Two years after it told a Maharashtra Control of Organised Crime Act (MCOCA) court in Mumbai that it did not have any evidence to link nine Muslim men to the September 2006 Malegaon bombings, the National Investigation Agency (NIA) went back on its stand Tuesday and opposed discharging the men of terror charges.
Sessions Judge V V Patil will now pass a final order on April 25.
NIA counsel Prakash Shetty told the court: “Three independent machinery have investigated the case. The state Anti Terrorism Squad (ATS) and Central Bureau of Investigation (CBI) have named one group. The investigation by NIA is conflicting, but whether the accused investigated by the earlier agencies can be discharged… it cannot be done. The court will be looking into what evidence has been collected, what is the evidence against them. At this stage, it (discharge) cannot be allowed.”
The nine men — Noorul Huda, Shabbir Ahmed, Raees Ahmed, Salman Farsi, Farogh Magdumi, Shaikh Mohammed Ali, Asif Khan, Mohammed Zahid and Abrar Ahmed — were arrested in 2006 for the Malegaon blasts that killed 37 and injured over 100. In November 2011, they were granted bail.
Two of the men were convicted later in the 7/11 Mumbai train blasts case of 2006 — they remain in judicial custody. Shabbir died in an accident in March 2015. One was exempted from appearance in court Tuesday while the remaining five were present.
Shetty used legal lexicon to make the point that the NIA investigation was filed as a ‘further report’ and not as a ‘fresh report’ and, therefore, should be seen in continuation to the probes by the ATS and CBI.
On April 8, 2014, the NIA, in its first statement before the sessions court, had said that no evidence was found in support of the conclusion drawn in the final report filed by the ATS and the supplementary final report submitted by CBI, recommending prosecution of the nine accused.
In 2011, when a special MCOCA court was hearing bail applications of the nine accused, the court had taken the then prosecutor for NIA, Rohini Salian, on record after she said that the NIA had decided to probe and review the evidence in light of fresh revelations by Swami Aseemanand, arrested as an accused in the May 2007 Mecca Masjid blast case, about the alleged involvement of a right wing group. It was during this hearing that Salian had acknowledged the involvement of right wing extremists in the 2006 bombings as well.
In 2014, in response to a discharge application filed by the nine accused, the NIA had cited reasons for not having found evidence backing the probes by the ATS and CBI. The NIA, which took over investigation of the blasts from the CBI in 2011, had earlier remained non-committal on the issue, leaving it to the court to decide on the application. After taking over the investigation, the NIA filed a chargesheet naming four accused but none of the nine men chargesheeted by the ATS and CBI.
On Tuesday, Raja Thakre, special public prosecutor, representing the ATS, too opposed the discharge application. “It is not necessary for the court at this stage to go into the pros and cons of the evidence before it. Whether these accused have committed the offence can only be the result of the trial,” he said.
Defence advocate Sharif Sheikh took objection to Thakre’s position. “The ATS has no locus standi since the case was transferred to the NIA. The NIA is a special statute with an overriding effect and their report is not against these nine men,” Sheikh told the court.
The counsel for the other group of accused, including Lokesh Sharma, Dhan Singh, Manohar Singh and Rajendra Choudhary, also opposed the discharge application.
“The confession referred to by the accused, that of Swami Aseemanand, can only be considered at the time of the trial. He is not a witness in the case and what he has said can only be part of hearsay evidence since he is not implicating himself but is saying that he was once told by Sunil Joshi that it was his men who were behind the Malegaon 2006 blasts,” said one of the lawyers representing the accused chargesheeted by the NIA in the case.
On April 6, advocates for the nine men had argued that there cannot be two sets of accused in a single case. “There is a difference between acquittal and discharge. In case of an acquittal, the accused cannot be tried again in the same case. Even if these accused are discharged, if subsequent material comes, they can be prosecuted. It is clear that one of the two sets of accused is innocent. The culprit cannot take advantage of lapses of the investigating machinery,” advocate Wahab Khan said.