26/11 terror attack: Proclamation to be served on Hafiz Saeed, others via Interpol, say police

Mumbai police have sought to prosecute Saeed and five others under section 356 of the BNSS, which provides for trial in absentia of proclaimed offenders

The Mumbai Police have approached the Ministry of Home Affairs (MHA) to serve the proclamation order via Interpol against six absconding accused in the 26/11 terror attack case, including Lashkar-e-Taiba (LeT) founders Hafiz Saeed and Zaki-ur-Rehman Lakhvi, setting the stage for their trial in absentia.

The six wanted accused are LeT co-founders Hafiz Saeed and Lakhvi, LeT operations commander Sajid Mir, Abu Alqama, Asim alias Abu Qahafa and Major Abdur Rehman Pasha.

Special public prosecutor Ujjwal Nikam, representing the police, submitted on Friday an interim report detailing the steps taken to serve the proclamation order, issued in July this year, on the six alleged main conspirators.

“We have written to the MHA for taking necessary steps in serving the proclamation order, through Interpol, against the accused residing in Pakistan,” Nikam told the court.

The MHA had acknowledged receipt of the proclamation order on August 3, and sought time for submitting a further status report, Nikam said.

The six wanted accused are LeT co-founders Saeed and Lakhvi, LeT operations commander Sajid Mir, Abu Alqama, Asim alias Abu Qahafa and Major Abdur Rehman Pasha. Their roles have figured in the evidence of Ajmal Kasab, the lone Pakistani attacker to be captured alive, and US terror accused-turned-approver David Coleman Headley aka Dawood Gilani. All six are Pakistani nationals and remain outside the reach of the Indian justice system.

Mumbai police have sought to prosecute the six under section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which provides for trial in absentia of proclaimed offenders who have absconded to evade trial and whose arrest is not immediately possible.

Under the provision, the court is required to record reasons for proceeding against proclaimed offenders in absentia. The law provides safeguards for the accused in such trials, including appointment of a lawyer at state expense if they do not have legal representation. The prosecution can thereafter lead its evidence despite the accused remaining absent.

The proclamation and service process is particularly relevant because section 356 requires the court to be satisfied that the accused have absconded to evade trial and that there is no immediate prospect of arrest. The provision also requires the court to comply with specified safeguards before a trial in absentia can begin, including expiry of the prescribed period following proclamation and 90 days from the date of framing of charges.

The 26/11 attack claimed 166 lives, including of six Americans, and left Mumbai under siege for more than 60 hours, with attackers targeting Chhatrapati Shivaji Maharaj Terminus, Taj Mahal Palace hotel, Trident hotel and Nariman House. Kasab was convicted for the attacks and hanged at Yerwada Central Jail in Pune on November 21, 2012.

The special court has now scheduled the matter for further hearing on September 14, when the prosecution is expected to submit a status report on serving of the proclamation order on the wanted accused.