Mumbai: The validity of sanction to prosecute under the Unlawful Activities (Prevention) Act (UAPA) can be decided only after taking into consideration entire evidence, the trial court in the 2008 Malegaon blast case said on Thursday.
The special court for National Investigation Agency (NIA) cases made the observation while disposing of the plea of an accused.
The court, however, said the accused can raise their grievances about the sanction to prosecute during final arguments.
Under the UAPA, no court can take cognizance of any offense without the sanction of the Union government.
Sameer Kulkarni, one of the accused, had submitted that he could not be tried under the UAPA as the deposition of the sanctioning authority showed that the sanction was invalid.
He also argued that instead of the present special court, the trial can be conducted by a court in Nashik for the remaining charges including murder and criminal conspiracy under the Indian Penal Code.
Special NIA court judge A K Lahoti noted that the judge which preceded him had in 2018 held that sanction orders in the case were valid.
When the issue was raised before the Bombay High Court, it observed that “the Apex court accepted the suggestion made by ASG that the said issue can be considered at the time of trial and not at that stage,” judge Lahoti said.
Kulkarni filed his application after prosecution had examined 304 witnesses, he said.
The legality or validity of sanction can be decided only after taking into consideration “evidence in toto” (entire evidence), it said.
The deposition of prosecution witnesses was not over, another sanctioning authority had not been examined and deposition of the investigating officer who sent the proposal for sanction too was not over yet, the judge noted.
“Therefore I find substance in the point raised by the special public prosecutor that before the completion of all evidence, point of sanction cannot be decided separately,” the court said.
“In piecemeal manner the issue of sanction cannot be considered and decided and for deciding the same the entire evidence will have to be considered, which is not yet over,” the judge said, calling the plea “premature” and dismissing it.
These issues can be raised during the final hearing, the court said.
Six people were killed and more than 100 injured on September 29, 2008, after an explosive device strapped to a motorcycle went off near a mosque at Malegaon in Nashik district, located about 200 km from Mumbai.
The accused facing trial in the case include BJP Lok Sabha member Pragya Singh Thakur, Lt Col Prasad Purohit, Sudhakar Dwivedi, Major Ramesh Upadhyay (retired), Ajay Rahirkar, Sudhakar Chaturvedi and Sameer Kulkarni, all of whom are out on bail.
