The Bombay high court on Friday stayed the order of the special court granting eight days' custody of the three main accused in the 2008 Malegaon bomb blast case to the National Investigation Agency (NIA).
The trio - Lt Col Prasad Purohit, Sudhakar Dhar Dwivedi alias Dayanand Pandey and retired Major Ramesh Upadhyaya - were supposed to be handed over to the agency on July 22 for eight days, ruled the Maharashtra Control of Organised Crime Act (MCOCA) court. The trio had moved the high court challenging this order.
Their counsel Manoj Mohite pointed out that the Maharashtra Anti-Terrorism Squad (ATS) had already filed two charge sheets against 11 accused in the case, and once investigation is complete, courts cannot grant custody of the accused to any investigation agency.
Mohite pointed out that under the provisions of the MCOCA, police custody for 30 days could be granted at any point of time till filing of charge sheet, but not thereafter.
DN Salvi and Mandar Goswami, counsels representing the agency, submitted that the wording of relevant provision was clear, and it allows the investigating agencies to obtain custody of accused before indictment and beginning of the trial.
The counsels pointed out that charges have not yet been framed against the accused persons, and therefore it is open for the court to grant their custody. Besides, they also submitted that the total custody period of 30 days has not been exhausted in case of the three accused.
Justice BR Gavai, however, did not agree with the NIA counsels. "If the provisions are to be interpreted in this manner, it would amount to giving wide powers to the police," the judge said. The judge stayed the special court's order also taking into consideration the fact that a full bench of the high court is hearing a reference under the MCOCA and that could have a bearing on the present case.