Who botched up the Malegaon blast investigation?

The National Investigation Agency has accused the Maharashtra Anti-Terrorism Squad of planting evidence and coercing witnesses, but its own investigation is incomplete and leaves many questions unanswered, reports Sahil Makkar.

Almost a year ago, when Rohini Salian, special public prosecutor, alleged that her client, the National Investigation Agency, had asked her to go “soft” on the trial of the 2008 Malegaon blast case, it was rumoured that the Bharatiya Janata Party government at the Centre would either drop or dilute the charges against “Hindu firebrand” leaders accused in the case.

Last week, this suspicion was established after the NIA dropped terror charges against six of the accused -- Pragya Singh Thakur, Shiv Narayan Kalsangra, Praveen Takkalki alias Pravin Mutalik, Shyam Bhavarlal Sahu, Lokesh Sharma and Dhan Singh Choudhury -- in a charge-sheet filed before a designated court in Mumbai. Among these accused, some are directly or indirectly associated with the Rashtriya Swayamsevak Sangh.

“It is a natural course of self-correction. The accused were wrongly framed at the behest of a senior Madhya Pradesh-based Congress leader to defame the right-wing organisations,” says a senior minister in the BJP-led National Democratic Alliance government at the Centre.

Allegations have been flying thick and fast since the blast took place on September 29, 2008 -- during the month of Ramzan and a day before the Hindu Navratra festival -- in Malegaon, Maharashtra, killing six and injuring 101.

At the time, the Congress-led United Progressive Alliance was ruling both at the Centre and Maharashtra, and it is the Congress that allegedly coined the term “saffron terror".

Within a month of the blast, the Maharashtra government entrusted the probe to its specialised wing, the Anti-Terrorism Squad, which had been credited with successfully cracking terror cases involving the Indian Mujahideen and others in the state. The ATS officially took over the case on October 21 and arrested Thakur, Kalsangra and their accomplice Shyam Bhavarlal Sahu in two days.

Subsequently, the ATS unearthed the larger conspiracy behind the blast and arrested Major (retd) Ramesh Upadhyay, Sameer Kulkarni and Rakesh Dhawde, who is believed to have imparted training in bomb-making and was involved in the explosion.

The ATS recovered four prohibited firearms and 196 live cartridges from Dhawde, and his arrest led to the apprehension of another accused, Jagdish Mahatre, who was found to be in possession of two firearms and 15 live cartridges.

The ATS also arrested Lt Col Prasad Purohit, who floated the so-called social outfit Abhinav Bharat in 2006 for allegedly promoting his “fundamentalist ideology”, and Ajay Rahirkar, treasurer of the outfit.

Two other accused, Sudhakar Dwivedi and Sudhakar Chaturvedi, were arrested the same month, taking the total number of arrests to 11.

The ATS booked the accused under the stringent provisions of the Maharashtra Control of Organised Crime Act, making it difficult for the accused to seek bail, completed the investigation in a record four months and filed its charge-sheet on January 20, 2009.

Loopholes in ATS probe?

The NIA had been probing the other terror cases, including the Samjhauta Express blast of 2007, and found common links with the Malegaon blast. So the Centre entrusted the latter to it on April 13, 2011.

The NIA, which took four years to conclude its investigation because of legal hurdles as the accused have filed many petitions against the agency and the Supreme Court was also approached for quashing MCOCA charges, filed its charge-sheet last week and picked holes in the ATS case.

According to the NIA, the ATS investigation was based purely on the confessional statements of three accused recorded under MCOCA, which allows a senior police officer to record the statement, and 13 witnesses who recorded their statements either before a magistrate or a junior police officer.

The central agency said the confessional statements were obtained after ATS threatened the witnesses that they would be “implicated” in false cases.

The NIA went on to say that the ATS recorded the statement of one witness (name withheld), who confessed to having served tea and eavesdropped during the three meetings of Abhinav Bharat held in Bhopal, Faridabad and Nashik to plot the Malegaon blasts. The NIA says this witness never went to Bhopal, did not attend the Nashik meeting and could not hear discussions while serving tea and snacks to the attendees.

The ATS decision to apply the MCOCA against the accused was suspicious and “questionable”, the NIA added, because it was based on Dhawde’s previous involvement in two blasts cases of 2003 and 2004.

But, the NIA contested, the other accused were not aware of Dhawde’s previous involvement in other blasts and he did not attend the Abhinav Bharat meetings held at Faridabad, Nashik, Kolkata, Jabalpur and Bhopal.

To apply MCOCA, the investigating agency has to prove that the crime was the work of an organised gang or a criminal organisation. Dhawde in his confessional statement had implicated Thakur and others.

“This raises considerable doubt on the integrity of invocation of MCOCA by ATS Mumbai,” the NIA charge-sheet says.

“On the basis of the specific points covered during the NIA investigations, it is concluded that no offence under MCOCA is attracted in the instant case,” it adds.

With the dropping of the MCOCA charges against all the accused in the case, the confessional statement nailing Sadhvi Pragya Thakur and others becomes invalid.

The ATS had alleged that Thakur had arranged the RDX and provided her “reliable men” for explosion.

The NIA went on to say that the ATS even planted RDX in the house of Sanjiv Chaturvedi to wrongly implicate him in the case.

Many questions remain

The NIA has based its investigation on the statements of those witnesses who have already turned hostile in the ATS case. It would be difficult for the judge to rely on these dubious witnesses.

It could be easily alleged that the witnesses might have changed their stance under pressure from the accused or some political outfits.

“What is the guarantee that the NIA has not tortured the witnesses to change their testimonies? The case has been going for a long time and has been given a political colour, so you can understand the push and pull in the case,” says a Maharashtra-based police officer who requested anonymity.

Moreover, the agency confessed its failure to collect additional evidence in the case due to the time lag of four years in taking over the case.

“This led to a situation wherein no additional evidence could be collected from the crime scene and the veracity of the evidence collected by the previous investigation agency could not be fully substantiated,” the NIA says in its charge-sheet.

According to legal experts, the agency’s case becomes feeble with its admission that it has not been able to interrogate Purohit, Dwivedi and Upadhyay in police custody. These accused did not cooperate with the sleuths in judicial custody.

The agency is also accused of ignoring circumstantial evidence and being selective in choosing the confessional statement. For instance, it dismissed the ATS evidence against Shivnarayan Kalsangara, brother of Ramji Kalsangara.

The ATS had recovered a timer from the house of Shivnarayan, similar to the one that was used in Malegaon blast, saying since the latter is an electrician and the said timers are not controlled items, for which licence or the state’s permission is required.

The NIA will also have to answer why it did not believe Dhawde’s statement against Thakur, if it finds the former guilty in the blast case.

Dhawde, in his confessional statement, had said that Purohit told him that Thakur’s two reliable men, Ramji Kalsangra and Sandeep Dange, had come to him asking for RDX.

Ramji and Dange, who according to some news reports have been named as RSS workers in the NIA charge-sheet, are still absconding. 

The timing of the NIA charge-sheet has also raised certain questions.

Avinash Rasal, who worked as senior public prosecutor for the agency, says the charge-sheet came as a surprise to him.

“I have successfully contested 34 bail applications of the accused in Malegaon blast case in the last seven months. I was still arguing the case on previous brief given to me. I do not know what transpired in the agency that it did not care to inform me about the charge-sheet.”

As the case stands today, the NIA has recommended dropping of charges against Thakur, Kalsangra, Takkalki, Shyam Sahu, Sharma and Choudhury. It has not found incriminating evidence against Mahatre, but he is still charged for illegally keeping weapons.

The rest -- Upadhyay, Kulkarni, Rahikar, Dhawde, Purohit, Dwivedi and Chaturvedi -- are being tried under various sections of the Indian Penal Code.