Claim:

“In 2014, the charges against Sadhvi Pragya were pending in the court. Now, the two courts (sic) of the country have dismissed the charges of conspiracy. To strengthen its vote bank, Congress has compromised with (sic) the country’s security and tried to malign Indian culture.”

That was Amit Shah, President of India’s ruling Bharatiya Janata Party, discussing charges against Pragya Singh Thakur, the party’s Lok Sabha candidate for Madhya Pradesh’s Bhopal constituency, in an interview with Arnab Goswami, managing director of Republic TV.

The BJP’s official Twitter account shared this on April 25:

Fact check

Shah’s claim is false.

While a special National Investigative Agency court on December 27, 2017, dropped charges of criminal conspiracy – framed against Thakur and 11 others under the Maharashtra Control of Organised Crime Act, 1999 – conspiracy and murder charges under the Unlawful Activities Prevention Act, 1967, and sections of the Indian Penal Code remain and were formally framed against Thakur in October 2018, court data shows.

Thakur is being tried for the September 29, 2008, bombings in Malegaon, western Maharashtra, in which six were killed and at least 100 injured.

“So far as offences under Indian Penal Code is concerned, I have already pointed out that there is prima facie [a] case regarding conspiracy against the accused [Thakur and others] to commit [the] bomb blast at Malegaon,” special judge VS Padalkar of the NIA court said in a December 2017 order.

In 2015, the Supreme Court (which Shah alludes to when he says “the two courts of the country”) only expressed doubts about using the Maharashtra Control of Organised Crime Act against the suspects. But it upheld a Bombay High Court order of July 19, 2010, that restored these charges after they were dropped in 2009 by a special court.

Contrary to Shah’s claim, the Supreme Court did not pass judgement or dismiss conspiracy charges against Thakur under the Maharashtra Control of Organised Crime Act, Unlawful Activities Prevention Act, or Indian Penal Code.

On October 30, 2018, on orders issued by the NIA court in December 2017, the NIA formally charged Thakur and six others with:

  1. Sections 16 (punishment for terrorist act) and 18 (punishment for conspiracy to commit terrorist act) of the UAPA.
  2. Sections 302, 307, 326, 324, 427, 153A and 120B of the IPC for murder, criminal conspiracy, promoting enmity between communities and causing damage or loss of property.
  3. Sections 3, 4, 5, and 6 of the Explosive Substances Act, 1908, relating to punishment for abetting, making or possessing, and causing explosions with the intent to endanger life and property.

FactChecker has a copy of the 2018 chargesheet.

From bail to Bhopal candidature

Thakur is currently out on bail while witnesses continue to depose in the on-going special court case. The latest hearing was on May 2. On April 20, the BJP announced that Thakur would contest the elections from Bhopal.

“Keep in mind that the court has framed charges against her because it found some substance in allegations made against her,” special judge Padalkar of the NIA court said in his order on April 24, while rejecting the application of Nisar Ahmed Sayyad Bilal –father of one those killed in the 2008 Malegaon bombing – to bar Thakur from contesting the Lok Sabha elections.

“This [the BJP claim] is completely false,” Shahid Nadeem, appearing for Bilal, an intervenor in Thakur’s court case, told FactChecker. “As recently as October 2018, the NIA court itself framed fresh charges against Ms Thakur, and, so far, 104 witnesses have deposed.”

He continued, “Hearings are held almost every day. So how can they [the BJP] claim charges of criminal conspiracy have been dismissed?”

Thakur’s lawyer focussed on the Maharashtra Control of Organised Crime Act charges. “They [Bilal’s lawyers] are talking about the MCOCA [Maharashtra Control of Organised Crime Act] charges the trial court dismissed,” Prashant Maggu, representing Thakur in the NIA court, told FactChecker. “The trial court may have framed new charges under UAPA [Unlawful Activities Prevention Act] but it has also already dropped charges for criminal conspiracy under MCOCA.”

On April 24, FactChecker sought comment from Amit Malviya, national head of the BJP’s information and technology wing, via email and telephone. When we contacted him again the next day, Malviya said he was busy in Varanasi where Prime Minister Narendra Modi was on an election roadshow. On April 26, we sent a reminder mail. We will update the story if and when we receive a response.

The bombs and conspiracy for a ‘Hindu Rashtra’

A month after the Malegaon blasts – by two bombs stuffed into a motorcycle – on October 23, 2008, the police arrested Thakur and two others. The Maharashtra Anti-Terrorism Squad traced the ownership of the motorcycle to Thakur and accused her of giving it to a co-accused, Ramchandra Kalsangra, who, along with two others, planted the bomb.

On September 20, 2009, the Anti-Terrorism Squad formally filed charges against 13 suspects in the special court constituted under the Maharashtra Control of Organised Crime Act, including Thakur and two who were at large. Another suspect was arrested on April 20, 2011.

The Anti-Terrorism Squad said the suspects were members of an organisation called “Abhinav Bharat”, set up in 2007 as a trust. They intended to turn India into a “Hindu Rashtra” called “Aryavart”, write a new constitution, train guerillas, kill those who opposed them and form a government in exile, according to the Anti-Terrorism Squad.

In a meeting at Bhopal, one of many in Faridabad, Kolkata, Bhopal, Jabalpur, Indore, and Nashik, said the Anti-Terrorism Squad, the suspects plotted “revenge” against Muslims, after previous Islamist attacks, and planned the 2008 Malegaon bombings.

Thakur was the prime accused in the Malegaon case – providing her motorcycle and manpower to build the bombs, the Anti-Terrorism Squad held. Their evidence included statements from witnesses and co-accused that placed her at meetings planning the bombings.

On July 31, 2009, the special Maharashtra Control of Organised Crime Act court dropped charges under the Maharashtra Control of Organised Crime Act and ordered that the case be tried by a regular court in Nashik. The court also rejected bail applications of Thakur and the other arrested suspects.

Aggrieved by this order, the state appealed the Bombay High Court.

On July 19, 2010, a division bench of the Bombay High Court quashed the 2009 order and restored Maharashtra Control of Organised Crime Act charges. The court also said the special court could also decide bail applications.

Thakur and the others challenged the Bombay High Court’s decision in the Supreme Court, which in 2015 upheld the judgement. However while doing so, the Supreme Court said there was “considerable doubt” about the Anti-Terrorism Squad’s allegations of the suspects acting as an organised crime unit responsible for earlier bombings in Parbhani and Jalna in central Maharashtra in 2003 and 2004, respectively, on the basis of which Maharashtra Control of Organised Crime Act charges had been leveled.

Meanwhile, in April 2011, the central government transferred the case from the Anti-Terrorism Squad to the NIA. Thakur challenged the transfer and further investigation. However, the Bombay High Court ruled that the power of NIA to investigate was “absolute” and investigations on the case were “a matter of procedure”.

New report

On May 13, 2016, after Modi’s government was in power, the NIA completed its investigations, and filed a supplementary report exonerating Thakur and five others of the charges framed by the Anti-Terrorism Squad. The NIA said no case could be made against her, and also dropped Maharashtra Control of Organised Crime Act charges against all suspects.

Thakur’s co-accused – two of them – retracted statements incriminating her, as did prosecution witnesses who had corroborated these confessions. The NIA also recorded witness complaints to the National Human Rights Commission of harassment and torture, allegedly by an Anti-Terrorism Squad officer. The NIA further said the motorcycle used in the Malegaon bombing had not been in Thakur’s possession for more than a year, supporting an argument put forward by Thakur’s legal team since charges were framed in 2009.

Thereafter, Thakur filed a fresh application for bail before the special NIA court, to which the NIA did not object. On July 17, 2016, the special court allowed Bilal to intervene in the case.

On July 28, 2016, the special NIA court rejected Thakur’s bail application, holding that the Anti-Terrorism Squad investigation implicating Thakur could not be wiped from record. When read together with NIA’s investigation report, the special court said no case could be made for releasing Thakur on bail. Thakur challenged the decision in the Bombay High Court.

After five rejections, Thakur’s bail application was approved by the Bombay High Court on April 25, 2017. The court acknowledged that while there was evidence placing Thakur at a Bhopal meeting of Abhinav Bharat, the material also showed others present.

“In our considered opinion, if both reports of the ATS [Anti-Terrorism Squad] and NIA are considered conjointly, it cannot be said that there are reasonable grounds for believing that accusation made against her are prima facie true,” a Bombay High Court division bench ruled. “Once it is held so, then the benefit of bail cannot be withheld, even if the offences alleged against her by ATS are grave and serious one (sic).”

The court also noted that Thakur, who was an under-trial in prison for eight years till then, had been diagnosed with breast cancer and had been receiving treatment at an Ayurvedic hospital.

“The medical report (sic) indicates that she has become infirm and cannot even walk without support...In our opinion, an Ayurvedic hospital cannot give proper treatment to the [Thakur], who is suffering from cancer,” the court said.

Later in the year, on December 27, 2017, the NIA special court dropped charges under the Maharashtra Control of Organised Crime Act and three sections of the Unlawful Activities Prevention Act. The court also dismissed charges under the Arms Act for 10 of the 12 accused, including Thakur, and retained charges under Unlawful Activities Prevention Act, IPC and Explosive Substances Act, as we said.

“Considering all the facts at this stage at ­least, the evidence can be used to say that the accused [Thakur] had knowledge about involvement of her motorcycle in the blast and her dissatisfaction about causing less casualties,” special judge VS Padalkar observed in his judgement. “Hence it is difficult to accept the submission that she has no concern with the present crime [the 2008 Malegaon blasts] as she has been exonerated by investigating officer of NIA.”

After the BJP announced Thakur’s candidacy for the Bhopal seat, intervenor Bilal on April 18, urged that the special court prevent Thakur from contesting elections since the trial is underway. FactChecker has a copy of the application and the responses.

On April 24, the special court rejected Bilal’s application; it said this was the Election Commission’s job to decide. The court also criticised the NIA for claiming there was no evidence against Thakur.

“In the reply filed by the NIA, the agency has noted that there is no prima facie material, evidence against Thakur,” judge Padalkar observed. “It is not known as to why (sic) this portion is included when there is no prayer in this regard by the intervenor.”.

“At this juncture, the NIA cannot state that there is no prima facie evidence against Thakur, especially when it has not challenged the [December 27, 2017] order rejecting her discharge application before the High Court.”

This article first appeared on FactChecker.