Tuesday, June 10, 2014

SIMI CASE - Only confessions link accused to SIMI, says cop - By Jyoti Punwani - MUMBAI MIRROR, a TIMES OF INDIA publication


Only confessions link accused to SIMI, says cop

Mumbai Mirror | Jun 10, 2014, 04.25 AM IST
Jyoti Punwani

In hearing to decide on extension of SIMI ban, tribunal told no other documentary proof exists to link accused in 'SIMI cases' to organisation.

The tribunal set up to decide whether the 13-year-old ban on SIMI needs to be extended or not, warned Investigating Officer A S Nandedkar to stick to replying truthfully, or else the next time he would be sent behind bars. Nandedkar was the only witness to depose before the tribunal, headed by Delhi High Court Justice Suresh Kait, which held its hearing in Mumbai on Monday.

The case in question related to an alleged encounter which took place at Aurangabad in March 2012, in which two alleged SIMI members, Abrar Babu Khan and Khalil Khilji, were arrested and one, Azhar Qureshi, was shot dead.

Nandedkar was cross-examined by Ashok Agrwaal, counsel for two other ex-SIMI members, Humam Ahmed Siddiqui and Misbah-ul-Islam, who have challenged the ban. In his cross-examination, Agrwaal tried to probe whether there was any proof that the accused arrested after the Aurangabad encounter, were SIMI members.

Agrwaal asked Nandedkar whether there was anything in the case papers besides the confessional statements of the accused to show they were SIMI members. Nandedkar replied there was not.

Agrwaal then asked whether these confessional statements were made in police custody, to which Nandedkar replied in the affirmative. He also said the statements had not been recorded before a magistrate under Section 164 of CrPC. (Confessions recorded u/sec 164 can be used as evidence against an accused, whereas those made in police custody cannot).

Agrwaal further asked whether Nandedkar had independently verified that the two accused were SIMI members. To which Nandedkar replied that there was another case pending against Khilji under the Unlawful Activities Prevention ACT, the anti-terror law under which SIMI was banned.

In this other case against Khilji, was there was any independent documentary evidence to prove he was a SIMI member, asked Agrwaal. Nandedkar replied that it was mentioned in the charge sheet.

But when Agrwaal asked him where exactly it was mentioned, Nandedkar fumbled and said he did not have the list of documents attached to the charge sheet.

The court then decided to ask him questions directly. Have you read the charge sheet, Judge Kait asked Nandedkar. No, replied the officer.

The court asked him to hand it over, and found that the list of documents was, in fact, attached to the charge sheet.

It was at this point that the judge asked Nandedkar: "Why are you lying?" and issued him the warning.

At the end of Agrwaal's cross-examination, the IO admitted: "I cannot say there is any independent document to show that Khilji was a SIMI member."

This has been the pattern throughout hearings, Agrwaal told Mumbai Mirror. In all cases looked into by the tribunal in its hearings in Trivandrum, Ahmedabad, Udaipur, Mysore, Hyderabad and Patna, nothing was on record to show the accused's membership of SIMI, "except their confessional statements and presumably secret reports by intelligence agencies. These reports can be seen only by the tribunal, not by the defence counsel".

Since SIMI was first banned in September 2001, the ban has been upheld every two years, except once in 2008, when the Justice Geeta Mittal Tribunal set it aside, because the notification banning it was identical to that issued in 2006; no new reasons were given to extend the ban. But the government got a stay from Supreme Court the next day.

To extend the ban, the government must give reasons to show SIMI continues to exist and carries out unlawful acts. "The cases cited before successive tribunals do not show this," said Agrwaal. "Some accused have been convicted, but that they were SIMI members was not established," he said.

Every time the ban has been upheld, Agrwaal's clients Siddiqui and Misbah ul-Islam have challenged it in SC. A hearing on these petitions has finally been set for August, and Agrwaal will argue against confessional statements and secret reports being relied upon.

So far, the ban could last only two years, but last year the government amended the UAPA to extend the period for five years, in order to "reduce the cost of administering" the ban.

Most of the cases cited before the current tribunal are not terrorist acts.

Interestingly, though Mumbai's August 2012 Azad Maidan rioting case has been cited (one accused was a SIMI member, said the state police), that case was not referred to in Monday's hearing.

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