Focus

Journalist Kazmi — Israeli Diplomat car attack case is in limbo; Indian govt. in fix

Original_mg394-mahmood-pracha-adv-solo-6-16
Interview: Mehmood Pracha Advocate

The Milli Gazette has been in the forefront of covering important issues faced by the minorities and marginalised and persecuted classes. Fake terror cases against innocent people are a great challenge for the victims, their families and communities as well as to a free and fair system in our country. The reported attack on the car of an Israeli diplomat in February 2012 in New Delhi was one of the most hyped cases in the recent history of India’s “war on terror”, especially when the Israeli Prime Minister Benjamin Netanyahu jumped in within hours claiming that Iran and Hezbollah were behind the attack. Soon the veteran journalist Mohammad Ahmad Kazmi was arrested possibly only because he had been working for Iranian media for almost three decades. His opinions about the Zionist and western imperialist policies in the Middle East were known.

What followed was a landmark case because of the world-wide support to Mr. Kazmi. An exemplary legal battle led to his release on bail. It was granted by the Chief Justice of India within seven months which itself was considered a huge success. Senior advocate Mehmood Pracha argued the case right from the lowest court of Chief Metropolitan Magistrate to the highest court of the land. Pracha's efforts recently secured the setting aside of five death and five life sentences granted to Himayat Baig in the Pune German Bakery blast, yet another internationally-hyped case.

Milli Gazette interviewed Mr. Mehmood Pracha  to find out the status of the case regarding the attack on the Israel diplomat’s car in February 2012 and the legal battle for Mohammad Ahmad Kazmi. Following are excerpts of the interview:

MG: What is the present status of the case against Mohammad Ahmad Kazmi who is accused in the attack on the Israeli diplomat in 2012?
Pracha: From the end of 2012, after filing of the charge-sheet, the case is pending for framing of charges and is deliberately being delayed by the prosecution for obvious reasons. The only logical conclusion which can be drawn from this is that they are not fully confident of the evidence they have collected.  That is why they, on one pretext or the other, are delaying even the framing of the charges. The first judge in this case who heard the arguments on charges was Mr. Atul  Kumar Garg, additional sessions judge at Tis-Hazari courts. Apprehensive due to the queries raised by the judge, adjournments were taken by the public prosecutor in order to delay the pronouncement of the order on charges. Meanwhile, the Delhi Police Special Cell, the investigative agency and prosecution moved Delhi High Court to get the case transferred along with all other cases of Special Cell pending in different courts to a special court.  I saw this initiative as a ground to defeat the hearings being undertaken by Judge AK Garg. We have challenged the transfer of our case on the administrative side to the Delhi High Court which is still pending before the Hon’ble Supreme Court.

Moreover, one of the interesting factors in Mr. Kazmi’s case is the fact that an additional charge-sheet was filed during the arguments on charges before Mr. A. K. Garg, the learned Additional Sessions Judge. To my mind, this additional charge-sheet was filed with a primary motive of delaying the argument on charges. Interestingly, the additional charge-sheet had a very important piece of document. The main witness or the allegedly injured Israeli national, Mrs. Tal Yehoshua Koren, had given a version different from the one she had given earlier to the Delhi Police while in India. This new statement, which was recorded in Israel is totally contradictory to her earlier statement. Thereby, going to the root of the FIR of the case, it appears to be false in view of the new statement which is part of the present additional charge-sheet.

 

What about the status of the trial?
In the trial court of Mr. Rakesh Pandit, at Patiala House, prosecution failed to even appoint a public prosecutor in this case for more than two years. So there is a deliberate attempt by the prosecution to delay this matter. Another aspect in Mr. Kazmi’s case, which goes to the root of all cases of Unlawful Activities Prevention Act (UAPA), is the issue of the court of cognizance whether it is the court of a Magistrate or a Special Court. Firstly, the basic question is: whether this has to be the court of a Magistrate or a Special Court which has to be that of a Sessions judge? The second substantial question is: whether UAPA can be invoked by any authority other than the Central government? Prosecution and the government are shying away in a revision or a reference on these two major issues which is pending before the Delhi High Court since 2012. This question was raised for the first time in Mohammad Ahmad Kazmi’s case before the Additional District & Sessions Judge Mr. S. S. Rathi, who had in fact made a reference to Delhi High Court to answer these vital questions which are crucial in all UAPA cases under NIA Act. Same is still pending in the High Court.

Cognizance of an offence is the most basic part in a criminal trial. Any fault in cognizance goes to the root of the entire case. A fault in cognizance or cognizance without jurisdiction results into extinguishing the whole criminal trial. Mr. Kazmi’s case has highlighted that in all UAPA cases two distinct and contradictory procedures are being adopted by the investigating agencies of all states and the NIA. Whereas state investigating agencies across the country file their charge-sheets before a Magistrate, who then takes cognizance of the case, whereas in all NIA cases cognizance has been taken by Special Courts which are invariably of the rank of Sessions or Additional Sessions Judges.

After Mr. Kazmi’s case, the Delhi Police realised its mistake and all the later charge-sheets were filed by them before the courts of Special Judges only. This issue is pending before the Delhi High Court in the reference made by Mr. S. S. Rathi, the learned ASJ. The decision in this reference would result in holding one of the two procedures illegal, thereby giving the benefit of the technical glitch to all UAPA cases. I think this is a serious issue for prosecution and the Union Home Ministry should pay special attention to this issue for safeguarding prosecution’s interest and that of the public.

 

It means that Mr. Kazmi’s case has become very special for Delhi Police “Special Cell”?
The case of Mr Kazmi is a defining landmark case among all terror-related cases. Because, firstly, he was granted bail by the Hon’ble Supreme Court in a very short span of time; secondly, this has raised certain basic legal issues which go to the root of all similar matters across the country not just for the accused but for the prosecution as well.  The issue is whether the Central government is the right authority to invoke the provisions of UAPA and NIA in these cases and whether the Magistrate court at all is having any power to take cognizance of such cases? These two issues can lead to a dismissal of these cases and acquittal in almost all terror-related cases under UAPA and NIA Act. Till date, in almost all the states across the country, the cognizance is being taken by a Magistrate. But after raising this issue in Mr. Kazmi’s case, Delhi has created special courts and the remand and cognizance proceedings are undertaken by special courts, i.e., sessions court.

Presently in Delhi, there are two sets of cases: in one set of cases cognizance is being taken by a court of Magistrate and in the other set of cases, after Mr. Kazmi’s petition, cognizance is being taken by an Additional Session Judge. So one of the two is obviously wrong procedure in the eyes of law and this will lead to acquittal in all these cases.

 

At the early stages, one remembers, some government agencies did not believe the Israeli allegations against Iran or Hizbullah?
Yes, this case has got several surprising aspects. In Mr. Kazmi’s case, there were reports in media that even Research & Analysis Wing (RAW) in the early stages had given reports to the government that the conspiracy of the Israeli embassy bomb blast in Delhi was the handiwork of Israeli agencies coupled with their CIA connections. This aspect has not been investigated at all. In my opinion, this aspect needs to be investigated by a professional investigating agency. [MG revealed this story in its 1-15 May 2012 issue]. 

Similarly the statement of Mr. Veerappa Moily, the then Union Oil & Petroleum Minister, that India lost about US$ 8.5 billion due to reduced purchase of crude oil from Iran after India accepted the U.S.-led sanctions on that country. Therefore, this aspect should also be investigated in depth in Mr. Kazmi’s case, as India in a surcharged atmosphere created against Iran after this case agreed to abide by the sanctions.

 

In a nutshell, where Kazmi’s case stands today?
In limbo!  In the absence of a public prosecutor, court cannot proceed with the trial. Prosecution is shying away from clearly stating its position on the issue of jurisdiction for remand and cognizance and the authority of invoking provisions of UAPA.

This article appeared in The Milli Gazette print issue of 16-30 June 2016 on page no. 1

We hope you liked this report/article. The Milli Gazette is a free and independent readers-supported media organisation. To support it, please contribute generously. Click here or email us at sales@milligazette.com

blog comments powered by Disqus