The case of Seema Azad and her husband Vishwa Vijay is based upon instructions from higher authorities to arrest them. The case of the prosecution in the FIR quite clearly shows that they were arrested on such instructions. The material allegations in the FIR are as follows:
- On 06.02.2010 the Special Task Force (STF) headquarters received information that – similar to the state of Bihar, Jharkhand and Chhattisgarh – the banned organisation Bhartiya Communist Party (Maoist) [Communist Party of India (Maoist)] is increasing its activities in this state also. The Allahabad unit of STF received instructions to collect information regarding the same. The Allahabad unit was receiving instructions from the headquarters of the STF and there was going on a continuous exchange of instructions and information between the two.
- On 6.2.2010 Sh. Manoj Kumar Jha, the Addl. Supdt. Of Police informed that one Ms. Asha alias Hira Mani Munda, wife of Balraj alias B.R. alias Arvind alias Baccha Singh r/o Tilkar P.S. Ekma, Distt. Chhapra (Bihar), an active member of CPI (Maoist) has been arrested and she informed that
- In District Allahabad Seema Azad and VishwaVjay, the two accused are active members of CPI (Maoist),
- They live near Durga Puja Park, EWS colony Govindpur, Allahabad and
- Information regarding them should be obtained forthwith.
- On receiving this information, the informant along with a large number of police personnel proceeded to search the two accused. Ultimately they were arrested near Khusro park, Jan Sansthan, near railway station, city side Allahabad.
- At the time of arrest, some documents and pamphlets (mentioned in the FIR) along with some money and a camera were recovered from them. They informed the police (recorded separately in the FIR) that
- The accused are the members of the CPI (Maoist). Balraj is General Secretary, CPI (Maoist) and is responsible to increase the activities of this organisation in UP. Balraj met the accused VishwaVijay and appointed him (Vishwa Vijay) as the chief of the State Organising Committee of the CPI (Maoist),
- Seema, accused, is also an active member of the CPI (Maoist) and overlooks literary work and publicity and she motivates other women to join the organisation,
- Balraj keeps on coming to Kanpur, where a meeting was to be held. In that meeting, other office bearers from Bihar, Jharkhand and Chhattisgarh are also likely to come. They were also going there. Their aim was to wage armed war against the Government of India and to establish Maoist regime after uprooting the Government.
- The prosecution’s story in the FIR further is by the perusal of the literature recovered from the possession of the two accused, the police reached the conclusion that the two accused are members of the banned organisation, CPI (Maoist). From the anti-national literature, recovered from them, it is apparent that they are liable to be prosecuted under Sections 18/20/21/23(2) of the Unlawful Activities (Prevention) Act 1967 and Sections 120B/121/121A of the IPC.
- The only material or evidence against the two accused was the recovery of some documents, some money and a camera. That is all. The investigating agency was not able to make any headway in the case and did not find any evidence whatsoever after lodging the FIR. The documents and the other material recovered at the time of arrest were sealed in separate covers, which were to be produced in the court as evidence.
- Pausing for a movement, it is appropriate here to note that even if the recovery of the documents and money etc. at the time of the arrest is assumed without admitting to have been made, no offence whatsoever can be said to have been made out. Besides the recovery, there were confessions alleged to have been made before the police. This can also not be used as evidence. Moreover, according to the judgement of the Supreme Court in Siddhanki Ram Reddy vs. the State of Andhra Pradesh (72) SCC 332 mere membership of a banned organisation cannot constitute an offence unless there is further averment of an overt act of unlawful activity.
- It is extremely important to notice here that the material recovered at the time of the arrest which was kept in a sealed cover was tempered with in as much as during investigation the seals were broken without any order of the magistrate on the pretext that the prosecution wanted to have zerox copies of the documents for their perusal. After this tampering, the prosecution was left with no evidence at all.
- After the investigating agency failed to find further evidence after the arrest, they had been asking for police remand. The first application for police remand was rejected by the magistrate 20.2.2010. The revision against the same was dismissed on 4.3.2010 by the Sessions judge. Subsequently another application was filed on 5.3.2010 for the police custody which was also rejected on 6.3.2010. However, ultimately the investigating agency succeeded in having an order on 19.7.2010 from the magistrate concerned for a police remand. On the basis of this police remand it is alleged that, at the pointing out of the accused, some documents and a mobile were recovered from the house of the accused on 20.7.2010. This recovery being on an illegal police remand cannot be a valid piece of evidence.
- Even if the recovery of some documents and a mobile on 20.7.2010 be deemed to be “evidence” within the meaning of Evidence Act, mere recovery of documents cannot prove the offences with which the two accused were charged
prepared By Ravi Kiran Jain, Senior Advocate, Allahabad High Court who argued the case of Seema Azad and VicePresident of the PUCL