Malegaon: HC restores tough terror law against Sadhvi & Co.

The order was passed after the state went in appeal against special MCOCA judge Y D Shinde’s order that applicability of MCOCA was not justified since cognizance of two chargesheets,an essential ingredient in the law,was missing.

MCOCA was applied on the basis of two chargesheets that existed against one of the accused,Rakesh Dhawade,a Pune-based arms collector and researcher who was booked in two blasts in mosques in Parbhani and Jalna in 2003 and 2004 respectively.

Shinde had dropped all MCOCA charges against the accused on the technical point of laxity shown by the prosecution in obtaining cognizance against Dhawade.

But Amit Desai,senior counsel appointed by the state to challenge the order,argued that “even if cognizance was not taken for certain sections (Section 153-A and 120-B read with 34 of the IPC),cognizance was taken for remaining offences in both the cases.”

“The special judge was overwhelmed in looking at certain sections,for which cognizance is essential. The special judge was in gross error in holding that cognizance was required to be taken,” the division bench observed.

Shrikant Shivade,lawyer for accused Lt Col Prasad Purohit,said the court had directed jail authorities to produce all the accused before the MCOCA court on July 23. “We will move the apex court against the order,” Shivade said.

Last year,the case took a U-turn after Shivade,appearing for prime accused Purohit,in an argument that lasted more than two weeks reasoned that the police had filed the chargesheet in a haphazard manner just to book the accused under MCOCA.

Two chargesheets were filed against Dhawade — for the Parbhani and Jalna explosions — on November 13 and November 15 and,on the basis of these two chargesheets,the ATS had booked all accused under MCOCA on November 20. The defence also contented that cognizance was not taken in both the cases.

Another aspect the prosecution challenged in the HC was the assumption of powers by the special court. “The special court judge assumed the power of the High Court under Section 482 of the Criminal Procedure Code. While the accused had just approached the court for bail,the court went ahead dropping MCOCA,” Desai argued.

The HC observed,“The special court should have touched upon the aspect of bail and not looked into the legality of the MCOCA.”

Immediately after the court order today,defence lawyer Subhash Jha,appearing for accused Major (retd) Ramesh Upadhyay,sought to stay the order,but the division bench rejected his application. “We will move the apex court seeking a stay in the case,” Jha said.

Seven people were killed in a blast on September 29,2008 at Malegaon,a communally-sensitive textile town in Nashik district. The 4,000-page chargesheet alleged that Malegaon was selected as the blast target because Muslims form a sizeable part of its population. It named Sadhvi Pragyasingh Thakur,Purohit and another accused,Swami Dayanand Pandey,as the key conspirators.