The Bombay High Court on Tuesday refused to restrain a trial court from framing charges against Lt Col Shrikant Purohit and other accused persons in the 2008 Malegaon blast case.
A bench of justices SS Shinde and Mridula Bhatkar, however, directed the trial court - the special National Investigating Agency (NIA) court in Mumbai - to consider, in accordance with a previous Supreme Court order, the issue of 'sanction' of prosecution raised by Purohit.
"The Supreme Court has also directed that trial in the case be expedited and hence, it would not be appropriate to grant the stay. The trial court will therefore consider the issue of the sanction as per the SC order and proceed further in the case," the bench said.
The special court is expected to begin framing of charges in the case on Wednesday.
Purohit had approached the high court earlier this month.
In his plea filed through advocate Shrikant Shivade, he had urged the high court to stay the framing of charges until the issue of his sanction, raised by him in his appeal seeking a discharge, was decided upon finally by the high court.
In his appeal as well as in the plea that was heard Tuesday, Purohit claimed that he cannot be prosecuted in the case since the sanction granted by the government to prosecute him in the case was wrong in law.
A prior sanction for Purohit's prosecution was required since he was a serving Army officer at the time.
The sanction was issued on January 17, 2009 by the additional chief secretary of the Maharashtra Home department.
Advocate Shivade, however, said under the Unlawful Activities Prevention Act (UAPA), the state law and judiciary department, which is the sanctioning authority, has to set up an appropriate authority and seek its report first.
In Purohit's case, the sanction for his prosecution was given in January 2009 but the authority was appointed only in October 2010, he argued.
The sanction in Purohit's case thus, was not valid under the provisions of the UAPA, Mr Shivade argued.
Last year, Purohit had also filed a plea in the high court challenging his prosecution on the ground of validity of the state's sanction.
However, the high court had on December 18 last year refused to quash the government sanction.
Purohit then approached the Supreme Court that refused to intervene in the case on April 20.
The top court observed that the issue of the sanction could be considered by the trial court at the time of framing of charges.
However, Purohit approached the high court seeking the stay, expressing the apprehension that the trial court might not take an unbiased view on the issue.
The bench, however, said the parties need not make any assumptions about the special court.
NIA counsel Sandesh Patil too opposed Purohit's plea and argued that in light of the Supreme Court order, it would be appropriate to allow the special court to decide the issue of sanction and proceed with the framing of charges.
Six people were killed and over 100 injured when an explosive device strapped on a motorcycle went off near a mosque at Malegaon in Maharashtra on September 29, 2008.
On December 27, 2017, a special NIA court had dismissed the pleas filed by Purohit, his co-accused sadhvi Pragya Singh Thakur, and six others seeking discharge from the case.
The court, however, gave them partial relief by dropping all charges against them under the stringent Maharashtra Control of Organised Crime Act (MCOCA).
Their appeals against this order are pending before the high court.
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