In its order passed on April 13, the high court observed that then ATS officials, Rajendra Ghule and Ramesh More, had acted within the discharge of their official duty and therefore, government sanction would be necessary to prosecute them. In its order passed on April 13, the high court observed that then ATS officials, Rajendra Ghule and Ramesh More, had acted within the discharge of their official duty and therefore, government sanction would be necessary to prosecute them.

The Indore bench of the Madhya Pradesh High Court has set aside the trial of two former officials of the Maharashtra Anti-Terrorism Squad (ATS) in the case of alleged kidnapping and disappearance of Dilip Patidar, a witness in the Malegaon 2008 blast case. The Maharashtra government has so far not granted sanction to prosecute them. In its order passed on April 13, the high court observed that then ATS officials, Rajendra Ghule and Ramesh More, had acted within the discharge of their official duty and therefore, government sanction would be necessary to prosecute them. It said that the CBI, the prosecuting agency in the case, shall be free to obtain sanction under Section 197 (prosecution of judges and public servants) of the Criminal Procedure Code (CrPC) and to proceed with the case, in case it is granted.

The court went on to quash the Indore special CBI court’s order of July 2017, which had led to the two men facing trial for offences, including wrongful confinement, kidnapping and giving false evidence.

Patidar, a 28-year old resident of Indore, stayed along with his family as a tenant of Ramji Kalsangra, the main accused in the blast which occurred on September 29, 2008. With Kalsangra absconding, the Maharashtra ATS, which was investigating the case, had approached Patidar on November 10, 2008. He was taken to Mumbai on November 11 and his statement recorded as a prosecution witness. The ATS had claimed that Patidar consented to give a statement to the magistrate under Section 164 (recording of confessions and statements) of the CrPC and since he did not have any identity proof, he was asked to return home to get it. Patidar has been missing since.

In November 2008, Patidar family filed a writ petition before the high court, which subsequently led to the registration of an FIR against the ATS officials. The CBI, which later began a probe into Patidar’s disappearance, filed two closure reports in 2014 and 2016 before the special court, which were rejected. Warrants were issued against Ghule and More in 2016.

Ghule and More appealed against the special court’s order and submitted that they had taken Patidar to Mumbai in connection with the case as part of their official duty. Their advocates submitted that only because Patidar is missing, it cannot be said that the two officials have committed an offence. The CBI, however, opposed the appeal saying that the act of the two officers was not in official capacity and therefore, needed no government sanction.

“In the considered opinion of this court, it can safely be gathered from the record available that the present petitioners (Ghule and More) came down to Indore on the instructions of their senior officer. The local police was informed accordingly and they went to the house of the complainant along with local police and took one person (Patidar) along with them to Mumbai. He was produced before the senior officers at Mumbai, and thereafter, he was permitted to go back. All this was done on the instructions of the senior officer and the local police was also informed,” the Indore bench of the high court said. It added that these acts were done while discharging their official duty, hence, sanction to prosecute them is “certainly required” in the matter.

In May 2016, Patidar’s family had approached Chief Minister Devendra Fadnavis in Mumbai, seeking permission for grant of sanction to prosecute Ghule and More.

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