On July 5, activist and Jesuit priest Stan Swamy, arrested under the draconian UAPA, died awaiting the beginning of his trial. Swamy, 84, was arrested on charges of connection to the banned outfit Communist Party of India (Maoist) and instigating violence in Bhima Koregaon in 2018. His death attracted mounting flak for the Modi government and the Indian judiciary. Swamy, who suffered from Parkinson’s disease, was denied bail multiple times during the seven months he spent in jail. The international community, including the UN, condemned his death.

However, a section of right-wing advocates in India has claimed that the outrage has been selective. Columnist Abhijit Iyer Mitra claimed in a tweet that MP Pragya Thakur and Lieutenant Colonel Prasad Shrikant Purohit, currently out on bail on terror charges, were kept in jail without chargesheets filed.

Several people have similarly claimed that they were in police custody “for years” without any chargesheet.

This narrative has been circulating for quite some time. Alt News could trace it back to at least 2012. In recent years, the claim reappears upon outrage against the detention of those critical of the Modi government. BJP supporter Shefali Vaidya had claimed last year that Thakur was in jail for eight years without any chargesheet filed. OpIndia columnist Abhishek Banerjee wrote that she spent 10 years in jail without a chargesheet.

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Fact-check

On September 29, 2008, a bomb blast in Maharashtra’s Malegaon killed six and left 100 others injured. The state’s Anti Terrorism Squad (ATS) arrested Pragya Thakur in October 2008 as one of the primary accused. Thakur claimed that the ATS kept her in illegal detention from October 10, 2008 to October 22, 2008.

She filed a default bail application with the Bombay High Court which was rejected on March 12, 2010. Thakur had argued that she should be granted bail on the ground of violation of the mandate of Article 22(1) and 22(2) of the Constitution of India and also on the ground of non-filing of chargesheet within 90 days as contemplated by Section 167(2) of the Code of Criminal Procedure (CrPC).

Supreme Court advocate Vivek Sharma had explained default bail in a blog on The Times of India, “Bail must be only on consideration of merits, except default bail which is under Section 167(2) of the Criminal Procedure Code, 1973 wherein trial judges grant bail upon failure to file chargesheet by the police within the statutorily stipulated time period after taking an accused in custody.”

Sub-section (a)(i) of Section 167(2) of the CrPC provides that 90 days would be the maximum permissible custody where the investigation relates to “an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years”. Subsection (a)(ii) of Section 167(2) of the Code provides that the maximum period of custody would be sixty days for any other offences not being punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.

According to Thakur, she was arrested on October 10, 2008, and the chargesheet was filed on January 20, 2009, after the expiry of the 90-day period.

On September 23, 2011, Thakur filed a plea with the Supreme Court against the Bombay High Court order rejecting her default bail application. However, the top court also dismissed her plea and observed, “The plea that Article 22(2) of the Constitution was violated is based on the averment by the appellant that she was arrested on October 10, 2008. Factually this plea has not been found to be correct. The appellant was in fact arrested only on October 23, 2008.”

The chargesheet filed by the ATS on January 20, 2009 also reflects her date of arrested as October 23, 2008.

The SC held the High Court’s judgement that she was not detained or taken into custody on October 10, 2008 “but was only questioned and was thereafter allowed to go. It was also noticed that she had stayed in different lodges and was in hospitals and was free to move around and contact everybody. According to the High Court, the appellant was in touch with her disciple and was using her mobile phone which was not disputed.”

According to the Supreme Court’s judgement, the ATS filed the first chargesheet on the 89th day from the date of her arrest.

The ATS filed a supplementary chargesheet on April 21, 2011 before the special Maharashtra Control of Organised Crime Act (MCOCA) court in Mumbai, where Thakur was named among 14 accused. According to the chargesheets, an ATS team led by Hemant Kare traced the motorcycle that set off the explosives to Thakur.

The case was taken over by the National Investigation Agency (NIA) on April 13, 2011. On March 13, 2016, the NIA filed a supplementary chargesheet that dropped all charges under MCOCA against all accused. Furthermore, Pragya Thakur was named among the persons against whom prosecution was “not maintainable”.

“The central issue is whether the chargesheet had been filed and the trial commenced, or whether the undertrial accused was rotting in jail without the trial commenced. The ATS had already filed a chargesheet against Pragya Thakur and the trial had begun. Later the case was handed over to the NIA, which departed from the case of the ATS and filed a supplementary chargesheet exonerating Pragya Thakur. The supplementary chargesheet was filed to undermine the case of the ATS. However, Pragya Thakur was not languishing in jail without trial, as in the Bhima Koregaon case, where three years have passed and the trial had not yet started,” said lawyer and women’s rights activist Vrinda Grover to Alt News.

On October 15, 2016, the Bombay High Court questioned Thakur’s imprisonment after NIA had dropped the charges. She was granted bail on April 25, 2017, under medical grounds.

On December 27, 2017, the NIA special court made observations on the chargesheet and held that there was enough evidence to book Thakur. The court rejected her plea for discharge from the Malegaon blast case and held that the accused will face trial now under Sections 16 and 18 of the Unlawful Activities Prevention Act (conspiring for and committing/organising a terror act) and under the Indian Penal Code for criminal conspiracy, murder, attempt to murder and causing hurt besides charges under the Explosive Substances Act and Arms Act. However, the MCOCA charges remained dropped as proposed by the NIA.

The NIA filed a fresh chargesheet on November 2, 2018, after the special court’s order. Thakur and six others were charged under various sections of the UAPA, IPC and ESA.

Pragya Thakur has, therefore, been chargesheeted multiple times in the Malegaon blast case. The claim that she was incarcerated for 8-10 years without any chargesheet filed is false. Alt News reached out to Abhijit Iyer Mitra for comment on his tweet that promoted the false claim. Mitra refused to speak to us. It may be reiterated the Supreme Court held in 2011 that she wasn’t illegally imprisoned by Maharashtra ATS as the (first) chargesheet was filed within 90 days of her arrest.

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About the Author

Pooja Chaudhuri is a senior editor at Alt News.