“We must not forget that 11 of the BK16 activists remain imprisoned without trial, simply for speaking for the rights of the most marginalised.”Amnesty International India
It has been four years since arrests began in the Bhima Koregaon case.
Subsequently, 16 civil society members including poets, academics, journalists, lawyers and activists were put behind bars.
But the others continue to languish in custody. Trial too is yet to begin in their case.
One of the accused, Father Stan Swamy, a Jesuit priest, died as an incarcerated undertrial in 2021.
Highlighting indications of their innocence, several global rights bodies have repeatedly demanded the release of all the undertrials in the Bhima Koregaon case.
And reports suggesting their innocence are aplenty.
Most recently, on 20 December, a former policeman in charge of law and order on the day the Bhima Koregaon violence transpired stated:
"In my investigation, I did not come across any material to indicate that the Elgar Parishad held on 31 December 2017 at Shaniwar Wada, Pune, had any connection with an outbreak of (the Bhima Koregaon) riots which took place on 1st January 2018."
Former Sub Divisional Police Officer (Daund) Ganesh More said this before the inquiry commission investigating the Bhima Koregaon violence.
Why This Matters: This matters because the purported link between the Elgar Parishad and the Bhima Koregaon violence is, in fact, what led to the arrest of the sixteen under the Unlawful Activities Prevention Act (UAPA).
More's account comes on top of investigative reports by independent forensic experts suggesting malware use and planting of evidence on technological devices owned by the accused prior to their arrest.
He also added that he "did not come across any information or material to show that the incident of riots which took place on 1st January 2018, were the result of holding of Elgar Parishad on 31st December 2017 at Shaniwar Wada, Pune. (emphasis added)"
Ex-Cop's Statement 'Puts The Investigation Under The Scanner'
The police and the National Investigation Agency (NIA) had alleged that the Elgar Parishad, held on 31 December 2017, at Pune’s Shaniwar Wada was responsible for the violence that followed in Bhima Koregaon on 1 January 2018.
But More's statement appears in contradiction to these claims.
Like Mihir Desai, one of the lawyers representing the accused in the case, told The Quint:
“Ganesh More’s statement has a strong moral impact, because an investigating officer is saying what we have always said: the 16 accused in the case are innocent.”
As stated above, More was the Sub Divisional Police Officer Daund (in Pune district) and the senior officer in charge of the law and order arrangement (‘bandobast’) in the region on 1 January 2018.
After violence transpired on that day, he was put in charge of the investigation of the incident.
“His statement sends a message that dissenting people and groups were targeted by the government. His statement puts the investigation in the case under the scanner, in the eyes of the public,” former Chief Justice of Bombay and Rajasthan High Courts Pradeep Nandarajog added.
And Then There are Reports of ‘Planted Evidence’
And of course, More’s statement is not the only such revelation in this case.
Earlier this month, Arsenal Consulting, a US-based digital forensics firm, claimed in a report that documents were planted in (the now deceased) Fr Swamy's computer to frame him under the Unlawful Activities (Prevention) Act (UAPA).
The firm also asserted that the documents, which were planted by the hacker and were used by the NIA and government agencies as evidence against Swamy and others in the Bhima-Koregaon case.
A previous digital forensic investigation by Arsenal Consulting had reportedly established that the NetWire malware had been used to plant key documents to the case (including a letter about a conspiracy to assassinate the prime minister) on the computers of accused Rona Wilson and Surendra Gadling.
In its latest report, the firm confirmed that all three activists were targeted by a single hacker.
And here’s where it gets interesting: SentinelOne, another cyber security firm, in a report which came out in June this year, alleged a link between the fabricated evidence and the Pune Police, which was investigating the case until the NIA took over in 2020. Read more about it here.
How All of This Will Play Out in Court
Ex- Senior Cop Ganesh More’s statement: Under the Commissions of Inquiry Act, 1952, evidence presented before the inquiry commission cannot be used as is, during a trial in courts, Desai pointed out.
“His [Ganesh More’s] statements will not hold legal sanctity unless he repeats them in the witness box,” Justice Nandarajog said.
And whether he will be called as a witness during the trial will depend on how the trial progresses, Desai explained.
Reports on Planted Evidence: Although a lower court could ask for an independent assessment of the accused's computers, and arrive at a finding of hacking after hearing both sides – all of this can only properly be done by a trial court at the stage of, well, trial, The Quint reported in a previous piece.
However, in the same piece, experts also emphasised the role of the Bombay High Court as a higher court.
"Why can't the Bombay High Court, which is a constitutional court with far greater powers than a trial court, take action here?" Senior Adovcate Rebecca John, one of India's leading experts on criminal law, asked.
"The Arsenal reports have been put to the Bombay High Court and I think it is time now for the high court to take cognisance of all this and ask for an independent assessment of the electronic data which is the substance of this case," she elaborated.
Following the original revelations about the use of malware against him, Rona Wilson had approached the Bombay High Court challenging the validity of the entire case. Others among the accused had also filed pleas on similar grounds.
But the majority of the accused in this case still remain in jail.
Meanwhile, in a statement urging the government of India to drop all charges against the BK-16, Amnesty International also said that the authorities “have repeatedly denied basic necessities and access to healthcare in prison on multiple occasions. “