The Bombay High Court said on Tuesday that the special National Investigation Agency (NIA) court “is bound to consider” the Supreme Court’s order relating to lt Col Prasad Shrikant Purohit’s objection to the applicability of Unlawful Activities (Prevention) Act (UAPA) against him, before framing the charges against him in the 2008 Malegaon blasts case.
While refusing to stay the framing of charges against Purohit in the 2008 Malegaon blasts case, a HC bench of Justices Mridula Bhatkar and Sandeep Shinde ordered that before framing of charges against him in the case, the special NIA court consider and decide on Purohit’s objection to the sanction granted by the Maharashtra government for his prosecution under section 45 (2) of UAPA.
“Since the Supreme Court has directed to expedite the trial before the Special Court, it may not be appropriate to stay the trial. However, before framing the charge, the Special Court is bound to consider the order passed by the Supreme Court on 20/04/2018 and to consider and decide the objection to sanction under Section 45 (2) of the Unlawful Activities (Prevention) Act, 1967 taken by the defence after affording a reasonable opportunity of hearing to the parties and then proceed further,” the HC bench ruled.
The high court was hearing an application filed by Purohit seeking quashing of the order passed by Judge Vinod Padalkar of the special NIA Court rejecting his application for framing of charges against him in the 2008 Malegaon blasts case.
During the course of the hearing, Purohit’s lawyer Shrikant Shivade drew the attention of the HC bench to the order passed recently by the Supreme Court in a special petition filed by his client against the Maharashtra government which asked the high court and trial court to consider its order on Purohit’s bail application.
The apex court’s order had read thus: “Mr. Harish Salve, learned senior counsel appearing on behalf of the petitioner submitted that the observations made by this Court in the order deciding the bail application shall not be totally brushed aside but shall be considered during framing of charges and the trial and the High Court shall decide the same on its own merits without being influenced by observations in respect of sanctions in para 19 of the order dated 21.8.2017. We order accordingly”.
After considering the apex court’s order, the HC bench gave some relief to Purohit and asked the trial court to consider decide on the applicability of UAPA in his case, before framing the charges against him.
The special NIA is slated to frame the charges against Purohit and other accused in the 2008 Malegaon blasts case on Wednesday.
“Before the trial court frames the charges against my client, we will put up our case against the sanction granted for his prosecution by the Maharashtra government in January 2009,” lawyer Shivade told “The Pioneer” on Tuesday evening.
Purohit’s contention is that the sanction granted by the government to prosecute him in the case, “was wrong in law”. He had also questioned the manner in which a prior sanction was granted for his prosecution, a pre-requisite for his trial in view of the fact that he was a serving Army officer at that time.
On January 17, 2009, this sanction was issued by the Additional Chief Secretary of the Maharashtra Home Department.
Purohit’s lawyer Shivade has in the past contended that under the Unlawful Activities (Prevention) Act (UAPA), the state law and judiciary department, which is the sanctioning authority, had to constitute an appropriate authority and seek its report first.
Shivade’s argument is that the sanction for Purohit was granted in January 2009 but the authority was appointed only in October 2010 and hence, the sanction in Purohit’s case thus, was not valid under the provisions of the UAPA and hence, the courts couldn’t have taken cognisance of the charges against him.
On his part, NIA’s counsel Sandesh Patil, while opposing Purohit’s bail plea, had argued that the authority to grant sanction for prosecution against Purohit was always with the state government. However, the extent of authority was defined in an amendment to the UAPA in 2008.
Patil had also gone on to say that though an independent authority had not sanctioned Purohit’s arrest, it was a procedural issue. He said that there was a prima facie case against Purohit and the trial court had relied on this fact while rejecting his bail plea earlier.
On December 27, 2017, a Special NIA court had dropped charges under the stringent Maharashtra Control of Organised Crime Act (MCOCA) against Sadhvi Pragya Singh Thakur, lt Col Prasad Purohit and five other key accused in the much-discussed case.
However, Additional Sessions Judge SD Tekale had rejected the applications of key accused Sadhvi Pragya, Purohit, Sameer Kulkarni, Ramesh Upadhyay and Sudhakar Dwivedi for discharge from the case.
The seven accused against whom MOCCA charges were dropped, but continue to face charges under Unlawful Activities Prevention Act (UAPA) are: Sadhvi Pragya, Purohit, Dwivedi, Major (Retd) Ramesh Upadhyay, Sameer Kulkarni, Sudhakar Chaturvedi and Ajay Rahirkar.
Two other accused Rakesh Dhawde and Jagdish Mhatre will be tried under only under the Arms Act. The Judge, however, discharged three accused Pravin Takalki, Shyamlal Sahu and Shivnarayan Kalsangra from the 2008 Malegaon blasts case.
Sadhvi Pragya and Purohit were among the 11 persons charge-sheeted by the ATS on January 20, 2009, in connection with 2008 Malegaon blasts.
It may be recalled that an improvised explosive kept under the seat of a lMl Freedom motor-bicycle had exploded between Bhikku Chowk and Anjuman Chowk, near Noorani Masjid, at Malegaon in north Maharashtra, on the night of September 29, 2008, leaving six persons dead and injuring 101 others.