The accused in the case of Malegaon blasts of 2008, Lt. Colonel Prasad Purohit was not allowed by the Bombay High Court to furnish some confidential documents that were related to his service in the Indian Army without giving a copy to the intervenor, who is a victim of the blast.
The Division Bench comprising of Justices Manish Pitale and SS Shinde opined compulsorily that if the Petitioner wanted to rely on a document then it has to be given to the Respondents for consideration of the same.
Justice Shinde said, This is the concept of an open court. If you want us to consider the document in our judgment, a copy must be given to the other side.
In this said petition, which was being heard by the Bombay HC, Purohit, the Petitioner challenged the special National Investigation Agencys decision. The agency had decided on taking cognizance of the charge sheet which was filed against him even without the sanction from the Central Government in order to prosecute him as under Sec 197(2), CrPC.
Section 197(2), CrPC states:
No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
Pertaining to the alleged conspiracy meetings that he had attended on January 25 and 26, 2008, he claimed that they were on the concept of Abhinav Bharat, floating of a Hindu Rashtra and that he was officially capable to attend the same.
His main contention was absence of sanctions under the CrPC by NIA as well as the Anti-Terrorism Squad in order to prosecute him, and that the same is necessary.
Purohit has been accused by the Petitioners of making his co-accused delete his number from the mobile phone after the blast which had taken place on September 29, 2008. This deadly blast had taken six innocent lives and injured about a 100 people.
Advocate Shrikant Shivade appeared on behalf of Purohit on Wednesday (March 3, 2021). His submission was that all that he needed to do was to establish a link between his official duty and the allegation which made taking the sanction absolutely necessary. In order to do the same, a letter in a sealed envelope was produced by him before the court which was supposedly written by Purohit to his superior explaining the concept of Abhinav Bharat on September 13, 2005.
Advocate Shivade submitted that this was a certified copy of the letter and the superior was present in the court. However, the Bench refused to consider the same until a copy was furnished to the Respondents. Justice Shinde said, Mr. Shivade we will not say this every day. If we have to refer to any document in our judgement, you have to serve the other side.
When Mr Shivade tried persuading the court by saying that the letter contained sensitive information, the court reprimanded Himachal in sharp words by saying, then dont rely on it.
The court also said, at the cost of repetition, whatever these documents are, if you want us to consider it, give them a copy.
Shivade then referred to an order of the Trial Court which stated that the documents submitted by the armed forces must be kept confidential. He said, principles of natural justice have some exceptions.
Justice Shinde responded, principles of natural justice apply to both sides. They apply to both parties. Ask your client if he wants to rely on the document in the breach of the trial courts order or seek a modification.
Sandesh Patil, the NIA Counsel remarked, this is a very unusual trial where the accused are fighting amongst themselves. This is when already 163 witnesses have been examined and the trial was going smoothly.
Sameer Kulkarni, the co-accused of Purohit brought certain documents on record and said that Purohit was repeatedly making the same arguments. The court directed that he will be heard on the next date and the case has been adjourned till March 17.
Purohit has been accused of numerous charges including murder, causing grievous hurt by dangerous weapons, doing acts prejudicial to maintenance of harmony on him, promoting enmity between different groups on grounds of race, religion, place of birth, language, residence, etc along with relevant sections under the The Indian Explosive Substance Act, 1908, The Arms Act, 1959, and Unlawful Activities Prevention Act, 1967.
