New Delhi: On July 24, (Thursday) the Supreme Court stayed parts of a crucial Bombay high court judgment, which had acquitted all 12 convicts, jailed for 19 years in the Mumbai train blasts in 2006, usually termed as ‘7/11’, saying that the order would not work as judicial precedent in any pending trials under the Maharashtra Control of Organised Crime Act (MCOCA).

The Solicitor General Tushar Mehta, appearing for the state of Maharashtra, had sought an interim stay of the judgment to the extent it would not be used as precedent before trial courts currently hearing other cases prosecuted under the controversial Act.

What exactly are propositions on law and fact in the Bombay high court judgment, that will now have no precedent value in light of the Supreme Court stay?

MCOCA

• MCOCA invoked without fulfilment of a mandatory and statutory precondition, that  of two previous cases punishable with a minimum of three years renders the invocation illegal
• Authority granting approval for invoking the dreaded MCOCA  before it even had access to relevant papers vitiates the same.
• Authority that granted MCOCA approval never appeared before the court and the factual proposal upon which he granted the same never placed before the court, and this as per repeated Supreme Court judgments vitiated the same,

Confessions

• Supreme Court has held that the voluntary nature of a confession must be proved. Custodial torture vitiates a confession.
• Prisoner with severe and visible injuries ordered by Special Court to be examined by a  hospital and then produced before  the court. In defiance of the  Special Court the bleeding and injured  prisoner, instead of being produced before the court for it to assess his condition, was  produced before the Deputy Commissioner of Police to record his “confession”.  The Deputy Commissioner of Police claimed ignorance  of both the visible   injuries and the court order.  And certified that the prisoner was willing to confess voluntarily. Indeed the DCP claimed before court that  he could not even say whether he would be shocked if he had seen injuries. A certification by such a DCP that the prisoners 'confession' voluntary held unacceptable.
• State’s own case until end September-2006  in remand applications  before  MCOCA was invoked was  that the  prisoners were giving no leads . September end MCOCA invoked. Immediately prisoners  willing to confess. This confessions were  disowned by prisoners within a day of being sent away from police custody. ' Voluntariness to confessions lasting exactly 4- 7 days between not saying anything and disowning confessions found unreliable. This has now been stayed.

Identity of the culprits

• Passengers in  the local trains  who had travelled on the fateful day of July 11, 2006 spoke to the police in July itself , giving a description of the likely planters of the bombs. They were kept away from the witness box but others were suddenly produced 4 months later as witnesses. This mode of evidence the high court found unreliable.
•  Important leads were not followed. Eye witnesses who came almost straight from the event were eschewed. A shop keeper who came forth to say he had sold several pressure cookers to some suspicious looking youths  was kept out. These were were not even brought to identify the accused on trial. This was held to dent investigative integrity.

Modality of the crime

From the beginning of investigation until imposition of MCOCA, and from after the  “confessions” right up to the trial, and indeed to this date, ATS  and the investigators have been clueless about the mode of the bombs. Confessions have no details of the mode. This was held to dent investigative integrity and the voluntary or truthful nature of the confessions.

Suppression by ATS

Phone Call Data Records (or CDRs) of crucial witnesses/accused suppressed and /or destroyed by ATS. This was very suspicious conduct on the part of investigators, the high court found.

Incidentally

The view taken on MCOCA was based on statute and previous Supreme Court decisions.
The view on the assessment of identification in the dock was also based on decisions by the Supreme Court. The twin tests of voluntariness and truth, set by apex court for assessing confessions were followed, confirm experts. 

Now, such a view, bolstered by Supreme Court decisions has been stayed by the Supreme Court.

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