Mumbai: Observing that the prosecution had failed to prove its case because of lapses by police officers, hostile witnesses, and lack of material evidence, a special NIA court that acquitted Lt Col Prasad Purohit in the 2008 Malegaon blast case rejected his defence that his actions were part of his official military intelligence duties and therefore did not require prosecution sanction. It held that “he has done those acts which were never permitted by his office”, reports Rebecca Samervel.Special judge A K Lahoti said serious charges of murder and criminal conspiracy were also levelled against Purohit along with other charges, showing his involvement, and hence his own officer had handed over his custody to the ATS. “On going through the papers, it is sufficient to hold that the act done by him was not in discharge of his official duty. He has done those acts which were never permitted by his office. Those acts could not be covered or protected under the garb of section 197 CrPC,” the judge said in his order. He also clarified that a sanction under Section 197 of CrPC was not necessary to prosecute Purohit, a govt servant, under the circumstances of the case. Section 197 speaks about obtaining prior sanction for prosecuting public servants for offence committed while discharging official duty. The NIA special court judge noted that the prosecuting agency in the 2008 Malegaon blast case had collected incriminating evidence against Purohit showing his direct involvement in the alleged offence which included the charge of murder and criminal conspiracy.“Those charges never require a sanction. On the other hand, the authorised officer of the military submitted the decision given by their Competent Military Authority as per Military Rules to institute the proceeding against A9 (accused 9, Purohit) before criminal court. His custody was given by military officers to ATS. In such peculiar facts, the defence taken by A9 pertaining to sanction u/s 197 of CrPC does not survive,” the judge said.Part of the case against Purohit who was in the military intelligence at the time revolved around his alleged involvement with a group called Abhinav Bharat. The organisation was at the centre of the alleged conspiracy. While Purohit’s lawyer submitted he was permitted to collect information from ISI or SIMI or other terrorist organizations, the judge pointed out it was not his claim that he was also member of those organizations. “Becoming a member of a selective organization without express permission is nothing but an act done out of the purview of discharge of duty,” the judge said.The judge also observed that under circumstances of the case, charges of ATS and NIA against Purohit were serious and based on evidence investigating agencies collected during the course of their respective probes. The judge noted that his association with Abhinav Bharat Trust or Abhinav Bharat organisation would not be per se illegal and was part of his duty. However, the court said the charges against him show that he floated the Abhinav Bharat organisation and was founder member of Abhinav Bharat, collected huge funds and had control over financial transactions. He has accepted thousands of rupees from co-accused and utilized those amounts for private use, the judge noted. “Nothing material came on record to show that all those allegations or charges were fake, baseless and all those acts were done by A-9 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 said.Seven defence witnesses, all related to Purohit, had deposed during trial. The judge said the (military) officers examined as defence witnesses or those who were working in the SCLU (Southern Command Liaison Unit) at the relevant time had not shown any interest in saving Purohit. “They had kept mum for several years. Their own inaction shows 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,” the judge said.
