ATS vs NIA probe in Malegaon 2008 blast case: Unreliable evidence, contradicting statements

The ATS, then led by IPS officer Hemant Karkare, investigated the case first. Karkare was killed in the Mumbai terror attack on November 26, 2008, days after the first arrest in the case. The ATS then filed a chargesheet in the case in January 2009, naming 11 accused. The agency claimed that the accused had held conspiracy meetings in Faridabad, Ujjain, Nashik, Bhopal. It said that witnesses included persons who were in the meetings and who had heard the accused discuss the need to plan an attack in a Muslim-populated area. It had also said that three of the accused had given confessions under the Maharashtra Control of Organised Crime Act (MCOCA). It claimed that the accused were linked through the Abhinav Bharat organisation, alleging that it was an organised crime syndicate.

NIA PROBE

The NIA took over the case in 2011, when probes into many terrorist cases were transferred to the federal agency formed after the 2008 Mumbai terror attack. In 2016, it filed a supplementary chargesheet, which criticised the ATS probe, even while saying that there was sufficient evidence to proceed against six of the accused, including Lt Col Prasad Purohit.

The NIA’s chargesheet stated clearly that it had not been able to collect any additional evidence from the scene of crime, blaming the time-lag in the transfer of the case. The NIA chargesheet did not include any new witnesses, but instead re-recorded statements of some of the witnesses who had given statements before the magistrate in 2008-09, who then denied their previous statements.

“…. and the veracity of the evidence collected by the previous investigation agency could not be fully substantiated. The delay in handing over the investigation to NIA also precluded the possibility of obtaining electronic evidence by way of telephone/mobile records which has proved to be a major hurdle in the investigation, especially collection of material evidence to substantiate the statement of various witnesses and accused persons,” the NIA chargesheet said.

Before the chargesheet was filed, in an interview to The Indian Express, the special public prosecutor, Rohini Salian, in 2015 had said she was under pressure from the NIA to “go soft” in the case. Soon after the NDA government came to power last year, she alleged that she got a call from one NIA officer, asking to come over to speak with her. She had subsequently reiterated the same in an affidavit filed before the Bombay High Court a few months later, also naming the officer who had approached her. The NIA, however, denied the allegation, claiming that her notification to appear as the prosecutor was to be recalled.

Where did the NIA differ from the ATS chargesheet?

The NIA claimed that MCOCA could not be invoked in the case as ATS had not followed proper procedure in invoking the Act. It rendered all confessions, which the accused had claimed were due to coercion and torture, inadmissible.

The NIA said that there was no evidence to show that accused Pragya Singh Thakur was using the LML motorcycle linked to the blast, even as ATS had arrested her claiming that she had provided the motorcycle for the crime and had also introduced two wanted accused to the other co-accused. The NIA recommended dropping Thakur as an accused but the special court refused to drop her, and she faced the trial.

The NIA also re-recorded some statements of witnesses claiming ‘contradictions’ in the ATS statements. The NIA said that the witness had told them that ‘lies were dictated’ to him to depose before the Magistrate by the ATS. He claimed that he was dictated to depose that Purohit gave him 3 weapons and ammunition to be kept in his house for 18 months in 2006 and description of the weapons were also dictated. Moreover, the said witness was allegedly asked to say that Purohit had confessed to him about planning and executing the Malegaon blast along with his accomplices. The witnesses whose statements were re-recorded were also among the 39 witnesses who did not support the prosecution case and were declared hostile.