The Bombay High Court said on Tuesday that it was "not an open gate for everyone" to file an appeal against an acquittal in the 2008 Malegaon blast case. The court also requested details on whether any family members of the victims had been examined as witnesses during the trial.
A bench of Chief Justice Shree Chandrashekhar and Justice Gautam Ankhad was hearing an appeal filed by the families of the six people who died in the blast, challenging a special court's judgement that acquitted seven accused, including former BJP MP Pragya Singh Thakur and Lt Col Prasad Purohit.
On Tuesday, the High Court bench asked if the family members had been called as witnesses in the trial. The advocate for the family members stated that the first appellant, Nisar Ahmed, whose son died in the blast, was not a witness but said he would provide the details on Wednesday.
The bench then remarked that if the appellant's son had died in the blast, Nisar Ahmed should have been a witness. "You [appellants] have to indicate whether or not they were witnesses. This is not an open gate for everyone," the High Court said. The court has scheduled the matter for a further hearing on Wednesday.
The appeal, filed last week, argued that a flawed investigation or other defects in the probe could not be grounds for acquitting the accused. It also contended that the conspiracy was hatched in secret, meaning there could be no direct evidence of it.
The petitioners claimed the order passed by the special NIA court on July 31, acquitting the seven accused, was wrong and bad in law and hence deserved to be quashed.
The appeal stated that a trial judge should not act as a "postman or mute spectator" in a criminal trial. It added that when the prosecution fails to present facts, the trial court has the authority to ask questions and/or summon witnesses. "The trial court has unfortunately acted as a mere post office and allowed a deficient prosecution to benefit the accused," the appeal said.
It also raised concerns over the manner in which the National Investigation Agency (NIA) conducted the probe and trial in the case and sought for the accused to be convicted.
The state Anti-Terrorism Squad (ATS), by arresting the seven persons, unearthed a large conspiracy and since then, there has been no blast in areas populated by the minority community, the appeal said.
It claimed the NIA, after taking over the case, diluted the allegations against the accused persons.
In its judgement, the special court had said that mere suspicion could not replace real proof and that there was no cogent or reliable evidence to warrant a conviction. Special Judge AK Lahoti, presiding over the NIA court, had stated that there was no "reliable and cogent evidence" against the accused that proved the case beyond a reasonable doubt. The prosecution's case was that the blast had been carried out by right-wing extremists with the intention of terrorising the Muslim community in the communally sensitive town.
The NIA court's judgment had flagged several loopholes in the prosecution's case and the investigation, concluding that the accused deserved the benefit of the doubt. In addition to Thakur and Purohit, the accused included Major Ramesh Upadhyay (retired), Ajay Rahirkar, Sudhakar Dwivedi, Sudhakar Chaturvedi, and Sameer Kulkarni.
Also read: Malegaon blast victims challenge Pragya’s acquittal in HC
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