Malegaon Blast 08': Use Of Photocopied Documents Wrong In Law; Bombay HC Stays NIA Court Order

The Bombay High Court on Wednesday held that the use of un-verified, photocopied documents as evidence is bad in law and stayed an order of the Special NIA Court allowing photocopied statements of witnesses and confessions of accused as secondary evidence in the 2008 Malegaon blast case.

A division bench of Justice AS Oka and Justice AS Gadkari were hearing an appeal filed by Sameer Kulkarni, an accused in the said case. Kulkarni had challenged the order of the Special NIA Court allowing photocopies to be used as evidence.

The NIA court had decided in January 2017 to allow the use of the said photocopies after the NIA had informed the court that some files containing original witness statements and confessions of the accused under Section 164 of the CrPC were not traceable and had gone missing. The trial court had permitted the use of photocopies of 13 such witness statements and two confessions.

Justice Oka objected to the use of photocopied documents as evidence at the very outset and stated that the Special NIA Court ought not to have allowed such application to permit the use of photocopies as evidence. He also pointed out how these documents were not certified. "We have told you on two previous occasions that you should have withdrawn your application and filed a fresh application before the special court bringing to its notice your mistake. You should have clarified that you had not identified whether the said photocopies were copies of certified original records," he said.

Justice Oka further stated that the trial court's decision to allow the application for use of photocopied documents as evidence was wrong in law.

Finally, the court said-

"This court is prima facie of the opinion that the use of the said photocopies as secondary evidence should not have been allowed. We therefore stay the impugned order."

NIA's counsel Advocate Sandesh Patil opposed the appeal and will begin arguing on behalf of the agency in the next hearing on March 4.

On September 29, 2008, a bomb explosion took place at Bhiku Chowk, Malegaon, Maharashtra, killing six people and injuring over a hundred. Apart from Sameer Kulkarni, Sadhvi Pragya, Lt. Col. Prasad Purohit, Major (Retd.) Ramesh Upadhyay, Sudhakar Chaturvedi, Ajay Rahilkar and Sudhakar Chaturvedi are accused in the case and have been charged with murder, abetment and conspiracy for the blast.

The trial before the Special NIA Court continues.