The main reason that convinced the Supreme Court in granting bail to Lt Col Prasad Srikant Purohit in the 2008 Malegaon blast case was the investigation itself – material contradictions as the SC bench puts it in the two charge-sheets filed by two investigating agencies in the case, the Maharashtra Anti Terrorism Squad (ATS) which investigated the case till 2011 and the National Investigating Agency (NIA) which took over the case probe in 2011.
Interestingly, the supplementary charge-sheet filed by the NIA in May 2016 literally overturned the findings of the ATS charge-sheet that were the base of building a terror case around the accused in the case. After the NIA submitted that the stringent anti-terror Maharashtra Control of Organised Crime Act (MCOCA) was wrongly slapped in the case and many witnesses and accused retracted their statements, Sadhvi Pragya got bail in the case in April 2017 and Lt Col Purohit was next in line to claim it.
Every subsequent round of the bail application of an accused requires fresh grounds on which the bail is being sought. In Lt Col Purohit’s case, the SC was convinced that there were fresh grounds which finally paved the way for a bail to him. The SC bench observed, “That the appellant has refuted the claim of conspiracy on the ground of Intelligence inputs which he informed to his superior officers as well and the alleged role of ATS officials in the planting of RDX at the residence of A-11 clearly indicate the fresh grounds which persuade the appellant herein to take a view different from the one taken in the earlier applications.”
The 25-page long verdict of the Supreme Court delivered by Justices RK Agrawal and Abhay Manohar Sapre on August 21 granting bail to Lt Col Purohit is a comprehensive document that puts light on the anomalies in the investigation of the two agencies while making it amply clear that the judgement delivered here has nothing to do with merits of the case which will be decided by the trial court. The arguments qualified for a bail verdict only and the apex court didn’t go into larger merits and demerits of the case as happens in bail applications.
THE DISCUSSION PART OF THE SC VERDICT
CASE AGAINST LT COL PUROHIT OPPOSING HIS BAIL:
- In order to prove the prima facie case against the appellant, the prosecution has relied upon the transcription of the conversations of the meetings obtained from the laptop of Swami Amrutanand (A-10), statement of prosecution witnesses recorded under Sections 161 and 164(5) of the Code of Criminal Procedure, 1973 (in short ‘the Code’), intercepted telephonic conversations between the appellant herein and co-accused persons and lastly the finding of traces of RDX in the house of co-accused Sudhakar Chaturvedi (A-11).
PUROHIT’S COUNTER ARGUMENT:
- With regard to the transcription of the conversations of the meetings, it was urged from the side of the appellant that there was no such conspiracy hatched between the persons present in the meeting to commit bomb blasts at Malegaon and the persons present have expressed their general opinion about the then prevailing political and social situation.
- In this backdrop, it is relevant to note that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities).
- In the statement of PW-21, it has been revealed that immediately after the alleged conspiracy meeting, he found the appellant herein disclosing the details of the said meeting to his superior officers in Military Intelligence.
PUROHIT’S COUNTER ARGUMENT:
- Even the appellant herein also informed that it was a ‘covert operation’ of Military Intelligence and he attended the said meetings to create the counterintelligence and no conspirator will ever divulge the details of the conspiracy to the superior officers in Military Intelligence.
- Besides this, the documents filed by the Ministry of Defence and the papers of the Court of Inquiry also substantiate the claim of the appellant herein.
NIA VS ATS:
- The NIA started the investigation on the basis of the facts stated in the FIR and the evidence collected by the ATS, Mumbai.
- During investigation, it was found that there were contradictions with regard to the evidence led in the charge sheet by the ATS.
- On the basis of the specific points covered during the investigation conducted by the NIA, it was concluded that no offence under the MCOC Act was attracted and the confessional statements recorded under the provisions of the said Act by ATS Mumbai were not being relied upon by the NIA in the charge sheet against the accused persons.
- In fact, on evaluation of the evidence against Pragya Singh Thakur (A-1), the evidence on record were not found sufficient by the NIA to prosecute her as all the witnesses had retracted from their statements and thus no case was made out against her.
- A perusal of the statements of various prosecution witness recorded under Section 164 of the Code by the NIA, it was revealed that the ATS, Mumbai forced them to make the statements under the aforesaid Section by threatening them to falsely implicate them in the case.
- In other words, witnesses retracted from their statements recorded by the ATS, Mumbai at Mumbai.
- Even during re-examination of PW-79 recorded under Section 164 of the Code, he deposed that he did not attend any meeting of ‘Abhinav Bharat’ held at Bhopal and he had never visited Bhopal until ATS took him to Ram Mandir, Bhopal in the month of May, 2009. The very same statement was again recorded at Delhi by learned Metropolitan Magistrate, where he confirmed the same.
- In view of the above, it would be relevant to quote the retracted statement of PW-55, mentioned in the charge sheet filed by the NIA, wherein he stated that he did not retract in front of the Magistrate while his statement was being recorded under Section 164 of the Code due to threat and pressure of the ATS.
- However, he sent one complaint to Maharashtra State Human Rights Commission, Mumbai on 05.10.2009 stating that he was forced to give the confessional statement as dictated to him by the ATS Mumbai that too before transfer of the investigation of the case to the NIA.
- He further alleged that the following lies were dictated to him to depose before the Magistrate by the ATS which he also incorporated in the complaint sent to State Human Rights Commission which are as under:-
(1) That Lt. Col. Prasad Purohit gave him 3 weapons and ammunition to be kept in his house for amonth sometime in 2006. The description of the weapons was also dictated to him.
(2) That he saw RDX in the house of Lt. Col. Prasad Purohit in a green sack at Devlali.
(3) That Lt. Col. Purohit confessed to him about having supplied RDX for Samjhauta Express Blast.
(4) That Lt. Col. Purohit told him in the early 2008 that something was planned to be done soon. He further told him that an action was planned in Nashik District in Oct/Nov. 2008.
(5) That he was asked to say that Lt. Col. Purohithad confessed to him about planning and executing the Malegaon blast along with his accomplices.
- Apart from the above, during the investigation by the NIA, it was revealed that the Army authorities had conducted a Court of Inquiry (CoI) against the appellant herein.
- During scrutiny of the proceedings of the CoI, a different story of assembling of IED in the House of Sudhakar Chaturvedi (A-11) came to light.
- During re-examination of the witnesses by the NIA who deposed before the Court of Inquiry (CoI), it was revealed that they suspiciously found API Bagde of ATS in the house of A-11 when A-11 was not present in the house.
- On considering the facts narrated by the witnesses, the question arises here as to why API Bagde visited the house of A-11 in his absence.
- It is also pertinent to mention here that the ATS conducted the search of the house of A-11 on 25.11.2008 wherefrom they had taken the swab of RDX which creates a doubt on the recovery of RDX keeping in view the examination of the witnesses.
- Even in the charge sheet filed by the ATS, it has been very specifically mentioned that the recovery itself becomes suspect on the ground that the ATS Mumbai may have planted the RDX traces to implicate him and the other accused persons in the case.
THE CONCLUSION OF THE SC VERDICT GRANTING BAIL TO LT COL PUROHIT
- In our considered opinion, there are material contradictions in the charge sheets filed by the ATS Mumbai and the NIA which are required to be tested at the time of trial and this Court cannot pick or choose one version over the other.
- The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course.
- Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected.
- In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.
FRESH GROUNDS THAT MADE BAIL POSSIBLE FOR PUROHIT
- Further, the appellant herein, who was at the relevant time was an Intelligence officer of the Indian Army has refuted the claim of conspiracy on the ground of Intelligence inputs which he informed to his superior officers as well and the alleged role of ATS officials in the planting of RDX at the residence of A-11 clearly indicate the fresh grounds which persuade the appellant herein to take a view different from the one taken in the earlier applications.
- Keeping in view the fact that NIA has submitted the supplementary charge-sheet which is at variance with the charge-sheet filed by the ATS and that the trial is likely to take a long time and the appellant has been in prison for about 8 years and 8 months, we are of the considered view that the appellant has made out a prima facie case for release on bail and we deem it appropriate to enlarge the appellant herein on bail, subject to certain conditions.