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.

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.

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.

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.

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.