In view of the sharp twists in the Malegaon blasts cases of 2006 and 2008, completely overturning and making a mockery of investigations by the Maharashtra Anti Terrorism Squad (ATS) and foreign agencies like the US Department of Treasury, some basic questions arise about the functioning and very legality of the National Investigation Agency (NIA).
The NIA was given charge of the 2006 Malegaon blast case in April, 2011, and the 2008 Malegaon blast case in April 2012. Since then it has sought to prove that some Hindu radicals were behind both incidents.
Both Malegaon probes were handed over to the NIA without the consent of the Government of Maharashtra, though law and order is a state subject (List II). More fundamental is the issue of whether the Union Government was competent to enact the NIA Act without the concurrence of the States. The issue acquires urgency as persons arrested and charged by the ATS may now be released, while the NIA builds up a case against others on hearsay.
On June 26, 2013, two of the accused in the 2006 Malegaon blast case, Mohammad Ali Alam Sheikh and Asif Khan Bashir Khan, appealed to the special NIA court in Mumbai for discharge on grounds that there was no evidence against them. The duo alleged that the confessions allegedly obtained by the ATS were discarded by the NIA. The latter did not oppose the bail pleas of the nine accused arrested by ATS, but Sheikh and Khan remained in custody for alleged involvement in the July 2006 Mumbai serial train blasts case.
Media reports on July 1 suggest that the NIA may give the nine Muslims accused in the 2006 Malegaon blast case an official stamp of ‘innocence’ by telling the court that they were no longer accused. However, Dhan Singh, a Hindu charge-sheeted by the NIA, has contested Sheikh and Khan’s discharge application and questioned the investigations, pointing out that on the very day the Maharashtra ATS charge-sheeted nine Muslims, the case was transferred to the CBI. The CBI supplementary charge sheet supported ATS’s case.
On March 3, 2009, the then Union Home Minister P Chidambaram met Federal Bureau of Investigation (FBI) director Robert Mueller in New Delhi and confided that the NIA could be challenged in court as violating Constitutional provisions between the Centre and the States (US Embassy cable, Wikileaks 195165, dated March 4, 2009, accessed by The Hindu through Wikileaks and published on March 19, 2011; not denied to date).
Chidambaram explained that India did not have the concept of federal crime, and law and order is a State responsibility. Central agencies require the permission of the States to become involved in an investigation. The NIA Act ascribes certain investigating powers to the NIA which conflict with this jurisdiction. It comprises five chapters with 25 Sections, followed by a Schedule which lists eight different categories of offences that can be investigated by the NIA vide Sections 6 to 10. The Act received Presidential assent on December 31, 2008.
Both the Preamble and the Statement of objects and reasons of the Act disclose that the NIA Act aims to constitute a police agency at national level to investigate and prosecute offences affecting a host of subjects, expressly or impliedly contained in List I (Union List). Experts say that while the Centre can legislate on investigation and prosecution of offences pertaining to subjects listed in the Preamble to the Act, the legislative power to create a police agency by virtue of List II of the 7th Schedule of the Constitution vests exclusively with States. The NIA Act is in this respect an encroachment on the legislative powers of States and hence ultra vires the Constitution of India.
This can be seen from a study of the Delhi Police Establishment Act, 1946, which created the Central Bureau of Investigation (CBI). The CBI itself is specifically a designated entry in List II, 7th schedule, and as per the Act, the investigative powers of the CBI do not encroach upon the functions of police forces created by the State Governments.
Section 2 of the Delhi Police Establishment Act, 1946, expressly empowers the Centre to constitute a special police force to investigate in any Union Territory offences notified u/s. 8. And by virtue of Section 6, the Delhi Special Police Establishment cannot exercise powers and jurisdiction in any areas in a State that is not a Union Territory or Railway areas without the consent of the relevant State Government.
The same is not true of the NIA Act.
The NIA Act was passed almost unanimously by Parliament after the three-day terrorist attack in Mumbai in November 2008. But since then, expectations from the agency have been belied; it has failed to either prevent a number of terrorist attacks in various parts of the country or to detect the perpetrators of these attacks. Worse, it has acted at cross purposes with specialized state police agencies investigating these incidents and obstructed the course of justice in pending investigations and even concluded ones.
Neither the Preamble nor Statement of Objects and Reasons ever suggested that the NIA could investigate pending investigations of past terrorist acts or reinvestigate terrorist offences in cases where charge sheets had already been filed. Its operation was always intended to be prospective (to prevent, investigate or prosecute offences in future). Indeed, the need for a National Investigation Agency was never mentioned prior to November 2008. Hence the use of the NIA to re-investigate terrorist offences committed prior to this event is de hors the stated objective of the Act.
It is a settled principle of law that an investigation commenced by an agency authorised to investigate certain offences can be transferred to another agency by a High Court vide its powers under writ jurisdiction under Article 226 and 227 of the Constitution of India or by the Supreme Court by virtue of its inherent powers. But the Centre availed of Section 6 of the NIA Act and asked the agency to investigate a cluster of seven cases in which investigations were underway by specialised State police agencies.
A complete reading of Section 6 (pertaining to Scheduled Offences) makes it clear that the NIA does not have the power to intervene in pending investigations, whether or not those investigations have concluded by the filing of a charge sheet or not.
It is also settled law that the power of further investigation of a case even after the filing of a charge sheet can be conducted by that investigating agency in exercise only of its power under Section 173 (8) of the Cr PC 1973. The Supreme Court has categorically held that this power of further investigation cannot include fresh investigation or reinvestigation. It is only a High Court in its Writ or inherent jurisdiction or the Supreme Court in exercise of its inherent power that can order a fresh investigation or re-investigation, whether before or after the charge sheet is filed.
The seven cases handed over to the NIA actually involve fresh investigation and/or re-investigation, under the cover of Section 6, and hence these notifications deserve to be quashed.
Overall, it appears that the NIA investigations are politically motivated to ‘prove’ that ‘Hindu terrorist organisations’ are proliferating in the country and indulging in counter terrorism or “saffron terrorism”. Wikileaks revealed that Rahul Gandhi, as General Secretary of the ruling Congress party, at a luncheon hosted by Prime Minister Manmohan Singh in honour of Hillary Clinton in July 2008, told US Ambassador Timothy Roemer that the bigger threat in India was the growth of radicalized Hindu groups which create religious tensions and political confrontations with the Muslim community. Gandhi was replying to Roemer’s question regarding LeT activities in the region and the threat to India (cable dated August 3, 2009, sent by Roemer to US State Department, published by The Guardian London).
Thus, in the 2006 Malegaon case, the police filed a chargesheet on December 22, 2006, in the court of Special Judge, MCOCA, Mumbai, against 13 people. Nine were arrested and four declared absconding (two Indians and two Pakistanis). The confessions of seven were recorded under provisions of MCOCA and subsequently verified and confirmed by Chief Metropolitan Magistrate, Mumbai. One accused, Abrar Ahmed Gulam Ahmed (accused number 9) expressed a desire to turn approver and this was permitted by the Sessions Court.
Despite this, the Central Government handed over the case to the CBI on January 11, 2007; the CBI found further evidence and filed a charge sheet on December 11, 2010. Both the ATS Maharashtra and the CBI found that the blasts of September 2006 and the subsequent planting of a fake bomb were the handiwork of 14 accused, including two Pakistani nationals, one Muzzamil (accused number 4) and the other unidentified. Most of the remaining accused were said to be members of the banned Students Islamic Movement of India (SIMI).
Still later, the case was transferred to NIA, which overturned the original findings.
Another important case transferred to the NIA is the Samjhauta Express bomb blast of February 2007. The Indian Government consistently held that the blast was the handiwork of Pakistani terrorist outfits. The then National Security Advisor MK Narayanan openly said so, and at the first India-Pakistan Joint Anti-Terrorist (JATM) meeting in Islamabad (March 6, 2006), the Indian side handed over photographs of the suspected Pakistani terrorists. At second JATM in New Delhi on October 2007, Indian representatives asked what action Islamabad had taken on the information provided previously.
In July 2009, the US Department of Treasury held LeT and Al Qaeda responsible for the Samjhauta blast, and named Arif Qasmani of Karachi as involved in Mumbai July 2006 train blasts and February 2007. The UN Security Council took the same view. David Headley’s estranged wife told the FBI about her husband’s involvement in various terror attacks in India, including in the Samjhauta Express train blasts.
The Supreme Court has in numerous judgments asserted that the Cr PC 1973 permits an investigative agency to further investigate, which means continue the earlier investigation. Nowhere does it permit conducting a fresh investigation by ab initio wiping out the earlier investigation altogether. Yet this is precisely what the NIA has done in the 2006 and 2008 Malegaon blasts, completely overturning the investigations by the relevant authorities and finding an altogether different motive and group of accused persons. Hence it is legitimate to question its functioning.