MUMBAI: The Bombay High Court Wednesday stayed a 2017 order of a special court that permitted the use of photocopied statements of witnesses and confessions of accused as secondary evidence in the 2008 Malegaon blast case.
In an interim order, a bench of justices A S Oka and A S Gadkari said the special National Investigation Agency (NIA) court should not have passed the order and it was bad in law.
The bench also noted that it was the duty of the NIA, the prosecuting agency in the case, to point out the mistake to the court in permitting the use of unverified photocopies as secondary evidence.
The bench was hearing an appeal filed by Sameer Kulkarni, a co-accused in the case, challenging the 2017 order of the special court that permitted the use of photocopies of statements of witnesses and confessions of accused, as secondary evidence in the case.
According to NIA counsel Sandesh Patil, the high court will now hear the NIA on March 4 on its objection to Kulkarni's petition.
"We have told you (NIA) on two previous occasions that you should have withdrawn your application (seeking permission for using the photo copies as evidence) and instead, made a fresh application before the special court bringing to its notice your mistake and clarifying that you had not ascertained whether the said photocopies were copies of certified original records," the bench said.
On the previous hearing, the bench led by Justice Oka had observed that the special court should not have allowed the use of photocopies since there was no evidence to prove that the photocopied documents were authentic copies of the original, certified statements. On Wednesday, the bench reiterated that use of photocopies without any verification was wrong in law.
It told the NIA counsel that the agency should have pointed out the problem to the special court then and there and taken the correct legal stand by not relying upon the photocopies.
"This court is prima facie of the opinion that the use of the said photocopies as secondary evidence should not have been allowed. We therefore stay the impugned order," the bench said. In January 2017, the special NIA court had permitted the use of photocopies after the probe agency submitted that some files containing original witness statements and confessions of accused under section 164 of the CrPC had gone missing and couldn't be traced.
The special court had permitted the use of photocopies of 15 documents. The NIA had pleaded at the time that since these statements were not traceable and the proceedings of the case were conducted on a regular basis, the secondary copies of the original statements be taken on record.
The case centres around the September 29, 2008 bomb explosion near Bhiku Chowk in the Muslim-dominated Malegaon town of Nashik district, which killed six persons and injured 101 others.