She could have been sentenced to an imprisonment of maximum six months but Fatima Khan (40) has been behind the bars for 28 months.
Fatima alias Gangubai was arrested by the police in August 2004 for allegedly harbouring the members of the organised crime syndicate after they allegedly killed Powai Vishwa Hindu Parishad (VHP) President A Dubey and Secretary Harshima Prasad on March 20, 2004.
And it was not just her. Other ten members of her family including her two sons were arrested by the police under the Maharashtra Control of Organised Crime Act (MCOCA) for allegedly killing the two VHP leaders.
The Bombay High Court on Friday quashed the MCOCA against all the accused, stating that no case was made out under the stringent act against the 11 members of a family as none of the prerequisites of MCOCA were met in the case. The main suspect, Sherbahadur only has one chargesheet filed against him in last decade. Also the prosecution was not able to prove pecuniary gains for which the alleged murder was committed.
The family had challenged the order of special MCOCA court, which had rejected their application of quashing MCOCA on two occasions. The HC while directing the police to file a fresh chargesheet under the IPC has permitted the accused to file for bail.
Under the Indian Penal Code the maximum punishment under section 201 for harbouring criminals is maximum of six months. Whereas, under the MCOCA the maximum sentence for the same offence is three years.
Fatima was arrested in August. According to his lawyers Majeed Memon and Parvez Memon, Fatima was in her village at the time the murders took place. "When she was informed about Akhtar's arrest, she immediately returned to Mumbai," said Asif adding that she was later called by the Assistant Commissioner of Police Wadkar for questioning in August and was later arrested.
Public Prosecutor Pradip Hingorani insisted that Fatima had given shelter to her two sons who escaped after killing the two VHP leaders and she too was a part of the syndicate.
The defence argued that if a mother allows her sons to enter the house is not called harbouring criminals. "If she did not have the knowledge of the killings, assuming they killed, then how can she be called a member of organised crime syndicate," argued Parvez.
In case of Fatima, now as the MCOCA is quashed the maximum punishment is six months where as she has already wasted over two years in prison. "How will the state compensate her," questions Parvez.
Asif Khan (30) one of the members of the family who was not arrested, said the family was framed in the case. "My father has been guarding Powai lake for 40 years. When the killing took place he was at the lake."
For him, last two years and seven months have been nothing less than nightmare. His aunt Fatima Khan and father Sherbahadur Khan (68) have been languishing behind the bars. Akhtar Husain, Asif's brother-in-law who runs a rickshaw was the first person to be arrested in the case. Later Sherbahadur Khan, his three sons, Fatima, her two sons, Asif's three uncles were also arrested.
Police Commissioner AN Roy was not available for comment on the issue.