It was a decision based on oral information that may have set off a chain of convictions in a MCOCA court in the 2006 Mumbai blasts case. An order that was overturned nearly a decade later by the Bombay High Court, and now stayed by the Supreme Court. 

In the weeks after the 7/11 serial blasts that killed 187 people in Mumbai’s local trains, the Maharashtra ATS had built its case under the stringent Maharashtra Control of Organised Crime Act. The law allows admissibility of police-recorded confessions and carries a far higher threshold of punishment. But it also requires a strict chain of approvals and procedural safeguards. Safeguards that were apparently violated with information merely conveyed “orally”. 

While acquitting 12 men, the high court pointed out that one of the foundational errors was a failure by then DIG-rank officer and ATS Additional Commissioner Subodh Kumar Jaiswal to “apply his mind” before greenlighting the use of MCOCA.

It was the invocation of this law that had cascading consequences:  seven separate FIRs were clubbed into one case under the theory of a single organised conspiracy, confessions allegedly extracted through torture became crucial evidence, and the prosecution could pursue the harshest punishments in a MCOCA court. In 2015, five men were sentenced to death, seven to life imprisonment – a decision set aside by the high court this month.

On Thursday, the Supreme Court stayed that high court order after Solicitor General Tushar Mehta argued that it contained “certain findings of law” which would affect other trials underway in Maharashtra under MCOCA. Stating that the acquitted men would retain their liberty, the Supreme Court ruled that the high court order would not be treated as a precedent in any other MCOCA trial.  

Even as the Supreme Court put the ruling on hold, the high court’s findings cast a shadow over how the law was invoked in the first place.

A proposal and information conveyed ‘orally’

The high court order freed death row convicts Mohammad Faisal Shaikh, Ehtesham Siddiqui, Naveed Hussain Khan and Asif Khan. A fifth man sentenced to death, Kamal Ansari, died of Covid-19 while in jail in 2021. The seven men sentenced to life imprisonment – Dr Tanveer Ansari, Mohammed Majid, Shaikh Mohammed Ali Alam Shaikh, Mohammed Sajid Margub Ansari, Muzammil Shaikh, Suhail Mehmood Shaikh and Zameer Ahmed – were also acquitted. These men spent 19 years behind bars.

To build its case under MCOCA, the ATS had sought to establish links between the accused and banned organisation SIMI – connections that were built on the basis of unrelated cases.

In its chargesheet, the ATS had claimed that Dr Tanveer Ansari, who worked at Saboo Siddique Hospital in south Mumbai and Ehtesham Siddique, a writer and publisher of religious books in the neighbouring city of Mira Road, were in contact with Asif Khan, a civil engineer who was allegedly the district president of the banned Students Islamic Movement of India. 

When the ATS first learnt of Khan’s possible involvement, he was already named as an accused by the Jalgaon police in two offences committed in 1999 and 2001. In the first offence, he was allegedly found in possession of a poster on Babri Masjid made by SIMI. In the second offence, he was allegedly involved in local youth traveling to Kashmir over the course of the 90s to join the growing militancy. Khan was subsequently acquitted in both cases, years after the blasts.

However, neither Ansari nor Siddique were named as accused in those chargesheets along with Khan. They had a separate brush with the law in 2001, when the police accused them of working for SIMI and in another case of raising pro-SIMI slogans. They were acquitted of those charges by a court in Mumbai in 2014. However, their alleged connections with Khan via SIMI led the ATS to label the train blasts as the handiwork of the banned organisation.

During the trial in the lower court, Dr Ansari was convicted for participating in conspiracy meetings along with Khan and Siddique and being present when the explosives were assembled at the home of a fellow accused, among other charges. Siddique was convicted for being part of conspiracy meetings, helping suspected Pakistani nationals reach the home of another fellow accused in the neighbouring town of Mumbra and planting one of the seven bombs. 

Convinced that the three SIMI members were involved in the train blasts, Inspector P M Khandekar of the ATS submitted a proposal to Jaiswal on September 18, 2006, seeking his prior approval to invoke the MCOC Act.

But the groundwork for this proposal was flawed from the start. 

Khandekar had dispatched a junior officer, Sub-Inspector Padmakar Deore, to Jalgaon to gather certified copies of FIRs and chargesheets from past cases registered against Khan – a prerequisite for invoking MCOCA, which requires proof of “continuing unlawful activity”.

Deore, unable to immediately obtain certified documents, simply narrated their contents to Khandekar over the phone. Khandekar, in turn, passed on this second-hand account to his superior, DIG Subodh Jaiswal – “orally”. No original FIRs or chargesheets were annexed. Still, on September 24, 2006, Jaiswal granted prior approval to invoke MCOCA.

Jaiswal stated his satisfaction that Ansari and Siddique were “active members of an organised crime syndicate” of which Khan was a “key member”. The trio, Jaiswal wrote, had been “indulging in continued unlawful activity” and “continually conspired for promoting insurgency to overawe the government by criminal force”.

Deore only received certified copies of the documents from Jalgaon in three tranches between September 21 and 29. While Khandekar claimed during the trial that he had provided Jaiswal the documents at a later date, the prosecution could produce no record in the ATS' case diary to support that claim.

The bench observed that, “There is no reference or mention about the receipt of these documents by Shri Jaiswal in the prior approval. Moreover, the prior approval does not suggest that these documents were considered and were made the basis for invocation of MCOCA. Hence, it can safely be said that Shri Jaiswal had no occasion to apply his mind to these documents to reach a subjective satisfaction required for grant of prior approval.”

Crucially, Jaiswal was never examined as a witness during trial – a procedural lapse the high court pointed out had “no justification”.

The court also noted that the very offences Jaiswal relied on to invoke the Act – two old cases against Asif Khan – did not even meet the minimum sentencing criteria under MCOCA. Both carried maximum sentences of only three years, whereas the Act requires a minimum of three years in two prior offences committed in the preceding ten years to establish “continuing unlawful activity”.

Yet the ATS used this flimsy ground to trigger the entire MCOCA machinery. Confessions of 11 of the 13 accused were recorded before different Deputy Commissioners of Police. The high court found that none of these senior officers adequately assessed whether the confessions were made voluntarily, or whether the accused had been tortured in custody – despite medical reports and allegations of beatings, electric shocks, and prolonged physical abuse.

In its judgment, the high court noted that the production of documents after the sanction – not before – strengthens the case of the defence that the relevant material was not available with the authority at the time of granting prior approval. This, it concluded, falls squarely within the ambit of the expression “non-application of mind”.

The final safeguard was a prosecution sanction by an officer holding the rank of Additional Director General of Police – in this case, Mumbai Police Commissioner A N Roy on November 25, 2006. 

A Maharashtra cadre IPS officer of the 1985 batch, Jaiswal served across the state and in the Research and Analysis Wing before being posted as the Commissioner of Mumbai Police and Director General of Police, Maharashtra. He retired as CBI Director in 2023.

When contacted, Subodh Jaiswal declined to comment on the matter.

Read the previous instalments of this series here.

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