Opinion Malegaon verdict flags major shortcomings in investigation. NIA must appeal it

Just 10 days after the Bombay High Court acquitted 12 accused in the 2006 Mumbai train blasts case, highlighting critical procedural lapses in the investigation, a trial court in Mumbai has acquitted all seven accused in the 2008 Malegaon bomb blast case. The outcome in both sensitive and high-profile cases raises serious and urgent questions about the perils of the due process of justice being relegated by the surround sound of a polarising politics — in the Malegaon case, the spotlight had turned to allegations and counter-allegations on “Hindu terror”, kicking off a dismal war of labels, and a flurry of often contrived comparisons and equivalences. The verdict in the case, as in the Mumbai blasts case before it, has put in the dock the conduct of investigating agencies and prosecution, and the systemic delays that often render justice, when it comes, too little too late. The trial in the Malegaon case began in December 2018, a decade after a bomb went off outside a mosque, killing six and injuring nearly a hundred others. The Court was clear on the intent of the attack, on the last day of Ramzan and before Navratri was to begin: “It was apparent that conspirators caused bomb blast with an intent to terrorise the people, to cause loss to life and property, disruption of supplies and services essential to the community, to create communal rift and to endanger internal security of the State.” It is troubling that the investigation and prosecution of a case as consequential as this one was found to be riddled with glaring lapses and omissions, inconsistencies and contradictions. Special NIA Judge AK Lahoti found it necessary to mention that “the evidence on record creates the grave suspicion against the accused but mere on suspicion there cannot be a conviction.”

The probe into the Malegaon case was begun by the Maharashtra Anti-Terrorism Squad (ATS). Hemant Karkare, the ATS chief at that time, heading the investigation, was killed in the Mumbai terror attack on November 26, 2008, only days after the first arrest in the case. The ATS had filed a chargesheet after collecting evidence, including phone taps, witness statements, and video recordings of the meetings where the conspiracy was allegedly hatched from the laptop of one of the accused. All these were deemed inadmissible in court since the agency had failed to fulfil the statutory requirement to prove the authenticity and reliability of electronic evidence. While transcripts were prepared from intercepted conversations, interceptions were not authorised in the specific period, and permissions were obtained belatedly, rendering the intercepted data unusable as evidence. In 2011, the National Investigation Agency (NIA) took over the case and criticised the ATS probe, even as it continued moving it in the same direction. In 2016, it dropped MCOCA charges arguing that the ATS had not followed proper procedure in invoking the stringent anti-terror law. There were other loopholes and omissions too — for instance, 13 statements of witnesses went missing from the court records.

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The investigation in the Malegaon case was mired in political controversy over the (religious) colour and shade of terror right from the beginning. Investigators in cases such as this one do come under an enormous amount of pressure. But that is a challenge to be professionally navigated, it cannot lead to slipshod investigations and inordinate delays. Given that the court has underlined the several omissions of the state and said explicitly that there is “grave suspicion,” the NIA must appeal the verdict, and make a better case.