2008 Malegaon blasts case: Where Supreme Court and NIA differed on MCOCA against accused

Court felt it was applicable to accused Dhawade, NIA cited his case to drop Act against all accused.

Written by Deeptiman Tiwary | New Delhi | Updated: June 28, 2016 2:55:11 am
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The issue of whether the Maharashtra Control of Organised Crime Act (MCOCA) could be invoked against the accused in the 2008 Malegaon blasts has been dealt with by three courts and one agency over the years. And each has had a different view.

The Supreme Court expressed “doubt” over MCOCA’s applicability to most accused but did not drop these charges against them. The National Investigation Agency (NIA), on the other hand, expressed doubts over the way the Maharashtra Anti-Terrorism Squad (ATS) had used MCOCA and dropped it.

The Supreme Court limited its observations to whether the accused could be granted bail and opined that MCOCA was applicable against Rakesh Dhawade. In contrast, the NIA felt it was against Dhawade that MCOCA could not be applied and so dropped it against all the accused and instead chargesheeted them under the Unlawful Activities Prevention Act.

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A sessions court had first dropped MCOCA against the accused on the ground that they were not part of an organised crime syndicate and did not have the mandatory two chargesheets against them. Bombay High Court then restored MCOCA before the Supreme Court decided the matter in April last year.

The SC said its expression of “doubt” on the applicability of MCOCA against some of the accused was only for the purpose of bail and nothing else. “… There is enough scope to doubt as to application of MCOCA under Section 21(4)(b) of MCOCA deals with grant of bail where accused can be granted bail unless ‘where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail’,” it said. Citing a judgment in the case of Ranjitsing Brahamjeetsing Sharma, the court said, “… Such findings have to be necessarily recorded for the purpose of arriving at an objective finding on the basis of materials on record only for the limited purpose of grant of bail and not for any other purpose.”

The court held MCOCA was applicable to accused Rakesh Dhawade and that he could not be granted bail. It raised doubts, however, over whether other accused were in “nexus” with the accused in the Jalna and Parbhani blasts like Dhawade was.

It was the alleged involvement of Dhawade in those two blasts and the chargesheets filed in those cases that had been the ground for the ATS invoking MCOCA against the Malegaon accused. And this was exactly what the NIA questioned.

The defence

The lawyers for the accused had raised four issues to argue for dropping of MCOCA. The first was that Dhawade was chargesheeted in the Jalna and Parbhani blasts case after his arrest for the Malegaon blasts and thus the condition of two chargesheets before the main offence was not fulfilled. The SC rejected this on the ground that a court takes cognisance of the offence and not the offender. It said since the incidents happened in 2003 and 2004 and courts took cognisance of the chargesheets much before Dhawade’s arrest, the condition for MCOCA was fulfilled.

The second argument was that the “competent court” in this case was the sessions court while chargesheets for the Jalna and Parbhani blasts were filed in district courts. The SC said any court could be a “competent court” for taking cognisance of an offence.

The third was that of the absence of “pecuniary gain” as motive, a condition in MCOCA. The SC said the Act includes the offence of “insurgency” where no such motive is required.

The fourth argument was that of “continuing unlawful activity” and “organised crime nexus”, which lawyers said did not apply to the accused. Here the SC said that in the case of Dhawade it was well established, but in the case of the other accused there was doubt as they were not involved in the Jalna and Parbhani blasts.

What NIA said

In its chargesheet, the NIA steered clear of these matters and raised the issue of “questionable circumstances” in which the ATS had invoked MCOCA against Dhawade and others. It said Dhawade was arrested for the Malegaon blasts on November 2, 2008, for the Parbhani blasts on November 11 followed by a chargesheet against him on November 13, and for the Jalna blasts on November 15 with the chargesheet filed the same day.

“On considering these dates of arrest and filing of chargesheet, it is apparent that there was hardly any time available to ATS Mumbai to collect the evidence against the accused before filing of chargesheet. The said charges were filed with the sole purpose of fulfilling the condition of the enabling provisions of the MCOCA,” the NIA chargesheet said.

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