‘NIA conclusion contrary to court’s’

Judge Shripad Tekale, who rejected Sadhvi Pragya Singh Thakur’s bail application on Tuesday, has passed a detailed 40-pages order explaining the reasons why he did not consider NIA’s no-objection for granting bail to Thakur. The judge noted that despite having the same material in hand, the NIA had strongly opposed her bail plea filed earlier and the court had rejected her bail application. Reprimanding NIA, the judge said, “From the analysis made by the investigating officer of NIA, it appears that in the name of further investigation without collecting the new material on the basis of statements of witnesses recorded by ATS, he came to a conclusion contrary to the conclusion already drawn by this court, as well as the high court. Certainly, this cannot be said to be a change in the circumstance.”

One of the important grounds for NIA deciding not to prosecute Thakur was that some of the witnesses, based on whose evidence the Maharashtra ATS had built its case against her, had allegedly retracted their statements before the NIA.

The NIA has said that the witnesses retracted their statements before the metropolitan magistrate at Delhi and hence their statements before ATS could not be relied upon.

However, special judge Tekale, in his order, has said that Thakur had filed her previous bail application on September 21, 2015 and the NIA had strongly resisted the application by filing reply on October 8, 2015 and her bail plea was rejected on November 7, 2015. The judge noted that the NIA had re-examined prosecution witness (PW) no 55 on June 14, 2015 i.e. before filing of bail application, another witness was examined in September and third one was re-examined before passing of bail order in October. According to the judge, “What it shows that above three material witnesses (on the basis of the statement of these witnesses NIA gave a clean chit to Thakur) were re-examined by the investigating officer of NIA well before passing of the previous order. Not only this, PW55 and PW79 were examined by the investigating officer of NIA even prior to filing he previous bail application.”

“Despite these facts, for reasons best known to the prosecution at that time, NIA had strongly resisted the bail application of the applicant without relying on the statements of the above witnesses before the investigating officer of NIA,” observed the judge, adding, “In view of these reasons, now only because prosecution i.e. NIA has given no objection it is difficult to accept the prayer of the applicant.”

Another ground was that there is no prima facie case against the applicant regarding alleged conspiracy of the blast because her role was mentioned by accused nos 7, 10 and 12 in their confessional statements, but now MCOCA is not applicable on the case and their statements cannot be considered against her.

On this point, the judge said that even excluding the confessional statements of these accused he has come to conclusion that, “there is prima facie case against the applicant.”

One of the grounds for filing for bail was change of circumstance after NIA filed its chargesheet, which said it does not have material to prosecute Thakur. The judge, however, considered both, the material collected by ATS, as well as by NIA to find out if there is change in circumstance.

Reprimanding NIA, the judge said, “From the analysis made by the investigating officer of NIA it appears that in the name of further investigation, without collecting new material and on the basis of statements of witnesses recorded by ATS, he came to the conclusion contrary to the conclusion already drawn by this court, as well as the high court. Certainly this cannot be said as a change in the circumstance.”

In view of the NIA chargesheet talking about the absence of direct evidence against Thakur, judge Tekale said, “So far as criminal conspiracy is concerned it is settled that criminal conspiracy can be proved either by direct evidence or by circumstantial evidence or by both.” The judge has also said that for conspiracy it is not necessary to prove that perpetrators expressly agreed to do or caused to be done illegal act. “This agreement may be proved by necessary implication.”

On her defence that the motorcycle used in the blast was sold off by her, it was not in her possession and she had no concern with the incident, the judge said that she has to establish this during the trial. “At this prima facie stage she cannot avoid her connection with the motor cycle being the registered owner of the same,” said the judge.

Other grounds were that she is suffering from breast cancer and is deprived from the right to have treatment of her choice and delay in commencement of trial. The lawyer said applicant is a woman and is behind bars for the past 7 years without trial. However, the judge rejected these grounds and said these grounds were raised and already decided by high court in her earlier bail application. The HC had said that medical treatment can be provided to her in a government hospital and the judge also noted that as per her medical report, she has been taking treatment in hospital since November 2013 as an indoor patient. The judge further said that the special court was constituted on directions of the apex court for the trial of this case. Hearing on point of framing of charge is going on and hence application on the point of delay cannot be accepted.