Thread by @barandbench

#BombayHighCourt is hearing the pleas filed by #ElgarParishadcase accused Rona Wilson and Shoma Sen seeking quashing of the chargesheet against them, alleging fraudulent evidence gathered by #NIA.

Hearing before Bench of Justices SS Shinde and NJ Jamadar.

@NIA_India

Sr Adv Indira Jaising appears for Wilson, Sr Adv Anand Grover appears for Sen.

ASG Anil Singh appears for NIA. Chief PP Aruna Pai appears for Maharashtra government.

Hearing begins.

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ASG submits that he is objecting to the petition on the maintainability of the petition.

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Jaising continues with her submissions.
She was reading list of dates in the facts of the matter.

Jaising submits that when the Pune police came for the raid, the hash value on Wilson’s device was not correctly recorded.

Jaising: They opened my laptop and shut it. They were supposed to seize the laptop as it is. So by opening and shutting it, they opened the scope of planting evidence.

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Jaising: Even if they would have just run an anti-virus application it would have brought the malware out.

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Jaising: I will make the follow submissions:
1. Is there a preliminary bar to hearing of the petition?
I will deal with the scope of 482 and 226.

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2. That sanction is the foundation of taking cognizance and without a valid sanction they could not proceed with the case.

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3. What is legal method of search and seizure of electronic evidence?

4. Am I entitled to rely on Arsenal Report in proceedings under 226?

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Jaising: To order an investigation I will point out that it is an offence under IT Act to tamper with evidence.
Did my computer have malware at the time it was seized and if it did then who was responsible? This will be my submissions.

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Jaising concludes her opening remarks.

ASG Anil Singh begins his submissions on the maintainability of the petition.

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Singh: Before arguing on the maintainability.. I want to point out, they carried out the forensic analysis based on report of some American Bar Association, of whom I have no idea.. Who they are, who are the members..

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Singh: And they gave the forensic examination to some private lab in America, which they want to rely here in this case.

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Singh: the first contention is that the device which was shut down and it was opened and then it was operated for 10 mins.

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Singh: The second contention is that the material which was found in the device was found 22 months prior..

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Singh: I will make submissions on all these points.

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Singh: I am trying to read these paragraphs of the petition to show the manner in which this petition is framed..

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Singh: The petitioner wants the Court to consider a report from Arsenal which states that something incriminating was planted in the device.

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Singh reads out paragraphs from the petition.
Then proceeds to read the prayers.

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Singh: Why I am saying this, for the reason, the frame of the petition, much water has flown in the Bhima Koregaon case, number of bail applications, other proceedings have been filed.

Singh: There is no prima facie case. Now it is for framing of charge. Now they are saying stay the trial. Why?

Singh: If you are right and something is planted in your device and if what I have said, submitted is not credible then it can be settled at the stage of trial.. and without the report..

Singh: Can you rely on some report..?

Singh: To say that we have got some other or independent report and therefore your report is not reliable is not right..

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Court: How much time will you take?

Singh: I will take 40 mins.

Sr Adv Grover: I will 2 hours. But I will make good my case, the evidence, on traditional grounds..

Singh: This is on merits..

Grover: This is on quashing.. traditional grounds.

Jaising: My learned friend has been unfair to my petition. That my petition is relying on Arsenal.. I have other documents, from prosecution.

Jaising: The classical question is whether the evidence is even legal evidence.. because according to us it is not.

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Jaising: May I just my learned friend to point out that any judgment where there is discussion on this point on what evidence is legal evidence…

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Court: Okay we will tell you date in an hour..
we have fixed matters to check..

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