It has been five years since 12 men were convicted for the Mumbai 7/11 train blasts in a trial by a special MCOCA court, but necessary hearings for confirmation of the death sentences for some of the accused are yet to begin in the Bombay High Court.
While trial courts in such cases (technically sessions courts) can award a death sentence, this cannot be imposed without confirmation from the relevant high court, to which the proceedings have to be referred under Section 366 of the Code of Criminal Procedure (CrPC).
The high court can then decide to either uphold the sentence given by the trial court, direct the police to re-investigate the case altogether, and may even allow the convict another chance to call for additional evidence in their defence, amongst other possibilities.
"They have all already spent 14 years in custody, arrested in 2006. This is equivalent of life imprisonment. How is this alright, that the case has not moved for the last five years?" said Abdul Wahid Sheikh, who is the only accused who was acquitted by the sessions court.
Sheikh is heavily invested in the progress of the case as he believes in the innocence of all twelve.
The Quint spoke to the relatives and lawyers of those convicted, as well as Wahid, to track why it has taken five years for the hearings in the Bombay High Court to begin.
We also spoke to Gulzar Azmi, head of the legal committee of the Jamiat Ulama-E-Maharashtra, who have been helping the accused with access to legal aid ever since the blasts in 2006.
WHY THE DELAY IN PROCEEDINGS AT HIGH COURT?
Bombay-based advocate Ishrat Khan, who is representing some of the convicts, explained that the deferral has primarily been due to a delay tactic.
“So, there is something called the paper book, which contains all the documents of the case. Statements, evidence, remand applications, etc,” Ishrat said, adding:
"For the last five years, all they have been doing is recording and re-recording the 45,000 odd pages of the case in order. Sometimes, some paper is missing in the original or in the xerox for the twelve convicts. Even till now, only four people have got all the papers. Nothing can start without this most basic work. There has not been one hearing since," Wahid said.
While the delay has mainly been due to the prosecution, Ishrat notes that at a preliminary hearing, Justice Dharmadhikari had also commented on the failures of the twelve accused to file applications they had wanted to, and that if they didn’t do so on time, the case would end up being assigned to a different bench. "That is the current delay, at least before COVID-19 brought most work to a stand-still. Ever since the lockdown, nothing has moved."
During the lockdown, in April 2020, Justice Dharmadhikari took early retirement citing personal reasons, meaning the case will have to be assigned to a different bench of the high court.
WHAT HAPPENS WHEN CASE RESUMES IN HC?
Once the case resumes in the high court, there will be a re-appreciation of the evidence.
“The prosecution has to justify to the court, based on the evidence in the charge sheet that the crime was the rarest of the rare crime and merits death penalty. Their job is limited. They do not have to defend anything as conviction has already happened,” noted Delhi-based criminal lawyer Satish Tamta said. The defence lawyers will argue why the sentence is not merited.
If the high court believes that a further inquiry is required or further evidence needs to be appreciated, not just on sentence but also regarding the guilt or innocence of the accused, they can either undertake this exercise themselves or refer it back to the lower court, under Section 367 of the Code of Criminal Procedure.
The high court will hear the appeals, which are a statutory right of the accused, and the death confirmation case together. As of now, only two convicts who have been sentenced to life imprisonment have filed appeals while we have heard that other convicts are preparing to file.
WHO ALL WILL THIS IMPACT?
Both Tamta and Sekhri said that, based on the hearing around the appeal, there is definitely a possibility that the judge could set aside the judgment of the lower court and acquit everyone.
"After conviction, the convict has the right to file an appeal. Even if one appeal has been filed, it is enough basis for judge to say that the order of the lower court was bad and acquit everyone. It is rare, but can happen,” Tamta said.
Sekhri added that it is common for convicts to file an appeal, which will be first heard by the high court.
Ishrat Khan, the only lawyer to have filed an appeal for Sajid and Majid, said, “While I argue my appeal, I have the opportunity to argue against the sentence, and also get an opportunity again to show that the evidence was wrongly interpreted by the sessions court, or that relevant evidence was not considered. This may result in not just a commutation of the death sentence, but may even see convictions overturned.”
KIN OF CONVICTS WAIT TO BE HEARD
Most of the accused have been in jail for the last 14 years, while several of their relatives have died waiting for the wheels of justice to turn.
Of the twelve accused convicted, five were put on death row and the remaining sentenced to life imprisonment. Those who are on death row are Asif Khan, Naved Hussain Khan, Kamal Ahamed Ansari, Mohd Faisal Shaikh and Ehtesham Siddiqui. All of them had planted bombs which were involved in the attack, the ATS had argued.
The blasts had ripped through suburban trains between Khar Road-Santacruz, Bandra-Khar Road, Jogeshwari-Mahim Junction, Mira Road-Bhayander, Matunga-Mahim Junction and Borivali within a span of 10 minutes.
Speaking to The Quint, Naved Hussain Khan's relative, who wished to not be named, spoke at length about how the 14-year long ordeal in the quest for justice had hit several roadblocks on the way.
The delay in the confirmation of death sentence at the Bombay High Court has only added to the woes of the convict and his family. The convict has not been granted the liberty to seek furlough at any point till now.
"Naved had a bright future in sales and was in the prime of his youth when he was arrested and put on trial. He has spent a bulk of his youth behind bars for a crime he never committed, " said the relative. "We, as kin of convicts, have no option but to wait for the courts to hear us. Appealing against a court's verdict is the right of every accused and we too shall avail of this right."
The seven sentenced to life imprisonment are Tanvir Ahmed Ansari, Mohammad Majid Shafi, Shaikh Alam Shaikh, Mohd Sajid Ansari, Muzzammil Shaikh, Soheil Mehmood Shaikh and Zamir Ahmad Shaikh.
Designated Maharashtra Control of Organised Crime Act (MCOCA) Judge Yatin D Shinde had held all twelve of them guilty of complicity in the crime. The court had held the accused guilty of many charges under IPC, Explosives Act, Unlawful Activities Prevention Act, Prevention of Damage to Public Property Act and Indian Railway Act.
Speaking about the others, Naved's relative said, "The father of Faisal Shaikh and Muzammil Shaikh died and neither of his sons were able to perform the burial rights. Faisal is on death row, while Muzammil is serving life sentence. The latter was allowed to meet his mother four days after the father was buried. Majid Shaikh from Kolkata lost his wife to renal failure. He has a 14-year-old daughter who was barely a few months old when he was arrested."
Aziz Khan, Asif's brother, broke down while speaking to this reporter. "Asif has three kids and a wife who live with us. We are managing, but there is not one day when I do not miss him."
Aziz is of the opinion that Asif will get bail. "He has been named as an accused in four cases. The first one was in 1999 regarding a poster on the Babri Masjid demolition, wrongly attributed to him. He was acquitted in it about eight years ago. Then there was the 2001 Jalgaon case where Asif was convicted for criminal conspiracy and sentenced him to ten years in prison, but the high court acquitted him. The third case was the 2006 Malegaon blasts, where Asif was discharged in 2015. Now, it is this case. My brother has always got acquitted as he is innocent," he said.
"Have full hope. Believe that the sessions court ignored evidence, hoping the high court does not do that," Aziz added.
2 CONVICTS SENTENCED TO LIFE, HAVE FILED APPEALS
Of the twelve accused, only two convicts, Majid Shadi and Mohd Sajid Ansari, have filed appeals for acquittal before the high court yet.
Their appeals were filed by their advocate, Ishrat, in December 2018. "The convictions are based on confession statements that were recorded under Section 18, sub-section 4 of the Maharashtra Control of Organised Crime Act (MCOCA). We are contesting in the appeal that these confessions were taken under pressure. Also, the author of the document needs to be presented in the witness box to establish authenticity. The magistrate in the case was never presented during the course of the trial."
Jamiat Ulama-E-Maharashtra's Gulzar Azmi continues to believe they are all innocent. "I will say this again and again, these men are innocent. We have helped the accused with legal aid ever since the beginning. The community would donate money during the month of Ramzan and we would use that as judiciously as possible."
Explaining the purpose of the Jamiat, he said, "The organisation was founded in 1919 with the view to get freedom from British oppression and (we) were against Pakistan. After 1947, we decided to work for the interest of Muslims in the subcontinent."
Hoping the courts will resume functioning soon, they're all still waiting, while more convicts are in the process of filing appeals to challenge the verdict.
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