MCOCA, ‘confessions' & a bomb bike with no owner: How NIA cast doubt on ATS's Malegaon blast probe

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Initially, the NIA sought prosecution against 10 in the Malegaon blast case—Army Lieutenant Colonel Prasad Shrikant Purohit, Ramesh Upadhyay, Sameer Kulkarni, Ajay Rahirkar, Sudhakar Dwivedi, , Jagdish Mhatre, Sudhakar Chaturvedi, Rakesh Dhawade, and two absconders, who were not arrested, Ramchandra Kalsangra alias Ramji and Sandeep Dange—under terrorism and criminal conspiracy charges. A Special NIA court, in December 2017, discharged Dhawade and the 11th and 12th person linked to the blast from the case.
Due to its contention that an organised crime syndicate did not exist, the NIA did not include key witness statements in its case despite agreeing with the ATS that the accused—now acquitted—were behind the Malegaon blast. The NIA chargesheet also said that the witnesses, who in their statements to the ATS earlier confirmed that the accused hatched a conspiracy for the blast at meetings ahead of the D-Day, gave such statements under duress and police pressure, setting aside the legs on which the case stood.
New Delhi: The National Investigation Agency (NIA), which took over the Malegaon blast probe from the Maharashtra Anti-Terrorist Squad (ATS), disputed the ATS charges that the accused were part of an organised crime syndicate, leading to the dilution of charges.
On Thursday, the Special NIA court acquitted all seven accused, who eventually faced trail proceedings, citing the lack of adequate evidence to establish they were part of a criminal conspiracy. They included the six arrested accused named in the NIA chargesheet, and Pragya Singh Thakur.
The NIA, formed in the wake of the Mumbai terrorist attacks in November 2008, was handed the case in April 2011 by the then United Progressive Alliance. The agency took five years to file its final charge sheet in May 2016, a couple of years after the Narendra Modi-led Bharatiya Janata Party ascended to power in May 2014. The agency attributed the delay in filing the chargesheet to case files lying with the Supreme Court while it was deciding the petitions for application of MCOCA in the case.
In its charge sheet, the NIA made two broad submissions contradicting the case that the ATS had built—one that no organised crime was behind the Malegaon blast, so the Maharashtra Control of Organised Crime Act sections slapped on the blast accused by the ATS was inapplicable against them. Secondly, the NIA gave a clean chit to Pragya Singh Thakur, who then became the Bharatiya Janata Party's Lok Sabha MP from Bhopal in 2019. The agency said that there was insufficient material to prosecute her. The Special NIA court, however, while taking cognisance of the charge sheet, referred the matter for further trial against Pragya Singh Thakur among the other accused, despite the NIA's clean chit to her.
The NIA, moreover, argued that the ATS made its case based on the confessions obtained through torture of the co-accused and the witnesses. During re-examination by the central agency, they did not stick to their initial statements, the NIA said. Taking cognisance of the charge sheet, the Special NIA court, however, rejected this particular NIA submission on torture of the accused, referring the matter for further trial and directing a cross-examination of the witnesses.
Giving its judgment upholding the acquittals, the Special NIA court said, 'It is also necessary to mention that, two prime investigating agencies were involved in this matter, i.e., ATS and NIA. Both agencies conducted independent investigations and submitted separate charge sheets upon completion thereof. However, the allegations of misconduct, torture, illegal detention have been levelled exclusively against ATS officers and no such accusations have been made against any officer of the NIA. Thus, pointing out towards the treatment given by ATS officers to the witnesses is self-sufficient—which raises serious concern and credibility of evidence collected by ATS officers during the course of investigation.'
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How NIA punched holes in initial findings
The Maharashtra ATS filed its chargesheet against 14 people in January 2009, charging them under the Maharashtra Control of Organised Crime Act (MCOCA), 1999, and the Unlawful Activities (Prevention) Act (UAPA), 1967. Months later, in July 2009, the Special Court in Mumbai dropped the MCOCA proceedings after Purohit sought bail. On an appeal filed by the Maharashtra ATS, the Bombay High Court, however, reversed the Special Court order in July 2010.
When the matter reached the Supreme Court in 2015, it upheld MCOCA vis-à-vis one of the accused, Rakesh Dhawade, due to his alleged involvement in two more similar bomb blasts in 2004 outside mosques in Parbhani and Jalna in Maharashtra. The apex court asked the trial court to decide his bail plea under MCOCA, which sets stringent conditions for granting bail, and to dispose of the bail pleas of the remaining accused without considering the MCOCA stipulations.
Dhawade has since then been acquitted in the cases against him.
The Malegaon blast case took an incredible turn in May 2016, when the NIA raised questions over the MCOCA provisions brought against the accused by the ATS, and the links between the 2008 Malegaon blast, the 2003 Parbhani blast, and the 2004 Jalna blast.
The central counter-terrorism agency also raised questions about the credibility of the ATS probe, calling the methods it used 'dubious'. The NIA alleged that despite no credible evidence to link the Malegaon blast accused to the Parbhani blast or the Jalna blast, the ATS booked the same person, Dhawade, in all three cases under MCOCA, indicating that the ATS aimed to keep him in jail.
Claiming the chargesheets against Dhawade came in quick succession, the NIA flagged that the moves only came so the stringent MCOCA could be invoked in the case.
The agency highlighted that Dhawade was placed under arrest on 2 November 2008 for the Malegaon blast and further arrested in the Parbhani bomb blast on 11 November, the same year. The ATS filed the Parbhani bomb blast charge sheet, just two days after his arrest, the NIA further said, adding that two days later, the ATS arrested him in the Jalna mosque blast on 15 November 2008 and filed the chargesheet on the same day. The NIA argued that the quick frequency of arrests and charge sheets raised doubts over the allegations of the ATS about Dhawade's involvement in the three blast cases. The NIA also said that there was no evidence to back the allegations of the ATS that the other arrested persons in the Malegaon blast case had any awareness of the involvement of Dhawade in the Jalna and Parbhani bomb blasts. Instead, the NIA argued that Dhawade met Purohit for the first time in 2005 in Pune.
Considering the date of arrest and the filing of the charge sheets, it was apparent that there had hardly been time available for the ATS Mumbai to collect evidence against the accused before filing its charge sheets, the NIA said in its 2016 charge sheet. 'The said charge sheets were filed with the sole purpose of fulfilling the condition of the enabling provisions of the MCOC Act,' the NIA added.
Witnesses 'unreliable' & methods 'dubious'
The NIA took a different line on the ATS findings on the LML bike, allegedly used for placing the explosives at the Malegaon blast site. The Maharashtra ATS earlier submitted in its chargesheet that Pragya Singh Thakur owned the LML bike and that she gave it to her aides, Ramchandra Kalsangra alias Ramji, Sandip Dange, and Praveen Takkalk, for executing the blast. The NIA, however, submitted that Ramji had been using the bike for a long time, from before the blast, by sharing statements from four witnesses to support its point.
According to the NIA chargesheet, one of the co-accused, Sudhakar Dhar Dwivedi, had allegedly confessed before the ATS that when Pragya Singh Thakur met him, Dange, and Ramji at the Indore circuit house, Dange called Dwivedi and Ramji 'reliable men'. Dwivedi's confessions before the ATS also included him revisiting Indore the same month, when Ramji and Dange met him at the circuit house and discussed the Indore riots. Around the same time, Pragya Singh Thakur called Dwivedi and asked him to remind Purohit to provide explosives to Ramji and Dange. At her insistence, Dwivedi called Purohit, who suggested not discussing such topics over the phone, and instead, having the discussion in person when he would be in Ujjain.
The NIA charge sheet, however, does not include any of these confessions—it argued the accused gave the statements under provisions of the MCOCA, which the agency had not invoked in the chargesheet.
Sudhakar Dwivedi 'retracted from his confessional statement in front of the magistrate', the NIA told the court. 'This confessional statement does not have any evidentiary value' since the agency's charge sheet does not include any MCOCA provisions, the NIA further submitted in the court, thereby diluting the case.
The NIA also cited a retracted statement from a prosecution witness, who allegedly earlier told the ATS about his presence at a meeting of Abhinav Bharat in Bhopal in April 2008 when, the witness confessed, Purohit discussed taking revenge on Muslims by carrying out blasts in Muslim-populated areas, especially Malegaon. At the same meeting—Dwivedi allegedly confessed before the ATS—Pragya Singh Thakur offered to provide men for the blasts.
During his re-examination by the NIA, Dwivedi retracted his statement and claimed he did not attend any Abhinav Bharat meeting in Bhopal. Instead, he said, he did not visit Bhopal until the ATS took him to a Ram Mandir in the city in May 2012. He later reiterated this claim before a magistrate in a statement recorded under Section 164 CrPC.
The NIA cited another witness, who allegedly told the ATS about an 8 October 2008 meeting between Ramji and Pragya Singh Thakur, post the Malegaon blast. Ramji, the witness told the ATS, confessed before Pragya Singh Thakur that he had carried out the Malegaon blast with the help of her LML freedom bike.
However, the NIA said in court that the witness, when produced before the Judicial Magistrate 1st Class at Indore on 26 November 2008, complained about torture in the custody of the ATS and that officers forced him to record his previous statement under 164 CrPC.
Citing the contradictions in statements recorded by the ATS at various stages, including in the MCOCA depositions, the NIA argued that no case under MCOCA could be made out against any of the accused and also gave a clean chit to Pragya Singh Thakur and five others.
The NIA, however, found Purohit and nine others culpable of prosecution under various sections of the Unlawful Activities (Prevention) Act, 1967, and the Indian Penal Code.
On the other hand, the Special NIA court in Mumbai found sufficient material to justify trial proceedings against Pragya Singh Thakur also. Charges were framed against a total of seven accused, leading to an exhaustive trial, which ended in the acquittals of all the accused Thursday.
(Edited by Madhurita Goswami)
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