Updated: October 13, 2021 4:52:30 pm
The National Investigation Agency (NIA) recently told the Bombay High Court that the remaining cloned copies of electronic evidence relied upon by the Central agency in the Elgaar Parishad case will be supplied to the accused Sudha Bharadwaj and her co-accused as per Criminal Procedure Code (CrPC). However, the agency objected to the interim plea seeking a stay of the trial proceedings before the special court.
The NIA also denied allegations that the cloned copies were tampered or manipulated and that the same would be examined by the experts of Forensic Science Laboratory (FSL) and five of them are yet to be received from FSL, Mumbai.
The NIA, through Mumbai branch SP V Vikraman, submitted before a division bench of Justice Nitin M Jamdar and Justice Sarang V Kotwal an affidavit in reply to a plea by Bharadwaj. The plea challenged the June 23 special NIA court order that rejected her plea seeking cloned copies of electronic evidence. Co-accused Gautam Navlakha has also filed an appeal in the High Court seeking similar directions, including a stay on the trial till the cloned copies are made available to him.
Advocate Yug Mohit Chaudhry appearing for Bharadwaj had said that while the special court had said it would consider the draft charges submitted by the NIA from August 23, thus beginning the process of framing charges after which the trial will commence, accused had not yet received certain material, including cloned copies of the digital hard disc recovered by the probe agency.
The petitioners submitted that denying them cloned copies of electronic evidence vitiates the right to a fair trial under Article 21 of the Constitution.
On August 9, the NIA had submitted in the special court the draft charges against the 15 people arrested in the Elgaar Parishad case. The charges include sections of the Unlawful Activities (Prevention) Act pertaining to terrorist acts, unlawful activities, conspiracy, membership of the banned organisation and raising funds for it.
The NIA has also proposed to charge the accused for criminal conspiracy, waging or attempting to wage a war or abetting a war against the Union government, sedition and promoting enmity under Indian Penal Code.
NIA opposed the prayer to stay proceedings or defer framing of charges until cloned copies are not provided.
“The appeal praying for clone copies of electronic evidence under Section 207 of CrPC is going to be supplied to the accused persons; however, the interim prayer for stay of the trial proceedings is strongly objected. Five pending clone copies in respect of the electronic devices of the appellant and her co-accused are yet to be received from the FSL.”
NIA further said that it has already supplied the hard copies/printed certified copies of all the relied upon documents and that allegations of vulnerability to tampering and manipulation are “fanciful submissions”.
The NIA stated that the right to free and fair trial is subject to the CrPC. “Thus, the supply of a few pending electronic documents which are already relied on against the accused cannot be an alleged non-curable violation of fundamental rights.” It further said that accused persons are mixing up and controverting crucial facts without much basis and confusing the High Court to frustrate the trial proceedings as is the ulterior motive of accused-appellant and her co-accused persons of the CPI(Maoist).
“The submission of non-application of mind to the facts of the entire case of prosecution on ground of alleged non-disclosure of all material is devoid of merit and same be rejected,” NIA said.
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