CASES CONNECTED WITH SUNIL JOSHI MODULE

May like to recall that from the confession of Swami Asimanand it is now clear
that Malegaon Bomb Blast I (Sep 8, 2006), Samjhauta Express Bomb Blast (Feb 18,
2007), Mecca Masjid Bomb Blast (May 18, 2007) and Ajmer Sharif Bomb Blast (Oct 11,
2007) were crimes committed in pursuance of a common criminal conspiracy by a
common terrorist group. These cases, therefore, also involve common witnesses.
Additionally, two further cases, Malegaon-II (September 29, 2008) and Modasa
(September 29, 2008) were committed by accused persons belonging to the Sunil Joshi
terrorist module. These two cases also involve, to a very high extent, common
witnesses. A further case, that is related to this, is the Sunil Joshi murder case (Dec 29,
2007). Although, there is nothing concrete to indicate at this stage whether his murder
was related to his terrorist crimes, nevertheless this case also involves common
witnesses to a very high extent. The table below shows the cases being handled by
different agencies.
S. No. Case Particulars Investigating Agency
1 Malegaon-I Bomb Blast (Sep 8, 2006) STF, CBI, Mumbai. (Initially
chargesheet was filed by
Mumbai/ATS).
2 Samjhauta Express Bomb Blast (Feb 18, NIA
2007)
3 Mecca Masjid Bomb Blast (May 18, 2007) SC-III, CBI, New Delhi
4 Ajmer Sharif Bomb Blast (October 11, Rajasthan ATS
2007)
5 Malegaon-II Bomb Blast (September 29, Mumbai ATS
2008)
6 Modasa Bomb Blast (September 29, 2008) NIA
7 Sunil Joshi Murder Case (December 29, MP ATS
2007)

The mere fact that these cases are currently being handled by different agencies
gives rise to several real and serious problems—practical, administral and legal. It is
unnecessary to emphasize or elaborate on the fact that these cases have very real and
serious ramifications to national security and communal harmony in the near and mid-
term future of our country. To ensure that the non-negotiable interests of national
security are served, it is necessary to appreciate that these cases ought to handled in
such a manner to enable them to be successfully prosecuted/ tried—correct detection/
investigation is not enough. At present, there are serious problems for a successful
prosecution of these crimes. These are set out herein below:
PRACTICAL AND ADMINISTRAL CASE MANAGEMENT PROBLEMS
1) Agencies as of now, are all investigating cases from a narrow case-specific point of
view instead of broader conspiracy or larger points of view related with overall
national security. In practical terms, this means that each agency is driven to
strengthen its case (as contra-distinct from others) would attribute certain
averments to certain witnesses, which the witnesses would not reproduce before
other agencies. These contradictions can prove fatal to all prosecution cases
before judicial fora.
2) Witness Harassment
i) Common witnesses called and questioned by 6 different agencies (CBI/
 Mumbai ATS/RATS/ NIA/MP ATS/ Dewas Police, MP) on the same
facts—protracted absence from home/ workplace has meant that several
witnesses have lost their jobs, and their motivation to support
prosecution cases becomes weakened;
ii) Inter-agency one-upmanship has meant that each agency has also tried
to show that it has elicited/ extracted the most from witnesses;
iii) Inter-agency one-upmanship has also meant that each agency tries to
also hold back identities/ addresses of some witnesses to ensure its able
to steal a march over the others;
iv) In the course of an agency’s zeal to show better extraction from a
witness, there are also instances of maltreatment—prolonged detention
of witnesses/ threats to witnesses that they would be made accused/
threats to relatives of witnesses/ harassment of relatives of witnesses,
etc.
v) Repeated calling of witnesses to different places by different agencies
(New Delhi/ Indore/ Jaipur/ Mumbai/ Bhopal) at different times without
due regard to their convenience
3) Material witnesses to establish association/motivational mind-set/movement of
accused are all either sympathizers/ friends of the accused, besides being RSS
activists, and therefore need to be carefully handled during pairavi to ensure that
they stand by their statements during trial
4) Quintuplication/ Sextuplication of Work:
Ordinarily, duplication of work itself is condemnable; here, at present there is
quintuplication/ sextuplication of work:
All agencies tracing/ meeting/ questioning the same witnesses with reference to the
same facts;
All agencies taking efforts to trace/ arrest the same suspects/ accused; etc.

This is not an acceptable way to use limited resources of the state.

5) Absence of Inter-Agency Cooperation:
i) Instead of inter-agency cooperation, there is inter-Agency one-upmanship;
ii) Inter-Agency Coordination has often meant that an agency holds back key
potentially break-through information/data from the others during
coordination meetings;
iii) Accused/ Suspects have Absconded in the past because of inter-agency
one-upmanship
Cases in Point
1) CBI and RATS had decided at a coordination meetings in February/
March/ April 2010 that no arrests shall be made unless the identities/
locations of other accused were established, but in spite of this, after
RATS arrested Devendra Gupta on April 30, 2010, and gave a Press
Conference on May 1, 2010, key accused Ramji and Amit absconded the
next day from their places of work, and nothing has been heard of them
again; and,
2) CBI and RATS had decided in a coordination meeting on October 18,
2010 that CBI was sending an undercover team to establish the
authenticity of the names/ addresses of suspects Suresh Bhai Nair and
Bhaveshbhai Patel of M/s Narmada Communications in Gujarat, before
deciding on a further course of action. CBI undercover operative
 confirmed the identities of these persons and established the present
locations/ backgrounds of these persons, and was contemplating about
the next step to get more details from them, when RATS arrested
another bomb-planter, Mukesh Vasani and gave a Press Conference
before Diwali, and after that Sureshbhai Nair and Bhaveshbhai Patel
absconded and nothing has been heard of them again. (These two are
the bomb planters in Ajmer, and there are reasonable grounds to believe
that this was not their first job so far as bomb planting goes).
iv) MP Police (Dewas Industrial Town PS) have arrested key material
witnesses (Anand Raj Kataria, Vasudev Parmar) and are in the process of
making further prosecution-friendly persons as accused (Bharatbhai
Rateshwar and Swami Asimanand), and by doing this, it appears their
actions, regardless of whether they are driven by intention or not, would
damage the prospects of a successful prosecution of the accused in the
terrorist crimes committed by the Sunil Joshi module.
v) Key evidence/ material being withheld:
Case in point:
1) CBI, etc. have written to MP Police for certified copies of documents etc.
(diary, other documents containing addresses of electrical shops, circuit
diagrams, CDRs…), but to date, they have not given official/ formal
copies as required for use in courts;
2) MP Police refused access to Shivam Dhakad, who was arrested by them
in a local murder case during their custodial interrogation and refused to
share his interrogation report;
3) MP Police have refused access to a so-called material witness Ramesh
on the grounds that his life was in danger from RSS and is in their
protective custody, whereas it is necessary to question this witness to
corroborate the sequence of events as learnt from other witnesses
relating to disappearance of material (IED-related paraphernalia,
documents, diaries, mobiles) from the residence of Sunil Joshi after his
murder, and these are things which cannot be ignored by any
investigating agency for taking their respective cases towards their
logical conclusion.
vi) Miscellaneous Matters
1) MP Police after arrest of Shivam Dhakad, had spent less time
interrogating him in connection with the murder case, than about his
nexus with the Sunil Joshi module, and had even gone to the extent to
make a Recovery u/s 27 of the Evidence Act in connection with the
Mecca Masjid and Ajmer Bomb Blast cases, both of which are being
handled by CBI/ RATS. This recovery would have been ipso facto illegal.
In the instant case, damage was forestalled to these cases of CBI/
RATS, only because, after questioning Shivam Dhakad in Judicial
Custody, these agencies were convinced that he had nothing to do with
the criminal conspiracy in these specific cases, and decided to take him
as a witness. Otherwise, this would have damaged these cases,
because the law is that a Recovery u/s 27 is valid only if it is heard by the
Investigator from the accused in his police custody for the first time.
6) It would be more difficult for the Government to be able to manage these cases
with different agencies, than if they were under a single agency. The NIA was
 created for the exclusive purpose of investigating terrorist crimes. It flies against
the face of any/ all logic that these cases cannot be transferred to NIA for taking
them towards a logical conclusion. Changes of government in Rajasthan/
Maharashtra would also mean different stances adopted by RATS/ MATS with
reference to the two cases under their custody, leading to greater risks to
communal harmony in the country.
7) Even accused feel very harassed having to state the same facts before different
agencies, and whenever any of them state anything extra during custodial
interrogation in one agency, then another agency feels that it’s a blow to its pride
and would abuse the accused for not having said the same earlier

LEGAL ISSUES RELATING TO SOUND CASE MANAGEMENT

1) It is trite law that there is to be a common chargesheet for crimes arising out of
a common criminal conspiracy [It is clear that Malegaon-I to Ajmer Sharif Bomb
Blast cases, all arose from the same criminal conspiracy]
2) Separate chargesheets in separate court jurisdictions and prosecuted by
different agencies means that witnesses would suffer further harassment.
Common witnesses would be expected to speak the same thing before
different courts on different dates. Apart from this, there are further delicate
issues that pose serious risks to the prospects of a successful prosecution:
1) Given the fact that witness depositions are made as per the dictation of
the trial judge, which is based on the gist of what a witness has
deposed, it is not unusual for trial court judges to dictate such words/
phrases which they feel best represent what the witness has narrated,
and trivial differentia between the words/ phrases used by different
judges to best represent what the witness has narrated would be cited
by defence counsel, during final arguments as contradictions, etc. and
benefits of doubt emanating therefrom, would inevitably accrue to the
accused;
2) Witnesses, in case, they have not been won over by the accused
(supported secretly by RSS and its front organizations like BJP, etc.)
would be subjected to protracted harassment by way of lengthy cross-
examination spread over several days, etc. including on the basis of all
their previous statements before different agencies and before different
trial courts, if any, and few witnesses would, at the end, be able to stand
by their earlier statements;
3) Material witnesses, whose statements are recorded u/s 164 of Cr.P.C.
would have to state the same facts before different Magistrates for the
benefit of five different agencies

3) Accused who want to cooperate with the investigation would have to make
confessional statements before different Magistrates on the same facts for the
benefit of five different agencies, and any discrepancies would again be cited
as contradictions, etc. Besides, it is also expectable that Agencies driven to
embellish their cases, would ask the accused to state a little bit extra in support
of the specific case being investigated by them.
4) As per the provisions of Section 219 of Cr.P.C. it is necessary to file a common
chargesheet and conduct a common trial of accused who are charged with
commission of the same type of offences over a 12 month period. [It is
 necessary to recall that Malegaon-I to Mecca Masjid Bomb Blasts fall within the
requirements of the said Section]. The Ajmer Sharif Bomb Blast falls outside of
the requirements of the said Section by only one month, but even this, by itself
cannot be a ground to exclude this case from becoming part of a common
chargesheet, because this also arose from the same common criminal
conspiracy.
5)

THE WAY FORWARD

It is in the highest interest of national integrity for the reasons and grounds as
aforesaid that the aforesaid cases are all combined under the leadership of a single
agency. Naturally, this Agency ought to be NIA because it was exclusively created by
way of Special Legislation by the Union Parliament for only this purpose—investigation
and prosecution of terrorist crimes.
To be able to use the confessional statement of Swami Asimanand against other
co-accused, it is necessary to file a common chargesheet against other accused as
well. For this purpose, the absconding accused, viz., Ramji Kalsangra, Sandeep Dange,
Amit @ Ashok, etc. are to be traced, arrested and chargesheeted commonly with
Swami Asimanand. It is needless to say that instead of five different teams looking for
the elusive suspects under five different agencies, it will be enough if one large team
looks for them under one agency. It would be economy of effort combined with efficacy
in obtaining more favourable outcomes.
Possible Alternative Solutions:
1) Combine all cases arising from the same criminal conspiracy immediately, and
transfer the related Malegaon-II Bomb Blast case from MATS and Sunil Joshi
Murder Case to NIA for further investigation;
2) Combine the first three cases immediately in terms of Section 219 of Cr.P.C. and
then advise the Government of Rajasthan to transfer the Ajmer Sharif Bomb
Blast case from RATS to NIA for further investigation;
3) Ask some witness to file a PIL backed by some Secular NGO in Supreme Court
for combining of all these cases;
4) Ask the wrongly arrested accused in Sunil Joshi murder case to file a PIL in
Supreme Court transferring this case to NIA for further investigation {this option
may not be very difficult because two accused, namely, Anand Raj Kataria and
Vasudev Parmar have been very badly physically maltreated by MP Police and
are in hospital undergoing treatment for their testicles}.

Note: 1) Combination of cases in view of the fact of a common criminal conspiracy

would also include the withdrawal of earlier chargesheets just before filing of the
common chargesheet.
2) Selection of the common venue for trial would appear, at first blush to be a
contentious issue, but this can be in Maharashtra (where the first bomb blast
occurred, Malegaon) and a Special Designated NIA Court can be constituted
in consultation with the Government of Maharashtra to establish such a Court
to conduct an in-camera trial on a day-to-day basis, and the Government of
India through the NIA can appoint a Special Prosecuting Counsel to handle
these cases in the Trial Court and High Court.