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Monday, July 23, 2018

A trial and an ever-widening chasm in Malegaon

The Wednesday order basically means that even as the seven accused will stand trial, the confessional statements recorded by the Maharashtra ATS and presented as evidence are deemed legally void.

Written by Rashmi Rajput | Updated: December 29, 2017 9:11:26 am
Nine years after the deadly blast that killed seven and injured 79, a Mumbai court on Wednesday finally set the stage for trial.(Express File Photo)

The 2008 blast that rocked the powerloom town of Malegaon has led to an ever widening chasm between its townsfolk, successive governments, courts and more importantly between counter-terrorism agencies. This gap is manifested in the split in opinion, allegations and the different directions in which the case is straying, further and further away from justice for the victims of the blast and their kin.

Nine years after the deadly blast that killed seven and injured 79, a Mumbai court on Wednesday finally set the stage for trial. While it had dropped the charges under the stringent Maharashtra Control of Organised Crime Act (MCOCA), it has slapped seven accused, including Sadhvi Pragya Singh Thakur and Lt Col Prasad Purohit, with the equally robust Unlawful Activities (Prevention) Act or UAPA as well as Section 302 of the Indian Penal Code (IPC) that attracts the maximum punishment of death.

The Wednesday order basically means that even as the seven accused will stand trial under certain sections of UAPA and the IPC, the confessional statements recorded by the Maharashtra Anti Terrorism Squad (ATS) and presented as evidence have been deemed legally void. However, now in the absence of these statements, the prosecution will have to depend on other evidence like witness statements, forensic reports, technical and circumstantial evidence to adduce the trial court’s confidence in its case.

Experts say that this will be a tall task as it is easier to prove a terror conspiracy with confessional statements of the co-accused. The same doesn’t have any legal binding under UAPA. Also in the present case, with both the ATS and NIA failing to find the bomb planters and the source from where the explosives were procured, the task to prove the alleged criminal conspiracy of the accused will not be easy.

With the dropping of MCOCA, the three confessional statements of the co-accused which were key to the prosecution’s case will now have no evidential value. These three statements helped the ATS to string together the conspiracy and the role of the accused. The three co-accused, two of whom have been discharged, had given statements that dealt with the conspiracy meetings, which were allegedly attended by the other accused including Sadhvi Thakur and Purohit, as well as procurement of weapons, both of which are central to the case.

The Wednesday’s order adds another chapter to the many twists and turns witnessed in the case.

In November 2008, days after cracking the case, slain Maharashtra ATS chief Hemant Karkare disclosed that probing a case involving ‘Hindu extremists’ was one of the toughest assignments of his career. The 1982 batch IPS officer had served seven years in Austria in the Research and Analysis Wing (R&AW), India’s external intelligence agency before taking charge of the state counter terrorism agency.

Karkare who was amongst the first few officers to reach the blast spot managed to spot his first clue from the remains of the bike on which the bomb was planted. It belonged to Sadhvi Pragya Singh Thakur. With Thakur in custody, ATS cracked the case in less than a month. The cast of characters ranging from army officials retired and serving to a godman and woman made the case grab national headlines.

However a few days later after his unfortunate death in the November 2008 Mumbai terror attack, although the ATS did manage to put a chargesheet together against the accused, many in the probe team say the case was never investigated with the same ‘vigor’. “In the absence of Karkare it lost focus and fell apart,” said an official who spoke on the condition of anonymity.

The first major twist came in 2011, when the case was transferred to the then recently constituted National Investigation Agency (NIA) that was tasked by the Home Ministry to probe all alleged ‘Hindu’ terror cases across the country. The NIA, a brain child of then Home Minister P Chidambaram was formed in the aftermath of the November 2008 Mumbai terror attack with the ‘mandate’ to have a central agency on the lines of the Central Bureau of Investigation (CBI) dedicated to probe only terror cases. However nine years into its formation, the NIA only has a few cases to showcase. Recently it found itself in a fix battling the allegation of toeing the line of its political masters when it took up the probe into the alleged cases of ‘love jihad’ in Kerala.

Between 2011 and 2014, the NIA continued to probe the case and even made a couple of arrests. While it was initially convinced by the Maharashtra ATS’s probe in the 2008 case and even stated the same while rejecting the bail pleas filed by various accused, investigations took a surprise turn in the winter of 2014.

In July 2015, nearly a year after the BJP led-NDA Government was voted in with a thumping majority , Special Public Prosecutor Rohini Salian dropped a bomb. In an interview to The Indian Express Salian said that she was under pressure from NIA to go ‘soft’ in the case. The central agency found itself in a tight spot defending itself.

The fallout- Salian was no more the Public Prosecutor in the case and the then Deputy Commissioner of Police who was identified in her application to the apex court as the ‘officer’ who communicated the agency’s decision was repatriated to his parent cadre i.e Maharashtra Police. Subsequently the officer was inducted as DIG, ATS, the same agency that probed the initial case. But in order to avoid any conflict of interest, the DIG recused himself from the case.

In May 2016, a year after Salian’s revelations, the NIA filed its supplementary chargesheet. Not surprising though that it dropped charges against Thakur and five others for want of evidence.

However the central agency didn’t mince words while calling the ATS probed ‘filled with lacunae’. The chargesheet not only said that there is “considerable doubt” on the applicability of MCOCA but it also called the methods used by the Maharashtra ATS “questionable” and “dubious”. It also stated that a CBI investigation has found ATS men linked to the disappearance of a key witness in the case.

In demolishing the ATS case, the NIA relied on key new witness statements. A new NIA witness has claimed that he saw an assistant police inspector of the Maharashtra ATS “suspiciously” in the house of Sudhakar Chaturvedi thereby possibly indicating that the RDX could have been ‘planted’.

On its part, the ATS which initially planned to contest the allegations has now decided to play the waiting game. “The Wednesday order is a validation of our probe. Let the court decide if they find any substance in the NIA’s claims,” said a senior official from ATS who was part of the probe team. “If Sadhvi Thakur and Purohit didn’t play an active role in the case, then who did? The fact that NIA took the evidence that we had gathered against Purohit to support their case and completely turned a blind eye on the evidence collected against Thakur smells of a conspiracy. They are selective in their approach. In criminal jurisprudence there is a legal term ‘mens rea’ (a guilty mind). The ‘knowledge’ that her bike will be used to carry out the blast is a reflection of a guilty mind,” added the official.

With these various twists and turns, the Malegaon blast case has only managed to progress like the thrilling script of a political drama; however what the victims and their families need is a final verdict, not a political theatre.

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