not only wanted by the army but also by the Jammu and Kashmir police, for violation of "Enemy Ordinance", and a number of other cases.
In the second week of 1976 he was apprehended by Assistant Sub Inspector of Police, Shri Sewa Ram at the RS Pura bus stop, on a tip off by an informer and handed over to the army authorities following their request. Army authorities perferred not to press charges of espionage against him. "I was tried for desertion and sentenced to seven years RI by a G.C.M.". While undergoing the sentence, Sarwan Dass was contacted by Captain Sudhir in Feb '79. Sarwan Dass admitted that he disclosed my name only in March '79 to Captain Sudhir. Thereafter he disclosed the name for the second time to the AAG HQ 16 Corps on 15 April 1979. The reasons why Sarwan Dass failed to disclose the name immediately after his re-arrest were not given.
Why he was not charged for espionage by the army authorities, Sarwan Dass could not explain. How did he first contact Captain Sudhir and then the AAG to disclose my name while Sarwan Dass was undergoing sentence in a jail? The answer to the question was evaded and instead he said that his sentence had been suspended by the army authorities when he had moved an application to the authorities and he was retained in the service. No grounds for the suspension of Sarwan Dass's sentence were given by the
army authorities, when the defence asked for the same.
It was interesting to hear from Sarwan Dass when a question was asked. He said, `I had surrendered to the police not because of any sense of "patriotism" but at the instance of my mother.' He also admitted that he had been given special training at the Pak Army GHQ, Rawalpindi for carrying out the espionage activities against India.
Apart from Gnrs Aya Singh and Sarwan Dass, there was no evidence as the prosecution tried to prove, that I had any links with the Pak FIU prior to the period for which I was charged with. The other witnesses failed to establish anything against me.
Major Satpati refuted the suggestion of the Defence counsel that the S of E was recorded by him during the night and under threats (in this also only my statement). He said, `The recording of evidence was done during the day in the presence of the accused, witnessed by an independent officer, Captain Ranvir Singh.
Captain Ranvir supported the statement of Major Satpati. Both of them admitted that they belonged to HQ 16 Corps and were not under the command of Lt. Colonel SS Sohi, the CO and that they were detailed through verbal message, by the AAG.
The CO Lt. Colonel SS Sohi, when produced as a court witness, denied all the allegations levelled by me. He however, admitted to the harassment of the defence counsel, indirectly, and covered up saying that though it was not written anywhere nor had he the direction to say so, yet he felt it was his duty to subject the defence counsel to personal search. And the personal search meant stripping of the clothes of the counsel for any hidden weapon or poison that he might have carried.
The CO stated that the accused had never complained to him regarding the torture, nor had he observed any abnormalities in the physical appearance of the accused, `The physical conditions were the same, at it is now, when he was attached to my unit for the first time in December 1978,' the CO deposed.
He also denied any knowledge of the accused having told his wife facts regarding torture, in his presence when she had met me on 08 Feb 1979.
He admitted that Major Satpati and Captain Ranvir were not his subordinate officers. They were detailed by the AAG on his request.
When the CO was asked to produce the letter vide which he had made a request to the AAG, he said, `It was a verbal request'. "I did so because I did not have any officer whom I could detail for the recording the S of E".
The court asked the CO why he did not record the evidence as required by the rules.
`I did not know whether I could record it myself.' was the answer given to the court by Lieut Colonel SS Sohi.
To another question from the court he admitted that he had not heard the case of the accused before recording the S of E, nor was he present when the evidence was recorded.
On the directions of the court, the CO produced two documents. The first was the only copy of the Appeal submitted by me to the CO on 10 January 1979 and the second was the duplicate copy of the letter written to the Chief of the Army Staff, General OP Malhotra, PVSM, on 01 Feb 1979.
It was shocking to learn that a Lieut Colonel of the Indian Army, commanding a unit, was not even aware of his duties and obligation to the men under his command, let alone discharging them. And it was surprising that there was no one either in the Corps Hqs to apprise the CO about his functions and duties. Still more pathetic and degrading was the deposition by Lieut Colonel SS Sohi. Everything he deposed under an oath was false. For even if it was to be assumed that I did not complain about the torture and the rough and shabby treatment given under his command, verbally, how could the contents of the "appeal" which was produced by the witness himself, be explained? Was it not written in the appeal that I was brutally tortured by the interrogators and their staff called Chotte Sahibs and that there were injury marks still on my body; and had I not made a request for a doctor to carry out my medical examination? How then could the CO have been informed? What was the basis on which the CO deposed that the accused never complained to him regarding torture?
Though under the legal obligations one is bound by law to produce such persons as witnesses whose names appeared in the confessional statement, the prosecution did not produce Captain Nagial, Sepoy Ajit Singh and many others who could either give necessary corroboration or contradict the confessional statement, before demanding the verdict of guilt merely on the strength of the confession.
Not a single piece of evidence was produced by the prosecution to sustain the charges against me. The confessional statement remained uncorroborated till the end of the prosecution case. Instead, it was contradicted by the so called important material witnesses, Gnrs Aya Singh and Sarwan Dass, while trying to establish their earlier links with the Pak FIU.
Every witness produced by the prosecution was cross examined and proved a liar under the expert examination of Mr. Sethi. All material evidence as disclosed in the confessional statement was not produced, in fact it was surreptitiously suppressed even when I asked for the production of such evidence in my defence. If the facts disclosed by me, as mentioned in the confessional statement, were correct, then such evidence must exist with the prosecution. For example if I had spent the leave "in station" as disclosed by me, the fact could have been easily proved from my mess bill records, the permission letter of the station commander to spend the leave in station and through oral testimony.
To stay in station during leave, it is a legal necessity, to obtain the written permission, for any officer in the army, from the station commander. Then the confessional statement, as in fact the testimony of Gnr Sarwan Dass, could have been proved, if the prosecution was able to show to the court the loss of four files of secret nature which were alleged to have been passed over to the Pak FIU.
It was an accusation that the accused had been spying for the sake of money. I was, as per the allegation, supposed to have worked for a period of four years before I was caught. The total amount received during this period as per the disclosure in the Confessional Statement (CS) was Rs. 53,000/-. Although the official release in the press said the money received by me was in lakhs and that I had a house in Chandigarh fitted with modern gadgets.
It was a matter of conjecture if any officer can put his rank, position and life at stake for half the sum of his pay, by indulging in the most heinous crime against the security of the nation? But, yes, there were people who believed it. The DMI did so. The Chief did so.
What of belief? That way anything could be believed. Bit it is most damaging in the long run, to believe, as was done by the army authorities concerned. It implied that anyone could level allegations against another and the allegation would be believed. If that is so then no one is safe. It not only could happen, but had happened and that is why the entire brigade was almost engulfed by the fire of false allegations of spying.
In case the prosecution believed that I had infact reached the rock bottom of my morality for the sake of money, then it was the legal duty and moral obligation on the part of prosecution to have proved the existence of such money. They could impound the property, seal the bank accounts search the house to show that the officer had created property or he had the money.
It was not that they could not do it, but they knew if they did so, the only property they would have found, was a fridge, a scooter and a sum of Rs. 5,000/- as a fixed deposit, acquired within ten years of service as an officer!
They still had an opportunity, which they did not avail of. Evidence could have been led to show that the accused did not have money or property because he had spent the money on fun and frolic!
Thus the prosecution closed its case by the end of April 1979. The Court, allowing the defence to prepare its case, adjourned till 04 May 1979.
|Preface | Temporary Duty | The Move Order | The Train Journey | The Reception | The Army HQ | Close Arrest | The Interrogation | Background | The Intelligence | The Security | The Devil | The Confession | The Foundation Stone | The Great Detectives | The Corroborations | An Approver | Confrontaions | Hibernations | Leading to the Trails | Fairy Tales | Into the Fire | Army Procedure | As a Winess | Meeting with Family | Habeas Corpus | Death of Democracy | The Trial | Prosecution Case | The Defence | The Press | Rebuttal | Aftermath | Mystery | Postscript | Annexure I | Home ||