Lieutenant Colonel Prasad Purohit was not performing his official duty when indulging in the activity of bomb explosion causing the death of six persons, the Bombay high court said on Monday while refusing to discharge him in the September 2008 Malegaon blast case.
In a 24-page order, a division bench comprising justices AS Gadkari and Prakash Naik, while dismissing Purohit's plea seeking discharge for want of sanction for prosecution from the competent authority, held that if it is to accept the accused's contention that he was only performing his official duty, then the question remains as to why he did not avert the blast.
Purohit and six others, including Bharatiya Janata Party MP Pragya Singh Thakur, are facing trial in the case and charges have been framed under various sections including the stringent Unlawful Activities (Prevention) Act.
Neela Gokhale, counsel for Purohit, had submitted that on the date of the commission of the alleged offence, he was a public servant and was performing his lawful duty and reasoned that the prosecuting agency should have sought a sanction from competent authorities before the filing of charges against him.
"If the contention of the appellant that he was directed to perform an official duty to gather information regarding 'Abhinav Bharat' is to be accepted then the question remains to be answered that, why he did not avert the bomb blast in the civilian locality of Malegaon which caused loss of life of six innocent persons and severe to grievous injuries to about 100 persons," it said.
The judgment added that indulging in an activity of a bomb explosion causing the death of six persons is not an act done by Purohit in his official duty.
It added that a perusal of prosecution records clearly indicates that Purohit was never granted permission by the government to float the Abhinav Bharat organisation inspite of being a serving commissioned officer of the armed forces of India.
"Appellant (Purohit) was also not permitted to collect funds for the said organisation and to disburse it to procure weapons and explosives for their unlawful activities. Appellant is the key conspirator in the present crime," the bench said.
It added that Purohit had actively participated with other co-accused and organised and conducted various meetings with them in furtherance of their common object of the criminal conspiracy to commit unlawful activities.
Purohit, a serving army officer, sought a discharge in the case on the grounds that he had attended meetings of the group Abhinav Bharat where the conspiracy for the Malegaon blast was hatched on instructions of his superiors.
The high court, however, refused to accept this and said the alleged offences committed by Purohit has nothing to do with his official duty.
"It has nothing to do or related in any manner with the discharge of the official duty of the appellant," it said, adding that it is totally unconnected with his official duty.
"According to us, there is no reasonable connection between the offence alleged against the appellant and his official duty. The act alleged against the appellant has not been committed in the discharge of his official duty," the high court said.
Purohit had claimed that the prosecuting agency had failed to obtain proper sanction to prosecute a serving army officer, which was a mandate under the Code of Criminal Procedure.
The bench, however, rejected this contention, opining that since the acts had not been committed as part of official duties, and there was no question of seeking proper sanction.
On September 29, 2008, six people were killed and more than 100 injured when an explosive device strapped to a motorcycle went off near a mosque in Malegaon, a communally sensitive town in Maharashtra's Nashik district.
According to the Maharashtra Police who conducted an initial probe into the case, the motorbike was registered in Thakur's name which led to her arrest.
The case was later taken over by the National Investigation Agency.
All accused are currently out on bail.
