Bhima Koregaon accused Rona Wilson moved the Bombay High Court on Wednesday, 10 February, asking for an independent investigation into the alleged planting of incriminating documents in his computer, that are being relied on in the case against him and other activists.
The petition relies heavily on a report by US-based digital forensics firm Arsenal Consulting, who had been asked by Wilson’s lawyers to examine an electronic copy of Wilson’s laptop.
The report claims that Wilson’s laptop had been compromised by malware for nearly two years before his arrest, and that at least ten ‘incriminating documents’ were deposited in it as a result of these attacks.
Wilson’s new petition also asks the high court to quash the sanction provided by the then-Maharashtra government under the UAPA for the case to proceed, after a review of the records.
In addition, he has requested compensation for the ‘agony, harassment, violation of fundamental rights, defamation, loss to reputation, incarceration, inhuman treatment, suffered during this period’.
Till such time as these main prayers are dealt with, he has asked for a stay on the proceedings for the charge sheet, as well as his ‘immediate release’ from jail.
Key Background to the Petition
The Pune Police were initially in charge of the investigation into the Bhima Koregaon violence, when Dalit commemorations of the battle of Bhima Koregaon on 1 January 2018 were attacked, leading to violence.
An FIR filed several days after the violence claimed that it had been instigated at the Elgar Parishad that took place on 31 December 2017, at which activist Sudhir Dhawale had been present. The investigation into this FIR led to the Pune Police claiming to have ‘secret information’ from ‘secret sources’ that Wilson, an academic and activist, and lawyer-activist Surendra Gadling, were also involved in the plot.
The police twice sought to obtain warrants to conduct raids at Wilson and other accused person’s houses in March, claiming to have ‘secret information’ about correspondence between them that would reveal a ‘conspiracy’, but both these requests were rejected.
The police eventually conducted raids on the houses of the accused on 17 April 2018, when they seized electronic devices of several of them, including Wilson. The police put out claims soon after they found incriminating documents on these computers, including an alleged letter from Wilson about a plot to assassinate Prime Minister Narendra Modi.
Wilson was among the first batch of five people arrested in connection with these claims of Maoist conspiracies in June 2018.
These claims eventually found their way into the first chargesheet filed against several of the accused on 15 November 2018. As the chargesheet involved accusations of offences under the draconian Unlawful Activities (Prevention) Act – ie the UAPA – government sanction had to be provided for this chargesheet to be filed, which the then-Maharashtra government had provided a day previously.
After the Shiv Sena-NCP-Congress government came to power in late 2019, the case was abruptly transferred to the National Investigation Agency (NIA), which has continued to proceed based on the original investigation of the Pune Police, and added to the original chargesheets.
‘Fabricated & Planted Documents’
Wilson argues that the allegations in the chargesheets are, “Based entirely on the electronic evidence allegedly found in the devices of the petitioner, Surendra Gadling and a few of the other co-accused.”
The petition notes that even though his computer was in ‘shut down’ mode when the police raided his home, a person claiming to be a cyber forensic expert with the police turned it on and operated the computer for approximately ten minutes. This was confirmed by the FSL report dated 5 November 2018 submitted to the court.
When the sanction for prosecution of Wilson and the other accused was given on 14 November 2018, it was based on a report from the independent review body appointed by the state government that there was sufficient evidence against them, including the evidence allegedly seized from their electronic devices.
This is where the report by Arsenal Consulting, which was requested by Wilson’s lawyers with the assistance of the American Bar Association, comes in.
“It is submitted that, it has come to the knowledge of the petitioner that the incriminating documents found on his computer and referred to in the chargesheet have been planted for over a period of 22 months preceding the seizure without his knowledge, and said sanction is based on false and fabricated evidence and is liable to be quashed and set aside.”Rona Wilson’s Petition to the Bombay High Court
Wilson notes that even at the time of grant of sanction, there were question marks over the seizure of the evidence, as the ‘hash value’ of his device was not taken or provided to him on the day of the raid (as required by law).
The FSL report on Wilson’s device was also silent about whether there had been any tampering with the hard disc of the computer, even though the investigating officer had specifically posed a question on this to the FSL.
This failure to comply with the procedure for search and seizure is alleged to have taken place across all the raids conducted on 17 April 2018, which would mean a violation of Article 21, the petition argues.
Wilson goes on to categorically deny being the author or addressee of the supposed documents, and says he was not aware of the existence of them. The Arsenal Consulting report states that the documents were found in a hidden folder and had been delivered to it by way of the NetWire malware used to compromise Wilson’s computer.
As a result, Wilson, says:
“It is the further case of the petitioner that he and the co-accused have been purposefully and mala fide implicated in this case, on the strength of absolutely fabricated and planted documents... He is being targeted for his political views through fabricated and false evidence. The said fabrication amounts to offences against public justice and requires to be investigated in the interest of public.”
The petition notes the delay by the investigating agencies in providing cloned copies of Wilson and the other accused’s electronic devices to the accused, even after the trial court had ordered these to be supplied on or before 27 June 2019.
When this was belatedly provided to Wilson, his lawyers requested the American Bar Association to help get a forensic analysis of it conducted. The ABA contacted Arsenal Consulting, who had helped with analysis of the Boston Marathon bombing in 2013, and provided them with a cloned copy of Wilson’s computer in July 2020.
Need for Independent Investigation
Based on the findings of Arsenal Consulting (which tie into a previous report by The Caravan on possible evidence tampering with Wilson and others’ devices), Wilson claims that it is ‘just and necessary’ for the Bombay High Court to enquire into the ‘fraud committed on the petitioner in order to frame him and his co-accused with the aim of keeping them behind bars for an indefinite period of time’.
The ‘targeted and selective prosecution’ of the accused in the case is alleged to be a violation of Articles 14 and 21 of the Constitution. The petition argues that there is no other efficacious and expeditious remedy under the law, as to wait for this new evidence to be assessed at trial would mean losing his right to liberty till such time.
The entire prosecution case is argued to be an attempt to frame the accused in the case, which is based on these incriminating documents whose provenance is now suspected. Wilson notes that the Pune Police appears to have been aware of the planting of the fabricated evidence, given their repeated requests for warrants to uncover correspondence between the accused (which were twice rejected) based on ‘secret information’.
Given the question marks over the role of the investigating agencies, Wilson, says:
“It is necessary to ascertain whether the investigating agency was complicit in the act or negligent, and therefore also there is need to constitute a special investigation team to conduct probe in the issue of planting of the documents, and persons who are involved in such an act, so as to bring them books.”
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