Thirteen years after Lt. Colonel Prasad Purohit was arrested in the 2008 Malegaon blast case, involving right-wing extremists, the officer relied on fresh documents allegedly from the Army before the Bombay High Court to substantiate a decade old claim that his acts were in discharge of his official duty.
Purohit's claim is that he attended conspiracy meetings before the 2008 Malegaon blast while "discharging his duties" as an army intelligence officer and therefore sanction under Section 197 CrPC is needed to prosecute him.
A division bench of Justices SS Shinde and Manish Pitale was hearing Purohit's challenging the trial court's decision to take cognisance of the charge sheet filed against him in the absence of a sanction from the central government u/s 197(2) of the CrPC.
Accused BJP MP Pragya Singh Thakur, Sameer Kulkarni and Purohit's appeal against the rejection of their discharge applications by the Special NIA Court was also listed for hearing.The Prosecution's Case
The Faridabad meeting from January 2008 assumes importance as it culminated in the Malegaon blast on September 29, 2008, in which 6 people lost their lives and 101 were injured, according to the investigating agency.
It was during the Faridabad meeting that participants spoke about establishment of a "Hindu Rashtra" – where there is no place for Muslims or Christian, it is alleged. Purohit claimed he had tapped his sources in Israel for implementation of the ideology, in the meeting.
On Wednesday, Shivade read out relevant sections from the letters and submitted, "The letters clearly show he was acting in discharge of his duty. Sanction is a filter to this frivolous prosecution," he said.
During the hearing, the first document Purohit's counsel Shrikant Shivade relied on is a response-letter by the Directorate General of Military Intelligence in 2018 to Purohit. In the letter, based on two military reports from 2008 the DG opines that Purohit had received some intelligence input through a "source network" and "Purohit's superiors at appropriate level were informed of the inputs" given by the source.
Shivade submitted that it was necessary for the trial judge to have decided the issue of sanction and not leave it to be decided at the time of trial.
According to Purohit's plea he attended the Faridabad meeting from January 25 and 26, 2008, in his official capacity. He contended that a sanction was necessary, but neither the Anti-Terrorism Squad that arrested him nor the NIA applied for sanction under the CrPC to prosecute him.
Shivade said "The defence ministry's replies which I have submitted were not available before. I have filed them now," he said about the fresh documents from the DG Military Intelligence.
However, the bench was of the opinion that the NIA Court should be given a chance to deal with these documents.
"You admittedly say these documents were not before the special court. How can you criticise the special court then?" Justice Shinde asked.
The bench asked Shivade to place short submissions on this aspect and said the case could either be kept for hearing on Tuesday or Wednesday.
Shivade agreed to give the submissions and also amend the appeal against discharge, before the HC. He requested for directions for the fresh documents to be considered expeditiously by the trial court as and when they are submitted.
The September 29, 2008, blast was caused by an explosive device fitted to an LML Freedom Motor Cycle. Investigations in the case pointed to alleged Hindu extremists based in Indore. Twelve people were arrested, including Pragya Singh Thakur and Lt Col Purohit.
Purohit along with five others has been charged with murder, voluntarily causing grievous hurt by dangerous weapons, promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony, relevant sections under The Arms Act, The Indian Explosive Substance Act, and Unlawful Activities Prevention Act.