Mumbai defense
Amba Salelkar
I finally saw the famed “Chef Aid” episode of South Park (one of the few episodes of the series which hasn’t been completely censored from even broadcast on Vh1). Fake guest stars apart, my curiosity about the episode, as you might have guessed, centered around the use of the “Chewbacca Defense”. For the uninitiated, the aim of the “Chewbacca Defense” is to deliberately confuse the jury and lead them, in a confused haze, to accept the view you are putting forth. The Wikipedia entry on the Chewbacca Defense has links to many other absurd defenses, and as I laughed while reading them on one waterlogged day at home, I felt a little bad for myself that we don’t have the possibility of arguing before a jury to use these several crazy defenses. Also, the Indian conviction rate is so low that we hardly ever come to the stage of defense evidence. I’d like to say that the reason for that is that as defense lawyers, we are that good, but actually, it’s because of badly drafted 161 statements and hostile witnesses, both of which I am not responsible for, which is a good thing.
Then I realized: when will I ever put the hours I spend in Court waiting for my matter to come up to any use (once my cellphone battery runs out from the excessive Twittering)? Just because we don’t have a jury doesn’t mean we can’t have some innovative defenses coming up. Therefore, presenting: The Mumbai Criminal Defense Handbook: most popular criminal defenses, Volume I:
- The Deewar defense is used without question in CBI prosecutions, which for some reason are always selective in who they choose to prosecute. From a pragmatic perspective, rightly so. The scams they deal with are on many levels and there’s no way they’re going to find a prosecutor for a charge sheet of more than 15,000 pages. So while a chappie who takes a loan using fraudulent papers and the clerk who vets the papers are roped in, the bank manager who affixes his seal on the loan agreement is made a witness. Or the guy who made up these fraud papers somehow remains untraceable. Final arguments consist of rephrased versions of “pehle us aadmi ka warrant leke aao jisne mere haat mein yeh paper diya tha”. Defense lawyers love using this for throwing doubts on the entire prosecution, not with too much success though.
- The aila! defense is similar to the idiot defense popular in Wall Street Financial Irregularities, but this is much more dramatic. Here, defense lawyers will express “shock and surprise” at many financial scams taking place under their client’s noses, by employees who were till then decorated and promoted without doubt. I derive the name from a case where a lady who was a “sleeping partner” (no pun intended) of the partnership firm in which her husband, the managing partner, who successfully (or at least until he got caught) defrauded the Government of several lakhs of rupees. This was her exact reaction when I read out the FIR against her Husband to her where she was named as Accused No. 2.
- The saab ne bola defense, kind of the corollary of the aila! Defense (infra), is when employees get screwed over for heeding the Boss’s instructions. Whether it is innocent obedience depends entirely on the facts of the case: “You see, I joined this guy called Dawood, he asked me to call some people up for donations and gave me a gun to wave around – I had no idea about this organized crime syndicate, I swear…”
- The gaon jaaonga saab defense had to be included because it’s the most popular defense and innovative defense I’ve heard at Magistrate’s Courts for remands. A North India bloke will get pulled up for chain snatching/pocket picking/mobile flicking/buying stolen property/selling refilled Bisleri Bottles and the Judge will sternly look at him while deciding whether to release him on bail or not. The young lad will wail loudly while the accompanying havaldars will step aside to avoid the pouring snot. “Saaab”, he pleads. “Mujhe jaane do saaab. Main kuch nahin karoonga. Main waapas gaaon jaaonga saab. Kasam se!”
Yes! That’s exactly what we need to save our system, according to the relocatory theory of penology.
- And finally, the chhod na yaar defense, the desi predecessor of the Chewbacca Defense, though it stresses more on tempting the laziness of the Presiding Officer. This is popular in cases involving highly technical matters, like cyber crimes and economic offences. Here’s the plan - unless it’s a really big case, the State will hardly ever prefer an appeal against acquittal. On the other hand, the accused are ever ready to do so. So, if a judge wants to convict, he has to record reasons for doing so to impress the appellate court that he knew exactly what the hell was going on. This in turn demands that he actually understood what the hell was going on, for instance, that a Special Purpose Vehicle is not the red car that Yuvraj is driving in that new ad. So if you cannot convince, confuse. This is especially popular during the stage of discharge applications, which are based on prima facie material prior to the actual recording of evidence. “If you think this is mindboggling, wait till the expert evidence is cross examined”.
And as I am typing this out, I received an email from a client - accused in an offence under the Information Technology Act. After much struggle, the State was called upon to answer to the discharge applications filed by the accused, and after taking two months to get a reply I was worried that the State had figured out more of the matter than I did, which wasn’t saying much. After perusing a 3000 page chargesheet and a 10 page discharge application, the State’s reply is:
“There is absolutely prima facie evidence against the all accused to frame charge hence charge can be framed against all accused and application of accused for discharging in this case may be rejected kindly”
Looks like even the prosecutor would rather give this one a pass. Don’t grudge him. The glove probably wouldn’t even fit.
