Sadhvi Pragya should have got bail in half an hour: Senior advocate who fought her case

Advocate Avinash Gupta also conceded that while those accused of terror on the 'Hindu' side are left to fend for themselves, 'the other side' is more organised and flush with funds and activists, who defend people arrested on terror charges.

After spending more than 8 years in custody, Sadhvi Pragya Singh Thakur on April 25 this year was finally granted bail by the Bombay High Court. She was arrested on charges of plotting a conspiracy to carry out Malegaon blasts, which took place on September 29 in 2008 in the Malegaon region of Nashik district of Maharashtra that had left 4 dead and around 80 injured.

The lead counsel who represented Sadhvi Pragya in the case is Nagpur based senior advocate Avinash Gupta. Talking exclusively to OpIndia.com, Mr. Gupta shared some interesting information that shed lights over this important case, which is often touted as an example of “Hindu terrorism”.

Following are the highlights from the interview:

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Q1: At what stage did you get involved with this case?

Ans: I was approached by some followers and relatives of Sadhvi around Diwali last year. They wanted to engage a designated senior counsel to argue on their behalf in the High Court, where they had filed an appeal in July last year. I think it was her fourth appeal for bail. The trial court had rejected the bail in the same month (July 2016) even though NIA had failed to find conclusive evidence against her a month prior to that. They decided to challenge that in High Court, at which stage I and my son advocate Aakash Gupta got involved.

Q2: Had you been tracking this case otherwise? What made you agree to argue the case for bail?

Ans: I had followed the case only to the extent it was in news. I was not privy to many details. It was an entirely professional decision. When I looked at the facts of the case, I wondered why she had been denied bail for so long. She should have got bail within half an hour in the first instance itself.

Q3: What makes you feel so?

Ans: It is not about my feeling, it is about facts. I will come to the facts later, but talking in layman terms, one can be granted bail if there is enough evidence to doubt the involvement in a crime or if the person is not in a position to influence probe when out on bail. Sadhvi met both these criteria.

Q4: In that case, why did courts deny her bail for so long?

Ans: Frankly one can only conjecture. Earlier denial could have been due to the fact that as investigations were still pending, and also the fact that acts like MCOCA were invoked. But her bail application being denied in July 2016, even after NIA failed to find enough evidence against her, goes against accepted logic. It was argued that there was ‘no change in circumstances’ even after the NIA gave clean chit. This was absurd.

The trial court repeatedly observed in the order rejecting the bail of Sadhvi that there were no change in circumstances, in spite of the High Court observing in the connected matter that the filing of the charge sheet by NIA as well as observations of the Apex court were material change in circumstances. In spite of these observations and the above order of the High court being on record, the trial court rendered such observations, which are contemptuous.

Maybe the media pressure could be a factor too. This case was prejudiced by media. Media published articles like ‘Indian Muslims will lose faith in democracy if Sadhvi Pragya walks free’. This is absurd and contemptuous, but many times judiciary also fails to ignore the media pressure and narrative. I can’t think of other reasons.

Prejudiced articles in media
Such articles are virtual contempt of court as they question the competence of judiciary, advocate Gupta said.

Q5: You said there was enough evidence to doubt Sadhvi’s involvement, could you please share those details?

Ans: See, the biggest evidence that the ATS, which investigated the case till 2011 when NIA took over, claimed to have against Sadhvi was her motorcycle that was allegedly used in the blasts. She is supposed to have offered her motorcycle as plan of the conspiracy. But there are two glaring loopholes in this that dispute the ownership of the motorcycle.

First loophole is this: ATS says that the conspiracy was hatched between January 2008 and September 2008, where various closed-door meetings of Sadhvi and her colleagues took place. In two such meetings, she is supposed to have offered her support.

However, the material evidence on records reveal that she had sold her motorcycle much earlier than these dates. Coming from a poor family, she had taken bank loan to buy the motorcycle. Records show that she repaid the loan much earlier than the original repayment period, presumably because she got the money from the buyer after selling off her motorcycle.

Similarly, the ATS itself had recorded the statement of a garage owner and also seized contemporaneous records maintained by him which clearly demonstrated that the said motorcycle was regularly possessed and owned by the absconding accused Ramji Kalsangra.

All this happened much before the alleged period when the conspiracy was hatched. How can she offer her motorcycle when it was not hers in first place in those dates?

(Editor’s note: as per a former ATS officer, Ramji Kalsangra was killed by ATS and his body was disposed off as a victim of Mumbai terror attacks. Advocate Avinash Gupta refused to comment on this theory)

Now the second loophole is even more interesting.

After the blasts took place and a damaged motorcycle was found on the spot, which was assumed to have been used to carry the blasts, Nashik Rural Police started investigations. They found that a fake number plate was used. To ascertain ownership, they asked the Forensic Science Laboratory (FSL) at Nashik to decipher the chassis number and the engine number.

On 7 October 2008, FSL said that they were unable to decipher the chassis number and can not determine the engine number with certainty. They gave 3 possible engine numbers to the police, which was then forwarded to the motorcycle manufacturing company LML. On 6 November 2008, LML said that they did not manufacture any of these three numbers, but gave two closely matching numbers. Police then traced these two numbers, one of which was sold to Sadhvi in Surat.

Now this might look like a proper forensic analysis to you, but in legal terms, this is not something that passes as reliable evidence. Both the FSL and LML Motorcycles came up with estimations, not certain information. Further, what makes this entire investigation suspect is the fact that the station diary entry of the police mentioned the registration number belonging to Sadhvi on 11 October 2008. How did they find the registration number in October itself when LML came up with closely matching engine numbers only later in November?

Q6: Are you saying it was all set up to link it back to Sadhvi?

Ans: I don’t know. All I am saying is that there was no credible evidence that could prove beyond doubt that Sadhvi owned the motorcycle at time of the blast. This is why I said that she deserved to get bail in half an hour itself.

Advocates of Sadhvi Pragya
Senior advocate Avinash Gupta (sitting in front) and advocate Aakash Gupta, who represented Sadhvi in Bombay High Court.

Q7: Is the ownership of the motorcycle the only proof, rather argument, about her involvement?

Ans: There are statements of some witnesses too who claim to have attended the meetings where the conspiracy is alleged to have been hatched. These statements were recorded by the ATS.

First of all, ATS can’t really treat them as ‘witnesses’. If these people attended closed door meetings where a conspiracy to carry out bomb blasts was hatched, and they did not bother to inform the police, they should be considered conspirators and accused, not witnesses. They may turn approver later in the court and the court may pardon them, but the ATS has no power to pardon them.

Furthermore, most of these witnesses have retracted their statements given to the ATS after NIA took over the investigations, claiming they were pressurised and tortured into giving the statements. Some of them even claim that such meetings did not happen and ATS created this story.

As per my information, some of these ‘witnesses’ have even approached the National Human Rights Commission (NHRC) with their complaint against the ATS.

Q8: Do you really think NHRC will give a favourable hearing? After all, “Hindu terror” theory is something the Congress-left ecosystem is supposed to support. Why will they support something that punctures this theory?

Ans: That is something I can’t comment upon. I can however tell you that these guys don’t appear to have any institutional or what you call as ecosystem support. My own involvement in this case is an example of that. These guys approached me on the recommendation of a retired judge who knew me. I charged them professional fees. There was no institutional involvement of any organisation or big figure.

Q9: Does the “other side” get institutional support?

Ans: I have heard that there is a big fund running in the range of over 100 crore rupees that is used to defend people who are suspected to have been wrongly accused of terror charges based on their religion. Big shot lawyers and activists are involved using the fund. But it is all activism, which I feel is lacking in the case of Sadhvi.

Q10: Some people may claim that NIA giving clean chit to Sadhvi itself is a part of institutional support. Because the clean chit came after there was BJP government?

Ans: First of all, the case was transferred from ATS to NIA in 2011, when Congress was in power in both Maharashtra as well as in centre, so I find this argument weak.

Secondly, you can’t choose to believe the NIA or ATS when it suits your theory. Remember there were two blast cases in Malegaon – one in 2008, where Sadhvi was accused by the ATS, and another one in 2006 where ATS had accused some Muslims. One Muslim in the 2006 blasts case had even turned approver.

However, when cases were transferred to NIA, it rejected the ATS investigation of 2006 Malegaon blasts and instead implicated some Hindus, who are still under trial. ATS maintains that their original investigation was right, but those people who are now doubting NIA in the Sadhvi case appear to have accepted the NIA version in the 2006 case.

Q11: Sadhvi Pragya has said she is a victim of an elaborate conspiracy to UPA trying to invent “Hindu terror” and has claimed she was tortured too.

Ans: As I said, I was involved only during the bail application. These matters should be brought up during the trial, and I will reserve my comments for that.

Q12: Will you represent Sadhvi in her trial too and try to get her acquitted?

Ans: Depends upon if my services are needed. But I think she has a strong case and should be acquitted.

(the interview was conducted last month in Mumbai by Rahul Roushan and Aditya Raman)

A well known expert on nothing. Opinions totally personal. RTs, sometimes even my own tweets, not endorsement. #Sarcasm. As unbiased as any popular journalist.

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