How the ATS goofed up the Malegaon blast probe

The Anti-Terrorist Squad of the Mumbai police suffered a major setback last week when charges under the stringent Maharashtra Control of Organised Crime Act against Sadhvi Pragya Singh, Lieutenant Colonel Prasad Purohit and nine other accused in the 2008 Malegaon blast case, were dropped by the special court's designated Judge Y B Shinde.

The blast in the minority-dominated textile town had claimed seven lives in 2007. The dropping of MCOCA charges has made the prosecution's task tougher.

The court reveals a major technical flaw on part of the investigating agencies and the Maharashtra government.

Sadhvi's advocate Ganesh Sovani claims that he had opposed the stringent law since the beginning. A minute reading of the provisions of MCOCA clearly states that the law can be applied against an accused only if two chargesheets have been filed against the accused in the last ten years.

The law also demands that the chargesheets should indicate that the accused person has been part of a crime syndicate. None of the 11 Malegaon blast accused have two chargesheets filed against them in the last ten years.

The investigating team has especially blundered while probing Rakesh Dhwade, one of the accused. Dhwade, a collector of antique arms, was an accused in an earlier case. However, no chargesheet had been filed against him in connection with the earlier case.

When investigations into the Malegaon case commenced, Dhawde was picked up by the ATS. After being arrested in the Malegaon case, a chargesheet was hurriedly filed against him in connection with the earlier case. However, Dhawde sought a reprieve from the earlier case, and the court granted his request. This proved to be a major setback for the prosecution, as Dhawde then argued before the special court that MCOCA could not be imposed on him, as no chargesheets had been filed against him earlier.

Some of the accused in the Malegaon case have confessed to their crimes, but the prosecution could not rely on the confession statements of the accused to prove their guilt, since the entire argument was based on whether MCOCA could be imposed on them. Under the laws pertaining to MCOCA, a confession statement of an accused can be used against him or her. However, this provision is not applicable if the case is being tried under the Indian Penal Code or the Arms Act of 1925.

The Maharashtra government has filed an appeal in the high court, and ATS investigators are tight-lipped about the recent developments.

"The case against the accused is strong and they can be tried under the IPC and the Arms Act," sources said.

However, the Muslim community in Malegaon, which had been the target of the blast, is furious at the ATS' lax attitude towards the probe. Many of them feel that new ATS chief K P Raghuvanshi is responsible for the MCOCA fiasco, and point out that he had slowed down the probe into the Nanded blasts case in 2006.

Aleem Faizee, a journalist from Malegaon, says that people in his town have lost faith in the ATS' investigation. They initially had a lot of expectations but are now feeling betrayed about the probe's outcome.

Faizee believes that the police are not the only elements to be blamed, and the state government should also be pulled up for blindly sanctioning the imposition of MCOCA against the accused.  He suspects that this might have been a deliberate step to weaken the case.

Although the government has decided to appeal the special court's decision, Faizee fears that the case will now drag on. The incumbent government might not act on the case as it is a sensitive issue and state elections are round the corner.

Earlier, the prosecution could have relied entirely on the confession of the accused, as it is considered to be damning evidence under MCOCA. Now the prosecution's arguments would be based on direct evidence, circumstantial evidence, cross- examination of witnesses and eye-witness accounts.

The prosecution would also face a problem while opposing the bail application filed by the accused. It is virtually impossible to get bail when an accused is booked under MCOCA as the accused is considered to be a dangerous criminal. However, under the IPC, the prosecution will have to prove beyond reasonable doubt that it is absolutely necessary for the accused to be denied the right of bail.