New Delhi: The family of a 2008 Malegaon bomb blast victim has requested senior advocate and former attorney general Mukul Rohatgi not to defend accused Lt Col Prasad Shrikant Purohit in the case, claiming that it will be in conflict of interest and “create prejudice to the whole proceedings”.
In an email to Rohatgi, a copy of which was seen by ThePrint, Nisar Ahmed, whose son died in the blasts, said the counsel had appeared for the National Investigative Agency (NIA) in the Supreme Court when the former had filed a petition to set up a special investigating team (SIT) to probe the blasts.
Ahmed has also filed an affidavit before the Bombay High Court, which is hearing Purohit’s petition for discharge, raising concern.
Ahmed claimed that Rohatgi, as the attorney general, had also tendered legal opinion to the law ministry regarding the applicability of Maharashtra Control of Organised Crime Act (MCOCA) against Purohit and other accused in the case.
Speaking to ThePrint, Ahmed’s lawyers Shahid Nadeem said they took exception to Rohatgi appearing for Purohit even last year when he argued the Purohit’s petition challenging the sanction granted to prosecute the Army officer under the Unlawful Activities (Prevention) Act (UAPA).
“Senior counsel B.A. Desai, appearing for Ahmed, had objected to the former law officer representing Purohit. However, Rohatgi had brushed aside our objections and continued to appear,” Nadeem said.
Pursuant to the letter, Nadeem claimed, Rohatgi did not appear before the Bombay HC Wednesday when it took up a fresh petition from Purohit, in which he has challenging his prosecution on the ground that the NIA did not obtain sanction from the Centre as prescribed in the Criminal Procedure Code (CrPc).
Rohatgi told ThePrint it is his professional duty to defend his client. “It is not for me to judge the client.”
He also said it was incorrect to suggest he did not appear Wednesday due to the letter. “I was busy in the Supreme Court so could not appear in the HC.”
Purohit’s lawyer Neera Gokhale alleged that Ahmed had in the past adopted a similar tactic to desist senior advocate Harish Salve from arguing for Purohit.
In the absence of Rohatgi, Gokhale said, she commenced arguments on behalf of Purohit in the matter.
‘Allow justice to appear to have been done’
According to Ahmed’s email as well as the affidavit, Rohatgi had, as the AG, argued against his petition in the Supreme Court in 2015 to appoint an SIT to probe the Malegaon bomb blast case.
Ahmed annexed newspaper reports to assert that the law ministry in 2016 took Rohatgi’s advice on whether MCOCA can be invoked against those arrested in the case.
“Under these circumstances we are of the opinion that your appearance on behalf of the accused will be in conflict of interest and will create prejudice to the whole proceedings. In order to preserve the value of fair trial and uphold the sanctity of the position that you once held as Attorney General of India, we request you not to appear for accused number 9 (Purohit),” stated the email.
Rohatgi’s appearance against the NIA, an agency for which he argued in the same case, “appears to be in bad taste and creates suspicion in the whole process of prosecution”, the mail said.
Ahmed “humbly requested” Rohatgi not to appear for any accused in the case to “allow justice to appear to have been done”.
‘Rohatgi privy to investigation papers’
In his affidavit before the HC, Ahmed claimed that since NIA had consulted Rohatgi in the past, the former AG had full knowledge regarding the case. Therefore, it said, Rohatgi after demitting the office cannot use the said information for an accused.
Being privy to the investigation papers of such a serious crime, his appearance in the matter for an accused causes injustice to the victims and “harms the faith over the Indian judiciary”, Ahmed submitted in the affidavit.
Also, quoting Bar Council of India (BCI) rules, Ahmed said an advocate who has at any time advised in connection with a case, or acted for a party, cannot act or plead for the opposite party.
“I humbly state and submit Rohatgi shall restrain himself from appearing on behalf of the petitioner because I feel peeved that such a high person who has advised NIA is now appearing against the NIA.”