Supreme Court Stays Trial Against Accused Sameer Kulkarni In 2008 Malegaon Bomb Blast Case

The Bench of Justice A.S. Bopanna and Justice Sanjay Kumar observed, “List on 23.07.2024. Until then proceedings before the Special Court against the Petitioner shall remain stayed…Proceedings shall continue so far as other accused are concerned.”

A Special Leave Petition was filed by Sameer Kulkarni challenging the trial in the Special National Investigation Agency Court, Mumbai, asserting that it lacks the valid sanction granted by the competent authority in accordance with Section 45 of the Unlawful Activities (Prevention) Act.

Senior Advocate Shyam Diwan, along with AoR Vishnu Shankar Jain, appeared for Kulkarni and read Section 45 of the UAPA and submitted, “The central government issued a notification suo moto transferring the case, which they have the power to do, to the NIA. So it is the Central Government which has to produce: first, a sanction and second, the report of the authority appointed by the Central Government under sub-section 2 because that's the safeguard. They have neither produced the report of the authority nor have they produced the sanction in so far as the central government is concerned.”

He further submitted, “Before they transferred the case suo moto to the central government, the Maharashtra ATS had taken action… at that point of time again they have failed to produce any authority’s report because that’s the minimal safeguard. So the Maharashtra ‘so-called sanction’ which is available on the records…is not preceded by an authority’s report because the authority itself was appointed only after the sanction was made".

Furthermore, “Once it got transferred under the NIA Act to the NIA, it was for the central government to produce the report and to satisfy and place on record that there is this report and on the basis of this report there is this sanction. Now neither of those are forthcoming. So this is the entire conspectus of the facts and so far as we are concerned”.

The Counsel for an Intervenor, who lost his son in the blast, submitted that as regards the sanction, the High Court has already ordered that it is to be decided at the time of trial. He also submitted that an earlier writ petition fo the petitioner on the same ground had been dismissed.

Diwan responded by saying that the State's evidence is complete and no sanction has been produced.

On behalf of the NIA, an adjournment was sought for producing some additional documents.

The SLP challenged the order passed by the Bombay High Court, which had dismissed the appeal filed by the petitioner concerning the competence of the court to conduct the trial. Additionally, the High Court had also rejected the challenge against the absence of a valid sanction granted under the UAPA.

The petitioner in the SLP submits that the entire exercise is being done in futility and that such a proceeding is null and void and without jurisdiction. The Petitioner states that in the absence of the sanction as per law he is being harassed and his rights under Article 21 of the Constitution are being infringed.

The Supreme Court, in November 2023, had sought the response of the State of Maharashtra in the SLP.

In September 2008, on the evening of September 29, 2008, a bomb, planted on a motorcycle, exploded in the city of Malegaon, Maharashtra opposite a religious shrine. This tragic incident resulted in the loss of six lives and caused injuries to 101 people. Sameer Sharad Kulkrani, the Petitioner and one of the accused in the bomb blast was arrested for allegedly committing offences under Sections16 and 18 of the UAPA and under Section 120B read with Sections 302, 307, 324, 326, 427, 153A of the Indian Penal Code and under Sections 3, 4, 5 and 6 of the Explosive Substance Act, 1908.

The SLP highlights that on April 1, 2011, the Central Government entrusted the investigation to the NIA. However, the NIA filed the chargesheet without obtaining the required sanction from the Central Government as mandated by Section 45(2) of the UAPA. Additionally, it points out that the trial is not being conducted by a Court established by the Central Government under Section 11 of the NIA Act, but rather, it is being tried by a Court established by the State Government under Section 22 of the NIA Act.

In December 2021, a witness in the Blast Case whose statement had been recorded by Maharashtra Anti-Terrorism Squad, claimed in lower court that the ATS had threatened him to take the names of Uttar Pradesh Chief Minister Yogi Adityanath and four RSS leaders. Notably, former Mumbai Police Commissioner Param Bir Singh was posted as Additional Commissioner of the ATS, when it probed the Malegaon blast case. His statement had been recorded by the ATS when it probed the case before the NIA took over the case.

Cause Title: Sameer Sharad Kulkarni v. State of Maharashtra (SLP(Crl.)No(s). 11824/2023)