Sadhvi Pragya Singh Thakur

Malegaon Blast Case: Victims Urge NIA To Take ATS Help, As Witnesses Turn Hostile

As many as 208 witness have deposed before the special NIA court, of which eight have turned hostile.

Mumbai: A lawyer, representing the victims of the 2008 Malegaon blast, has written to the National Investigation Agency (NIA) superintendent urging him to take the help of the Anti-Terrorist Squad (ATS), which had probed the case earlier, citing that several witnesses were turning hostile.

Advocate Shahid Nadeem also submitted the letter in the special NIA court, where special judge P.R. Sitre took it on record.

A copy of the letter has also been marked to the chief justices of the Supreme Court and Bombay high court.

As many as 208 witness have deposed before the special NIA court, of which eight have turned hostile.

Also read: Malegaon Blast Case: Special NIA Court Asks Pragya Thakur to Appear Whenever Summoned

“It can be inferred that the NIA’s competence regarding the trial is reducing based on the pattern of the witnesses. The witnesses are called on by the prosecution without studying their statements and without following any particular sequence,” the letter stated.

“While certain accommodations can be made in exceptional cases when witnesses are unable to remain present, such lapses have become routine,” it claimed.

“Many able officers (NIA) assisting the special public prosecutor were not part of the original investigation conducted by the ATS,” it said.

The victims’ lawyer further stated in the letter that the statements of the prosecution witnesses, who have turned hostile, were also recorded by the ATS, and the squad was in a better position to brief and assist the NIA and the court on the issue.

“No effort has been made to reach out to the ATS and seek assistance for the trial even though they are the ones that conducted the investigation and arrested the accused, including Sadhvi Pragya Singh Thakur, Lt Col Prasad Shrikant Purohit and others,” it said.

The victims have requested that ATS officers be called to assist the NIA in clarifying statements, investigation, and any other queries, causing the prosecution witnesses to turn hostile.

Six people were killed and over 100 injured when an explosive device strapped to a motorcycle went off near a mosque in Malegaon, a north Maharashtra town 200 km from Mumbai, on September 29, 2008.

According to the police, one of the bikes found at the spot was registered in the name of Pragya Singh Thakur, who is currently a BJP MP and is out on bail.

(PTI)

Challenging Pragya Thakur: I Did What Digvijay Singh Should Have, But Didn’t

No country in the world, not even Pakistan, has ever elected to its parliament someone being prosecuted for terrorism. But when Thakur blatantly used religion in her campaign, she also broke the election law.

I am a Bhopal-based journalist with impeccable secular credentials and with a deep sense of moral obligation I have just filed an election petition in the Madhya Pradesh high court challenging Pragya Singh Thakur’s election from the Bhopal parliamentary seat.

To me, her victory is a huge national shame. No country in the world, not even Pakistan, has ever elected a person being prosecuted for a heinous act of terrorism to its parliament. It would have been worse had the BJP Member of Parliament’s election gone unchallenged in a court of law.

None of Bhopal’s over 12 lakh voters has seen fit to challenge her election. Surprisingly, even the defeated Congress candidate and two-time chief minister Digvijay Singh shied away from availing this routine legal recourse. Of the 19 election petitions filed against victorious BJP candidates in the Madhya Pradesh high court, 17 have the defeated Congress candidates as petitioners. Only in two seats – Bhopal and Satna – ordinary voters are petitioners.

Also read: The Inevitable Saffronisation of the Bhopal Elections Is in Full Swing

I am inclined to believe that Digvijay Singh chose to let go his crushing defeat by over 3.64 lakh votes uncontested because he lacked moral conviction. His own campaign, marked by the bizarre antics of assorted sadhus, was steeped in the public display of religious rituals – the very terrain on which his BJP opponent turned out to be more brazen than him.

There was a self-styled Computer Baba who presided over mass yagnas by hundreds of sadhus at a playground for the Congress candidate’s victory. Another sadhu, who goes by the name of Mirchi Baba, vowed to take samadhi if Digvijay Singh didn’t win.

All through the campaign, Digvijay Singh belaboured the point that he is a devout Hindu who keeps regular fasts, does elaborate puja, and visits temples and has been been unfairly portrayed as “anti-Hindu”. The Congress candidate consciously muted his attacks on the RSS and Pragya Singh Thakur. His uncharacteristic mellowness was explained away by Singh’s campaign managers as a strategy to avert polarisation of voters on religious grounds.

Bhopal: BJP’s candidate Pragya Thakur and Congress candidate Digvijaya Singh at the counting center. #ElectionResults2019 #MadhyaPradesh pic.twitter.com/7sWGzxnkAR

— ANI (@ANI) May 23, 2019

Of course, liberals, including me, whole-heartedly supported Digvijay Singh but the religious flavour he gave his campaign rankled with us.

When some well-meaning friends suggested the senior Congress leader file an election petition, he reportedly refused, sighing “what is the point now?” But I saw the point in doing what Digvijay Singh was supposed to do but didn’t.

The opportunity to become petitioner against the Bhopal MP’s election came my way by sheer chance. Noted activist Harsh Mander and his team had prepared a petition against Pragya Thakur’s election and were looking for a Bhopal voter to file it in the high court.

Harsh Mander

A common friend called to ask if I could rush to Jabalpur to file the petition. I instantly agreed as it afforded me an opportunity to be a part of the Mander’s multi-dimensional fight against communalism, the oppression of the poor and the hypocrisy of the elite in India.

Although I barely know Harsh Mander personally, I have closely followed his stupendous initiatives towards creating an egalitarian society from the days he was an Indian Administrative officer (IAS) in Madhya Pradesh till 1999, when he took early retirement and became an activist.

Utkarsh Mishra, a young lawyer from Harsh Mander’s team called me and we arranged to meet in Jabalpur on July 8, the last day for filing election petitions.

Also read: Pragya Thakur Aside, Why Digvijaya Could Have Never Won the Seminal Seat of Bhopal

All through the train journey from Bhopal to Jabalpur, memories of the toxic campaign in Bhopal kept flooding my mind. The feelings were mixed – indignation at the sheer audacity of the BJP in fielding a terror accused facing charges of killing seven innocent Muslims in Malegaon over a decade ago, and satisfaction over the prospects of being able to challenge her election in court.

It hurt as I recalled that even Prime Minister Narendra Modi’s strong rebuff of the so-called Sadhvi didn’t translate into action against her. Modi had said in an election speech that he could never forgive Pragya Singh for calling Mahatma Gandhi’s assassin a patriot. The BJP subsequently issued her a show cause notice. She is believed to have replied to the notice but nobody knows to whom and when. Not surprisingly, she remains unscathed and remorseless.

BJP candidate Pragya Thakur gestures while addressing a party workers meeting in Bhopal on April 18, 2019. Photo: PTI

When the BJP had announced her candidature, we all genuinely believed that she stood no chance against Digvijay Singh. We were confident that notwithstanding the so-called Modi wave sweeping across the country, at least Bhopal would not be so overwhelmed by the nationalism rhetoric as to elect a terror accused who viciously valorised Nathuram Godse and credited her curse for the tragic martyrdom of the 26/11Mumbai blast hero Hemant Karkare. The shock over her victory flashed back and endured through the journey.

At Jabalpur, Utkarsh and I met at lawyer Arvind Shrivastava’s chamber in the Madhya Pradesh high court. Comrade Arvind is the state secretary of the Communist Party of India. We went through the voluminous documents which were to be part of the election petition. I signed on each page of the petition and supporting documents which ran in to several hundreds of pages.

Arvind sounded confident that we have very solid grounds to ensure that Pragya Thakur’s election will be set aside. His confidence seemed to stem more from the genuine conviction of a conscientious citizen than the habit of a lawyer used to assuring clients. “It appears an open and shut case”, a beaming Arvind said. Utkarsh appeared pleased but I remained a little sceptical, given the fact that judicial processes in deciding election petitions are tortuously slow in India.

Utkarsh Mishra, the brain behind the petition, has summarised main points of the election petition.

File image of the Madhya Pradesh high court. Photo: PTI

The petition seeks directions that the result of the election for the Bhopal constituency declared on May 23, 2019 be set aside and the returned candidate (Pragya Thakur) be held guilty for having committed the corrupt practices of appealing for votes on religious grounds and/or undue influence within the meaning of Section 123(3) of the Representation of Peoples Act 1951 and making false statements about her rival candidates, defined as a corrupt practice within section 123(4) of the act.

The petition has been filed in light of the undue influence exercised by the candidate over the voters of the Bhopal constituency, by appealing for votes on the grounds of religion, aggravating existing communal tensions and creating enmity between different religions as well as making false statements about her rival candidates, reasonably calculated to prejudice their prospects in the Lok Sabha elections. All of these acts are defined as corrupt practices under Sections 123(3) and (4) of the act.

Grounds under section 123(3) of the Representation of Peoples Act 1951

The ambit of Section 123 (3) has been greatly expanded over the years by the Supreme Court to include even a single appeal made on the basis of religion of the voters. The following statements made by the Pragya Thakur have been alleged as appeal for votes on religious grounds and/or attempts to promote enmity between religious groups in relation with the elections which which constitutes an electoral offence:

1) On April 18, she said: “I am not contesting elections. I am a sanyasi; Power is not for me. I can be a marghdarkshak, I can do the work of state power, But this is a dharmyudh. I had to come to this dharmyudh. I am here considering it as the order of god. I am not here to do netagiri.; I have been instructed by the god to take part in this dharmyudh.”

2) April 19: “The investigation team called Hemant Karkare to Mumbai and said if you do not have evidence, let her go. He said I will do anything to get evidence against her. I won’t let her go. This was his stubbornness. He was traitor. He was anti-religion…You won’t believe but I said you will be destroyed…After just over a month, the terrorists killed him.”

3) April 20: “Ram Mandir hum banayenge, evam bhavya banayenge. Hum todne gaye the dhancha, maine chadhkar toda tha dhancha iss par mujhe garv hai. Mujhe Ishwar ne shakti di thi, humne desh ka kalank mitaya hai.” (“We will build a Ram temple [at Ayodhya] and build a grand one. We had gone to demolish the [Babri] structure, I am proud that I climbed the structure and demolished it. God gave me power and we removed a blot on the nation.”

Pragya Thakur displays the victory sign after her win in Bhopal on May 24, 2019. Photo: PTI

4) April 20: “I am, in fact, proud of it. There were some waste products at the Ram temple and we removed it.”

“See what they have done to the country in 70 years. Even our temples are not safe. The Hindus awakened their self-respect by demolishing the structure and we will construct a grand Ram temple” and “Yes, I had gone there (Ayodhya), I had said it yesterday too, not denying it. I had demolished the structure. I will go there and help in the construction of Ram temple, nobody can stop us from doing that, Ram rashtra hain, rashtra Ram hai [Ram is the nation, the nation is Ram].”

5) May 5: “People will take revenge for insulting the women, they will take the revenge of equating our religion with terrorism. The mistake that you have made four months back should not be repeated now,”

It is clear that the abovementioned statements fall prima facie under the ambit of corrupt practices as defined under Section 123 (3), of the Representation of Peoples Act 1951 which states as follows:

[(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate: [Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.]

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.]

There is extensive judicial precedent from the Supreme Court expanding the ambit of Section 123 (3) to include even a single appeal for votes on the basis of the religion of the voters and candidates.

In 2017, the Supreme Court in the case of Abhiram Singh v. C.D Commachen held that that religion and caste of the voter or rival candidate cannot be used to unduly influence anyone while making any statement during electioneering or otherwise.

A relevant extract of the 2017 judgment is as follows:

“…the purpose of enacting section 123 (3) and amending it more than once during the course of the first 10 years of its enactment indicates the seriousness with which the parliament grappled with the necessity of curbing communalism, separatist and fissiparous tendencies during an election campaign ( and even otherwise in view of the amendment of section 153 –A IPC. It is during electioneering that a candidate goes virtually all out to seek votes from the electorate and parliament felt it necessary to put some fetters on the language that might be used so that the democratic process is not derailed but strengthened. Taking all this into consideration, parliament felt the need to place a strong check on corrupt practices based on appeal on grounds of religion during election campaigns (and even otherwise).

Concerns which formed the ground for amending Section 123 (3) of the act have increased with the tremendous reach already available to a candidate through the print and electronic media , and now with access to millions through the internet and social media as well as mobile phone technology none of which were seriously contemplated till about fifteen years ago. Therefore now, more than ever it is necessary to ensure that the provisions of Section 123(3) of the act are not exploited by a candidate or anyone on his or her behalf by making an appeal on the ground of religion with a possibility of disturbing the even tempo of life…”

The grounds of our petition also state that Pragya Thakur’s comments regarding Hemant Karkare, the Ram Mandir and Babri Masjid are a clear attempt to not only appeal to majoritarian Hindu sentiments but also foster enmity between different religions, in relation to the elections by referring to the polarising issue of the Ram Mandir and describing ‘the structure’ (i.e. the Babri Masjid) as a ‘blot on the nation’ and ‘waste products’. These are defined as electoral offences and corrupt practices in the ambit of section 123 (3A) of the Act.

Also read: Babri Masjid’s Destruction Laid the Foundation of Modi’s New India of Today

Other senior BJP leaders also assisted Pragya Thakur in committing the corrupt practice of seeking votes on religious grounds on her behalf, by openly admitting to fielding her for a Lok Sabha Seat in Bhopal on the sole grounds of giving an answer to those who have allegedly defamed Hindu civilisation by associating it with terrorism.

Prime Minister Narendra Modi. Photo: Twitter

In an interview to the news network Times Now on April 19, 2019, Modi said that the ticket to Pragya Thakur was an answer to those who had equated a 5,000-year-old civilisation with terrorism. He said as follows: “They defamed a 5,000-year-old culture that believes in vasudhaiv kutumbakam. They called them terrorists. To answer them all, this is a symbol and it will cost Congress.”

On May 17, 2019, BJP president Amit Shah, said, “Pragya Thakur’s candidature is a satyagraha against fake charges of saffron terror”.

“They have fabricated false cases to frame her. It was a conspiracy for vote bank politics. The courts have said that saffron terror is an imaginary concept” .

UP chief minister Adityanath addressing a rally ahead of Phulpur by-poll. Credit: PTI

UP chief minister Yogi Adityanath. Photo: PTI

Uttar Pradesh chief minister Yogi Adityanath on April 20, 2019 also stated that”BJP has made Sadhvi Pragya a candidate because the charges of Hindu terror were fake and for demeaning the religion before the world, Congress must apologise.”

Maharashtra chief minister Devendra Fadnavis, on May 6, 2019, said, “Pragya Thakur’s candidature is a reply to [those] who termed Hindus as terrorists for their own vote bank politics.”

BJP general secretary, Ram Madhav on April 18, 2019 said that “she [Pragya Thakur] is probably the right challenger for a person like Digvijay Singh who is largely responsible for propagating the dubious and mischievous idea of Hindu terror in this country. He needs a proper challenge that is why Pragya Thakur was fielded by the party.”

Also read: Watch | Is Bhopal Turning Into a New Hindutva Laboratory?

The above statements are clear admissions by the prime minister of the country, the BJP president, the Maharashtra and Uttar Pradesh chief ministers and the BJP general secretary that candidates such as Pragya Thakur can be given Lok Sabha tickets on solely religious considerations. The projection of the returned candidate before the religious majority of the country as a Lok Sabha candidate intended to preserve the integrity of Hindu civilisation is itself a direct appeal to vote for the returned candidate and the BJP in Bhopal on religious considerations.

Grounds under Section 123 (4)

On April 25, 2019, Pragya Thakur, in reference to Digvijay Singh said that “to vanquish such a terrorist, to again deal with such people who have increased unemployment, a priestess has had to stand up.”

Terming Digvijay Singh a terrorist is prima facie a false statement as defined under Section 123(4) of the Act, that has been reasonably calculated to prejudice the prospects of Singh’s election.

The above mentioned statement is prima facie a corrupt practice as defined under section 123 (4) of the Act as follows:

“(4) The publication by a candidate or his agent or by any other person [with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation
to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election”

I don’t know when the petition will be taken up, if at all. Its fate is also uncertain. But the satisfaction of having stood up against Pragya Singh will remain with me forever.

Rakesh Dixit is a Bhopal-based journalist.

Sadhvi Pragya as BJP Candidate: How the SC Missed an Opportunity to Cleanse Politics

Her candidature is a lesson to the court that symbolic reforms are unlikely to deter candidates accused of heinous crimes.

New Delhi: Sadhvi Pragya Singh Thakur, a key accused in the 2008 Malegaon blast case is the Bharatiya Janata Party’s candidate against the Congress’s Digvijaya Singh. Thakur, who is now on bail, faces charges under the Unlawful Activities (Prevention) Act for conspiring and abetting a terror act, and also faces charges ranging from murder to criminal conspiracy.

The BJP could not have fielded her as a candidate had the Supreme Court last year not abandoned its responsibility to prevent those charged with heinous offences from becoming legislators. In Public Interest Foundation & Others v Union of India, a constitution bench of the court held on September 25 last year that parliament alone is competent to enact a law for the purpose. This, after the bench found that the concerns expressed by the petitioners are valid.

The bench, comprising the then Chief Justice of India, Dipak Misra and Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, instead appealed to Parliament to make a law for this purpose on priority and issued a slew of directions to the Election Commission and the political parties to make the disclosure of the criminal antecedents of candidates contesting elections sufficient and clear to the voters, so that the latter could be warned not to vote the candidates, charged with serious offences.

The bench recommended that parliament bring out a strong law whereby it is mandatory for political parties to revoke the membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections, both for parliament and state assemblies. “This, in our alternative and plausible view, would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy”. By first admitting Pragya to the party, and later fielding her a candidate immediately, the BJP has ridiculed the Supreme Court’s optimism, and naïveté.

The bench also issued the following directions on September 25 last year:

Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein;

It shall state, in bold letters, with regard to the criminal cases pending against the candidate;

If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her;

The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents;

The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate, and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.

These directions, the bench made it clear, ought to be implemented in true letter and spirit and right earnestness in a bid to strengthen the democratic set-up. The bench held: “It is one thing to take cover under the presumption of innocence of the accused, but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation… Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics.”

Pragya’s candidature only vindicates the petitioners’ concerns in this case, and shows that the Supreme Court’s judgment remains what it is: pious hope.

On March 29, the Supreme Court bench of Justices Nariman and Vineet Saran issued notice to the Centre and the EC on a plea seeking initiation of contempt proceedings for alleged violation of Supreme Court’s September 25, 2018 judgment. Interestingly, the plea was filed by BJP member and public interest litigation advocate Ashwini Kumar Upadhyay, who too was a petitioner in the Public Interest Foundation case. On October 10, 2018, the EC had issued a notification revising Form-26 seeking fresh information from candidates on their criminal antecedents. Upadhyay alleged that the EC neither amended the Election Symbol Order, 1968 nor the Model Code of Conduct (MCC), leaving the notification an empty formality.

Upadhyay further submitted that due to the EC’s less than pro-active role, the candidates published details about their criminal antecedents in newspapers with poor circulation, and on news channels which are not very popular, or at odd hours, not considered as prime time. Besides, he alleged that political parties did not comply with the Supreme Court’s judgment by publishing details of criminal antecedents of candidates on their websites, or in newspapers and on television channels during the recent assembly elections, but the EC looked the other way.

The contempt petition filed by Upadhyay is coming up for hearing before the Supreme Court on April 22.

Even as the court prepares itself to haul up the EC and the political parties for their non-compliance with judicial directives, it should introspect over whether the petitioner’s plea for a direction to the EC to deprive party symbols to candidates with serious criminal charges could have made better sense than the kind of toothless directions which they issued to ensure pre-election publicity about criminal antecedents of candidates in the media. It is naïve to imagine that Bhopal’s voters wouldn’t know of Pragya’s criminal antecedents but for the compliance with the Supreme Court’s directives by the party and the candidate herself to ensure better disclosure.

The Supreme Court missed an opportunity to outrightly reject the Centre’s outrageous contention during the hearing of this case that political parties have a right to be associated with MPs with criminal charges under Article 19(1)(c) of the constitution, guaranteeing the fundamental right to form association. The question which the court ought to have posed to itself is whether political parties fighting elections should have the freedom to be associated with those charged with heinous offences.

Clearly, the Centre had the likelihood of the ruling party fielding Pragya as its candidate in mind when it resisted the Supreme Court’s modest direction that parties declare the criminal antecedents of their candidates on their websites on the grounds that it would have serious impact on her privacy. Although the bench implicitly rejected this contention by ruling otherwise, Pragya’s candidature is a lesson to the court that symbolic reforms are unlikely to deter such candidates.

Malegaon Blast Victim’s Father Asks Court to Bar Pragya Singh Thakur From Contesting

If she was “healthy enough to fight elections in the crippling summers heat”, then she has misled the court, the complainant has alleged.

Mumbai: The father of one of the victims of the 2008 Malegaon blast moved the special NIA court here Thursday, urging it to bar prime accused Sadhvi Pragya Singh Thakur from contesting the Lok Sabha election.

The application was filed by Nisar Sayeed, who lost his son in the blast, a day after the BJP fielded Thakur from the Bhopal Lok Sabha seat against Congress veteran Digvijay Singh.

Special National Investigation Agency cases judge V.S. Padalkar sought replies from both the NIA and Thakur and posted the matter for Monday.

The applicant sought that Thakur, who is out on bail, be asked to attend court proceedings in Mumbai and be barred from contesting the election as the trial is in progress.

It further mentioned that Thakur got bail on health grounds. If she was “healthy enough to fight elections in the crippling summers heat”, then she has misled the court, the complainant alleged.

Also read: Malegaon Blast Accused Sadhvi Pragya Joins BJP, to Contest From Bhopal

A petition seeking cancellation of her bail was pending before the Supreme Court, it said.

Six people were killed and over hundred injured in a bomb blast at Malegaon, a communally-sensitive textile town in north Maharashtra, on September 29, 2008.

The Maharashtra Anti-Terrorism Squad arrested Thakur and others in the case, alleging that they were part of a Hindu extremist group which carried out the blast.

The NIA later gave Thakur a clean chit, but the court did not discharge Thakur.

It dropped charges against her under the stringent Maharashtra Control of Organised Crime Act, but she is still facing trial under the Unlawful Activities (Prevention) Act and Indian Penal Code sections.

Sadhvi Pragya, Lt Col Purohit and Six Others to Face Trial in Malegaon Blast Case

The court has, however, dropped provisions under the stringent Maharashtra Control of Organised Crime Act (MCOCA) against all the accused.

Sadhvi Pragya Singh Thakur. Credit: PTI

Mumbai: Sadhvi Pragya Singh Thakur, Lt Col Prasad Purohit and six others will face trial under an anti-terror law in the 2008 Malegaon bomb blast case as the special NIA court here today dismissed their applications for discharge.

The court has, however, dropped provisions under the stringent Maharashtra Control of Organised Crime Act (MCOCA) against all the accused.

It discharged three accused – Shyam Sahu, Shivnarayan Kalsangra and Praveen Takalki from the case.

The court said the accused persons will face trial under sections 16 (committing a terror act) and 18 (criminal conspiracy) of the Unlawful Activities Prevention Act (UAPA), and sections 120(b) (punishment of criminal conspiracy), 302 (murder), 307 (attempt to murder) and 326 (intentionally causing harm to others) of the IPC.

“The UAPA sections 17 (raising funds for a terrorist organisation or a terrorist attack), 20 (being part of a terrorist organisation) and 23 (aiding somebody who is part of a terrorist organisation) have been dropped against all accused,” special NIA judge S D Tekale said.

Apart from Pragya and Purohit, the accused who will now face trial in the case are Sudhakar Dwivedi, retired Major Ramesh Upadhyay, Sameer Kulkarni, Sudhakar Chaturvedi and Ajay Rahirkar.

Two accused, Jagdish Mhatre and Rakesh Dhawde, will face trial only under the Arms Act, the court said.

The court has asked all the accused persons to appear before it on January 15 for the formal framing of charges against them.

On September 29, 2008, there was a bomb explosion near Bhiku Chowk at Malegaon in Nashik district, killing six persons and injuring several others.

The blast took place by an improvised explosive device fitted upon an LML Freedom motorcycle.

Supreme Court to Hear Pleas of Purohit, Thakur in Malegaon Blast

Justices R.K. Agrawal and M.M. Shantanagoudar listed the case for hearing on August 17, saying “this matter requires lengthy hearing” .

Supreme Court. Credit: Reuters

New Delhi: The Supreme Court said yesterday the issue of granting bail to former Lieutenant Colonel Shrikant Prasad Purohit and cancellation of bail of Sadhvi Pragya Singh Thakur, both accused in the 2008 Malegaon blast case, needed detailed consideration.

A bench of Justices comprising R. K. Agrawal and M. M. Shantanagoudar listed the case for hearing on August 17th, saying “this matter requires lengthy hearing” as both the pleas are on similar facts.

Purohit has moved the apex court, challenging the Bombay high court’s order dismissing his bail plea.

Nisar Ahmed Haji Sayed Bilal, father of one of the blast victims, has challenged the Bombay high court order granting bail to Thakur alleging that she was a “powerful person” and could influence the witnesses in the case.

He has sought a stay on the high court’s April 25th order granting her bail, saying there was “no prima facie evidence against her”.

The apex court had on July 28 sought Maharashtra government’s reply on the plea seeking cancellation of Thakur’s bail.

The National Investigating Agency (NIA) had filed its reply in the case of Purohit, saying there was ample evidence against him, but no evidence against Thakur.

The apex court had on May 5 also sought a response from the NIA and the Maharashtra government on the plea of Purohit seeking bail.

Seven people were killed in a bomb blast on September 29th, 2008, at Malegaon, a communally-sensitive textile town in Nasik district of north Maharashtra.

A special Maharashtra Control of Organised Crime Act court had earlier ruled that the Anti-Terrorist Squad had wrongly applied this law against Thakur, Purohit and nine others.

The 4,000-page charge sheet had alleged that Malegaon was selected as the blast target because of a sizeable Muslim population there. It had named Thakur, Purohit and co-accused, Swami Dayanand Pandey as the key conspirators.

It had alleged it was Pandey who had instructed Purohit to arrange explosive RDX, while Thakur owned the motorcycle which was used in the blast.

Ajay Rahirkar, another accused, allegedly organised funds for the terror act, while conspiracy meetings were held at Bhonsala Military School in Nasik, it had said.

Rakesh Dhawde, Ramesh Upadhyay, Shyamlal Sahu, Shivnarain Kalsangra, Sudhakar Chaturvedi, Jagdish Mhatre and Sameer Kulkarni were the other accused.

(PTI)

NIA Clears Sadhvi Pragya, RSS Leader Indresh of Involvement in Ajmer Terrorist Bombing

The police had initially blamed Islamist groups but eventually zeroed in on a Hindutva plot after the one-time RSS activist Swami Aseemanand confessed to the involvement of Hindu fanatics in anti-Muslim terrorist violence.

The police had initially blamed Islamist groups but eventually zeroed in on a Hindutva plot after the one-time RSS activist Swami Aseemanand confessed to the involvement of Hindu fanatics in anti-Muslim terrorist violence.

File photo from 2008 of Pragya Singh Thakur (third from the left) with Madhya Pradesh chief minister Shivraj Singh Chauhan (left) and BJP leader Rajnath Singh, now Union home minister. Credit: PTI

Jaipur: The National Investigation Agency on Monday filed a closure report in the 2007 Ajmer Dargah blast case, declaring that it did not have enough evidence of Sadhvi Pragya Singh Thakur and senior Rashtriya Swayamsevak Sangh leader Indresh Kumar’s involvement in the terrorist bombing of the Muslim shrine that killed three persons and injured over a dozen.

The agency submitted its closure report in a special NIA court in Jaipur citing lack of sufficient evidence to build a case against Sadhvi Pragya, Indresh Kumar, Ramesh Venkatrao Mahalkar and Rajendra alias Samandar (who is also an accused in Samjhauta Express train blast case and currently under judicial custody).

According to IANS, public prosecutor Ashwini Sharma said the court fixed the next hearing of the case for April 17 to decide whether the closure report should be accepted or not.

Three more suspects — Sandeep Dange, Suresh Nair and Ram Chandra Kalsangra — are still on the run in the case while two other accused Jayanti Bhai alias Ustad and Ramesh Gohil alias Ghanshyam have passed away in jail.

The NIA triggered a controversy in 2015 when Rohini Salian, a senior prosecutor responsible for handling the Malegaon blast matter in which Hindutva activists are facing terrorist charges, said that she was under pressure from agency officers to dilute the case.

A powerful bomb explosion took place at the popular shrine of Sufi saint Khawaja Moinuddin Chisti in Ajmer on the evening of October 11, 2007. The authorities initially blamed Islamist groups but eventually zeroed in on a Hindutva plot after the one-time RSS activist Swami Aseemanand confessed to the involvement of Hindu fanatics in anti-Muslim terrorist violence. Aseemanand himself was acquitted by the NIA court of involvement in the Ajmer blast last month.

The special NIA court had earlier found Sunil Joshi and Devendra Gupta – both of whom belonged to the RSS in the past – guilty of planning the blast, and Bhavesh Bhai Patel of planting the explosive. Both the men were sentenced to life imprisonment on March 22.

Sadhvi Pragya has been accused of being a member of Abhinav Bharat, a Hindu extremist outfit allegedly floated by military officer Lt. Col. Prasad Shrikant Purohit.

Besides this case, she has been given clean chit in the September 29, 2008, Malegaon bomb blast case that left six persons dead.

(With IANS inputs)

Will the NIA ‘Supplementary Chargesheet’ End the Confusion on the Malegaon Blasts?

The agency has claimed the Maharashtra Anti Terrorist Squad invented the Hindu terror angle under political pressure. But facts indicate that Hindu fundamentalist organisations had begun to emerge in the state long before.

The agency has claimed the Maharashtra Anti Terrorist Squad invented the Hindu terror angle under political pressure. But facts indicate that Hindu fundamentalist organisations had begun to emerge in the state long before.

The NIA’s chargesheet on the 2008 Malegaon bomb blast case differs greatly from those previously submitted by the Maharastra ATS. Credit: PTI

It would seem that the National Investigating Agency (NIA) has transferred a big problem to the judiciary by submitting a “supplementary” chargesheet on May 13, 2016 in the 2008 Malegaon bomb attack case. The new chargesheet differs differs radically from the earlier two chargesheets submitted by the Maharashtra Anti Terrorist Squad (ATS) on January 20, 2009 and April 21, 2011 against 14 accused persons. It is now left to the court to decide on the case and to examine when to start proceedings after comparing about 5000 pages of evidence furnished by the ATS with what NIA has stated in their brief 133-page ‘supplementary chargesheet’.

The NIA, which took over the investigation in 2011, wants to lift the draconian Maharashtra Control of Organised Crime Act (MCOCA) and discharge six accused persons, including Pragya Singh Thakur. A brief three-page announcement of the ‘supplementary chargesheet,’ called the ‘final report’ by the NIA, was also published on their website and named 10 accused persons, including Lieutenant Colonel Prasad Purohit. They also said that no offence under the MCOCA was revealed. In any case the Supreme Court had already decided on April 16, 2015 that the MCOCA was not applicable in this case.

Soon after filing the NIA chargesheet, Mumbai was agog with rumours that Thakur and Purohit would be released immediately. It took a while before the public realised that the NIA had no power to discharge anybody and that only a competent court could do this, subject to judicial review.

While I have no intention to comment on the ATS and NIA investigations or on the merits of evidence, which is entirely left to the court, certain peripheral facts, which have created a public perception of political interference, need to be mentioned.

A series of twists and turns

The NIA cannot disown responsibility for the twists and turns in the case. The first development came in June 2015 when Rohini Salian, the then special public prosecutor in the case, had declared her intention to resign due to pressure on her “to go slow” in the case, after “the new government” came into power. In October 2015 Salian filed an affidavit naming the NIA officer who had advised her to “go slow”. This was during the course of a contempt petition filed by a litigant in the Bombay high court against the NIA for “tending to hamper the judicial process” resulting in “weakening of the prosecution case”. Earlier this month, NIA chief Sharad Kumar told a leading daily that Salian was dropped on a review of her performance. This might be quite surprising for the Maharashtra police officers who had watched her successful prosecuting abilities in sensational cases like the 1992 JJ Hospital shooting case in which a Dawood gang member was sentenced to death.

Sadhvi Pragya, one of the accused in the 2008 Malegaon blasts.

The NIA is seeking to discharge Sadhvi Pragya Thakur, an accused in the 2008 Malegaon blasts. Credit: PTI

In addition, leaks started appearing in the media in April that the statements of seven witnesses in the case recorded before a magistrate had gone missing from the Special NIA court. The missing documents included a witness’s statement on a meeting between an accused and Thakur in Ujjain just months before the 2008 blasts, as well as a statement purportedly by an Abhinav Bharat office bearer on a meeting between Purohit and Thakur in Nashik in 2007. The reports also said the NIA had formed three teams to search for the missing documents. Till today it does not appear that the NIA has issued any official statement on the veracity of this report. It is a long standing tradition in our country to keep the public away from matters of public safety. However, another report appeared on May 4 that the witnesses had disowned their earlier statements when their fresh testimonies were recorded by magistrates in New Delhi. The same tabloid published a story on May 14 that the missing statements were “at the centre of grand collapse of case”.

In their brief announcement, the NIA said that since some of those accused had filed petitions in higher courts, including on the applicability of the MCOCA in the case, they could not conduct any investigation until April 2015 “when the apex court adjudicated on them”. The NIA also claimed to have arrived at the new conclusions after “a pain staking and professional investigation”. This did not prevent the media from publishing reports that the NIA had described “[Hemant] Karkare’s probe dubious” and that NIA had junked the ATS investigation. Another report appeared on May 14 that Purohit had complained to the national security adviser about the injustice done to him. The same report also carried a statement by former Mumbai Police Commissioner Satyapal Singh, now a BJP member of parliament, that Karkare “arrested Pragya Thakur as he ‘succumbed’ to political pressure from the Congress & the NCP”.

Surprisingly, many reports also claimed the NIA had relied on some evidence collected by the ATS. On May 15 there were reports that the NIA had included in their chargesheet that “Purohit had floated Abhinav Bharat organization in 2006 in spite of being a commissioned officer of the Armed Forces of India, which is against rules” and that he wanted to form a government in “exile” in some foreign countries. The report also quoted that there was still evidence against Purohit for his prosecution.

Did the Maharashtra ATS under the late Karkare invent the Hindu terror angle under political pressure as is alleged? Unfortunately, Karkare is not around to defend himself, having been assassinated in the 26/11 Mumbai attack. The way inspired leaks have maligned his reputation now is very regrettable. Also, facts indicate that the Hindu terror angle had cropped up long before Karkare took charge of the ATS in January 2008. For this we need to analyse the history of that era.

Emergence of Hindu fundamentalist organisations

Terrorist attacks using hidden improvised explosive devices had occurred across the country in 2006, 2007 and 2008, mostly in public places like trains and markets. Eight bombings in 2006-2007 in which 449 people were killed, including the September 2006 Malegaon mosque bombing (38 killed) and the Samjhauta Express bombing in February 2007 (58 killed), were initially treated as “anonymous” with suspicion on different factions of the outlawed Students Islamic Movement of India (SIMI). In 2008, 159 deaths were recorded from around the country in bomb blasts, including the May 13 Jaipur blast in which 63 people were killed. Two days after the Jaipur blast a previously unknown “Indian Mujahideen” (IM) claimed responsibility for these blasts. Investigation later connected most of the previously “anonymous” blasts to the IM, which is considered as an off shoot of SIMI.

However, two bomb blasts in these series, both taking place on September 29, 2008, made the suspicion fall on Hindu groups; motor cycle bombs were placed near mosques in Malegaon (Maharashtra) and Modessa (Gujarat), killing eight people.

Investigation at a higher level indicated that Maharashtra had seen the emergence of Hindu fundamentalist organisations from 2006 onwards. A serious bomb blast took place in Nanded on April 6, 2006 at the house of Laxman Rajkondwar, a Bajrang Dal activist, while they were fabricating bombs, resulting in two deaths. The ATS was entrusted with the Nanded case in May of that year and filed cases on August 24, 2006 against Hindu outfits.

In December 2008, the CBI took over the Nanded investigation and arrested Rakesh Dhawde who is still an accused by the NIA in the 2008 Malegaon blast case. Dhawde had provided arms training to those allegedly involved in the Nanded incident. Reports at that time revealed that these leads had emerged during the investigations into the Malegaon case, which led to the arrest of 11 people, including Purohit. If the CBI were to be believed, the Nanded blasts had connections with the Samjhauta, Malegaon, Mecca Masjid and Ajmer Sharif terror incidents.

Another bomb blast occurred in Nanded in February 2007 inside a bakery shop. Two persons died in the incident, including one from the Shiv Sena. While the police maintained that it was only a fire, the “Concerned Citizens Inquiry” headed by Justice (retd) B.G. Kolse Patil raised several uncomfortable questions against police apathy and connivance. Justice Patil said that the same police officer who had failed to investigate the second Nanded blast had earlier ignored the April 25, 2003 bomb attack in front of a mosque in Parbhani, which had killed one and injured 40.

In 2008, Hindu fundamentalist organisations like the Hindu Janjagaran Samiti (HJS) were noticed planting bombs in theatres in Thane, Panvel and Vashi near Mumbai. On February 20, a bomb planted in Panvel during the screening of Jodha Akbar exploded without causing any injuries. In Vashi and Thane the HJS were protesting against the staging of a satirical Marathi play that did not portray the Mahabharata in favorable light. The Vashi bomb planted on May 31 did not go off while the Thane blast on June 4 injured seven persons. None of these cases are even on the police terrorist data base to be easily retrieved.

It is my assessment that the NIA chargesheet is not going to end the confusion on the 2008 Malegaon bomb attack or for that matter the linkage between several bomb attacks by Hindu groups from 2003.

Vappala Balachandran is a former special secretary, Cabinet Secretariat and was also member of the two-man high level committee to conduct an inquire into police performance during 26/11 terror attacks.

NIA’s U-turn on Malegaon Hindutva Suspects Came With Plenty of Advance Warning

While the agency has the power and the right to disagree with the earlier investigation conducted by the Maharashtra ATS, the history of the Malegaon blasts case raises serious doubts about the integrity of the NIA’s own investigative efforts.

While the agency has the power and the right to disagree with the earlier investigation conducted by the Maharashtra ATS, the history of the Malegaon blasts case raises serious doubts about the integrity of the NIA’s own investigative efforts.

Police stand watch over the scene of an earlier blast in Malegaon, 2006. Credit: Reuters

In a move that has been expected for many months – ever since special prosecutor Rohini Salian first sounded the alarm on how the Modi government was seeking to weaken the case against a group of Hindutva activists accused of the 2008 terrorist bombings in Malegaon, Maharashtra – the National Investigation Agency has decided to drop all charges against Sadhvi Pragya Thakur and five others in the case. While the NIA will continue to prosecute Lt Colonel S.P. Purohit (and 9 others), the new chargesheet it filed in the trial court on Friday alleges that the Maharashtra Anti-Terrorist Squad (ATS) under the command of the late Hemant Karkare sought to ‘frame’ the army officer by planting RDX at his house. At the same time, the NIA has accepted the ATS’s main conclusion that the bombings were carried out by the ‘Abhinav Bharat’ organisation. The quibble now, is about who is to be considered a member of ‘Abhinav Bharat’, and a conspirator in the case.

While the NIA certainly has the power and the right to disagree with the earlier investigation conducted by the ATS, the history of the Malegaon blasts case raises serious doubts about the integrity of the agency’s own investigative efforts.

Rohini salian. Credit: PTI

Starting with Rohini Salian’s revelations about being pressured by NIA officers to ‘go soft’ on the accused, to crucial papers going missing, and the new special prosecutor’s unhappiness at being bypassed on crucial decisions in the case, the NIA’s handling of the Malegaon file has been beset by many doubts about the agency’s intentions. This is because its conclusions have happily ended up coinciding with the position Narendra Modi himself took way back in 2008 when he had criticised the ATS’s investigation against Hindutva extremists like Sadhvi Pragya, or with Rajnath Singh’s 2008 stand that Colonel Purohit was being unfairly targeted.

To be fair to the NIA, this is not the first case in which the agency has sought to upturn an ongoing terror investigation. In 2015, the NIA dropped its prosecution against Liyaqat Shah stating that officials of the Delhi Police Special Cell had framed him. Liyaqat Shah’s case, however, is not comparable to the 2008 Malegaon case for many reasons. The ATS chargesheet in the Malegaon case has faced many challenges in terms of bail applications and applications challenging the application of the Maharashtra Control of Organised Crime Act (MCOCA) in the case before the Bombay High Court and the Supreme Court but the original chargesheet has withstood scrutiny until now. Of course, the Supreme Court had opined that MCOCA may not be applicable to Pragya and others but it ultimately left the question for the trial court to decide.

File photo of Sadhvi Pragya Singh Thakur, one of the prime accused in the 2008 Malegaon blast. (PTI)

Lest there is any confusion over the issue, it is worth underlining the fact that the decision to drop MCOCA charges in the Malegaon case is the NIA’s own one. The principal consequence of this is that confessions made before police officers become inadmissible. It was these confessions which had implicated Pragya and the NIA has decided not to rely on them. It is a different matter that even statements whose admissibility is under question are regularly relied on by the courts to initiate cases against terror accused on the grounds that the same may yet be proved during the course of the trial. The NIA’s reversal of the ATS chargesheet is thus a conscious decision of the NIA to release Sadhvi Pragya – which now must be approved by the courts.

The special prosecutor, Avinash Rasal, has once again gone public with his complaint that he was not consulted when the NIA’s new chargesheet was filed. He has publicly opined that MCOCA is still applicable to this case. Why the NIA chose not consult its own lawyer is a question that the agency will have to answer. It will also have to answer why this is the second special prosecutor who has come out against the agency over its conduct of this prosecution.

At one level, of course, the latest developments in this case are welcome. The NIA has said that witnesses told the agency they were forced by the ATS to give statements under duress and it seems to have re-approached witnesses after many years to confirm their testimonies. The degree of care the NIA has exercised on this account is something that all investigative agencies should aspire to. There are a number of persons accused under the MCOCA and the now repealed POTA and TADA anti-terror laws who are facing the brunt of prosecutions based on police confessions and they too must get the benefit of a second look at their cases. Police confessions are, at best, a problematic addition to the law, marred as they are by torture, threats and the lack of basic procedural safeguards. They are best avoided in law and the findings of the NIA in this case, if accepted, should be considered an argument for doing away with police confessions completely. The history of this case, however, does not allow one to accept the NIA’s contentions at face value.

Malegaon blast accused Lt Col S.P. Purohit. Credit: PTI

As matters stand, no orders have yet been passed and the trial court – which now has two chargesheets before it – is yet to take a view on the matter. Once the trial court decides what to do, the superior courts will also have to take a view on the question.

Another layer of complexity has been added by the NIA calling into question the integrity of the Maharashtra ATS and its late chief Hemant Karkare. The NIA’s claim is that the ATS planted explosives on the accused and the logical corollary is that the ATS personnel responsible for this illegal act are prosecuted. If the NIA decides to press criminal charges against them, a legal response from the ATS is likely. On the other hand, if the NIA decides not to seek the prosecution of those in the ATS whom it believes planted false evidence on Colonel Purohit, then the veracity of its new chargesheet will always be suspect.

In terms of public interest, the issue here is not really the criminal culpability of Sadhvi Pragya and the others. Like every other person accused of a crime, they too have to be presumed innocent until proven guilty. The NIA has taken a view but the courts have to deal with this extraordinary situation where the second investigative agency has sought to indict the first investigative agency. The merits of the NIA’s chargesheet can only be ascertained after it becomes available to the victims. As things stand, the ATS’s chargesheet has withstood many challenges before the superior courts while the NIA’s intent has been repeatedly questioned. The last word in this matter is still some distance away.

Sarim Naved is Delhi-based lawyer. He is appearing for the petitioner in one of the petitions before the Supreme Court for the appointment of an independent prosecutor for the Malegaon case.

Is the National Investigation Agency Sabotaging the Malegaon Blast Case?

The loss of witness statements is the latest development in a trial that is in danger of being derailed by the investigating agency itself.

The aftermath of the Malegaon blasts. (Photo: Reuters)

The prosecution of the accused in the Malegaon blasts case of 2008 seems to raise one question after the other about the National Investigation Agency (NIA). The premier investigation agency, set up to probe a select category of cases, is supposed to have the time and manpower to ensure quick investigation and prosecution. In the Malegaon case, it has neither carried out a quick investigation nor has it proceeded with the prosecution.

The news of some witness statements, recorded under Section 164 of the Code of Criminal Procedure (CrPC) going missing from the court record, has raised further concerns about the prosecutorial intent of the NIA. Former Special Public Prosecutor Rohini Salian had previously claimed the NIA was seeking to favour the accused, who are members of a fringe right-wing organisation called ‘Abhinav Bharat’. The Supreme Court, it is pertinent to mention here, has agreed to hear two petitions questioning Salian’s removal and seeking the appointment of an independent prosecutor for the case.

The loss of the witness statements is the latest development in a trial that is in danger of being derailed by the investigating agency itself.

The NIA had earlier this year sought an adjournment in the case in order to seek the attorney general’s opinion on revoking the application of charges made under the Maharashtra Control of Organised Crimes Act (MCOCA). Special Prosecutor Avinash Rasal has already publicly stated that he was not consulted before the application to drop the MCOCA charges was made. If the MCOCA is invoked, the confessional statements of the accused recorded before senior police officers are admissible. If not, they are not worth the paper that they are written on. Opinions from the attorney general, to put it simply, have no relevance to a criminal trial except to impress on the court that the prosecuting agency is acting on the advice of a constitutional authority.

Documents disappearing from court records are a rare phenomenon. This is either the result of negligence or a deliberate attempt to sabotage the trial. Either way, it cannot but have a serious impact on the trial. The statements that have gone missing will make it much easier to influence witnesses. If there is no prior record of what they swore before a judge, there is nothing left on record to bind them to their earlier statements. Witness statements filed by the prosecution are the material on which a court frames charges against the accused, or discharges them from prosecution if it finds no material to proceed against them. No one can say what effect the loss of these statements will have at this stage. It might well prove to be fatal to the prosecution case.

The disappearance of these documents also have to be seen with reference to the NIA’s changed stance regarding the application of MCOCA in this trial. Recording of confessions before police officers is permitted under MCOCA unlike regular trials where such a confession has to be recorded before the magistrate (under Section 164 of the CrPC, as per which the lost statements were recorded). This is a deviation from normal criminal procedure that was made applicable under the old terror laws – Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA). While most of the stringent provisions under the TADA and POTA were included in the Unlawful Activities (Prevention) Act, the provision regarding the acceptance of confessions made before police officers was kept out. Given the rampant misuse previously, this was rightly done and confessions recorded before police officers have to be treated with marked suspicion, including in the 2008 Malegaon blasts case.

However, the MCOCA is often used by investigative agencies in Maharashtra to build a ‘stronger’ case against the accused. Any step by the courts to disallow the application of the MCOCA is stoutly contested at every step by the prosecuting agency. In this case, however, the NIA seems to be uncharacteristically eager to drop the application of the MCOCA. Even if that is considered prosecutorial discretion, what causes concern is the manner in which it is being done.

The scheme of prosecution under the CrPC is simple. It is the prosecutor appointed for the case who is empowered to advance arguments before the court and to advise the prosecuting agency as their lawyer. The NIA, if they wished to withdraw the application of MCOCA, need only have followed the advice of the prosecutor and asked the court to make a decision as to whether this stringent law should apply or not. The trial court has consistently applied the MCOCA to Malegaon case. This was upheld by the Bombay high court and the Supreme Court did not give a definitive finding regarding the application of the MCOCA while hearing the bail petitions of the accused.

No prosecuting agency waits for an opinion from the advocate general in a criminal trial. The case is being prosecuted by specially appointed prosecutors who are lawyers of a certain standing and experience. Even if the investigating team at the NIA wants to withdraw the MCOCA charges, it could have simply made an application to this effort to the court to decide the issue. The NIA has not done so. For the NIA to seek an opinion from the attorney general against its own earlier stand of the application of the MCOCA, only shows an attempt to bypass Rasal, the appointed special prosecutor, who believes the MCOCA is applicable to this case.

The Central Bureau of Investigation has let off BJP President Amit Shah in the Sohrabuddin case, not having challenged his discharge in that case before the high court. The Ishrat Jahan case has been put in cold storage with no movement regarding it. Witnesses are turning hostile in the Ajmer Dargah blast case and the Malegaon 2008 blasts prosecution is being systematically weakened. The common thread amongst all these cases is that the accused are persons who are perceived to be close to the ruling dispensation. Of course, the RSS and the BJP have publicly disowned the accused in the Ajmer and Malegaon blast cases. But the public condemnation would be much more believable if the country’s premier investigative agencies are not seen betraying their own investigations and their own findings.

Sarim Naved is Delhi-based lawyer. He is appearing for the petitioner in one of the petitions before the Supreme Court for the appointment of an independent prosecutor for the Malegaon case.