By A Mirsab, TwoCircles.net,
India’s most elite anti-terror investigation team, the National Investigation Agency (NIA) which was established specifically to probe terror-related cases and was assigned investigation of Malegaon 2008 blasts by the UPA government in 2011, never had a chance for custodial interrogation of any of the accused in the case.
On September 29, 2008 four people died and 79 were left injured after a blast using a bike ripped through Bhiku square opposite Shakil Goods Transport Company in Malegaon.
In October 2008, Maharashtra Anti Terrosist Squad (ATS) headed by late Hemant Karkare had arrested 12 people belonging to right-wing organisation Abhinav Bharat for the blasts and filed a charge sheet against them on January 30, 2009. A supplementary charge sheet was filed by ATS on April 21, 2011.
Ministry of Home Affairs transferred investigation of the case from state ATS to NIA with the order dated April 1, 2011 following which NIA registered a fresh FIR under its police station on April 13, 2011.
During its initial investigation NIA interrogated all the accused who were charge sheeted by ATS inside Taloja Central Jail in the presence of jailor.
Following this jail interrogation NIA applied for custodial interrogation of three accused Purohit, Dwivedi and Upadhyay before special MCOCA court. The special judge Y D Shinde on July 19, 2011 allowed NIA custody of these accused for eight days between July 22 and July 30, 2011.
The accused appealed against such order before Bombay High Court and secured temporary stay till it decides the matter. The Bombay High Court later on upheld special court’s order on October 20, 2011 and allowed NIA to conduct custodial interrogation of these accused.
The accused immediately appealed this order too before Supreme Court and got operation of it stayed till Supreme Court finally decides the appeal. Ever since then the matter remains stayed before trial court because most of the documents from the trial court were shifted to the apex court for hearing of this matter and hence the trial is virtually stalled.
That means NIA’s plea for custody of the three main accused in the blasts: Lt Col Shrikant Prasad Purohit, Sudhakar Udaybhan Dwivedi alias Dayanand Pandey and Major (retd) Ramesh Upadhyaya has been pending before Supreme Court since November 2011.
After hearing the matter for nearly 40 months, divisional bench of Supreme Court reserved its judgment on February 24, 2015. It has been eight months since the final argument has been made by the senior counsel and Additional Solicitor General for NIA A Mariarputham and Tushar Mehta respectively, along with arguments by many defense lawyers of accused but the Supreme Court has not come out with its order till now.
However, on April 15, 2015 Supreme Court decided all matters in this case except the question of allowing custody of accused to NIA. In his 97-page order Justice Fakkir Mohamed Ibrahim Kalifulla raised doubts over applicability of MCOCA in the case and directed state to establish dedicated NIA court for fresh hearing fpr bail applications of accused.
In this order itself Justice Kalifulla said he will not decide matter of custody to NIA as it was heard before the divisional bench of Supreme Court.
Nevertheless, the complete arguments for the matter of custody were heard by divisional bench of Justice Kalifulla and Justice Abhay Manohar Sapre and order is reserved on February 24, 2015.
Speaking on this delay, Senior High Court lawyer Sharif Shaikh who is also appearing in this case before trial court as an intervener for victims in opposing bail applications of accused, told TwoCirlcles.net, “The matter is deadlocked before trial court since four years as accused have challenged their custody but now accused are filling bail applications on the ground of delay. It is not NIA that is causing delay. It is their appeal because of which trail is not proceeding.”
When asked why is Supreme Court taking so long to decide the matter he said, “Earlier the matter was not argued before it due to laxity of NIA and when it was argued supreme court has reserved the order. Normally court never takes this much of time in pronouncing judgment; eight months is too long”.
“It might also be because allowing custody to NIA involves some technical question of law because accused have already been investigated and chargesheeted by ATS and therefore Supreme Court might be cautious in deciding it”, he added.