Bhima Koregaon Case: Can 'Planted Malware' Report Help the Accused in Court?

Bhima Koregaon accused can milk the Arsenal report to discredit the NIA's entire case during the trial.

A day after the death of activist Father Stan Swamy, who had been under arrest in the Bhima Koregaon case under UAPA for alleged Maoist links, a report by Arsenal Consulting, an American forensic agency, has claimed that evidence was 'planted' on the computer of another activist, Surendra Gadling, another accused in the case, also currently under arrest.

The malware that targeted Gadling's computer via emails also had several other Bhima-Koregaon accused, including Stan Swamy and Sudha Bhardwaj copied on the mails, Arsenal has claimed.

Arsenal Consulting's report, dated June 2021, published in Boston, asserts that Gadling's computer had been targeted for over two years via emails, on which several of the Bhima Koregaon accused, including Stan Swamy, were also copied. Arsenal's analysts deep-dived into Gadling's hard drive and claim to have found proof that incriminating evidence had been 'planted' on his computer system, which was compromised (read 'hacked') between February 2016 and November 2017.

The report, using digital forensic technology, has debunked the primary evidence of the National Investigation Agency in the Bhima Koregaon case. However, can the Bhima Koregaon accused use the Arsenal report to their advantage? Can the report give them the required relief before the commencement of the trial?

Could the Report Help in Quashing of Criminal Proceedings? 

Yes, there are multiple remedies available to the Bhima Koregaon accused on how to use the Arsenal report to get relief even before the case goes to trial. However, considering the source of the report (a private company based in USA), and the gravity of the accusations (terror offences), this would seem extremely difficult.

The most plausible pre-trial remedy for the Bhima Koregaon accused would be to invoke the inherent jurisdiction of the Bombay High Court under Section 482 of the Criminal Procedure Code. A plea under Section 482 can be filed asking the high court to quash the criminal proceedings pending against the accused without a trial.

However, high courts are expected to be extremely cautious in exercising their inherent powers under Section 482 of the CrPC. Even in its recent judgment in Neeharika Infrastructures Ltd vs State of Maharashtra (2021), the Supreme Court reiterated that "criminal proceedings ought not to be scuttled at the initial stage".

The power of quashing (under Section 482 CrPC) should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases.

Supreme Court

It is expected that this recent ruling of the apex court would deter high courts from having a more liberal approach towards quashing criminal proceedings under Section 482.

The Bombay High Court may be even more cautious about invoking Section 482 considering both, the legal and political nature of the Bhima Koregaon case. The fact that the NIA investigation has been debunked by an American private company and not by an Indian agency might also deter the court.

The accused could also explore the option of moving an application for discharge before the Special NIA Court, relying on the scathing observations of the Arsenal report. However, the existing law of charge (which allows the accused to challenge the charges invoked against him) prevents them from doing that as the Arsenal report is not part of the charge sheet filed by the NIA.

Criminal lawyer Nitika Khaitan told The Quint that the restriction in the law on charge was premised on the belief that the trials would be initiated and concluded in reasonable time.

Legal principles on pre-trial remedies (like quashing) and charge – what evidence can be looked at then, what factors should the court keep in mind when deciding whether to quash or discharge etc – all presume a world where trials don't take as long as they do in India today.

Nitika Khaitan

Demand a Court Monitored Probe into Hacking 

While seeking discharge or quashing of criminal proceedings might be difficult, the accused in the Bhima Koregaon can use the Arsenal report to seek a probe into the allegations of hacking, planting malware, and planting 'false evidence' on computer systems belonging to them.

The accused can approach the high court demanding a court-monitored independent probe into the allegations of hacking into their computer systems, as suggested by the Arsenal report. The court can constitute a Special Investigation Team (SIT), headed by a retired Supreme Court or high court judge, to probe this.

Superior courts could also take cognizance of the charge sheet and can direct the NIA to further investigate the case under Section 173(8) of the CrPC. However, even if such a direction is passed, the investigation will be conducted by the NIA, which has already discredited the Arsenal report and has so far refused to pay any heed to it.

Use the Arsenal 'Malware' Report During Trial

While it is quite difficult for the Bhima Koregaon accused to seek complete exoneration at pre-trial stage on the basis of the Arsenal report, they can use the report to the fullest during trial.

The defence counsel can rigorously cross-examine the witness called by the prosecution to prove the 'authenticity' of documents retrieved from the computer system of the accused. Moreover, the defence can also call its own witnesses to build a counter-narrative based on the findings of the Arsenal report.

Section 243 of the CrPC allows an accused to produce his own evidence or give a written statement. Even after making his defence, the accused can move an application before the Magistrate seeking production of any witness or document for the purpose of examination or cross-examination.

Therefore, the Bhima Koregaon accused can very well produce the Arsenal report as evidence in their defence during trial. They can also call on expert witnesses to corroborate the findings of the report.

Whatever may be the strategy adopted by the Bhima Koregaon accused, or the tangible outcome it may yield, the Arsenal report can be used to create 'reasonable doubt' in the mind of the judge. It would be hard to imagine a trial in this case, if it goes to trial, where the Arsenal report would not become the elephant in the (court) room.