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Should MCOCA be applied to Malegaon blasts accused, asks NIA

NIA sources confirmed that the agency has sought legal opinion on whether MCOCA should be applied against the accused while filing a chargesheet.

Written by Srinath Raghvendra Rao |
Updated: February 3, 2016 10:25:47 am
Malegaon blast, 2008 Malegaon blast, Malegaon news, SUDHAKAR Dhar Dwivedi, mumbai A special MCOCA court had earlier this month ordered that arguments begin on February 2 . Express Archive

The National Investigation Agency (NIA) informed a special court on Tuesday that it intends to drop charges under the stringent Maharashtra Control of Organised Crime Act (MCOCA) against the 11 accused in the 2008 Malegaon blasts case.

The agency also sought to defer framing of charges against the accused, including Lt Col Srikant Purohit and Sadhvi Pragya Singh Thakur, until it receives an opinion from the Attorney General on the proposal to drop charges under the Act.

“I will not be in a position to argue the matter until the NIA receives the report of the Attorney General of India,” said Special Public Prosecutor Avinash Rasal, who is representing the NIA.

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The removal of MCOCA may considerably weaken the case as the Act provides for confessions made in front of an SP-rank officer to be admissible in court as evidence. “Such statements form key evidence against some of the main accused in the case,” said a senior NIA officer. Eight of the accused, including Lt Col Purohit and Sadhvi Pragya, are in jail.

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On Tuesday, the court was expected to file charges on the basis of a chargesheet filed by the Maharashtra Anti Terror Squad (ATS) in 2009, before the NIA took over the case in 2011.

But, according to the NIA’s application, it is awaiting “necessary advice” from “law advisers” on whether the Act can be invoked. “In view of this situation, the prosecution is unable to make any progress to file their report (of the investigation carried out after the filing of the chargesheet) under section 173 (8) of the Code of Criminal Procedure,” the application states.

The court has set February 15 as the date for the agency to furnish the AG’s report as well as indicate its readiness to begin arguments to frame charges.

“It is expected that the NIA should take a decision at the earliest. The contention of the prosecution is that NIA is thinking of the application of the MCOCA Act,” Judge S D Tekale said.

He also warned the NIA that the court would proceed with the hearing on the next date even if the agency didn’t file its report.

Meanwhile, Lt Col Purohit has filed a handwritten application accusing a policeman posted with the ATS of planting the explosive RDX at the home of fellow accused Sudhakar Chaturvedi in Deolali in 2008.

According to his application, the police officer was allegedly caught trespassing in the Army’s base camp in Deolali in November 2008 by the Military Intelligence Unit. The application states that following the incident, a Court of Inquiry was instituted which reportedly concluded that on November 3, 2008, two days before Purohit’s arrest, the policeman had allegedly planted the evidence.

Purohit has further claimed that the officer made phone calls on the day of the alleged incident to a colleague, seeking directions to Chaturvedi’s house. He asked the court to direct the telecom service provider to produce call detail records and the tower location of the officer’s cell phone for November 3 and 29, 2008.

NIA sources confirmed that the agency has sought legal opinion on whether MCOCA should be applied against the accused while filing a chargesheet.

In a letter sent last month, sources said, the agency asked the home ministry to seek opinion from the law ministry on whether the accused should be charged under the stringent act — last year, the Supreme Court had cast doubts over the applicability of the Act against the accused.

“The agency’s stated position is that it has sought the law ministry’s opinion on certain legal issues related to the case,” said an NIA officer.

The agency is learnt to have almost completed its investigation in the case but is considering the “finer legal points” before filing a chargesheet as the applicability of MCOCA has been challenged by the accused.

The Supreme Court had, on April 15, 2015, said that there was no evidence to charge the accused under MCOCA, at that stage. The apex court also ordered that the bail applications of the accused be heard expeditiously by the trial court on merit.

The apex court had said that there was “considerable doubt” about the involvement of six accused, including Lt Col Purohit and Sadhvi Pragya, in the blasts and that the trial court ought to hear their bail plea afresh. All the bail applications, however, were subsequently rejected by a Mumbai court.

The Malegaon blast on September 29, 2008 claimed four lives and injured 79. In January 2009, the ATS filed a chargesheet against all the accused under MCOCA. The Act was revoked in the case by a sessions court before it was restored by the Bombay High Court in 2010.

(With inputs from ENS/Delhi)

 

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