Pronouncing the verdict on a petition by Purohit, arrested in November 2007, Justice S S Kulshreshtha observed that certain witnesses were examined by the army in absence of Purohit who had "no opportunity to cross examine them", which violated the Army Rule 180.
"The Court of Inquiry suffers from the vice of irregularity. It would be just and proper to direct the army to further convene the CoI from the state when the statements of the witnesses were recorded on September 1, 2010 in absence of Purohit," the Tribunal said.
The Army Rule 180 prescribes that officers and personnel whose military reputation is being questioned in CoIs should have mandatory presence there and are also allowed to cross examine the witnesses.
The CoI had commenced on April 7, 2009 and concluded on September 1, 2010 after recording the statements of all the witnesses and reportedly recommended his dismissal from service.
"From the perusal of the entire material on record, it appears that certain witnesses were examined on September 1, 2010, wherein Purohit had no opportunity to cross examine them," the bench observed.
Purohit, 39, in his appeal had said, "The CoI makes an investigation into the criminal offence punishable with jail sentence. Therefore, the mandatory character of Rule 180 can not be ignored while holding a court martial."
Purohit was undergoing an advanced course in Arabic language in an army institution when he was arrested for allegedly being involved in the September 29, 2008 terror attack in Malegaon and has been in jail since then.The explosions allegedly carried out by Hindu radical elements left seven people dead and scores of others injured. Soon after the arrest, a CoI was ordered by the army.