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Synopsis

The Supreme Court has stayed the trial against Sameer Sharad Kulkarni in the 2008 Malegoan Bomb Blast case on his plea contending the National Investigation Agency has failed to obtain requisite sanction from the central government in 2011.

A bench of Justices A S Bopanna and Sanjay Kumar passed its order on April 30 after hearing senior advocate Shyam Divan and advocates Hari Shankar Jain and Vishnu Shankar Jain on behalf of Kulkarni.

Additional Solicitor General Aishwarya Bhati, appearing for the NIA, sought four weeks time to file additional documents.

"Until then, the proceedings before the Special Court, as against the petitioner herein, shall remain stayed," the bench ordered. The court, however, clarified the proceedings have not been interdicted in so far as the other co-accused are concerned.

The bench fixed the matter for further hearing on July 23, 2024.

In his plea, Kulkarni challenged correctness of the Bombay High Court's order June 28, 2023, which upheld the Mumbai's Special Court's order April 20, 2023, rejecting his plea with regard to absence of sanction.

His plea contended even though the central government by order of April 01, 2011 entrusted the investigation to NIA, which filed charge sheet on May 13, 2016 without obtaining sanction from the central government as provided under Section 45 (2) of UAPA.

He contended his life and personal liberty is in peril and his fundamental rights under Article 21 of the Constitution are being infringed.

It said the trial is not being conducted by a court established by central government under Section 11 NIA Act and the petitioner is being tried by the court established by state government under Section 22 of NIA Act, and in absence of sanction to prosecute, accorded by competent authority under UAPA, the petitioner cannot be tried for the charges levelled against him.

His plea claimed, "Some anti-national elements who wanted to destabilise the government of India and to create an atmosphere of chaos and turmoil, working at the behest of terrorist organisations supported by Pakistan, caused the bomb explosion in the vicinity of the city of Malegaon on September 29, 2008, in which six persons died and hundreds were injured."

It also claimed, “The police of Maharashtra implicated the petitioner and other co-accused in the case even though they were innocent and are committed to uphold the sovereignty and integrity of India and to give service to mother India whenever required. It is not out of place to mention that the petitioner and other have been implicated in the case to establish the theory of so-called saffron terrorism (Bhagwan Atankwad) which was widely propagated in political arena and even the then Home minister (P Chidambaram) used such phraseology to create an atmosphere against Hindu outfits to give people an impression that such organisations also believe in terrorism.”

In its reply, the NIA called the plea as erroneous since the sanction was granted by the state government to the Maharashtra ATS and second time to the central agency when it took over the probe. It said the charges were framed in October 30, 2018 but the writ petition was filed in the High Court only in 2023 to frustrate the trial which was at the fag end. It also said the question of validity of sanction can be considered at the final stage of hearing.

"The present SLP is the classic example of abuse of process of law by the petitioner. The prosecution of the petitioner was a huge exercise that required examination of nearly 320 witnesses. The trial is now reaching the stage of examination of defence witnesses. The trial has been ongoing since the year 2017, whereas the proceeding began in 2023 when the trial is on the verge of completion. This evinces the motive of the petitioner to further stall the trial against him," the NIA claimed.