Bhima Koregaon Elgar Parishad case: will provide clone copies once received from FSL, but trial should not be suspended

Four years after the arrests in the Bhima Koregaon – Elgar Parishad case, the National Investigation Agency said it would provide the remaining copies of the electronic evidence seized, but the trial in that case is expected to continue.

Responding to demands by lawyer Sudha Bharadwaj and journalist Gautam Navlakha to stay the proceedings or delay the formulation of charges until copies of the clones are not provided, the NIA says it has yet to received copies from the forensic science laboratory.

Once the copies are obtained, they will be returned to the defendant in accordance with Article 207 of the CrPC, the NIA said.

However, the defense claims that their refusal to clone copies of the electronic data vitiates the right to a fair trial under Article 21 of the Indian Constitution and affects the appellant’s defense, depending on the means.

“..The appeal requesting copies of the u / s 207 electronic evidence clones of CrPC will be provided to the defendants; however, the interim request to stay the trial proceedings is strongly contested.” the NIA affidavit states.

The affidavit says that although the NIA provided cloned copies of some of the electronic devices, a few copies recently received from the FSL would soon be submitted to court and returned to the accused. “Five pending cloned copies of the electronic devices of the appellant and her co-accused have not yet been received from FSL. “

Even though a forensic consulting firm in the United States has concluded that co-accused Rona Wilson’s laptop is infected with malware, the NIA says the allegations of vulnerability to tampering and manipulation are “submissions”. fanciful ”.

Bharadwaj and Navalakha requested HC’s indulgence after the NIA submitted the draft indictment to the NIA Special Court against the 15 defendants on August 9.

The defendants challenged the Special Court’s order dismissing their plea for cloned copies of the electronic evidence before trial.

Based on letters mostly recovered from the computers of accused Rona Wilson and co-accused Surendra Gadling, the NIA has accused 15 civil liberties activists of being members of the banned CPI (Maoist) organization and of conspiring to overthrow the government. They are reserved for offenses under the strict Illegal Activities (Prevention) Act (UAPA).

Months after investigators gave Wilson a cloned copy of his hard drive, he approached the HC, backed by a report from Arsenal Consulting, which concluded that his computer was infected with malware, called NetWire ( available for $ 10 online). He was planted by email on June 13, 2016, two years before his arrest on June 6, 2018.

The company also released two other reports regarding documents on Gadling’s laptop.

The petitioner states that the authenticity of the evidence cannot be tested on a simple digital copy and that a cloned copy would be required.

Affidavit NIA

Regarding the violation of article 21 of the constitution, the NIA declares that the right to a free and fair trial is subject to the procedure established by law. The procedure for providing copies to the accused is mentioned in Articles 173 and 207 of the CrPC.

“Thus, the provision of some pending electronic documents which are already invoked against the accused cannot be an alleged violation of fundamental rights that cannot be cured”, their affidavits.

The agency further says that the defendants “confuse and dispute crucial facts without much merit and confuse the honorable tribunal to derail the trial, as do the ulterior motives of the defendant-appellant and his co-defendants at the ICC. (Maoist). ”

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