Bhima Koregaon Accused Approach Bombay High Court To Stay Trial Till Clone Copies of Electronic Evidence Is Provided

Accused Sudha Bharadwaj and journalist Gautam Navalakha have sought HC's indulgence after the National Investigation Agency submitted the draft charges before the Special NIA Court against the 15 accused on August 9.

Today, NIA made an oral statement before the High Court that it would not press for framing of charges before the trial court until the petitions are taken up for hearing on August 25.

Refusing applications filed by the accused to provide cloned copies u/s 207 of the CrPC, the Special court said "The prosecution contends that the NIA is in the process of filing additional evidence and therefore, the evidence which is received or would be received successively from the FSL, Kalina will be served accordingly.... in my view, at this stage, it would not be just to give such directions to the prosecution".

Bharadwaj's petition assails this order, seeks final reliefs of clone copies of all devices seized, and stay on the trial in the interim.

"Denying the appellant cloned copies of the electronic data vitiates the appellant's right to a fair trial under Article 21 of the Constitution of India, and affects the appellant's defence," the plea states.

While clone copies of some of the hard drives seized have been provided, others have not, even after over three years since the first arrests in the case.

Based on letters primarily retrieved from accused Rona Wilson and co-accused Surendra Gadling's computer, the NIA has accused them of being members of the banned CPI(Maoist) organisation and conspiring to overthrow the government. They are booked for offences under the stringent Unlawful Activities (Prevention) Act (UAPA).

Months, after investigators gave Wilson a clone copy of his hard-disk, he approached the HC buoyed by a report by Arsenal Consulting, a digital forensics consulting company in the USA, which has concluded that his computer was infected with a malware, called NetWire (available for $10 online). It was planted through an email on June 13, 2016, two years before his arrest on June 6, 2018.

The firm has released two other reports regarding documents on Gadling's laptop as well.

The petitioner states that the authenticity of the evidence cannot be tested on a mere digital copy and a clone copy would be required.