2008 Malegaon blasts: NIA under fire from former prosecutor as it seeks to drop MCOCA charges

"It is a political move," former special counsel for National Investigation Agency, Rohini Salian said, when asked for a response to the NIA informing a special court that it intended to drop charges under the stringent Maharashtra Control of Organised Crime Act against the 11 accused in the 2008 Malegaon blasts.

The NIA requested the court on Tuesday that the framing of charges against the accused, including Lt Col Srikant Purohit and Sadhvi Pragya Singh Thakur, be deferred until it receives an opinion from the Attorney General whether charges under MCOCA could be dropped.

“How can they ask the Attorney General? How is he concerned with the case? The matter is sub judice (pending in court) and the case is at framing of charges. The court should decide the charges now. This is all politics. I have disassociated myself from the case now. They are cheating everyone (the society),” Salian said.

Salian, however, added that even if the stringent MCOCA charges were to be dropped, the case will not collapse and will stand on the basis of witnesses who have spoken of various conspiracy meetings.

Salian had charged last year that she had been under pressure from the NIA to go “soft” in the case since “the new government came to power” in May 2014.

'Hindu terror group'

This was the first case where a "Hindu terror group" had been named. It pertains to a blast that took place in Bhiku Chowk, Malegaon, Maharashtra, on September 29, 2008, leaving four dead and injuring more than 70 people.

The case was first investigated by the Maharashtra Anti-terrorism Squad under the late Hemant Karkare. The trail led first to Sadhvi Pragya Singh Thakur after a golden LML Freedom bike parked outside the blast site was found to have been allegedly registered under her name. Her arrest was followed by the arrest of Colonel Purohit, who was alleged to have provided the RDX for the blasts, and retired Major Ramesh Upadhyay.

The NIA took over the case on the direction of Home Ministry on April 13, 2011. Fourteen people were chargesheeted in the case including Pragya Singh Thakur, Major Ramesh Upadhyay, Lt Col Prasad Purohit, Sameer Kulkarni, Rakesh Dhawade, Sudhakar Dwivedi aka Dayanand Pandey, Sudhakar Chaturvedi, Pravin Takalki, Shivnarayan Kalsangra, Shyam Sahu, Ajay Rahirkar, Jagdish Mhatre. Two accused – Ramchandra Kalsangra and Sandeep Dange – are still absconding. The trial is yet to begin.

In April 2015, the Supreme Court said that the application of MCOCA for most of the accused, including Thakur and Purohit, in the case was “doubtful” as there was not enough evidence to show their involvement in the blasts, apart from the Malegaon one. The Maharashtra Anti-Terrorism Squad had applied MCOCA in the case on the basis of “continuing unlawful activity” of accused Rakesh Dhawade, a Pune-based antique arms collector, who was also arrested for two prior terror plots in Prabhani (bomb explosion in Mohmedia Masjid, Nanalpeth, Parbhani in 2003) and Jalna (bomb explosion in Kederia masjid in 2004).

The Supreme Court ordered the special judge to consider bail applications on the merits of the case and pass appropriate orders. While three accused – Shivnarayan Kalsangra, Shyam Sahu, Ajay Rahirkar, and Jagdish Mhatre – were given bail, the trial court refused bail to the main accused, including Purohit and Thakur.

Crucial witnesses

The NIA move puts a question mark on the confessions of three accused – Sudhakar Dwivedi aka Dayanand Pandey, Pravin Takalki, and Rakesh Dhanwade – recorded under MCOCA that support the case.

“We have judgements which say that now confessions can be used even in cases under Indian Penal Code. So I think we can use them still,” said Salian. But observers point to the legal troubles ahead as the case is based mostly on circumstantial evidence, with little direct evidence to implicate the accused.

To make matters worse, the alleged bombers in the case, Ramachandra Kalsangra and Pravin Dange, still remain at large. So, while the paper trail speaks of meetings for conspiracy, there is little information about the nuts and bolts of the case – the actual bombing.

“If MCOCA goes, the benefit of confessions go away,” rued special NIA counsel, Avinash Rasal. “Since I took over, we have disposed of 24 applications of bail or discharge," he said. "Despite the Supreme Court judgement, we argued that MCOCA is applicable. And the court accepted it. We have given our 100%”.

The NIA's legal cell, Rasal said, was not sure about the applicability of MCOCA. With the accused being acquitted from the Jalna blasts case in 2012, it becomes more difficult for the prosecution to argue about "continuing illegal activity", on the basis of which MCOCA had been applied, he pointed out.

But Rasal hopes that the witnesses will support the case, unlike the 2007 Ajmer and Samjhauta Express blasts case, where many witnesses turned hostile. "The witnesses have to come and speak before the court," he said. "We can lead the horse to the water, but you cannot make it drink.”

Defence lawyers point to the lack of evidence. “There is only evidence of the meetings which were all public meetings," said Shrikant Shivade, who is representing Purohit. "None of them were closed door meetings. Besides, they were all unconnected with the blasts.”

Political move?

Naveen Chomal, the lawyer for many of the accused in the case, said that the arrested accused feel “cheated” by the right wing Bharatiya Janta Party government. In 2008, when the accused were arrested, some of them had written to LK Advani, one of the seniormost BJP leaders, about the injustice meted out to them. They had pointed out that the accused had been tortured and had been kept in illegal custody before arrest, Chomal said. “But, he (Advani) disappointed us. He mentioned our problems in one line before Parliament and let it go. He should have done something then,” Chomal said. “We do not want any favours from the government," Chomal added. "We just want them to go by the law.”

Prashant Maggu, one of the other defence lawyers in the case, who appears for three accused in the case, said that it was in the interest of the Congress government to “bring out Hindu terror.” “This was a star case for the earlier government to bring out a pattern in the country. They tried to implicate Hindu accused in Samjhauta and Ajmer blasts cases," Maggu said. "The government wanted some angle. They wanted all these cases to be interwoven, so that they can bring out Hindu terror. They started hammering all saffron clothed Sadhus and Sadhvis. The other side was pleased. But there was no factual material.”

The entire case, the defence counsel allege, was a political move. “The NIA is the same agency that withdrew the case against the 2006 Malegaon blasts case,” said Shivade. In 2011, after the NIA did not object to the bail applications of seven accused in the 2006 Malegaon blasts case, they were released on bail. The NIA had told the court that the confession of the 2007 Mecca Masjid bomb blast accused, Swami Aseemanand, had led them to review the evidence collected by the previous investigating agencies, namely the Maharashtra Anti-Terrorism Squad and the Central Bureau of Investigation.

“They follow different standards for different sets of accused," said Sanjiv Punalekar, who appears for Sudhakar Dwivedi and Pravin Takalki. "They have been dishonest throughout. We are being used to politically please the government.”

Maggu agreed with Punalekar. “We term the witnesses hostile – like in the Ajmer and Samjhauta blasts cases. But, the statements themselves were recorded wrongly. Obviously, then they will turn hostile,” he added.