The allegation that explosives were planted at the residence of an accused in the 2008 Malegaon bomb blast case cannot be decided in the middle of trial, a special National Investigation Agency court in Mumbai has said.
The court made the observation while disposing of an application by accused Sameer Kulkarni seeking action against a former Maharashtra Anti-Terrorism Squad officer for allegedly framing his co-accused, Sudhakar Chaturvedi, and misusing his power.
Disposing of the plea on August 1, special judge AK Lahoti, however, noted the contentions raised by the accused are kept open and he is at liberty to point them out at the time of final hearing.
The detailed order was available on Thursday.
Kulkarni had in June this year moved an application before the court to prosecute an officer who was part of the ATS team that investigated the case initially and allegedly falsely implicated co-accused Chaturvedi in the nearly 14-year-old case.
Kulkarni claimed that the deposition of two witnesses, who have said they spotted the officer at Chaturvedi's home on November 3, 2008 – more than a month after the blast – showed that the former ATS officer misused his official position and committed a serious offence.
He also contended that the chargesheet filed by the National Investigation Agency clearly shows that the ATS officer had misused the powers and official position and thereby planted RDX, also known as Research Department eXplosive.
He appealed to the court to take cognisance of the contentions and initiate legal action against the former ATS officer.
The Maharashtra ATS, which had probed the case initially, alleged that the bomb was assembled at Chaturvedi's residence, where it had found traces of RDX.
Later, the NIA took over the case and filed a supplementary chargesheet, saying a former ATS officer had planted evidence in the home of an accused.
However, the officer concerned, during his deposition before the court, denied the allegations that he had planted RDX at Chaturvedi's house.
The court said that the evidence of other investigating officers, including those from the NIA, are yet to be examined.
The testimony of the ATS officer who had filed the chargesheet is still "going on". Recording of evidence is underway, it said.
“No doubt, there are material contradictions in the chargesheet filed by the ATS and the NIA which are required to be considered during trial and after completion of evidence i.e. at the time of final hearing. At this juncture, picking up or choosing one version over the other will not be proper,” the court said.
It further observed that in the midst of trial, testing the veracity of the statements of the said witnesses would amount to “appreciation” of evidence.
Moreover, the court said, it would be premature to decide the application and to evaluate Kulkarni's prayer that the former officer had misused his post and power as alleged. It said the evidence cannot be read in isolation.
The entire evidence required to be considered simultaneously and in its entirety, the judge said.
“In my view at this juncture to assess and decide the issue of planting of RDX as alleged, will be too early stage. So the issue of planting of RDX as alleged cannot be decided in the midst of trial. Therefore, I am not inclined to accept the prayer made by the accused (Sameer Kulkarni) in the midst of the trial,” the court said.
The trial in the case began in 2018 after the special NIA court framed charges against Lt Col Prasad Purohit, BJP MP Pragya Thakur and five other accused for terror activities, criminal conspiracy and murder, among others.
Six people were killed and more than 100 injured when an explosive device strapped to a motorcycle went off near a mosque in Malegaon town in north Maharashtra, some 200 km from Mumbai, on September 29, 2008.
