[Bhima Koregaon] Rona Wilson can't rely on Forensic Report by US firm to seek quashing of case: NIA to Bombay High Court

The forensic report by US firm, Arsenal Consulting cited by Bhima Koregaon accused Rona Wilson to claim innocence, is not part of the chargesheet and cannot, therefore, be relied upon by the accused to seek quashing of chargesheet, the National Investigation Agency (NIA) has told the Bombay High Court.

In an affidavit filed before the High Court, the NIA raised preliminary objections regarding maintainability of the plea by Wilson who has sought quashing of chargesheet filed against him under the Unlawful Activities (Prevention) Act in connection with the Bhima Koregaon violence of 2018.

"All the contentions which are raised by the Petitioner are entirely based on the basis of the report of M/s. Arsenel Consultancy. This report does not form part of the Chargesheets which are filed by the Respondent and Pune police. It is settled position of law that, documents which are not relied into the Chargesheet cannot be relied by the Petitioner and as such there is no question of looking into the report of the M/s. Arsenel Consultancy and as such the entire contention of the Petitioner deserve to be rejected as the same are based on the report which does not find place in the present Chargesheet," the NIA affidavit stated.

The petitioner can rely upon the same only during the trial when evidence is led and not in a plea seeking quashing, the NIA further contended.

The affidavit also pointed out how Wilson had placed reliance on a report of American Bar Association, and an article which appeared in Caravan Magazine.

"All these documents are not forming part of the Charge sheet. I say that if at all the Petitioner wants to rely upon the same the only avenue available to the Petitioner is at the time of leading evidence. The Petitioner can very well lead evidence in respect of the same and then very well prove their case," it was submitted.

Arsenal Consulting had prepared the report after Wilson through his lawyers approached the America Bar Association (ABA) to help conduct an independent forensic analysis of the clone copy of electronic copies which were allegedly provided to him a year after filing of chargesheet.

As per Arsenal's report, an attacker deployed a malware named NetWire with which he initially subjected Wilson to surveillance and later delivered the incriminating documents to his computer.

This was done after a series of suspicious emails were sent by someone using Dr. Varavara Rao's email account. 82-year-old Rao is a co-accused in the case.

As per the report, the emails contained a particular document, which once opened by Wilson, planted a trojan (digital malware) on his computer. Five such trojan samples were found by Arsenal on Wilson's computer.

Importantly, the report said that while looking for various documents created on Wilson's computer through Microsoft Word, Arsenal found that Wilson's computer had the 2007 version of Microsoft word and there was no evidence to suggest that Wilson's computer had the 2010 or 2013 version of Microsoft Word.

Wilson then approached the High Court seeking quashing of the case under Section 482 of the Code of Criminal Procedure.

He also sought directions to appoint a Special Investigation Team (SIT) headed by a retired Supreme Court or High Court judge and consisting of experts in digital forensic analysis to probe the alleged the planting of documents on his computer by using malware.

The NIA, in its affidavit, however, alleged that the purpose of filing the plea is only to delay the trial.

"The charge-sheet and supplementary charge-sheets have been filed and cognizance is taken by the Learned Trial Court and as such the purpose of filing such Petition at this stage is to cause delay in the process of trial," the NIA submitted.

On the merits of Wilson's plea, it was contended that Wilson himself is not sure who planted the incriminating documents on his computer and his plea is vague and based on "ifs and buts"

"The said Arsenel Report states that without cooperation of such service provider it is difficult to zero down the particular person who has planted the said document. Thus, the petitioner himself is not sure of the person who has allegedly planted the document and as such the entire petition of the petitioner is vague and therefore cannot be considered by this Honble court," the affidavit said.

The entire case of the petitioner is based on the ifs and buts and the petitioner himself is not sure as to who has allegedly attacked his computer, it added.

NIA also submitted that Wilson has an alternate remedy of filing an application for discharge under Section 227 or 239 under the Code of Criminal Procedure Code.

When the trial is pending and is sub-juiced before the trial court Arsenal Consultancy had no locus to give such opinion without permission of the Court.

In view of this NIA has submitted that the High Court ought not entertain the plea by invoking their powers under Section 482 of the CrPC.