Court calls NIA’s stand ‘ulta face’, says riot plot the­ory un­ac­cept­able

Asks Why Ac­cused Would Tar­get ‘Own Com­mu­nity’ To Cre­ate Disharmony

The Times of India (Mumbai edition) - - TIMES CITY - Re­becca.Samervel@ times­group.com

Mum­bai: A spe­cial NIA court on Mon­day dis­charged eight ac­cused ar­rested by the ATS in the 2006 Male­gaon blasts case. Among those granted re­lief by spe­cial judge V V Patil are Mo­hammed Ali (47) and Asif Khan (44), who are cur­rently serv­ing their sen­tences in the 2006 Mum­bai train at­tacks case. While Khan was sen­tenced to death, Ali is serv­ing a life sen­tence.

The case against one ac­cused, Shab­bir Ma­si­ul­lah, was abated af­ter he died in a wall col­lapse last year. The oth­ers, Noor-ul-Huda (34), Dr Sal­man Farsi (41), Raees Mansuri (46), Dr Farog Makhdoomi (43), Mo­hammed Zahid Ma­jid (36) and Abrar Ahmed (43), have been out on bail since 2011.

The or­der comes ten days af­ter the NIA, un­like its pre­vi­ous stance, strongly ob­jected to the dis­charge pleas. Dub­bing it as an “ulta face”, the judge said, “At the time of the first hear­ing of the mat­ter, the pros­e­cu­tion has can­vassed that they have noth­ing to say ex­cept the re­ply filed by the NIA upon the dis­charge ap­pli­ca­tions,” the judge said. Dur­ing its re­ply to the dis­charge plea in Au­gust 2013, the NIA had not op­posed the pleas and in­stead said its ev­i­dence “was not in con­so­nance with the ev­i­dence col­lected ear­lier by the ATS and the CBI,” which had rec­om­mended the pros­e­cu­tion of the nine ac­cused.

The ATS, in its chargesheet filed on De­cem­ber 21, 2006, had claimed that the ac­cused had in­tended to stir up com­mu­nal ri­ots in the Hindu and Mus­lim com­mu­ni­ties and had hence planted bombs at the Hamidya Masjid, Kabras­tan and Mushawart Chowk on the holy day of Shab-e-baraat.Stat­ing that this was not ac­cept­able to a man of or­di­nary pru­dence, the judge ob­served, “I say so be­cause there was “Ganesh Im­mer­sion” just prior to Septem­ber 8, 2006, which is cel­e­brated in the en­tire state of Ma­ha­rash­tra. Had the ac­cused any ob­ject that there should be ri­ots at Male­gaon then they ought to have planted bombs at the time of Gane­sha Im­mer­sion day, which would have caused death of most of the Hindu peo­ple. It seems to me highly im­pos­si­ble that the ac­cused who are from Mus­lim com­mu­nity would have de­cided to kill their own peo­ple to cre­ate disharmony in two com­mu­ni­ties, that too on a holy day.”

The judge also pointed to sev­eral find­ings of the NIA. The agency had said that two wit­nesses, who were sup­pos­edly present when the ATS took soil sam­ples from Ma­si­ul­lah’s godown where the bombs were pre­pared and kept hid­den, had told them that they were in fact not present at the time. The NIA fur­ther pointed out that Ma­si­ual­lah was in fact ar­rested by the ATS on Au­gust 3, 2006 and was in ju­di­cial cus­tody at the time of the blasts.

The court also re­ferred to NIA find­ings in which it had said that an ATS wit­ness, who had ear­lier stated that he had wit­nessed the bomb prepa­ra­tion, had re­tracted his state­ment and said it was taken un­der duress. Also, it had found that all the con­fes­sional state­ments of the ac­cused recorded by ATS were re­tracted as they were taken un­der “pres­sure and duress”. An­other ac­cused, Mo­hammed Ma­jid, ac­cused as one of the planters as per the ATS, had told the NIA that on the day of the blasts he was 400km away at Ful­sawangi in Ya­vat­mal district. The NIA said 12 per­sons were ex­am­ined who sup­ported his ver­sion.

The ar­gu­ments in court at the dis­charge plea hear­ing re­volved on ques­tions of law. The ATS, stand­ing by its case, had said the ques­tion was whether it would be open for the court at this pre­trial stage to hold that the ver­sion of one of the agen­cies should be ac­cepted with­out ex­am­in­ing wit­nesses. NIA had not named the nine, ac­cused by the ATS. The de­fence lawyers had ar­gued that in­no­cent ac­cused can­not be made to pay for in­con­sis­ten­cies and lapses of in­ves­ti­gat­ing agen­cies.

KPS Raghu­van­shi, the then ATS chief, was not avail­able for com­ment, de­spite re­peated at­tempts by TOI.

The blasts

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