Malegaon 2006: Why NIA investigations could flop
Certain high profile terrorist incidents which have ensnared Sadhvi Pragya Singh Thakur, Lt Col Prasad Shrikant Purohit, and others on grounds of ‘Hindu terror’ or counter terror, even though the initial investigations suggested the involvement of known terrorist outfits, may fall in jeopardy on account of conflicting charge sheets filed by different agencies in the same case.
In an act of dubious legality, the Ministry of Home Ministry directed the National Investigation Agency (NIA) to investigate incidents already being probed by State agencies and the Central Bureau of Investigation (CBI), which resulted in an entirely new line of investigation that is at odds with the original investigation and charge sheet. As the NIA probe is continuing parallel to the cases going on in the trial courts, and appropriate due process has not been observed due to the UPA’s haste to take the heat off one community, matters seem to have become legally untenable. A case in point is the 2006 Malegaon blasts case, where two separate charge sheets have been filed by two different investigating agencies. This could blow up in the UPA’s face as the trial court judge will have to be guided by the December 13, 2012 judgement of the Supreme Court in Vinay Tyagi vs Irshad Ali & Ors (Criminal Appeal Nos. 2040-41 of 2012, arising out of SLP Crl Nos 9185-9186 of 2009).
In this case, a bench comprising Justices Swantanter Kumar and AK Patnaik ruled that once an FIR is lodged and a charge sheet filed under Section 173(2) Cr PC, it can only be cancelled, proceeded further, or the case closed by the court, in accordance with the law. Neither the Police nor a specialised investigating agency (read CBI or NIA) has the right to cancel a previous charge sheet or supplementary charge sheet or report filed in the case, and the trial court has to consider the entire record of the case before arriving at a decision. This means that the original charge sheet cannot be ignored or superseded by a new charge sheet that takes the case in an entirely new direction.
In the 2006 Malegaon blasts case, the Maharashtra Anti-Terror Squad (ATS) filed a charge sheet against nine persons on December 21, 2006, to which the CBI added a supplementary charge sheet. Later, the NIA gave all nine a clean chit on the basis of an alleged confession by Swami Aseemanand before Delhi Additional Metropolitan Magistrate MM Dabak, which he later retracted. Aseemanand allegedly told the magistrate that late Sunil Joshi had seen television reports of the Samjhauta Express blasts at his (Aseemanand’s) place and allegedly claimed ‘ye mere ladkon ne kiya hai. This is hearsay, and cannot be verified in view of Sunil Joshi’s demise. Nor has any forensic evidence been found to link ‘Hindu terrorists’ to the crime. Still, NIA filed a fresh charge sheet against four Hindu youth from Madhya Pradesh, and a ‘discharge report’ against the first set of accused.
Now, the Special NIA and MCOC judge has to decide whether to accept or reject the ATS-CBI charge sheets against the first set of nine accused, or to accept or reject the NIA’s ‘discharge report’ against the former and its new charge sheet against the second set of accused. What complicates matter is that the two charge sheets are at odds with each other, and the trial court does not have the power to squash the first charge sheet and investigation report; it has to decide the case with the entire record in its entirety, and give reasons for the same.
Two legal issues are involved here. First, whether under Section 173 of the Criminal Procedure Code (Cr PC), 1973, the trial court has the jurisdiction to ignore any one report where there are two reports by the same or different investigating agencies. Second, whether the CBI is empowered to conduct ‘fresh’ (de novo) investigation or ‘re-investigation’ when the court has already taken cognizance of a crime on the basis of a police report under Section 173 Cr PC.
In the specific case, Irshad Ali (alias Deepak, respondent no 1), a rickshaw puller, also worked as an informer of the Special Cell of Delhi Police and the Intelligence Bureau. On December 11, 2005, his IB handlers allegedly asked him to join a militant camp in Jammu and Kashmir and report on their activities. Irshad Ali claimed he was implicated in a false case on refusal to do so. On December 12, 2005, the family members of Mohd Muarif Qamar (alias Nawab, respondent no 2) filed a missing persons report at police station Bhajanpura, Delhi. On February 9, 2006, the SHO published a notice in The Hindustan Times, Delhi, seeking the general public’s help in tracing him.
The same evening, the Special Cell of the Delhi Police implicated both men in a case [FIR No. 10/2006] on grounds that they were terrorists apprehended at Mukarba Chowk near Karnal bypass with arms and ammunitions for a terrorist activity in Delhi. It never mentioned that both were Police and IB informers. Qamar’s brother urged the Delhi High Court to transfer the case the CBI. The Delhi Police admitted that the accused were ‘informers’. Thereafter, the CBI concluded that it was a false case and filed a closure report on November 11, 2008.
Thereafter, the trial court and the Delhi High Court differed over the status of the versions given by two different agencies. The issue boiled down to whether the primary police investigation can be wiped out by a de novo investigation. The Supreme Court stated that a ‘fresh investigation’ or ‘reinvestigation’ can only be done under a definite order of a superior court, where the Court unambiguously states that the previous probe, for reasons that must be recorded, is incapable of being acted upon. Neither the investigating agency nor trial magistrate has the power to order or conduct ‘fresh investigation’ under the Cr PC. The ruling will impact all cases of ‘Hindu terror’ that the Centre handed over to the NIA after Muslims protested at being targetted whenever incidents of terror occurred.
Since an accused/suspect has a right to a just and fair investigation and trial (Articles 21 and 22 of the Constitution), fresh investigation is ordered only rarely, where an investigation ex-facie is unfair, tainted, mala fide and smacks of foul play. The Supreme Court said that while a magistrate can order ‘further investigation’, this too must be done sparingly. The supplementary report following further investigation is to be treated as part of the primary report and both reports read conjointly by the court to determine if there are grounds to presume that the accused has committed an offence.
Only superior courts have jurisdiction (in exceptional cases) under Section 482 Cr PC or Article 226 of the Constitution to direct ‘fresh’ or even ‘reinvestigation’ and to transfer investigation from one agency to another. Unless the superior court specifically directs that the original report or investigation will not form part of the record of the case, it will remain part of the record and cannot be excluded. In none of the cases of ‘Hindu terror’ did the Centre or the State Government take the permission of superior courts before trying to nix the original investigation and transferring the cases to the NIA. Hence, if the investigation by the NIA does not continue the line of investigation of the primary report and proves to be a fresh, de novo investigation, it could fall in jeopardy as only superior courts have the jurisdiction to order such a probe and to cancel the findings of the previous investigation.
As the cases of ‘Hindu terror’ unravel in court, the UPA could face a serious denouement.
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Sandhya Jain is a political analyst and independent researcher. She is the author of ‘Adi Deo Arya Devata- A Panoramic View of Tribal-Hindu Cultural Interface’ (Rupa & Co., 2004) and ‘Evangelical Intrusions. Tripura: A Case Study’ (Rupa & Co., 2009).