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15 May 2016

The month of May began with the BJP demanding action against the water mafia in Mumbai under the Maharashatra Control of Organized Crime Act (MCOCA). On the 10th of May Atikh Khan, Rafiq Khan and Javed, all three ragpickers, were charged with MCOCA for allegedly causing fire in the dumping ground at Deonar Mumbai. This was of course followed by the big story - the dropping of charges by the National Investigation Authority under MCOCA against all the accused belonging to the Abhinav Bharat in the Malegaon blast case (MCOCA Special Case No. 1 of 2009), and discharging 5 of the accused including Sadhvi Pragya.

The Malegaon blasts which killed 7 and injured 101, apart from causing damage to property, took place during Ramzan on 29th September 2008, opposite Shakil Goods Transport Company between Anjuman Chowk and Bhiku Chowk. The casualties were all Muslims. The blast took place through an explosive device fitted on an LML Freedom motorcycle bearing No. MH-15-P-4572. The FIR was filed by the Anti-Terrorism Squad (ATS) against 14 accused, including 3 absconding accused when investigations revealed that that the motorcycle used in the blast belonged to Accused No.1 Pragyasingh Chandrapalsingh Thakur @ Swami Purnachetanand Giri, and the blasts were conducted by the wanted accused and others. Intercepted phone conversations revealed conspiracy and the chargesheet further disclosed dates and details of meetings wherein the blasts were planned and the execution details worked out. The charge-sheet which was published (available on the EPW website), discloses that Rakesh Dhawade, a core member of Abhinav Bharat, was involved in conducting bomb blasts since 2003 and details of his two pending cases were provided in the chargesheet. Explosives were recovered from Colonel Purohit. The chargesheet was filed by the ATS under Sections 3(1)(i), 3(1)(ii), 3(2), 3(4) and 3(5) of MCOCA, 1999; along with Sections 302, 307, 326, 324, 427, 153-A, 120-B of the Indian Penal Code, r/w 3, 5, 25 Arms Act, r/w 3, 4, 5, 6 of Explosive Substance Act, r/w 15, 16, 17, 18, 20 and 23 of Unlawful Activities (Prevention) Act, 1967 (Amended) 2004.

The National Investigation Agency (NIA), which took over the investigation in 2011, filed a chargesheet on 13th May 2016, calling the methods used by the ATS dubious and questionable and discharged 5 of the accused and dropped charges of MCOCA on the grounds that the induction of the charges against Rakesh Dhawade in the two cases was questionable as they were done after his arrest in the present case. The dropping of MCOCA renders the confessional statements recorded by the DCP as permissible under MCOCA inadmissible. This will lead to the abandonment of the statement of Sudhakar Dwivedi which provided details of the conspiracy. The NIA also held that the confessions were obtained by way of torture and were retracted and hence had no evidentiary value. This reasoning of the NIA would have been welcome had it applied to all cases. The use of torture to obtain “evidence” and confessions that are used to convict accused is routine, and this concern for the human rights of the accused in other cases where there is ample evidence of torture, is missing, not only on the part of the investigating agencies but also the judiciary.

The dropping of the charges against the Sadhvi resulted from the reliance on the statement of the Sadhvi that though the motorcycle belonged to her, the same was not used by her; and on the retraction of other witness statements. Such susceptibility to believe the accused by the investigating agency has hitherto not been seen in any judgment of any court. The chargesheet claimed that ‘"The incident took place on September 29, 2008, came to NIA for investigation on April 13, 2011. This has led to a situation wherein no additional evidence could be collected from the scene of crime and the veracity of the evidence collected by the previous investigation agency could not be fully substantiated.” Thus the NIA took on the role of the judiciary in examining the evidence gathered by the ATS.

The difference between the stand of NIA in the present case where it dubbed the evidence of the ATS as dubious and sought discharge of accused and watering down of charges, and its position before the court in the 2006 Malegaon blast case where it opposed the discharge of the Muslims accused by ATS of conducting the blast, in opposition to its own chargesheet and counter case against the Hindu accused. In a turnaround on its position on April 8, 2014 (a month before Modi’s election), the NIA counsel Prakash Shetty told the court while arguing the discharge application filed by the accused on 13th April 2016 that “Three independent machinery have investigated the case. The state Anti Terrorism Squad (ATS) and Central Bureau of Investigation (CBI) have named one group. The investigation by NIA is conflicting, but whether the accused investigated by the earlier agencies can be discharged… it cannot be done. The court will be looking into what evidence has been collected, what is the evidence against them. At this stage, it (discharge) cannot be allowed.” Mumbai has seen the communalization of the executive especially the police since the 1992 riots and the nexus between the police and the Hindutva elements has been recorded by the Srikrishna Commission. The NIA’s turnaround is not surprising considering the interview of the NIA lawyer Rohini Salian given in June 2015, where she accused the NIA of pressurizing her to go soft on the accused in the present case against the Sadhvi and others, immediately after the present government came to power, leading her to quit the case. The present discharge application targets the late Hemant Karkare, chief of ATS who was responsible for the disclosure of the Hindutva involvement in the two Malegaon blasts, and was one of the prime exposers of Hindu terror.

While CDRO considers MCOCA a draconian law that needs to be erased from legal text, we condemn the manner in which the NIA has abdicated its constitutional and ethical role by dropping charges against those involved in the killing of Muslims. The plain reading of the Section 2 (e) which defines "organised crime" as “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any person or promoting insurgency”, reveals that the law is applicable. The constitutional validity of Section 2(1)(e) of the MCOC Act was challenged, and the said challenge has been negatived by the Supreme Court in the case of Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra which was filed by the Muslims accused in the Malegaon (2006), Aurangabad and the Mumbai train blasts. The Supreme Court defined insurgency as “a serious form of internal disturbance which causes grave threat to the life of people, creates panic situation and also hampers the growth and economic prosperity of the State".

The question of applicability of MCOCA has been recurring in the present case since the trial court by an order dated 31st July, 2009, discharged the accused of offences punishable under the MCOC Act. The order of the trial judge was set aside by the Bombay High Court in 2010, stating that cognizance was taken of the offence and not the offender, and hence the applicability of MCOCA could not be challenged on ground that the accused was named in a supplemental chargesheet in an existing case. The Supreme Court by its judgment dated 15th April 2015 upheld the applicability of MCOCA in the present case stating That “A conspectus consideration of the above facts discloses that insofar as A-7 was concerned, he had a nexus with the member of an 'organized crime syndicate' and also had every nexus with the offence in the nature of an 'organized crime' of the two earlier cases, namely, Parbhani and Jalna and also direct involvement in the present bomb blast at Malegaon. In such circumstances, there is no difficulty in coming to a definite conclusion that insofar as, A-7 is concerned, his activity and involvement in all the three occurrences, namely, Parbhani, Jalna and Malegaon disclose nexus with the crime and also with the other accused involved in the crime and thereby the satisfaction of the definition of 'continuing unlawful activity' of an 'organized crime' on behalf of an 'organized crime syndicate' is satisfactorily shown.”

The move of the NIA would have been welcome had this concern for the rights of the accused and “truth” been universal. However this selective application of separate standards of proof for different cases and the bending of rules for Hindutva terror, and the application of the standard of proof of “collective conscience of the people” when it comes to the rights of accused belonging to Minority community and those who are seen as ‘anti-nationals’, shows the nexus between the state agencies which are meant to uphold the rule of the law and the Hindutva forces. This not only undermines the right to equality before the law and equal protection of the law as stated in the Indian Constitution but also the democratic right to justice. The NIA’s actions not just impinge on the creation of a highly hierarchical society where some are above the law, but also seek to rewrite and distort history.

CDRO Coordinators

C. Chandrasekhar (CLC, Andhra Pradesh), Asish Gupta (PUDR, Delhi), Pritpal Singh (AFDR, Punjab), Phulendro Konsam (COHR, Manipur) and Tapas Chakraborty (APDR, West Bengal)

Constituent Organisations: Association for Democratic Rights (AFDR), Punjab; Association for Protection of Democratic Rights APDR), West Bengal; Bandi Mukti Morcha (BMC), West Bengal; Campaign for Peace & Democracy in Manipur(CPDM), Delhi; Civil Liberties Committee (CLC), Andhra Pradesh; Civil Liberties Committee,(CLC) Telengana; Committee for Protection of Democratic Rights (CPDR), Mumbai; Coordination for Human Rights (COHR), Manipur; Human Rights Forum (HRF), Andhra Pradesh; Jharkhand Council for Democratic Rights (JCDR), Jharkhand; Manab Adhikar Sangram Samiti (MASS), Assam; Naga Peoples Movement for Human Rights (NPMHR); Organisation for Protection of Democratic Rights (OPDR), Andhra Pradesh; Peoples’ Committee for Human Rights (PCHR), Jammu and Kashmir; Peoples Democratic Forum (PDF), Karnataka; Peoples Union For Democratic Rights (PUDR), Delhi; Peoples Union for Civil Rights (PUCR), Haryana, Committee for Protection of Democratic Rights (CPDR),Tamil Nadu.