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'No Whisper' of Involvement in Earlier Chargesheet: NIA Court Grants Bail to Waheed Parra

The court said that the investigating agency had awoken from a "deep slumber" and arrested the PDP leader based on a statement recorded in February 2020.

Srinagar: A special NIA court in Jammu and Kashmir on Saturday granted bail to People’s Democratic Party’s youth wing president Waheed-ur-Rehman Parra after observing that there was not even a “whisper” about his involvement in the commission of offences in the original charge sheet presented by the National Investigation Agency in the case in July last year.

However, after he was granted bail by the special NIA court, former chief minister and PDP President Mehbooba Mufti on Saturday alleged that Parra had subsequently been detained by the Counter Intelligence Kashmir (CIK).

In a tweet, Mufti called Parra’s detention “brazen contempt of court” and urged Lieutenant Governor of Jammu and Kashmir Manoj Sinha to intervene in the matter. “Despite NIA Court granting bail to [Waheed Parra] after thorough court proceedings, he has now been detained by CIK in Jammu. Under what law & for what crime has he been arrested?” she tweeted.

Parra was arrested by the National Investigation Agency (NIA) on November 25, 2020, in connection with a militancy-related case, days after he filed his nomination to contest the district development council polls held between November and December 2020. Two days later, Parra was remanded to 15 days of National Investigation Agency (NIA) custody.

Parra also won the Pulwama-1 seat in Jammu and Kashmir’s District Development Council elections whilst in custody.

Also read: ‘Vendetta’ Cry as NIA Arrests PDP Leader Waheed Parra Days After He Filed DDC Polls Nomination

The court’s observations

While granting bail to Parra, the special NIA court, Jammu found that there was no reference to the PDP leader in the original as well as the supplementary charge sheets presented in July and October last year respectively by the NIA in the case.

It observed that “there was not even whisper” regarding Parra’s involvement in the commission of offences in the original charge sheet, even though a statement, that allegedly implicated Parra, made by one of the accused was available with the NIA as early as February 2020.

“This kind of inaction on the part of the investigating agency clearly postulates the fact that they were not intending to array the present applicant as ‘accused’ in the present case. It was only after the presentation of the original charge sheet as well as the supplementary charge sheet against the other two accused persons, the investigating agency had woke up from deep slumber and they had chosen to apprehend the present applicant Waheed-ur-Rahman Para on 25th November 2020, alleging that he was involved in the present case and the basis of their allegations were the same statement of accused Naveed Mushtaq, which was recorded by the investigating agency in the month of February 2020,” read the court’s order.

The court also noted that Parra was not named in the list of the accused persons, who had not been charge-sheeted, but had pending investigations regarding their involvement in connection with the case.

“As I have observed earlier, the aforesaid evidence against the present applicant Waheed Para was already available with the investigating agency and even his call detail recording (CDR) with the accused Davinder Singh on the relevant dates were also available with the investigating agency during the investigation of the original charge sheet but the investigating agency probably found the said evidence insufficient to implicate the present applicant Waheed Para as an ‘accused’ in the case, therefore, they have deliberately not arrayed the present applicant as an accused in the said case and even the name of the present applicant was not reflected in the list of the accused persons, who were not charge sheeted but the investigation with respect to those persons is pending in the present case. Therefore, a serious doubt has arisen on the action taken by the investigating agency with respect to the present applicant/accused,” the judge observed.

Also read: Some Questions for Mr Doval About Kashmir Police Officer Davinder Singh’s Terror Link

The court also specifically pointed out that the NIA had arrested Parra on November 25, 2020, based on the statement of accused Naveed Mushtaq, which was recorded in the month of February 2020. “I seriously doubt that whether during the course of further investigation, the Investigating agency could have arrested the present applicant/accused Waheed Para on the basis of the old evidence which was collected by them in the initial investigation of the case,” special judge for NIA cases Suneet Gupta said.

Citing section 173 of the Criminal Procedure Code (CrPC), the judge observed that nowhere did the provision allow the investigating agency to use old evidence collected during the investigation of an earlier charge sheet for arraying an additional accused in the case. “From the bare perusal of the aforesaid provision, which has equipped the investigating agency with a right to further investigate into the offence even after presentation of the charge sheet in the case, clearly conveys that the supplementary charge sheet, if at all, to be presented on the basis of the further investigation, the said charge sheet should be on the basis of the further evidence, oral or documentary, collected by the investigating agency during the course of further investigation after the presentation of the earlier charge sheet,” read the order.

The judge said that Parra cannot be linked with “the commission of offence of supporting the terrorist organization”. “If we go by the statement of the accused Naveed Mushtaq, the purchase of AK-47 rifles out of Rs.10.00 lac, financed by applicant Waheed Para, was not the decision of the present applicant Waheed Para but it was the decision of the accused Naveed Mushtaq to utilize that money for the purchase of arms & ammunitions. Therefore, we cannot link the present applicant with the commission of offence of supporting the terrorist organization,” the order reads.

The court has also questioned the admissibility of the statement made by Naveed Mushtaq, one of the accused in the case, based on which Parra was arrested.

“At the first instance, if we look at the legal value of the aforesaid disclosure statement of the accused Naveed Mushtaq, we find that the aforesaid statement of the accused is seriously hit by Section 25 of Evidence Act. This kind of statement is like a confessional statement of the accused, which can only be recorded under section 164 of  Cr. P.C  and the said statement has to be recorded by the Magistrate. Admittedly, such a statement was recorded by the investigating officer during the investigation, which I have already said, is not admissible in evidence u/s 25 of the Evidence Act,” the judge observed.

Also read: Davinder Singh Arrest Raises Many Questions. How the NIA Handles It Could Raise More.

The NIA case

In January last year, the Jammu and Kashmir Police arrested deputy superintendent of police Davinder Singh along with militants from a civilian car in south Kashmir. The NIA later took over the investigation in the case and presented charge sheet against six persons including DSP Davinder Singh and militant commander Syed Naveed Mushtaq Shah on July 6, 2020. On  October 23, 2020, a supplementary charge sheet was filed against two more accused.

Umer Maqbool is a Kashmir-based independent journalist and can be mailed at maqbool.umer@gmail.com.