The National Investigation Agency (NIA) has opposed the petitions filed by Rona Wilson, accused in the Bhima Koregaon case, stating that it wasn’t maintainable because it entirely revolves around this theory of planting of evidence.
Wilson and other accused, Shoma Sen, have filed petitions in the HC seeking quashing of the case against them.
On Wednesday, a division bench of Justices SS Shinde and NJ Jamdar heard Wilson’s petition which seeks quashing of the case stating that the charges against him do not stand in light of the report of US digital forensic firm Arsenal Consulting that said that incriminating evidence had been planted on his computer before his arrest in the case.
Additional Solicitor General Anil Singh, arguing who appeared for the NIA, however, told HC on Wednesday that the pleas were not maintainable.
Singh said that the report that the petitioners were relying upon was forwarded by the American Bar Association, which was a third party. He said that the American Bar association had no standing in India as it was not a statutory body and its members were unknown. "Can you rely on a report for the purpose of quashing of the proceedings?" he asked.
Singh said: “We are at the stage of framing of charges right now. All their contentions can be looked into at the stage of trial.”
Senior counsel Indira Jaising, arguing for Wilson, said that an expert must be appointed to probe whether activist Rona Wilson's computer had any malware when it was seized by the NIA in 2018.
Jaising argued that to tamper with someone's electronic device was an offence under the Information Technology (IT) Act. "It is my case that crimes under the IT act have been committed against me. It is an offense to tamper with someone's computer under the IT Act. My device was tampered with and an expert should be appointed to ascertain if my computer had malware when it was seized. The expert can tell how the malware was planted," she said.
The Arsenal report that Jaising was referring to, had made claims in April this year that a hacker had had control over Wilson's computer and that a malware was used to plant documents, including a letter that was later cited by the NIA as incriminating evidence against Wilson and his co-accused in the Elgar case.
Arsenal Consulting subsequently published further reports claiming that electronic devices of other accused persons in the case, including the deceased Jesuit priest Stan Swamy, had been tampered with.
Besides Wilson, professor Shoma Sen, another accused in the case, has filed a plea in HC seeking quashing of charges and cited the Arsenal report.
Jaising had earlier told HC that besides deciding upon the issue of quashing the charges against Wilson and Sen, HC will also have to consider the issue of what could be considered a "legal method of search and seizure of electronic evidence?"
HC will continue hearing the pleas later this month.
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