Harsha Raj Gatty

Subs and Scribes Media Ventures LLP



Mangaluru, Mar 15: Even if one victim had turned-up, or the infamous video-clip was produced by the investigation team, the case may have seen conviction, Advocate Asha Nayak says.

For over nine years, advocate Asha Nayak says she and her team were chided with uncharitable remarks, provocation, mentally harassed and few even questioned her professional ethos for representing Sri Ram Sene Chief Pramod Muthalik. "Despite my secular credentials and different ideological thought process, I was highlighted by certain people in the media-fraternity as a right-wing sympathizer. Until, I clarified the facts of the matter, that's what even my relatives and colleagues thought," she says.



Asha Nayak

In-fact, according to the Mangaluru based lawyer, she would not even have considered of pleading the case on-behalf of Muthalik and Sri Ram Sene, if it was not for the arrest of her junior advocate Dinakar Shetty by the police department on false accusation. "A national media in Mangaluru misquoted my junior and presented him as though he was the ring-leader of the pub-attack, despite the fact that he was at the office at that time of the incident. Obviously, I had to set things right and apply for his anticipatory bail," she says.

It was hours later during the day that the Sriram Sene leaders requested her to represent them as well. "Similar to a doctor who does not turn-out his patient because he is a criminal, as a lawyer I cannot have prejudices against my client because they don't share leftist ideology like me. As a professional I took up the case in their defence," she says.

No complainants, no video-clipping produced before court judiciary



Unlike the popular belief, that the victims of the pub attack were non-residents of Dakshina Kannada and apparently due to fear from long term legal implication they did not lodge the complaint, Nayak disagrees. "In fact all of the victims were from Mangaluru. They belonged to the rich, politically well connected and influential families. They had all the means at their disposal to pursue the case to a logical end. But not one turned-up before the court of law either as complainant or as witness," she says. In this case, in fact, the suo-moto was lodged by the jurisdictional Bunder police station and not any victim.

As far as the video clipping is concerned, it is secondary evidence, but to prove one’s case in court it needs to have a backing of at-least one complainant. "You can go to a doctor for treatment for yourself and ask for medicine. Can you go to a doctor and say that my friend has fever or injury and request medicine - the doctor will not give remedy based on hearsay. Same is the case here, the video is considered as a hearsay, Where is the complainant? What can the judiciary do, if the aggrieved does not depose before them? Or the investigating agencies do not produce the cameraman before it as witness,” Asha asks.



Nayak argues that in this instant case where molestation is the primary charge, it is a ground rule that the complainant's statement is recorded and she testifies before the court. "Else the question is on whose behest or for what accusation are you punishing or sentencing the suspect(s) for?” she adds.



"Tomorrow person 'A' can download a violent incident that happened somewhere in the world and accuse that 'B' has done that to 'C'. Should 'B' be punished, just like that? Isn't it commonsense that 'C' should be present before the court and corroborate with the evidence so that court takes any judgment?" she says.



During the course of the case-proceedings, Asha says there were several complaints against the pub-owner came into the forefront such as not having permit to run the establishment or license to serve liquor, based on a RTI we also have a proof for this, but no case was booked against him. "We strongly feel that most of the victims were minors. And under Section 24 of the Juvenile Justice act, the club owner who ran an illegal establishment could have also been booked for serving alcohol to the minors. That is why we believe that the investigators conspicuously never produced the video evidence before the court though it was time and again played in the media even after the verdict. So the question is whom the investigating officials were trying to protect? What’s tying their hand?,” Nayak said.

According to the defence lawyer, the public prosecution produced 13 government witnesses of whom eight were police men, four-were private witnesses and a person who was allegedly assaulted. "But we were able to prove that the person was a 'planted' by the investigators," she says.

As far as Muthalik's role is concerned, although he gives statements on the attack, he was not there in Mangaluru during the time of the incident. "In fact it is on record that Muthalik was brought on a 'Body-warrant' to Mangaluru by the police from Pune in relation with some other case and the police tried to fix him," she says.

Taking on the role of activists following the pub attack, Asha says that they were sole interested in media hype, candle light march, holding public meetings and blowing the matter out of proportion. "Activism should have been shown by them by reaching out to the victims, morally encouraging or counseling them to give statement before the police or judiciary. Did they do that? No. They were glued to the microphones and glorifying the incident that were carried by the national and international media," she says.

Even after the judgment, Asha says that some activists unaware of the process of the law are giving misleading statements of filing fresh case or evidence or going before the High Court, when in reality the next forum of appeal is the Sessions Court. "Unlike what this lady activist said before TV channels, no fresh charges can be brought before the court this point. Won’t the court question your reason? What is the 'locus-standi' of the activist? There should be some merit or substance right?," Asha says.



Talking of victim assistance, Asha Nayak cites a 2013 case at Konaje police station limits, when two medical students - a boy and a girl where abducted by certain anti-social elements and forced to perform sexual acts which the perpetrators recorded and blackmailed them. "We encouraged the victims to file a complaint, and later assisted the police to track down the perpetrators, and then gave them legal assistance and handled the case in a systematic manner. But if we had exposed them to media, then even that case would have ended up in dustbin," she says.

According to Nayak, it is natural for ordinary people who are unaware of the court proceedings, they can say all kind of things on social media like the verdict is biased or the criminal justice system is archaic and that's why the accused were acquitted. But in this case it was the victims by their non-cooperation with the law who failed the process. "Of course, the prosecution case has miserably failed. Had at least one girl turned up as complainant or witness and then this video was showed, then there would have been a 100 percent conviction. The injustice to the victim would have been converted into justice," she says.

“Criticism does deter us, if the Department of Public Prosecution goes for a higher appeal and if the client chooses us to represent them - we will definitely do it," Asha Nayak says.

Watch video of pub attack