Police released technology-recorded conversations, allegedly between Dhamala and cadres of the underground armed outfit Ranabir Sena, at a hastily called press conference Wednesday, leaving the legal community and the general public to argue for or against the evidence thus made public.
- Related news: SC seeks clarification on Dhamala detention
Currently, two schools of opinion have been circulating, especially among lawyers, with regard to technology-recorded evidence against Dhamala. [break]
One school of opinion says that evidence recorded with the help of technology - recorded conversations in this case - cannot stand as a basis for convicting anyone under the Evidence Act 1974. The law, which has not been updated since its first introduction 34 years ago, recognizes only direct evidence in courts of law and is silent about technology-recorded evidence.
“As the Act does not speak about recorded conversations as evidence, the charge against Dhamala stands very weak,” said a prominent lawyer specializing in criminal cases, seeking anonymity as he may have to plead Dhamala’s case in future.
There are also no Supreme Court precedents, which are regarded as equivalent to law in common understanding, on the use of recorded material as evidence in crime, according to Advocate Tika Ram Bhattarai. He says that Nepal does not have law related to identifying and testing the human voice (Dhamala´s in this case).
Government lawyers used filmed documentaries as evidence in the case of French national Charles Sobhraj during hearings at the Supreme Court last year. But the apex court is yet to finalize the case and pronounce on the use of technology-recorded material as evidence.
However, there is a second school of opinion regarding the use of technology-recorded evidence. A senior government lawyer argued that recorded conversations between Dhamala and cadres of the armed outfit can be used as associate evidence, though not as principal proof.
“If we do not believe in technology and keep technology separate from the gathering of evidence in the modern age, prosecutions in modern and complex crimes like the one relating to Dhamala will not be possible,” argued the government lawyer, who asked for anonymity, saying this is a case concerning a high-flying journalist.
The debate for and against recorded conversations as evidence in Dhamala’s case will continue till Chief District Officer of Kathmandu Bhola Siwakoti takes a final decision before the Supreme Court intervenes. At present, a habeas corpus petition is pending at the Supreme Court, seeking Dhamala´s release. On Thursday, the apex court issued a show cause notice to the authorities regarding the arrest of Dhamala and ordered them to furnish a written reply.
Dhamala may be in custody for 90 days
Dhamala, who runs the Reporter’s Club, faces charges under the Arms and Ammunition Act, which authorizes the chief district officer concerned to remand him for up to 90 days for purposes of investigation before deciding whether to release or convict him. He cannot seek bail until the authorities decides his case.
Dhamala will face imprisonment of three years to seven years if convicted. Alternatively, he will have to pay Rs 60,000 to Rs 100,000 in fine if the charge against him is proved.
Lawyers fear that Dhamala may not get a fair trial as the chief district officer, who is very likely to be influenced by higher authorities, acts as the trial court judge in this case.
Questions are even being raised from some quarters over the haste the authorities showed in making the evidence against Dhamala public. It has led many to question if there is any ill intention on the part of the authorities in arresting Dhamala.
“We made the evidence public one day after his arrest because of his status and the sensitivity of the case,” said Nabin Kumar Ghimire, spokesperson of the Home Ministry.
kiran@myrepublica.com
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