On Friday, 8th September 2006, four bomb blasts occurred in Malegaon killing thirty-one persons and injuring three hundred and twelve others. The case was originally investigated by the Maharashtra Anti-Terrorist Squad (ATS). After reinvestigating the case, the National Investigation Agency (NIA) has concluded that the ATS fabricated evidence against nine persons. This unprecedented acknowledgement raises important questions about how terrorist cases are investigated, police misconduct and the rule of law in India. It remains to be seen whether the government will take action against the ATS investigating officer, Assistant Commissioner of Police (ACP) Kisan Shengal, for fabricating evidence on a capital charge.
Malegaon
Malegaon, situated in the hinterland of Maharashtra in Nasik district, has a population of about 7,00,000 people, about seventy-five percent of whom are Muslim. Pamela Philipose's illuminating study, "A Town Called Malegaon" (Indian Express, 13.9.06) paints a vivid picture of civic neglect, poverty and backwardness:
"In Malegaon today, a town with over 84,000 powerlooms, a worker earns less than Rs 2,000 a month, although the minimum stipulated wage in this sector is Rs 3,000. Over time the town expanded to accommodate the growing number of powerlooms by throwing up foetid, overcrowded clusters of semi-pucca houses, with no electricity, no water supply, no toilet facilities, and lined by overflowing drains. It existed as part of prosperous Maharashtra's underbelly, a state marked by some of the sharpest disparities in the country. When a group of Malegaon's residents recently returned the cheques given to them by a visiting delegation of Congress leaders, including the state's chief minister, it reflected widespread public alienation and resentment over the monumental neglect accorded to a town where even a decent civil hospital does not exist to date."
ATS Investigation
Though the site (a compound housing a mosque and Muslim cemetery), the date (Shab-e-Barat, one of the holiest days in the Muslim calendar) and the time (during afternoon prayers on Friday) of the bomb blasts clearly indicate that Muslims were the target, the ATS promptly blamed Muslim terrorists and arrested nine persons from that community. Even at that time, this was met with skepticism and disbelief, but the ATS explicitly ruled out the involvement of Hindu right-wing groups, stating that RDX is available only with Islamic terrorists! That this patently absurd explanation passed muster with the Maharashtra police indicates the predetermined and jaundiced perspective with which this event was viewed and investigated.
According to the ATS, the blasts were perpetrated by Noorul Huda, Shabbir Masiullah, Raees Mansuri, Dr. Salman Aimi, Dr. Farogh Magdumi, Mohammed Ali Shaikh, Asif Khan, Mohammed Zahid Ansari and Abrar Ahmed. The ATS said that some of them had trained in Pakistani camps and that all had conspired to:
(a) Collect arms and explosives.
(b) Wage war against the state and central government so as to overawe them.
(c) Terrorize people through wanton killing and bomb blasts.
(d) Incite communal riots and disrupt public order.
(e) Indoctrinate Muslims into terrorist and secessionist ideology.
(f) Avail assistance from Pakistani terrorists.
For five years, courts denied bail and remanded the accused to custody on the grounds that they were involved in terrorist activities in collaboration with Pakistani terrorists, and that releasing them on bail would endanger national security. The nine accused persons languished in jail, and their families reeled under the stigma of being terrorists.
NIA Investigation
The NIA, investigating the Samjhauta Express blast, uncovered evidence connected to the Malegaon blasts. The Malegaon case was then transferred to the NIA which reviewed the evidence collected by the ATS and did its own investigations into the matter. The NIA has now filed its chargesheet confirming that the ATS fabricated evidence against the accused and that a Hindu terrorist group had perpetrated the blasts.
The NIA's chargesheet debunks the ATS's claims emphatically. It states that:
(a) ATS witnesses for the alleged seizure of the RDX from the accused denied witnessing these events;
(b) An ATS witness to the alleged seizure of the fake bomb was also shown by the ATS as being present elsewhere simultaneously for the seizure of the deceased's clothes.
(c) The ATS's key witness, who allegedly had seen the Accused making the bomb, told the NIA that no such thing had happened and that "his statement was recorded under duress".
(d) An accused, who the ATS claimed had planted a bomb, was in Fulsawangi about 480 kms away at that time, and another who, the ATS claimed procured explosives, sheltered Pakistani terrorists, assembled the bomb, etc, was in jail.
(e) The Malegaon blasts were a product of a terror conspiracy hatched by Lokesh Sharma, Sunil Joshi, Rajendra Kalasangara, Ramesh Mahalkar, Dhan Singh, Rajendra Chaudhary, and Manohar Narwaria, and were part of a larger plan which included imparting of training in the handling of arms and explosives to commit bomb blasts in Muslim places of worship, incite communal riots, etc. Interestingly, after the Malegaon blats, Lokesh Sharma had contacted various media houses claiming responsibility for these blasts in the name of 'Dharmasena', but this was ignored by the ATS. NIA Investigations revealed the involvement of these accused in extremist activity including bomb blasts, murders, etc.
The extremely prejudicial allegations made by the ATS against the accused, all of which the ATS knew to be false, raise questions about the investigation of criminal cases by the police in India. The ATS's chargesheet demonizes the Muslim community by drawing on stock communal stereotypes equating Indian Muslims with anti-national activity, terrorism and Pakistan. This not only betrays an institutional bias and communal antipathy unbecoming a police force in a secular state, it moulds public perception, purports to vindicate popular prejudice with empirical evidence and perpetuates communal hatred which the Indian state is formally committed to eradicating. Having committed themselves to the principle that all terrorists are Muslim, and being unable to find supporting evidence, the police fabricated evidence implicating the nine arrestees, undeterred by the gratuitous suffering they were wrecking on others.
Such cynical disrespect for human life, truth and the judicial process is extremely worrying since evidence is easily fabricated and lives hang in the balance. It is well known that the police have a stock of prohibited items (arms, ammunition, drugs and fake currency) which are planted on suspects when evidence has to be fabricated. This was bad enough, but we now know that they also have a stash of unaccounted RDX. Unlike other prohibited items, RDX seizures result in terrorist charges, since RDX is only used by terrorists, and convictions on terrorist charges usually attract the death penalty. The answer to the genuine query as to how such a stock was acquired – since RDX is not readily available in the market – is found in the trial records of various terrorist cases where the police have claimed that the surplus RDX allegedly seized from the terrorists was burnt, sometimes even in the police station compound! Such a claim has recently been made in the 7th July 2006 serial train blasts trial in Mumbai which killed 187 persons and injured more than 800 others. Furthermore, discrepancies frequently occur between the quantum claimed to be seized and that produced in court. Though this undermines the prosecution case, it also generates an unaccounted stock of prohibited items which the police use to pad its case against a guilty person or implicate an innocent one. Unfortunately, this is not unique to India, but other jurisdictions have curtailed this menace by installing video cameras in each room of the police station, and by requiring that all raids and seizures be digitally recorded. If the Indian government wants to create public confidence in the police, it could begin by following this example.
Investigation, especially in terrorist cases, must be scrupulously honest, not merely because of accused's rights, but also for our own safety: we have to be sure that the real culprits have been arrested and cannot re-offend. Had the ATS and its investigating officer, ACP Shengal succeeded in pulling off this miscarriage of justice, nine innocent persons might have been sentenced to death as terrorists, leaving the real culprits undetected and us none the wiser, or safer.
The NIA investigation confirms the belief that even in serious cases evidence is often fabricated, witness testimony coerced, incriminating articles planted, and innocent people falsely accused. Even in ordinary cases, courts may not detect such fabrication. In terrorist cases such fabrication succeeds more often than not: emotions run high, public expectations exert an inexorable pressure on the court, sections of the media let loose daily howls of outrage and demands for bloody retribution, and an omnipresent fear exists in every judge's mind that by acquitting an accused he may be facilitating the commission of future bomb blasts. Consequently, the judicial sense takes a bit of a backseat. When judicial verdicts are doubted because they are based on evidence believed to be tainted, the administration of justice is brought into disrepute. This has happened in numerous high profile cases, including the Parliament attack case.
Unfortunately, even when courts recognize that evidence has been fabricated, they usually ignore it, and rarely ever acknowledge or condemn it. In the Indira Gandhi murder case the police claimed to have found a confessional statement in Balbir Singh's pocket while re-arresting him from the bus stand. The trial court and high court believed that it is possible that a sub-inspector of police accused of the Prime Minister's murder, released after illegal detention and torture, would walk around the city with a full confession in his pocket. The Supreme Court rejected this evidence as being obviously fabricated, but refrained from passing strictures against the police.
Dishonest investigation, custodial torture and extra-judicial killings by the police are endemic in India and carried out with impunity. Statistics collected by the National Crime Records Bureau from the different state governments show that Maharashtra, otherwise a progressive state, has recorded the most custodial deaths for 12 of the last 14 years and accounted for more than 20% of all custodial deaths in the country. These records also show that not a single policeman has been convicted for these offences. Had a few rogue officers been punished, the ATS may not have dared to fabricate evidence in such an important case. However, we have become inured, and courts and governments have routinely condoned these excesses without comment. Again, the Indira Gandhi case furnishes an apt example. The Supreme Court judgement records a cold-blooded murderous assault by the security forces on unarmed persons, one of whom died on the spot:
"At the spot of the incident, the two assassins are alleged to have thrown their arms and said: "I have done what I have to do. Now you do what you have to do." The personnel of the Indo-Tibetan Border Police (ITBP) pounced on them and took them off to the guard room. What happened inside the guard room is not on the record. The fact, however, remains that both the assassins had been shot by the ITBP personnel. They were soon removed to the hospital where Beant Singh was pronounced dead and Satwant Singh was found to be critically injured."
The incident described above constitutes offences of murder and attempt to murder, and the rule of law requires that the culprits be punished, but in total abdication of judicial responsibility the Supreme Court looked the other way and kept silent. The Malegaon case, an egregious example, must be the starting point where we show our intolerance for such brazen lawlessness by law enforcers and make an example of them to deter others.
The NIA's investigation establishes unequivocally that nine innocent persons were framed by ACP Shengal on terrorist charges. He planted RDX on them from a private stash, coerced statements from bogus witness and extorted fictitious confessions from the accused, which collectively would have sufficed to have them convicted and hanged. They are free today only because the NIA accidentally chanced upon evidence of their innocence. This must never be allowed to recur. ACP Shengal and those who abetted him must be prosecuted for making false accusations, fabricating evidence on a capital charge and coercing false testimony punishable under sections 193-195A, 197, 199, 211, 220 of the Indian Penal Code. If they go free, policemen will continue doing this with impunity, and people will lose faith in the administration of justice. For all our sakes, and to maintain the integrity of democratic institutions, it is imperative that the government prosecutes Mr. Shengal and his cohorts in a manner that inspires confidence.
[The author is an advocate practicing in the Bombay High Court and appearing in 7/11 Mumbai Local Train Blast case on behalf Jamiat Ulama e Maharashtra-Arshad Madani]
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