'Causing Bomb Blast Not An Official Duty': Bombay High Court Dismisses Lt Col Prasad Purohit's Plea For Discharge In Malegaon Blast Case

A division bench of Justices AS Gadkari and Prakash Naik pronounced the order. "Even otherwise indulging into an activity of a bomb explosion causing the death of six persons is not an act done by the Appellant in his official duty," said the court and rejected his claim that a sanction was required to prosecute him.  

After recording Purohit's contention that he was merely performing his official duty and gathering information regarding ‘Abhinav Bharat,’ the court said "then the question remains to be answered that why he did not avert the bomb blast in the civilian locality of Malegaon which caused loss of life of six innocent persons and severe to grievous injuries to about 100 persons."

'Causing Bomb Blast Not An Official Duty': Bombay High Court Dismisses Lt Col Prasad Purohit's Plea For Discharge In Malegaon Blast Case
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The primary ground in Purohit’s appeal was a lack of sanction under section 197(2) of the CrPC from the Indian Army to prosecute since he was merely discharging his official duty. However, the National Investigation Agency contended that no sanction was required as his acts were not in the discharge of his duty. 

Purohit was arrested in 2008 and charged under provisions of the Unlawful Activities (Prevention) Act and various other offences. BJP MP Pragya Singh Thakur and five others are also accused in the case.

The Supreme Court granted Purohit bail in 2017, nine years after his arrest.

It is the NIA’s case that the LML Freedom Motorcycle that caused the blast in Ramzan, the holy month of Islamic calendar, was registered in Thakur’s name. Purohit floated Abhinav Bharat organisation in 2007 with the objective to turn India into a Hindu Rashtra despite being an Army officer, according to the prosecution.

“They wanted to form a Government in exile. They were dissatisfied with the Constitution of India and had wanted to prepare their own constitution,” the prosecution said in the charge sheet. The agency has further alleged that a discussion about a bomb blast had taken place in one of the meetings and Purohit was responsible for procuring RDX from Kashmir.

In the detailed order, the HC observed that the special court hadn't committed an error while taking cognizance of the offence alleged against Purohit without a sanction under section 197 (2) of the CrPC and rejecting the discharge application on that ground.

"After minutely perusing entire record we are of the considered opinion that, the offence/s alleged against the Appellant under Section 120-B r/w 302 and other related sections of the Indian Penal Code and under the provisions of UAP Act, of commission of murder of six persons and causing serious to grievous injuries to about 100 persons is nothing to do with his official duty. It has nothing to do or related in any manner with the discharge of the official duty of the Appellant," said the court.

It added: "The said act is not in colour of his office, but totally unconnected with his official duty. According to us, there is no reasonable connection between the offence alleged against the Appellant and his official duty.... Therefore no question at all of according sanction under Section 197 of Cr.P.C. to prosecute Appellant arises. The trial Court therefore has not committed any error while taking cognizance of the offence alleged against the Appellant and rejecting his Application for discharge on that ground".

Arguments

During his petition hearing, the court questioned why Purohit's plea should be heard when the trial has reached an advanced stage. 295 witnesses have been examined of which 30 were declared hostile. “Can you set the clock back?,” the bench had asked. After this co-accused Thakur and Sameer Kulkarni, who had also sought discharge, had withdrawn their petitions.

Purohit also withdrew other petitions, but pursued the discharge appeal.

Advocates Neela Gokhale and Viral Babar, appearing for Purohit, submitted he didn’t have to go through an entire trial when taking of cognisance of the charge sheet by trial court itself was defective. She argued that he was an army officer and was performing his duty as a part of military intelligence.

She cited certain documents produced from the Army as well. Regarding the RDX, Gokhale claimed it was planted and a witness said he was asked to give the statement at gunpoint by the Anti-Terrorism Squad. The ATS was investigating the case before the NIA took over the investigation.

The charges against several accused and MCOCA was dropped from the case after the NIA filed its charge sheet in 2014.

Advocate Sandesh Patil submitted that the trial was at an advanced stage, therefore the only order should now be of a conviction or acquittal in the case and the plea be rejected. Patil said that documents produced from the Court of Enquiry by the Army were inadmissible before the HC.

Moreover, he pointed towards the letter of an officer from the Army who had recently deposed in the trial. According to the March 2010 letter, Patil said, the witness had written to the ATS confirming no official communication from Purohit regarding his alleged infiltration of Abhinav Bharat.

The court also took on record written submissions filed by intervenor Nisar Ahmed Haji Sayed Bilal, who had lost his son in the blast. His counsels Advocates  Shahid Nadeem and Kritika Agarwal contended in written submissions that Section 21 of NIA bars an appeal from an interlocutory order of a Special Court to the High Court both on facts and on the law. 

It was argued that the Special Court already considered the court of enquiry documents in its order.

Purohit has been charged with murder, voluntarily causing grievous hurt by dangerous weapons, promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to the maintenance of harmony on him, relevant sections under The Arms Act, The Indian Explosive Substance Act, and Unlawful Activities Prevention Act.

Citation: 2023 LiveLaw (Bom) 2

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