UPDATE (India): Gopen’s bail application unreasonably rejected

Dear friends,

The Asian Human Rights Commission (AHRC) has received updated information from its local parter in West Bengal, MASUM, about Mr. Gopen Sharma, who was illegally arrested and is currently detained based on a frivolous charge (See further: UA-045-2007). We were informed that the bail application for Mr. Goepn was again rejected on February 26, although the public prosecutor failed to furnish any document to prove the charges against him and the investigation into the case is almost completed. As a result, Mr. Goepn is detained for almost 20 days since his arrest on February 8. The AHRC concerned that the repeated court reject of bail application for Mr. Gopen might be a way to pressurise him to give up his work for human rights.  We call for your urgent intervention into this case. 

UPDATED INFORMATION:

On 26 February 2007, with assistance of Mr. Subhanjan Sengupta, Advocate of Murshidabad, Mr. Abhijit Datta, Secretary of MASUM, moved a bail application for Mr. Gopen Sharma before the District & Sessions Judge of Murshidabad, Mr. M.K Pal under section 439 of Code of Criminal Procedure, 1973. Section 439 is about “Special powers of High Court or Court of Session regarding bail.” Mr. Gopen has been imprisoned for almost 20 days since 8 February 2007 with the connection of the case against him (case no.21/2007 under section 420/468/471 of IPC). Section 420 is regarding “Cheating and dishonestly inducing delivery of property”, 468 is “Forgery for purpose of cheating” and 471 is “Using as genuine a forged document or electronic record”. He is now jailed in Baharampur Correctional Home.

During the hearing of the bail application, the public prosecutor submitted that the accused, Mr. Gopen, had taken money from different people from the villages and promised them to provide telephone connection, but ultimately he did not provide the service and the money was misappropriated by him. The public prosecutor also admitted that the statements recorded are all related to the case which took place 3 years ago. He further could not furnish any evidence or documents to prove his accusation except bare statements. However, the judge rejected the bail application.

Mr. Datta pointed out several irregularities shown in the court decision as well as the case against Mr. Gopen. They include:

1- The defacto-complainant alleges that Mr. Gopen took Rs. 1,900 (USD 43) from him about three years ago with false promises. But the public prosecutor failed to furnish any document to prove it. 
2- In the complaint itself, no ingredient of section 468 and 471 of IPC were mentioned. 
3- Section 420 of IPC was framed against Mr. Gopen in lieu of an accusation which was three years old and no document was in possession of the complainant as well as investigating agency. 
4- The record of Mr. Gopen’s arrest; time & date of arrest and the name of arresting police officer; was all manufactured.
5- Major guidelines stimulated by the Supreme Court in the case of DK Basu were violated by the police.
6- Mr. Gopen has already been imprisoned for almost 20 days and he was entitled to bail as the investigation of the case was almost completed.   
7- The medical certificate of Mrs. Bulu Sharma, the wife of Mr. Gopen, issued by Medical Officer of Sadikhandear Block Hospital, was presented before the court to seek her husband’s bail so that he can take care of her and other family members.

Mr. Datta also insists that Mr. Gopen has been victimized due to his active work against police torture and extra-judicial killings by the Border Security Forces (BSF) in the area. He constantly submitted petitions relating to these violations to various government authorities including the National Human Rights Commission of India and the West Bengal State Human Rights Commission. In fact, on the day of his arrest on February 8, Mr. Gopen was visiting Kaharpara Border to get updated information about one murder case allegedly committed by the BSF 136 Battalion on 1 June 2006. The AHRC has issued the urgent appeal on this case based on his report and communicated with local authorities and the relevant UN agencies seeking for their intervention into the case (See further: UA-249-2006).

He has received several threats and harassment by the police and other law enforcement officers due to his dedicated work to protect the rights of people (refer to: UA-59-2005, UA-161-2005, UA-237-2005, UA-375-2006).

The AHRC is of view that Mr. Gopen has been implicated in a false case by the police with an intention to harass and pressurize him to stop his human rights work. The AHRC also raises concern that the bail application of Mr. Gopen is not treated fairly by the court.

In fact, before the bail application move on February 26, Mr. Gopen’s lawyer had filed a bail application before the judge of District & Sessions Court of Murshidabad on February 13. The District Judge fixed February 26 for bail hearing and called for Lower Court Recrds (LCD), which is lying in the Court of Additional Chief Judicial Magistrate (ACJM) of Lalbagh in Mushidabad district.

After that, the MASUM moved for the urgent hearing of the bail application for Mr. Gopen before ACJM of Lalbagh and asked for putting up the case record.

On February 14, MASUM appointed another advocate of the Lalbagh court, Mr. Ranjit Ghosh, and he moved for the urgent hearing on the bail application of Mr. Gopen before Ms. Ali Biswas, the ACJM of Lalbag, at 10:30am on February 15. The ACJM allowed the application for hearing. However, interestingly, when the afternoon sessions began, Ms. Ali Biswas did not sit for hearing bail applications and instead a junior judicial magistrate heard the cases. The 3rd judicial magistrate then rejected the bail application and simply fixed another date for hearing on February 22.

It should be noted that the same incident occurred on February 9, when Mr. Gopen prayed for the bail application before the ACJM of Lalbag. On that day, the MASUM filed the memorandum to the ACJM, Lalbagh disclosing the entire event and the background of Mr. Gopen’s illegal arrest and urged ACJM, Ms. Ali Biswas to take proper step in the case, as she was the judicial head of the local (sub divisional) criminal justice administration.

Now the MASUM suspect that the ACJM might intentionally avoid hearing the bail application for Mr. Gopen due to pressure from the local police. It should be also noted that In India, the lower judiciary for criminal cases are fully dependant on the police in every respect, even for maintaining the court records, writing the order of magistrate in case records. Therefore, in many cases, the judicial magistrates sitting to hear the police cases are not capable to discharge their judicial duties independently. The AHRC is gravely concerned that the unreasonable reject of the bail application by the court will create pressure on Mr. Gopen, who is also working as DHRM (District Human Rights Monitor) under one Europian Union & FNSt supported programme, “National Project on Preventing Torture in India” to discourage him to continue his human rights work.

SUGGESTED ACTION:
Please immediately write to the relevant Indian authorises listed below and demand that his bail application are granted without further delay. Please also urge them to investigate into the alleged fabrication of charges against the victim by the police in a way to harass him.

To support this case, please click here: SEND APPEAL LETTER