[Malegaon Blast]This Is The Concept Of An Open Court, If You Want To Rely On Documents You Must Give A Copy To The Other Side – Bombay High Court To Purohit

A division bench of Justices SS Shinde and Manish Pitale said in unequivocal terms that if a petitioner intended to rely on a document, it was imperative the that the respondent was given a copy for consideration.

"This is the concept of an open court. If you want us to consider the document in our judgment, a copy must be given to the other side," Justice Shinde said.

The court was hearing a petition filed by Purohit challenging the special National Investigation Agency court's decision to take cognisance of the charge sheet filed against him in the absence of a sanction u/s 197(2) of the CrPC from the central government to prosecute him.

Section 197 (2) of the CrPC –

No Court shall take cognisance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

Purohit has claimed that the alleged conspiracy meetings he attended on January 25 and 26, 2008, were the concept of Abhinav Bharat, a Hindu Rashtra was floated, was 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.

The prosecution has further accused Purohit of asking co-accused to delete his number from their mobile phones after the blast on September 29, 2008 in which six people were killed and 100 injured.

On Wednesday, advocate Shrikant Shivade, appearing on behalf of Purohit, submitted that all he needed to demonstrate was a reasonable connection between the allegation and his official duty, making a sanction to prosecute absolutely necessary.

Shivade then wanted to refer to a letter, produced in a sealed envelope, supposedly written by Purohit on September 13, 2005 to his superior which "elaborately explains the concept of Abhinav Bharat."

He submitted that Purohit had recently procured a certified copy of the original letter and the superior to whom the letter was addressed, was present in the court.

But the bench refused to accept or rely on the documents till a copy was not served to the other side. "Mr Shivade we will not say this every day. If we have to refer to any document in our judgment, you have to serve the other side," Justice Shinde said.

Shivade tried convincing the court that the letter had "sensitive information" about ongoing transactions. "Then don't rely on it," the court observed.

"At the cost of repetition, whatever these documents are, if you want us to consider it, give them a copy."

Shivade then told the court that there is an order of the trial court to keep the documents submitted by the armed forces, confidential. His main concern being the media should not get a copy of it.

"Principles of natural justice have some exceptions," Shivade said.

"The principles of natural justice apply to both sides. Principles of natural justice apply to both parties. Ask your client if he wants to rely on the document in breach of the trial court's order or seek a modification," Justice Shinde responded.

Counsel for NIA, Sandesh Patil, said the trial is moving smoothly and 163 witnesses had been examined. "This is a very unusual trial where the accused are fighting among themselves," he submitted.

Purohit's co-accused, Sameer Kulkarni, then sought to bring certain documents on the record to show that Purohit was repeatedly making the same arguments. The court said he would be heard on the next date. The case was then adjourned to March 17.

Purohit 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 on him, relevant sections under The Arms Act, The Indian Explosive Substance Act, and Unlawful Activities Prevention Act.