Malegaon 2008 Blasts: HC and SC accepted MCOCA then why did NIA drop it?

By A Mirsab,,

National Investigation Agency (NIA) on Friday dropped sections of Maharashtra Control of Organized Crime Act, 1999 (MCOCA) against 10 accused in Malegaon 2008 blasts case and provided clean chit to six accused including Sadhvi Pragya Thakur.

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While revoking stringent charges under MCOCA, NIA simply said it has been established during investigation that no offence under MCOC Act is attracted in the instant case.

However, if one tracks the investigation and legal proceedings of this case from the beginning then we know that the sudden change of NIA’s stand against invocation of MCOCA in the case has essentially gone against the ruling of Bombay high court and Supreme Court which have earlier found ATS’s application of MCOCA perfectly fine.

On November 20, 2008 ATS invoked the provisions of MCOC Act in the case and filed charge sheet on January 20, 2009 against 11 accused – Sadhvi Pragya singh Thakur, Shivanarayan Gopalsingh Kalsangra, Shyam Bhavarlal Sahu, Ramesh Shivji Upadhyaya, Sameer Sharad Kulkarni Ajay @ Raja Eknath Rahirkar, Rakesh Dattatray Dhawde, Jagdish Chintaman Mhatre, Prasad Shrikant Purohit, Sudhakar Udaybhan Dhar Dwivedi @ Dayanand Pande and Sudhakar Omkarnath Chaturvedi.

As widely known, the basic criteria that the investigation agency looks after for invoking MCOCA in any case is that the offence should be committed by a group and at least one of the accused should have been charge sheeted in two cases prior to the present case.

This is how Maharashtra Crime branch and ATS have invoked MCOCA against terror accused in 7/11 train blasts, Pune blasts, Aurangabad Arms Haul case, Indian Mujahideen email case, Zaveri Blasts and against many gangsters for murder or extortion cases.

During investigation of Malegaon 2008 blasts, ATS got to know that one of the accused Rakesh Dhawde was also involved in two other bomb blasts. Dhawde was then also arrested for his involvement for blasts taken place on August 27, 2004 in Jalna and another that had taken place on November 21, 2003 in Parbhani.

On the basis of Dhawde’s prior criminal involvement in penal offences, ATS invoked sections of MCOCA in Malegaon blasts case against all the accused.

The special MCOCA Judge Y D Shinde while listening to bail applications of some accused persons revoked charges of MCOCA on July 31, 2009 and sent the case to sub ordinate court for hearing. Maharashtra state challenged this finding before Bombay High Court.

On July 19, 2010 the divisional bench of Justice B.H. Marlapalle & Justice Anoop V. Mohta (Criminal Appeal Nos. 866 Of 2009) found ATS’s invocation of MCOCA against all accused good in law and said “the view taken by the Special Court is against the well settled legal position“ and thus restored the charges of MCOCA in the case.

Accused persons challenged this order before Supreme Court and a divisional bench of Justice Fakkir Mohammad Ibrahim Kalifulla and Justice Abhay Manohar Sapre (Criminal Appeal Nos.1969-1970 Of 2010) on April 15, 2015 ruled in the favor of applicability of MCOCA in the case and did not interfere with the findings of Bombay High Court keeping provisions of MCOCA intact but directed special court to listen bail applications of accused persons on merit.

Interestingly, only a few months before NIA’s learned counsel Mariaarputham contended before Supreme Court while hearing above appeal that as long as all the three incidents (three blasts) were committed by a group of persons and one common individual was involved in all the three incidents, that would attract invocation of MCOCA.

But now what has changed that made NIA to submit before special NIA court in Mumbai that no offence under MCOC Act is attracted in Malegaon blasts.

In addition to this, NIA also objected to bail application of Sadhvi Pragya Thakur in the above hearing before Supreme Court but on Friday discharged her from the case altogether. Neither the facts have changed in these 8-9 month nor did the case papers but what is apparently changed is the will of NIA to prosecute these Hindu accused for allegedly killing innocent people of Malegaon.

What has also changed in these few months is the Public Prosecutor (PP) Rohini Salian who has openly said NIA was asking her to go soft in the case. She is now replaced with PP Avinash Rasal who is also not happy with NIA’s attitude in the case and has objected NIA for filing charge sheet hurriedly.

He told The Hindu , “Every time the accused filed a bail application; I opposed their release taking advantage of the MCOCA provisions. Since the time I am associated with the case, the bail was rejected 34 times.”

So what explains NIA’s change of heart regarding MCOCA on Malegaon blast accused? Was it an order from the boss or something else?

Related :

NIA gives clean chit to Sadhvi and others without conducting custodial interrogation

Unlike Sadhvi NIA’s clean chit to Muslims in 2006 case was not before brain mapping and lie detector tests