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2008 Malegaon case: NIA seeks stay on special court order on UAPA sanction

According to the accused, under the provisions of the Unlawful Activities (Prevention) Act invoked against them, there was a need to refer the case for an independent review by a Reviewing Authority for the sanction to prosecute them.

Written by Sadaf Modak | Mumbai |
August 19, 2017 3:46:29 am

THE NATIONAL Investigation Agency has sought a stay on the special court’s order passed last week in the Malegaon 2008 case for production of documents pertaining to sanction under the Unlawful Activities (Prevention) Act.

Special public prosecutor Avinash Rasal has submitted before the court that the NIA is in the process of filing an appeal against the August 9 order. has submitted before the court against the August 9 order.

The court had issued summons to the Director of Prosecution under Section 45 (2) of the UAPA, 2008, for production of the review or recommendation report given by it to the Maharashtra Anti-Terrorism Squad. Accused retired major, Ramesh Upadhyay and Lieutenant Colonel, Prasad Purohit, through advocate Shrikant Shivade objected to the stay.

The accused submitted before the court that it could not review its own order and that the NIA had “no intention” to file an appeal since they are yet to seek a certified copy of the order from the court.

The stay was sought since the summons were expected to be responded to by the authority this week.

According to the accused, under the provisions of the Act invoked against them, there was a need to refer the case for an independent review by a Reviewing Authority for the sanction to prosecute them.

They had argued that there is no reference or mention of the review given by the Director of Prosecution to the previous investigating agency ATS or the NIA.

They had contended that although the prosecution has relied on the sanction dated January 17, 2009, the review report is not part of the chargesheet. They claimed that a reviewing authority was only appointed in May 2010.

The prosecution had referred to a previous Bombay High Court order claiming that it had observed that this aspect would have to be examined at the time of the trial.

The accused had claimed that this should be decided at the stage of framing of charges since, if the sanction is not found to be done as per necessary provisions, the UAP Act cannot be invoked against them.

The court is likely to decide on the stay order by next week.

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