New Delhi: The National Investigation Agency on Tuesday moved the Delhi High Court challenging the trial court`s order which dropped the charge of waging war against India against the accused in the case of terror attack at the high court last year.
A bench of justices Sanjiv Khanna and S P Garg issued notice to accused Wasim Akram Malik and sought his response by October 16 on the NIA plea against the trial court order.
In its plea, the NIA has sought a direction to the trial court to frame charges against him under the harsher penal provision of waging war against India which attracts the maximum punishment of death penalty.
The NIA sought an order to the Special court to modify his September 4 order for framing of charges against Malik under sections 121 (waging war against India), 121-A (conspiracy to wage war), 122 (collecting arms and ammunitions to wage war) and other provisions of the Indian Penal Code and the Explosive Substances Act.
The special judge while dropping the stringent charges against Malik had said more evidence was required to frame charges under those provisions.
"These offences (relating to waging war against country) require something more than the one which is available against the accused in this case. Merely because a bomb had exploded outside the Delhi High Court and in the e-mail, there was a reference of release of Afzal Guru, it does not mean that these three offences (of waging war against country) are made out," District Judge (DJ) H S Sharma had said.
"These offences are distinct and are of serious nature. The evidence, even at the stage of framing of charges under these sections (121-A, 122, 123 of IPC) has to be clear and commensurate with the requirement of these sections," the court had said, adding it cannot be said that the act had been committed to "wage war" against India.
Meanwhile, the court of District Judge HS Sharma, who is adjudicating the case of September 7 terror attack, which killed 15 people and injured 79 peope, today deferred the formal framing of charges against Milk to September 21 as the judge was on leave.
In its plea, the NIA said "the special court erroneously did not appreciate the fact that in the present case an institution like the Delhi High Court was a target of the terror act and as per the appellant`s respectful submission, it amounts to waging war against government of India and is punishable under sections 121 and 121A of IPC."
"As a logical corollary, the collection of explosives for the purpose and clandestinely fabricating and causing the explosion of improvised explosive device would amount to committing an offence under sections 122 (collection of explosives to wage war against India) and 123 (concealing with intent to facilitate design to wage war)," the plea said.
It added that "the statements of Amir Abbas Dev (approver) and other witnesses showed Malik`s intent and bent of mind."
"Evidence on record shows that the intention of the conspirators, including Malik was to organise terror attack on the institutions which are symbols of the sovereignty and authority of the Government of India," the plea added.
While dropping the charges under harsher provisions of IPC, the special court had ordered framing of charges against Malik for the offences punishable under section 120-B (criminal conspiracy), 440 (mischief committed after preparation made for causing death or hurt), 436 (mischief by fire or explosive substance), 302 (murder), 307 (attempt to murder), 325 (voluntarily causing grievous hurt) and 323 (causing hurt) of the IPC.
It had also ordered framing of charges under various sections of the Explosive Substance Act and the Unlawful Activities (Prevention) Act against the accused after finding prima facie evidence of his role in the terror attack.
The terror attack was plotted with an aim to get the death
sentence of Parliament attack case convict Afzal Guru commuted to life term, the NIA had said.
The agency had filed a charge sheet against six persons, including three arrested accused Malik, Dev and a minor, besides three others - Amir Kamal, Junaid Akram Malik and Shakir Hussain Seikh alias Chota Hafiz, who are suspected members of banned terror outfit Hizb-ul Mujahideen and evading arrest. The minor`s case is being adjudicated separately.