The loss of witness statements is the latest development in a trial that is in danger of being derailed by the investigating agency itself.
The prosecution of the accused in the Malegaon blasts case of 2008 seems to raise one question after the other about the National Investigation Agency (NIA). The premier investigation agency, set up to probe a select category of cases, is supposed to have the time and manpower to ensure quick investigation and prosecution. In the Malegaon case, it has neither carried out a quick investigation nor has it proceeded with the prosecution.
The news of some witness statements, recorded under Section 164 of the Code of Criminal Procedure (CrPC) going missing from the court record, has raised further concerns about the prosecutorial intent of the NIA. Former Special Public Prosecutor Rohini Salian had previously claimed the NIA was seeking to favour the accused, who are members of a fringe right-wing organisation called ‘Abhinav Bharat’. The Supreme Court, it is pertinent to mention here, has agreed to hear two petitions questioning Salian’s removal and seeking the appointment of an independent prosecutor for the case.
The loss of the witness statements is the latest development in a trial that is in danger of being derailed by the investigating agency itself.
The NIA had earlier this year sought an adjournment in the case in order to seek the attorney general’s opinion on revoking the application of charges made under the Maharashtra Control of Organised Crimes Act (MCOCA). Special Prosecutor Avinash Rasal has already publicly stated that he was not consulted before the application to drop the MCOCA charges was made. If the MCOCA is invoked, the confessional statements of the accused recorded before senior police officers are admissible. If not, they are not worth the paper that they are written on. Opinions from the attorney general, to put it simply, have no relevance to a criminal trial except to impress on the court that the prosecuting agency is acting on the advice of a constitutional authority.
Documents disappearing from court records are a rare phenomenon. This is either the result of negligence or a deliberate attempt to sabotage the trial. Either way, it cannot but have a serious impact on the trial. The statements that have gone missing will make it much easier to influence witnesses. If there is no prior record of what they swore before a judge, there is nothing left on record to bind them to their earlier statements. Witness statements filed by the prosecution are the material on which a court frames charges against the accused, or discharges them from prosecution if it finds no material to proceed against them. No one can say what effect the loss of these statements will have at this stage. It might well prove to be fatal to the prosecution case.
The disappearance of these documents also have to be seen with reference to the NIA’s changed stance regarding the application of MCOCA in this trial. Recording of confessions before police officers is permitted under MCOCA unlike regular trials where such a confession has to be recorded before the magistrate (under Section 164 of the CrPC, as per which the lost statements were recorded). This is a deviation from normal criminal procedure that was made applicable under the old terror laws – Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA). While most of the stringent provisions under the TADA and POTA were included in the Unlawful Activities (Prevention) Act, the provision regarding the acceptance of confessions made before police officers was kept out. Given the rampant misuse previously, this was rightly done and confessions recorded before police officers have to be treated with marked suspicion, including in the 2008 Malegaon blasts case.
However, the MCOCA is often used by investigative agencies in Maharashtra to build a ‘stronger’ case against the accused. Any step by the courts to disallow the application of the MCOCA is stoutly contested at every step by the prosecuting agency. In this case, however, the NIA seems to be uncharacteristically eager to drop the application of the MCOCA. Even if that is considered prosecutorial discretion, what causes concern is the manner in which it is being done.
The scheme of prosecution under the CrPC is simple. It is the prosecutor appointed for the case who is empowered to advance arguments before the court and to advise the prosecuting agency as their lawyer. The NIA, if they wished to withdraw the application of MCOCA, need only have followed the advice of the prosecutor and asked the court to make a decision as to whether this stringent law should apply or not. The trial court has consistently applied the MCOCA to Malegaon case. This was upheld by the Bombay high court and the Supreme Court did not give a definitive finding regarding the application of the MCOCA while hearing the bail petitions of the accused.
No prosecuting agency waits for an opinion from the advocate general in a criminal trial. The case is being prosecuted by specially appointed prosecutors who are lawyers of a certain standing and experience. Even if the investigating team at the NIA wants to withdraw the MCOCA charges, it could have simply made an application to this effort to the court to decide the issue. The NIA has not done so. For the NIA to seek an opinion from the attorney general against its own earlier stand of the application of the MCOCA, only shows an attempt to bypass Rasal, the appointed special prosecutor, who believes the MCOCA is applicable to this case.
The Central Bureau of Investigation has let off BJP President Amit Shah in the Sohrabuddin case, not having challenged his discharge in that case before the high court. The Ishrat Jahan case has been put in cold storage with no movement regarding it. Witnesses are turning hostile in the Ajmer Dargah blast case and the Malegaon 2008 blasts prosecution is being systematically weakened. The common thread amongst all these cases is that the accused are persons who are perceived to be close to the ruling dispensation. Of course, the RSS and the BJP have publicly disowned the accused in the Ajmer and Malegaon blast cases. But the public condemnation would be much more believable if the country’s premier investigative agencies are not seen betraying their own investigations and their own findings.
Sarim Naved is Delhi-based lawyer. He is appearing for the petitioner in one of the petitions before the Supreme Court for the appointment of an independent prosecutor for the Malegaon case.