Menaka Rao - 2008 Malegaon blasts: NIA under fire from former prosecutor as it seeks to drop MCOCA charges
"It is a political move," former special counsel
for National Investigation Agency, Rohini Salian said, when asked for a
response to the NIA informing a special court that it intended to drop charges
under the stringent Maharashtra Control of Organised Crime Act against the 11
accused in the 2008 Malegaon blasts. The NIA requested the court on Tuesday that the framing of
charges against the accused, including Lt Col Srikant Purohit and Sadhvi Pragya
Singh Thakur, be deferred until it receives an opinion from the Attorney
General whether charges under MCOCA could be dropped.
“How can they ask the Attorney General? How is he concerned
with the case? The matter is sub judice (pending in court) and the case is at
framing of charges. The court should decide the charges now. This is all
politics. I have disassociated myself from the case now. They are cheating
everyone (the society),” Salian said. Salian,
however, added that even if the stringent MCOCA charges were to be dropped, the
case will not collapse and will stand on the basis of witnesses who have spoken
of various conspiracy meetings. Salian had charged last year that she had been
under pressure from the NIA to go “soft” in the case since “the new government came
to power” in May 2014.
'Hindu terror group'
This was the first case where a "Hindu terror
group" had been named. It pertains to a blast that took place in Bhiku
Chowk, Malegaon, Maharashtra, on September 29, 2008, leaving four dead and
injuring more than 70 people.
The case was first investigated by the Maharashtra
Anti-terrorism Squad under the late Hemant Karkare. The trail led first to
Sadhvi Pragya Singh Thakur after a golden LML Freedom bike parked outside the
blast site was found to have been allegedly registered under her name. Her
arrest was followed by the arrest of Colonel Purohit, who was alleged to have
provided the RDX for the blasts, and retired Major Ramesh Upadhyay.
The NIA took over the case on the direction of Home Ministry
on April 13, 2011. Fourteen people were chargesheeted in the case including
Pragya Singh Thakur, Major Ramesh Upadhyay, Lt Col Prasad Purohit, Sameer
Kulkarni, Rakesh Dhawade, Sudhakar Dwivedi aka Dayanand Pandey, Sudhakar
Chaturvedi, Pravin Takalki, Shivnarayan Kalsangra, Shyam Sahu, Ajay Rahirkar,
Jagdish Mhatre. Two accused – Ramchandra Kalsangra and Sandeep Dange – are
still absconding. The trial is yet to begin.
In April 2015, the Supreme Court said that the application of
MCOCA for most of the accused, including Thakur and Purohit, in the case was
“doubtful” as there was not enough evidence to show their involvement in the
blasts, apart from the Malegaon one. The Maharashtra Anti-Terrorism Squad had
applied MCOCA in the case on the basis of “continuing unlawful activity” of
accused Rakesh Dhawade, a Pune-based antique arms collector, who was also
arrested for two prior terror plots in Prabhani (bomb explosion in Mohmedia
Masjid, Nanalpeth, Parbhani in 2003) and Jalna (bomb explosion in Kederia
masjid in 2004).
The Supreme Court ordered the special judge to consider bail
applications on the merits of the case and pass appropriate orders. While three
accused – Shivnarayan Kalsangra, Shyam Sahu, Ajay Rahirkar, and Jagdish Mhatre
– were given bail, the trial court refused bail to the main accused, including
Purohit and Thakur.
Crucial witnesses
The NIA move puts a question mark on the confessions of three accused – Sudhakar Dwivedi aka
Dayanand Pandey, Pravin Takalki, and Rakesh Dhanwade – recorded under MCOCA
that support the case.
“We have judgements which say that now confessions can be
used even in cases under Indian Penal Code. So I think we can use them still,”
said Salian. But observers point to the legal troubles ahead as the case is
based mostly on circumstantial evidence, with little direct evidence to
implicate the accused.
To make matters worse, the alleged bombers in the case,
Ramachandra Kalsangra and Pravin Dange, still remain at large. So, while the
paper trail speaks of meetings for conspiracy, there is little information
about the nuts and bolts of the case – the actual bombing. “If MCOCA goes, the benefit of confessions go away,” rued
special NIA counsel, Avinash Rasal. “Since I took over, we have disposed of 24
applications of bail or discharge," he said. "Despite the Supreme
Court judgement, we argued that MCOCA is applicable. And the court accepted it.
We have given our 100%”.
The NIA's legal cell, Rasal said, was not sure about the
applicability of MCOCA. With the accused being acquitted from the Jalna blasts case in 2012, it becomes more
difficult for the prosecution to argue about "continuing illegal
activity", on the basis of which MCOCA had been applied, he pointed out.
But Rasal hopes that the witnesses will support the case,
unlike the 2007 Ajmer and Samjhauta Express blasts case, where many
witnesses turned hostile. "The witnesses have to come and speak before the
court," he said. "We can lead the horse to the water, but you cannot
make it drink.” Defence lawyers point to the lack of evidence. “There is
only evidence of the meetings which were all public meetings," said
Shrikant Shivade, who is representing Purohit. "None of them were closed
door meetings. Besides, they were all unconnected with the blasts.”
Political move?
Naveen Chomal, the lawyer for many of the accused in the
case, said that the arrested accused feel “cheated” by the right wing Bharatiya
Janta Party government. In 2008, when the accused were arrested, some of them
had written to LK Advani, one of the seniormost BJP leaders, about the
injustice meted out to them. They had pointed out that the accused had been
tortured and had been kept in illegal custody before arrest, Chomal said. “But,
he (Advani) disappointed us. He mentioned our problems in one line before
Parliament and let it go. He should have done something then,” Chomal said. “We
do not want any favours from the government," Chomal added. "We just
want them to go by the law.”
Prashant Maggu, one of the other defence lawyers in the
case, who appears for three accused in the case, said that it was in the
interest of the Congress government to “bring out Hindu terror.” “This was a
star case for the earlier government to bring out a pattern in the country.
They tried to implicate Hindu accused in Samjhauta and Ajmer blasts
cases," Maggu said. "The government wanted some angle. They wanted
all these cases to be interwoven, so that they can bring out Hindu terror. They
started hammering all saffron clothed Sadhus and Sadhvis. The other side was
pleased. But there was no factual material.”
The entire case, the defence counsel allege, was a political
move. “The NIA is the same agency that withdrew the case against the 2006
Malegaon blasts case,” said Shivade. In 2011, after the NIA did not object to
the bail applications of seven accused in the 2006 Malegaon blasts case, they were released on bail. The
NIA had told the court that the confession of the 2007 Mecca Masjid bomb blast
accused, Swami Aseemanand, had led them to review the evidence collected by the
previous investigating agencies, namely the Maharashtra Anti-Terrorism Squad
and the Central Bureau of Investigation.
“They follow different standards for different sets of
accused," said Sanjiv Punalekar, who appears for Sudhakar Dwivedi and
Pravin Takalki. "They have been dishonest throughout. We are being used to
politically please the government.” Maggu agreed with Punalekar. “We term the witnesses hostile
– like in the Ajmer and Samjhauta blasts cases. But, the statements themselves
were recorded wrongly. Obviously, then they will turn hostile,” he added.
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