26/11: NIA and Mumbai Crime Branch in chargesheet wars

There is going to be another battle in the Supreme Court concerning the 26/11 attacks, and this time around it would be regarding the chargesheet filed by the National Investigation Agency which runs contrary to the claims made by the Mumbai Crime Branch. Vicky Nanjappa reports.

The 60-page chargesheet is brief and to the point. More importantly, the NIA does raise a couple of questions regarding the 26/11 attacks and also the names that have cropped up which led to the execution of the attack.

For starters, the names of both Fahim Ansari and Sabhauddin are missing in this chargesheet. This would mean that the entire operation was the handiwork of foreign agencies and there was no Indian involved in the attack.

The NIA had probed extensively the role of any Indian in the attack and finally came to the conclusion that it was an operation stage managed by Pakistan and its terror factories, right from the planning to the execution.

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After the filing of the chargesheet, there would be certain issues that would need to be addressed first. Firstly, the provision of law as both chargesheets deal with the same case. The next thing is the further investigation into the role by Brigade 313, which is a part and parcel of Al Qaeda.

Right from the start, Indian police have maintained that this attack was staged by the Lashkar-e-Tayiba. However, the NIA chargesheet which was filed on Saturday draws a major connection between Ilyas Kashmiri of the 313 Brigade and David Coleman Headley of the Lashkar.

As per intelligence reports Kashmiri was never with the Lashkar at the time of this attack. However, this revelation goes on to show that Kashmiri and Headley did not interact with each other only for the Mickey Mouse project, but had been involved in both the 26/11 attack and also the Karachi Project.

However, the extent of the involvement by Kashmiri and his 313 Brigade is yet to be seen. Headley was in touch with Kashmiri and during these interactions he was instructed on how to carry out surveys.

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In fact, the operation that Kashmiri oversaw was restricted to the one conducted at the Chabad House which has led investigators to infer that Al Qaeda had an interest in targetting the Jewish community during this attack.

This part of the NIA is however no big surprise as it has been said in the past that Kashmiri had the original idea for the 26/11 attacks.

It was an attack planned on a smaller scale, but the Inter-Services Intelligence hijacked that idea and handed it over to Lashkar in a bid to keep the outfit united as the cadres were seen to be rebelling in order to join the war in Afghanistan.

Sources say that that there would be further probing on the matter and pressure would be put on Pakistan to provide more details about Kashmiri's involvement in the attack.

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The first point of debate would be with regard to the names of Fahim and Saba who were acquitted by both the trial court and also the Bombay high court. With the matter now pending before the Supreme Court, their legal team proposes to place the NIA chargesheet before the court and seek a confirmation of the acquittal on these grounds.

Both the chargesheets pertain to the same case. The NIA chargesheet would fall under the purview of Section 173(8) of the Code of Criminal Procedure which gives an agency the right to conduct further investigation.

Courts could normally take both chargesheets into account or even club the two and conduct a combined trial. However, both Fahim and Sabahuddin can raise this point regarding the NIA chargesheet during the course of arguments before the Supreme Court.

They would first cite Article 36 of the Indian Constitution which permits them to raise new points during an appeal. Moreover, their main contention would be how can two chargesheets be different when they are probed by government appointed agencies.

However, in this case that would not be the situation as the trial based on the Crime Branch chargesheet has already concluded and is at the final stages in appeal before the Supreme Court.

The names mentioned in both the chargesheets are different, although it involves the same offence. The Crime Branch chargesheet deals with Ajmal Kasab; the nine other dead terrorists, Fahim and Saba.

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The NIA chargesheet deals with Headley and the rest -- all of who are outside the country. The similarities would be the names of top Lashkar operatives such as Hafiz Saeed and also Zaki-ur-Rehman Lakhvi who find a mention in both chargesheets.

The point of law that would arise in such a case is whether those names finding a mention in both chargesheets would have to face two trials? "That would depend on the charges that pertain in both the chargesheets," says Karnataka State Public Prosecutor H S Chandramouli.

If the charges in both the chargesheets are the same, then the accused would face the trial based on only the chargesheet that has been filed first and in this case, the one filed by the Crime Branch.

However if the second chargesheet has charges, then the accused would have to stand trial once again. However this time he would face a trial only for the new charges against him, legal experts say.