Maharashtra ATS Tortured Accused, Officers Were Frustrated: Bombay High Court While Acquitting 12 Men From 7/11 Mumbai Train Blasts Case

The Bombay High Court while acquitting all the 12 convicts in the infamous 7/11 Mumbai train blast case, observed that the Maharashtra Anti Terrorism Squad (ATS) probing the case tortured the accused in the most 'inhuman and barbaric' manner as the officers were 'frustrated' at the relevant time and thus the 'confessional statements' of the accused obtained by the cops, were inadmissible.

A special division bench of Justices Anil Kilor and Shyam Chandak after going through the evidence on record, noted that the accused were in 'prolonged' police custody till 76 days and that they retracted from their confessions recorded during their remand, just the moment when they were produced before the court for judicial custody.

The bench noted that all the 12 men were tortured both mentally and physically and were mercilessly beaten up and were forced to confess that they conspired and executed the serial blasts.

"It is well known that, in most of the cases, police are in habit of extorting confessions by illegal and improper means, including by causing torture. It is a settled law that confessions obtained in this manner must be excluded from evidence as it is not safe to receive a statement made by an accused under any influence of fear or favour. The main thrust of the argument is that the accused were in prolonged police custody spanning from 24 days to 76 days. During this period, and just before recording the confessional statements of the accused, while seeking remand of the accused, it was the consistent case of the prosecution that the accused are not co-operating," the judges noted.

The bench noted that the confessional statements under the stringent Maharashtra Control of Organised Crime Act (MCOCA), were recorded from October 4, 2006 to October 25, 2006. It noted the contention of the convicts that the confessional statements were not 'voluntary' but the result of continuous torture in police custody.

"It is of general knowledge that there is something which is called as third degree method, which police resort to during investigation. But no one can tell the exact nature of torture the police inflict during such third degree method, with such detailed narration, except the one who underwent the same. Therefore, looking at the contents of the complaint and the minute details given by the accused in their complaint, it cannot be thrown away at the outset as an afterthought or false," the judges said.

After going through medical records of the accused and the testimony of the doctors, who treated the accused after they were sent in judicial custody, the bench said that the material falsified the case of the prosecution that there was no torture as the accused never complained of such torture to the Court.

"The torture was barbaric and inhuman, and it exposes the frustration, the officers might have at the relevant time for obvious reasons. In the words of Accused No 1, "बजाज ने कहा मैं मानता हू तु कुछ नही जानता और तु बेकसूर है पर तुने एक कहावत नही सुनी खिसियानी बील्ली खम्बा नोचे और तु खम्बा है और में मिबल्ली मुझे कुछ नहीं मिला मैं तुझे नोच रहा हू (Bajaj said, I agree that you don't know anything, you are innocent, but have you not heard the saying, a frustrated cat scratches the pole and you are the pole and I am the cat I have not got anything I am scratching you)," the judges noted.

Further, the bench observed that punishing the actual perpetrator of the crime is essential, rather than creating a false appearance of having solved the case by mandatorily convicting those named as accused.

"Punishing the actual perpetrator of a crime is a concrete and essential step toward curbing criminal activities, upholding the rule of law, and ensuring the safety and security of citizens. But creating a false appearance of having solved a case by presenting that the accused have been brought to justice gives a misleading sense of resolution. This deceptive closure undermines public trust and falsely reassures society, while in reality, the true threat remains at large."

In its 667-page judgment, the bench even refused to accept the prosecution story that a total of seven accused received training in Pakistan as they visited the country through Iran. The prosecution to prove its point, had relied on the passport and other evidence, the bench noted. 

"However, even if the said evidence is held to be sufficient to establish the accused's visit to Pakistan, the same, in itself, is not sufficient to indicate or suggest or to establish the fact of commission of bomb blasts by these accused. Since the prosecution failed to establish the offence on all the grounds, the fact whether the accused visited Pakistan to obtain training or not would become irrelevant," the judges held. 

The bench went on to doubt the integrity of the ATS officers after noting that they destroyed the Call Data Records (CDRs).

"The prosecution could have easily established the location and movement of the accused at the relevant places and times through the CDRs. Instead, the CDR was destroyed. This act raises serious doubts over the integrity of the investigation conducted by the investigating agency and amounts to a grave violation of the right to a fair trial," the bench held. 

Therefore, the bench held that the prosecution "utterly failed" to establish the offence beyond the reasonable doubt against the accused on each count and added that it was unsafe to reach the satisfaction that the 12 accused have committed the offences for which they have been convicted and sentenced.

"Therefore, the impugned Judgment and Order of conviction and sentence is liable to be quashed and set aside. In the result, the aforesaid Confirmation Case is liable to be answered in the negative, and all the Appeals deserve to be allowed," the judges concluded. 

Appearance:

Special Public Prosecutors Raja Thakare along with Advocates AM Chimalkar and Siddharth Jagushte represented the State.

Senior Advocates S Nagamuthu and S Muralidhar along with Advocates Nitya Ramakrishnan, Yug Chaudhary, and Payoshi Roy appeared for the Accused.  

Case Title: State of Maharashtra vs Kamal Ahmed Mohd. Vakil Ansari (Confirmation Case 2 of 2015)

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