The recent discharge of eight accused in the Malegaon case by the trial court, has again brought to light a recurrent theme in the prosecution of terror accused in India. The fact that the court chose to discharge the accused 10 years after the crime, speaks volumes about the prosecution evidence in the present case. Discharge of an accused occurs during the stage of inquiry in a criminal case. This is when the investigation is over and the case is handed over to the court for conducting an inquiry into the matter. Only after this stage, and if the court is satisfied that sufficient basis exists for the trial to take place, are the accused formally charged with having committed the crimes in question and then tried. What we have witnessed in the Malegaon case is the court deciding that not even sufficient basis exists to try the accused.
The Malegaon case also indicates how simple it is for investigating agencies, either the ordinary police, or the Anti Terror Squad (ATS) as in this case, to charge Muslim youth with acts of terror. Often, in the immediate aftermath of a terrorist attack, there is immense pressure on the investigating agencies to show that they have been able to ‘crack’ the case quickly. In such situations, one may see a concoction of facts and evidence in order to lead to the usual suspects, which would conform with the nationally created image of misguided and radicalised Muslim youth, with connections to Pakistan and the ISI.
In the Malegaon case, the ATS had quickly pointed towards the arrested men as the prime culprits. It was also reported that physical objects and evidence were recovered from these men proving that they were terrorists. As became clear over the following years, investigation by other agencies, namely the NIA, pointed to a completely different set of accused. The defence in this case also claimed that the objects recovered by the ATS could not be produced in court by the prosecution. Further, copies of the evidence which the prosecution sought to rely on, such as the call record history of the accused, which ostensibly linked them to Karachi, could not be produced in court.
A recurring theme in anti-terror investigations is the use of confessions recorded in police custody as evidence. This is not something of recent origin, and anti-terror legislation, starting from the now non-existent TADA, to the dreaded POTA, contained provisions which allowed investigation agencies to record confessions from the accused. This is a provision of special law, and in the case of offences under the IPC, the use of confessions recorded by the police, or made to a police officer, are not permitted, only those made before a competent judicial magistrate. The reason for having such a bar on confessions is that the investigating agency, as an interested party to the prosecution, should not be given a chance to coerce or cajole a confession out of an accused. But confessions, which can be recorded by investigating agencies in anti-terror cases, have become a major plank on which prosecutions occur.
Another recurrent theme can be pointed out in anti-terror cases — that of several prosecution cases unravelling under sustained judicial scrutiny. In the Malegaon case, the court ultimately decided that there was not sufficient evidence to proceed to the trial of the accused. By this time, the accused had spent several years in custody, their reputations, careers and lives tarnished by the system. There do exist cases which are tried, lead to successful convictions and are finally reversed on appeal. One such example is the Akshardham attack case which was prosecuted with similar zeal and enthusiasm, leading to the conviction of six persons, including three death sentences. The case relied, inter alia, on a confession recorded from Chand Khan, who was in police custody, and who was sentenced to death. After 12 years of the attack, the Supreme Court finally acquitted all of the convicts and recorded its anguish over the conduct of the investigation agencies, which had booked and got convicted, innocents. It can only be hoped that anguish is the beginning of reform.
(This article first appeared in the print edition under the headline ‘When process is punishment’)