Why Sharad Kumar

A Haryana-cadre IPS officer, Sharad Kumar was DG (prisons) in the state before taking charge as NIA chief in July 2013. He has also been on deputation with the CBI. During his tenure in the NIA, the agency has probed Hindutva terror, and cases allegedly related to the Indian Mujahideen and Islamic State. Following allegations by special public prosecutor Rohini Salian last year, questions have been raised against the agency. Kumar’s team is expected to travel to Pakistan soon to probe the Pathankot air base attacks.

DEEPTIMAN TIWARY: The National Investigation Agency (NIA) is often compared to the Federal Bureau of Investigation (FBI) in the US. But since 2009, when it was formed, the NIA has remained a very small organisation.

We have sent a proposal to the government and two new branches are in the process of being sanctioned. The government has also in principle agreed to increase the strength of the Guwahati and Kochi branches. FBI is a very old agency. It has only been seven-and-a-half years for us.

DEEPTIMAN TIWARY: The NIA is facing a crisis of credibility. Rohini Salian, the special public prosecutor in the 2008 Malegaon blast case, said there was pressure from the NIA to go ‘soft’ in the case.

Rohini Salian was empanelled as a special public prosecutor in 2010. Special public prosecutors are appointed for a period of three years, and there is a two-year extension. In 2015, her tenure was about to end, so a meeting was held in January, where I was present. There, it was decided to review her performance and appoint a new prosecutor. We reviewed the performance of other prosecutors as well who were about to complete their five-year tenure.
During the review, we got information from the Mumbai office that her (Rohini Salian’s) performance was not up to the mark. So we wrote to the Home Ministry… not just about her (Salian), there was a person from Gujarat and one from Goa as well. We recommended the three cases for denotification.

Around June last year, she got to know that she was going to be denotified. I think that is when she gave an interview to your paper (June 25, 2015 ). She alleged that in June 2014, she was told by an NIA officer to go slow on the Hindutva terror cases. But why did she wait for a year? She could have spoken up in June 2014 itself. The moment she got to know that she was going to be denotified, she made this baseless allegation.

The other issue is that, between June 2014 and June 2015, there was no important case pending in the trial court or the Bombay High Court. There was no occasion to approach her or to ask her to go soft in any case when there was nothing going on in the trial court.

DEEPTIMAN TIWARY: But why are so many witnesses turning hostile in your cases? Ashwini Sharma, public prosecutor in the Ajmer blast case, said that the NIA is not protecting witnesses, the way the CBI does.

I am not aware of that statement made by this prosecutor. Regarding witnesses turning hostile, that is a matter of concern for us. (But) witnesses turn hostile in every case. My job is to summon the witness, the court issues the summons and I serve them. If you expect me to tutor these witnesses or force them into saying something, then that is not my duty. These matters are between the witness, the prosecutor and the court. We don’t come in between them.

DEEPTIMAN TIWARY: So where do you see your cases going, with so many key witnesses turning hostile?

Just because a witness has said something it doesn’t mean that the case has been killed. Even if a witness has turned hostile, there is a statement extracted from him, there is a lot of evidence in front of the court.

SAGNIK CHOWDHURY: You mentioned how the Mumbai office said Rohini Salian’s work was unsatisfactory. Can you elaborate?

Rohini Salian says during her tenure her performance was the best, that no accused got any benefit. Now it is on record that between 2011 and 2013, when she was the public prosecutor and before she levelled the allegations (against the NIA), there were four people who got bail in the Malegaon blast case. In fact, after the allegations, no person has got bail.

MUZAMIL JALEEL: In the 2007 Samjhauta Express blast case, initially agencies blamed LeT and Jaish-e-Mohammed. There were talks about Arif Qasmani, the alleged LeT chief co-ordinator, funding the attacks. But when the NIA took over the probe, a different set of accused came up, and the attacks were called an act of Hindutva terror. Now when the NDA government is back in power, Arif Qasmani’s name is cropping up again.

No, this is incorrect. We are not investigating the case any further. After any investigation, you file a chargesheet, in the chargesheet you write ‘further investigation is on’. But we are not carrying out any investigation in the Samjhauta case, rather the trial is going on very smoothly.

I had gone to the US with regard to 18 pending references under the Mutual Legal Assistance Treaty (MLAT) and other agreements which were pending with them. Arif Qasmani’s issue was one of them. It was a routine exercise.
Initially, when we asked them (US) to give a reply, they did not give a reply for two to three years. Now we have pressed upon them to reply as defence will try to influence the mind of the judge that this was the handiwork of LeT people. We are hoping now they will reply in another couple of months as we have sent the query through the MLAT. I don’t think the Arif Qasmani angle has any strength. (In 2009, the US had shared intelligence that mentioned Qasmani as having funded the attack.)

MUZAMIL JALEEL: During their interrogation by the NIA, Lokesh Sharma and Rajender Pehalwan, both suspects in the Samjhauta blasts case, purportedly said they were the ones who shot at S A R Geelani and hurled a bomb at a mosque in Jammu. The NIA simply passed on the information to the respective state police forces. Why did it not take up the cases?

Suo motu we cannot take up cases. There are two provisions for taking up a case. One, the state government recommends it. Two, under Section 6 of the NIA Act, the Central government asks us to take over the case, even if the state government has not asked for it. It happened in the Burdwan blasts case (October 2014).

MUZAMIL JALEEL: The NIA is investigating all the Islamic State-linked cases in India. Is the IS a big a threat to India?

We have been investigating the Areeb Majeed case (of the alleged IS fighter from Kalyan, Maharashtra), and five others have come up in 2016. From our investigations, we feel the IS is a concern, but not a threat as such. A very small section of people are self-motivated or motivate others in India (to join the IS). The general community is indifferent to them.

MANEESH CHHIBBER: The NIA draws most of its powers from the Unlawful Activities (Prevention) Act (UAPA). Do you think the Act needs changes?

We have already asked the government for some changes to the Act, like in the appointment of judges. In the high court, you do not need notification for appointment of judges. We want a similar arrangement.

SAGNIK CHOWDHURY: Do you think the visit by the Joint Investigation Team (JIT) from Pakistan added value to the Pathankot attack probe?

It is a good beginning because at least we have started talking. Up until now, it has never happened that they have come or we have gone to Pakistan. We gave them all that they wanted. We let them examine witnesses, we gave them the statements of witnesses. Except for access to the security forces, we allowed them access to everything, even the Air Force base. We gave them presentations and documents. Now it is up to them. We gave them hard evidence of the involvement of Pakistan and the Jaish-e-Mohammed handlers. We gave them the addresses and other details of the suspected terrorists. What more can we give them? They can legally use this material as per their CrPC.

RITU SARIN: The NIA also tracks Fake Indian Currency Note (FICN) cases. Have you noticed any trends?

We are the nodal agency for FICN (probes). We had formed an expert committee in collaboration with the Indian Statistical Institute, Mumbai. They have prepared a report where they estimated that R800 crore of FICN money was circulating in the market. These are just preliminary findings. They are still to submit the report. All this money is coming through Nepal and Dubai. I can also tell you that there is one case in the Kochi branch where the court has specifically named Pakistan as a player. This is the first time the courts have said so.

DEEPTIMAN TIWARY: You have also investigated several cases relating to the Indian Mujahideen. In two cases —the Mumbai 7/11 train blasts and the 2010 Pune German Bakery attack —two sets of accused were arrested by the Maharashtra Police, and one set in each case has been convicted and received sentences. When you arrested the IM men, they told you, and this is part of your interrogation reports, that they were the ones who carried out the attacks.

Well, what do you expect me to do? The court has already given its judgment. The matter is closed, whether you believe it or not. What can be done after that….

DEEPTIMAN TIWARY: But according to your investigation, the people who have been convicted and sentenced, they appear to be innocent.

We believe in the (judgment of the) court now.

ASHUTOSH BHARDWAJ: It has been almost three years since the blast in Darbha valley (Chhattisgarh). In the first one-and-a-half years, the NIA was extremely active, and about a hundred people were chargesheeted. What is the status of the case?

Many of the accused in the case, about 14-15 of them, have been killed. We have got their death certificates and moved court too. There is a chargesheet against 30-32 people, if I remember correctly. But in the last six months, investigation has not been proceeding as it should have. I held a meeting in Lucknow recently (regarding the case). It is very difficult to get evidence in the region.

SAGNIK CHOWDHURY: You had sought an opinion from the Law Ministry on whether the Maharashtra Control of Organised Crime Act (MCOCA) should be dropped in the 2008 Malegaon case. What is the status of that and when can we expect the NIA to file a chargesheet?

The investigation is over and chargesheet should be filed in the next 15 days or so.

SAGNIK CHOWDHURY: What is the Law Ministry’s opinion on dropping MCOCA?

The Law Ministry has said that the NIA should do whatever it thinks (is right). We are very clear—if there is evidence linked to MCOCA, we will apply it and if there is no such evidence, we won’t.

SAGNIK CHOWDHURY: There were some reports about the NIA planning to drop Sadhvi Pragya’s name as an accused in the Malegaon blast case.

I have also read the news reports, but no such file has reached me. The investigation is over. I’m told that the file is at the IG stage. It will take another 10-15 days to get to my office.

SUSHANT SINGH: When will the NIA visit Pakistan for the Pathankot attacks probe? Has Pakistan agreed to the visit?

It has just been a month since their visit, we are giving them sufficient time (the Pakistan JIT visited India in March 2016). The NIA visit should happen in a month or two. We would like to interrogate the Jaish-e-Mohammed chief (Maulana Masood Azhar), his brother Abdul Rauf, the handlers Shahid Latif and Kashif Jaan. These are the main
functionaries.

SUSHANT SINGH: When the Pakistani JIT came, there were concerns over the presence of an ISI member in the team. What was the role of this officer?

He (Lt Col Tanvir Ahmed) was just a part of the team. He didn’t say anything. The team was coming from Pakistan, I had no control over it. It (the visit) had been approved at the government level. What can I do? Tomorrow when I go, and my team has three R&AW officers, what can be done?

MUZAMIL JALEEL: Before the NDA government took charge, the former home secretary talked about some of the accused in blast cases having links with the RSS. Have you found any such direct or indirect link?

We did not find any links of the RSS as an organisation with terror attacks. There were some accused who were members of the RSS, but they had been expelled from the organisation.

MANEESH CHHIBBER: Have you faced any pressure from the government?

I will be very honest with you. I have not faced any pressure. Neither from this government nor from the previous government. I am working absolutely independently. No one calls me, no one tells me: Do this, do that. Same was true for the previous government also. We don’t brief anybody, we just do our work.

MANEESH CHHIBBER: A lot of people accuse the previous UPA government, especially former home minister P Chidambaram, of coming up with the word ‘Hindu terror’. Do you think Hindu terror exists in India?

I don’t see it anywhere. People are free to coin a phrase. There is nothing of this sort. Cases of terror are ‘pure terror’ cases. That’s all. You can’t say Muslim terror or Hindu terror. Terror is terror.

DEEPTIMAN TIWARY: The trial in the Hindutva terror cases has been delayed. The accused have gone to the Supreme Court, filed a multitude of petitions, and you haven’t got a chance to interrogate them.

In the past one-and-a-half years, trial has progressed very well. In the Samjhauta Express blast case, out of 299 witnesses, 214 have been examined. In the Ajmer Dargah blast case, the prosecution has already closed the evidence.

DEEPTIMAN TIWARY: But what about the 2008 Malegaon blasts case?

The 2008 case is an exception. You see, if the Supreme Court is not going to decide a petition for three years, what can we do? Between 2012 and 2015, they clubbed all the petitions and for three years, they didn’t decide on it. Now that the decision has finally been taken (last year), we are going to file a chargesheet.

ASHUTOSH BHARDWAJ: Can you share some details of your interaction with the Pakistan JIT during their visit in March?

They were very good, very courteous. I was doing my professional work, they were doing theirs. We were not there to make friends. If we go there, we expect the same treatment we gave to them. There was full cooperation from our side, because we have nothing to hide. I think they were not expecting it (the cooperation). We gave them all the statements, access to all the witnesses. They were not expecting access to the Air Force base.

DEEPTIMAN TIWARY: Initially when reports of some Indians joining the IS emerged, the security establishment had a soft approach — counselling, de-radicalising. And then suddenly there were arrests. Has there been a shift in policy?

There has been no shift in policy, we are watching them (youths joining the IS). We were watching them for almost 10 months. They were under surveillance. We arrested them because they had some big plans. We recovered a lot of explosives and bomb-making material (from them). It was the right time for the arrest. We arrested 17-18 of them.

Transcribed by ENS Delhi