Institute of Legal and Management Studies

The special NIA Court while acquitting all the accused in the 2008 Malegaon Blast case, particularly Lieutenant Colonel (Lt. Col.) Prasad Purohit, held that just because the prosecution failed to prove its case against him, it cannot be said that the serious allegations against him were 'baseless or without foundation' and therefore junked his argument that the prosecution should have obtained prior sanction under section 197 of the Criminal Procedure Code (CrPC).

Special Judge AK Lahoti noted that Purohit was one of the founding members of Abhinav Bharat, an organisation that aimed at establishing a Hindu Rashtra and that he was active member of the said organisation. Therefore, the judge refused to accept the contention that it was part of his 'official duty' to take information from fringe organisations like Abhinav Bharat on terrorism and was informing about the same to his seniors.

"The documents on record clearly shows that Purohit was one of the trustees in Abhinav Bharat Trust. There is no documentary evidence on record to show that, his superior authority had granted him express permission to him to join the said trust as a member / trustee and to collect the funds or utilise the funds. As per the ethos of the Military Intelligence, the commanding officer or Discipline & Vigilance Branch used to protect the interest of officers and sources. But after the arrest of Purohit no any steps were taken to protect their officer. If he would have really discharged the duty under the colour of his office, there would have been protection to him," the judge observed.

Military Was Not Interested To Save Purohit Instead Accepted His Arrest Was Proper

The officers examined as defence witnesses or those who were working in the Southern Command Liaison Unit (SCLU) at the relevant time had not shown any interest to save Purohit, the judge noted.

"The officers had kept mum for several years. Their own inaction shows that, they might have noticed the action taken by ATS was proper, as their senior officers had also not shown any interest to protect their own officer considering the allegations and charges levelled. It shows that they had accepted the fact of arrest at the hands of ATS was proper at the relevant time," the judge opined.

Allegations Are Serious Not Part Of His Official Duty

Further, the court noted that Purohit was only permitted to "mix-up" with various organisations in order to collect the information but there is no evidence on record in any form to show that, he was permitted to join the specific organisation.

The charges of ATS and NIA against Purohit were serious which were based on the evidence they had collected during the course of investigation, the judge said, adding that those charges itself show that, he floated the Abhinav Bharat Organisation and was it founder member.

"Purohit had collected huge funds and had control over the financial transactions. He has accepted the thousands of rupees from co-accused and utilised those amounts for private use. Nothing material came on record to show that, all those allegations or charges were fake, baseless and all those acts are done by him with the permission of his superior officer. Merely the prosecution failed to prove the charges levelled against the accused in the absence of cogent evidence doesn't mean that, all the charges were baseless or without foundation," the judge held.

Thus, the court ruled that the alleged acts on part of Purohit were not in discharge of his official duties. "The prosecution could not prove the charges or alleged act merely because lapses kept by police officers, witnesses turned hostile and material evidence not came on record, so it doesn't mean that whatever act done by him as per the charges levelled against him were in discharge of his official duty. Therefore, the question of taking sanction u/s 197 doesn't arise," the judge opined.

Procurement of RDX

In his 1036-page judgment, the special judge noted that both the Anti Terrorism Squad (ATS) and the National Investigation Agency (NIA) had different versions on the procurement of RDX. He noted that the ATS contended the RDX was fitted in the house of accused Sudhakar Chaturvedi by Purohit with the help of other co-accused, whereas the NIA's case was that it was fitted at Indore and brought to Malegaon from Sendhawa bus stand.

Notably, the ATS version was that Purohit had brought 60 kgs of RDX from Kashmir, where was posted prior to the blasts and that he had kept it in a cupboard at his residence. However, the NIA raised doubts over this theory.

The special judge after going through the statements of relevant witnesses, stated that the prosecution failed to bring on record anything that proved that someone saw Purohit bringing the 60 kgs of RDX from Kashmir or him telling it to anyone. The specific witness, on whom the ATS relied, stating that Purohit had informed him about the RDX etc, had turned hostile and had in fact told the court that he was 'forced and pressurised' to testify in a particular way by the ATS sleuths.

"The Investigating Agencies had not inquired or collected or filed any documentary evidence on record to show that Purohit was posted at Kashmir during the particular period. Admittedly, for transportation of RDX, several formalities are required to be completed along-with several permissions. Transportation of RDX cannot be done alike other articles. There are several checks and restrictions for transportation of RDX. Not a single witness has deposed that, anyone had seen Purohit during his posting at Kashmir at specific place or for particular period or he has procured the RDX or he has brought the RDX. Thus, in the absence of any positive evidence, I am not inclined to accept that he has brought any RDX from Kashmir as alleged," the judge held.

Rejects Torture Claim

The special judge noted that on December 3, 2008 the court has taken into the consideration the allegations of torture made by Purohit and considering his involvement in the offence, granted the his police custody till December 6, 2008 and thereafter, on December 6, 2008, he himself stated before the Court that, he has no complaint of ill- treatment at the hands of ATS/Police.

"On his own request, he was sent for medical examination in Military hospital at Colaba. Though the medical papers were showing some injuries but at the belated stage, he is taking the defence that he was thrashed or assaulted at the hands of police / ATS will not survive, as he himself stated before the remand Court that he has no complaint of ill-treatment at the hands of ATS. Moreover, he had not taken any prompt step at the relevant time before the appropriate court for the allegations of ill-treatment, if any after receipt of medical papers," the judge said.

"Nothing is brought to my notice the said issue was kept open. Due to efflux of time & without pending complaint, after the lapse of near-about 16 years, the said issue is raised which has no force nor anything survived in it," the judge added.

Click Here To Read Court's Findings on Case Against Pragya Singh Thakur

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