Despite the NIA giving a "clean chit" to Sadhvi Pragya Thakur, the investigative agency was left red-faced on Thursday as the trial court determined that she and six others accused in the 2008 Malegaon Blasts case will stand trial for stringent terror charges under the Unlawful Activities (Prevention) Act of 1967 (UAPA).
While the provisions of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) were dropped, the court said that there was sufficient basis to proceed against Thakur for offences under Sections 15, read with 16 and 18 of the UAPA. Section 15 is the offence of terrorism and Section 16 spells out the punishment. In this case, the punishment could be a death sentence.
The politically-sensitive case has been complex from the start as it cast a spotlight on the uncomfortable subject of "saffron terror". The very phrase evokes a harsh response from certain sections of the community, who remain in denial about its existence.
However, despite the National Investigation Agency (NIA) itself saying that Thakur couldn't have been connected with the case–and that this was not a saffron terror plot–the court determined that there were grounds to proceed against Thakur and the others.
The investigation has a political history that shouldn't normally be associated with terror cases. Terrorism investigations should be conducted in a non-partisan manner. Be it a sadhvi, a mullah or a bishop, the accused's religious or political inclination should not be a matter of concern.
Initially, the Maharashtra Police moved fast and efficiently with the investigation. Led by late ATS chief Hemant Karkare, they narrowed down on Thakur and the others by connecting the bike that was found near the blast site. Later though, the scanner fell on some Muslim men accused of being associated with SIMI.
The ATS and later the CBI said that they (the Muslim men) were responsible for the blasts. Finally, after three years of not filing a report, the CBI said it had no evidence to charge the men but still maintained that they were responsible. The NIA took over the matter in 2011 and subsequently dropped the charges against the Muslim men. Though they were released, the NIA opposed their discharge in the Supreme Court despite saying that the men were not responsible for the attacks.
The possible involvement of right-wing groups was first brought to light by Swami Assemanand's confession during investigations into the Ajmer Darga bombings. During these investigations, Assemanand named Thakur and linked her with the Malegaon blasts.
Despite this, the NIA was adamant that Thakur had no involvement or nexus at all with the bombings and therefore, there was no basis to charge her.
So, when the chargesheet before the NIA court, investigators recommended that she be discharged. But what does a discharge mean in legal terms?
To understand a discharge it is vital to understand what a "charge" means in the truest sense is. Criminal law is strict and one has to fall within the four walls of a section to be accused of an offence. To stand trial for an offence is to be known as "charged" with an offence. After an FIR is filed, the police or the investigation agency starts the process of the investigation.
After this, they are required to file a chargesheet with the court. This chargesheet is the evidence they are relying on and on the basis of the evidence they make out the offences that they want the accused person to stand trial for.
A discharge is when no case is made out from the evidence to warrant a trial under a section. If this is the case, the court may determine that the accused need not stand trial for that offence.
But in India, unlike the United States, there is no concept of prosecutorial discretion. It is not solely for the prosecution to determine whether it wants to charge someone for an offence or not. The court is the one putting the charge on the accused not the prosecution so it is the court that finally takes the call after examining the chargesheet as to what charges to frame. It may add provisions, modify charges or it may even drop all charges against the accused.
Thakur claims that she sold the bike that was found at the site way back in 1999. So, therefore, she argues that she could not have any links to the case. The court, meanwhile, said that since it was her bike and that she expressed dissatisfaction that more weren't people were not killed, it was hard to believe that there wasn't a link between here and the blast. The court refused to grant the discharge for offences under the UAPA despite the NIA's recommendation.
In this case, what has happened is that the court has held that no charges under MCOCA have been made out. Which will come as some relief for the accused as under MCOCA, confessions obtained by the deputy commissioner of police are admissible in the court.
UAPA, on the other hand, is draconian. It contains a presumption in Section 43E. It says that if an accused's fingerprints are found at the site or arms or explosives used in the offence are recovered from the accused, it shall be presumed that the accused has committed the offence. No arms or fingerprints have been recovered from Thakur. So, this presumption won't hit her. But it will hit the others.
Section 45 of the UAPA is interesting. It requires sanction by the central government or the state government before a prosecution can happen and this sanction has to be based on a report. The accused can contest the sanction under UAPA in court. Since the sanction is a matter for the executive, if the executive cooperates during the arguments on sanction, then Thakur's life may just get easier. But as with everything else, in this case, it will depend on the changing political scenario.
Whatever be the outcome of the trial, it is long overdue. The blasts happened 2008, we are now approaching the dawn of 2018 and the charges have just been framed. Saffron or not, it shouldn't take ten years for a terror case to come to trial – especially one in which more than a hundred law-abiding citizens were killed.
Further, as a country, India needs to come to terms with the fact that terrorism has no caste, creed and religion. Any religion can turn violent. This argument about which religion is more violent is a fruitless one to have.
If the country has to be kept safe, prosecutions like this cannot be tainted with political and religious undertones. Thakur will stand trial. But it is not unjustifiable if the public is no longer confident about the process that brought her to the dock.
Updated Date: Dec 28, 2017 15:22 PM