Thread by @barandbench

#BombayHighCourt will continue hearing the plea filed by Lt. Col. Prasad Purohit challenging the cognizance taken by the Special NIA Court against him in the #MalegaonBlastCase without obtaining the requisite sanction from the government under the Code of Criminal Procedure.

Bench of Justices SS Shinde and Manish Pitale questioned Purohit in the last hearing on why he attended the alleged conspiracy meetings which discussed plans to conduct the blasts and what steps he took to prevent the blasts after he attended them.

barandbench.com/news/litigatio…

Hearing begins.

Advocate Shrikant Shivade begins his submissions on behalf of Purohit.

He tenders his written submissions. He refers to compilation of judgments.

Shivade: Please see the judgment at page 34.

Justice Shinde: Please tell us in 2 minutes what is your submission first.

Shivade: First is the question of jurisdiction of the Special Court. There are two chargesheets filed one by NIA and one by ATS.
Both chargesheets have been filed without taking sanction.

Justice Shinde: Have you filed any other petition in this regard, before any court?

Shivade: There is a writ petition pending challenging the sanction under Section 45(2) of the UAPA Act which provides for cognizance of offences with sanction of the Central Government. But that is a different case.

Advocate BA Desai appearing for one of the victims in the case tries to make a submission.

Shivade: I would request my ld. Friend to please be patient and let me complete my submissions. He always interrupts with something completely different.

Shivade: Which is also why the other matter is still pending.

Justice Shinde: And there are appeals filed?

Shivade: Those are pending.

Justice Shinde: Yes I remember it came up before Justice Gadkari.

Shivade proceeds with submitting the judgments.

Shivade: Since it touches issue of jurisdiction this has to be considered.

If after examination of the 300 more witnesses, it is found that the sanction was not given, then why should he go through the trial.

Shivade reads from the compilation.

Shivade: What I have to show prima facie from the material on my official duty is that there is a prima facie reasonable nexus.

Shivade argues that the documents produced by the accused go the root of the matter then he can prove that reasonably there is a nexus.

Shivade: Admittedly, there is no charge, I am not the culprit. The culprit are absconding. Case against me is that I abetted , general abetment and I have attended meetings.

Shivade: The person who was most vocal is the witness.

In the meeting that took place in January even remotely there was no discussion on the blast which took place in September.

Shivade points out a confidential document in the writ petition. He states he cannot read as the document is confidential.

Shivade: Some of the sources are still active.

Desai objects to him referring to the document.

Shivade however continues.

Shivade: MCOC charges have been dropped.

Justice Shinde: In the meeting, who were the parties?

Shivade: No. Of persons were. They are in the list.

Justice Shinde: Was someone from the military present?

Shivade: One of the military personnel’s statement is taken. He has been made witness.

Justice Pitale: That witness attended the meeting?

Shivade: No he heard the conversation.

Justice Pitale: That is what you read last time?

Shivade: Yes.

Shivade: IN Delhi meeting one more source was detected that was reported and another meeting in February was also reported.

My antecedents have to be considered. We are talking of the man who has bled for the country, true soldiers and in 2008 he was termed as an ‘extremist’.

Shivade: My superior’s statements have to be seen over here.

I have unconventional methods of infiltrating into organisations. And those methods have been successful.

Shivade: Prosecution case is I have formed an organisation despite being an army officer.

Shivade: Police was asking where is th evidence and where is the documents?

Intelligence do not document everything.

In February meeting...

Justice Pitale: This material is part of the court of enquiry?
When did you become aware of this material?

Shivade: I became aware after I cross-examined witnesses myself.

Justice Pitale: What took you so long, till 2009?

Shivade: Because the investigation was going on.

Justice Shinde: What is the stage before which sanction is to be taken?

Shivade: Before the Court takes cognizance.

Justice Pitale asks if this this objection of sanction can be raised at any stage?

Shivade: We had raised this objection right at the beginning when we filed the chargesheet.
But the Ld. Court then said that this objection would be considered at the stage of framing of charges.
This happened only in 2018 because till then the case was being investigated.

Shivade reads out questions from the witness examination questions that there were reasonable grounds to show that Purohit’s act and the meeting had a nexus.

Justice Shinde: Unless and until there are specific orders, the armed forces does not get involved in the internal matters of the country. They say we are to fight at the border, not with the citizens.

Justice Pitale: If you recollect the Air Force Chief had refused to use the planes against the Maoists. Because he said once they get involved then there will be collateral damage.

Shivade: That is the impression.

Justice Pitale: It may be something like IB work.

Shivade: There are organisations like the SIMI which work with ISI and hence military intelligence has to intervene.

Justice Shinde: Why has the military taken action against him then? Which superior took action against you?

Shivade: I was handed over to ATS by my superior who forged a warrant. He made changes in the warrant at the airport and without authority.

Shivade: I have filed cases against my superior. I was taken to some house in Khandala.

Justice Shinde: In the absence of your superior, could NIA or ATS have intervened?

Shivade says that they can intervene.

Shivade points out a letter written by Purohit to his sharederior allegedly before the meeting.

Shivade: The letter was written on 13 September 2005. I cannot share it with the defence because it is confidential.

Justice Shinde: You have to first assist us on the law on confidentiality.

Justice Shinde wanted to know what was the source of the document which was submitted to him and why should the court consider it and the otherside cannot?

Justice Shinde: Police officers give letters to us in sealed cover. We read it and return it back to them. They ask us to keep it confidential. But we consider it because it comes from official sources.

Justice Shinde: When we write the judgment we have to include all points. What to see, what not to see.

Shivade: I will give a copy to the other side if you direct.

Justice Shinde: Why should we direct? Your client has handed over this letter to you on the condition that it will not be shared.

And if you bring it from the official source, then we can consider it.

Shivade: Then milords may direct the NIA to produce or issue notice to the requisite authority.

Court: Why should we issue notice. What and whom do you want directions for is the petitioner’s issue.

Justice Shinde: And Shivade you have already crossed your one hour limit.

Justice Shinde: See the problem is we will listen to you, but then you need to tell us assist on this aspect. Maybe you can get it from authentic source…

This matter will come up for hearing sometime in the next month now.

Hearing ends.