Bombay HC tells state to file reply to ex-intel chief’s petition – Times of India

MUMBAI: The Bombay high court on Saturday sought an affidavit in reply from the state to a quashing petition filed by Rashmi Shukla, former commissioner, state intelligence department, against an FIR over the ‘leak’ of her ‘top secret’ phone-tap report and posted it for final hearing on September 13.
The state, through senior counsel Darius Khambata, continued till September 14 its statement made on May 6 of not taking any coercive steps against Shukla in connection with the FIR. The FIR by cyber police is against ‘unknown persons’ and does not name her as accused.
Shukla’s senior counsel, Mahesh Jethmalani, with advocate Gunjan Mangla, completed arguments to seek quashing of the “mala fide” FIR. Jethmalani said the “state has sought to hound an individual who has chosen to pursue her duties diligently” and sought to “protect” some individuals’ interest “invoking draconian provisions” under the Official Secrets Act. Merely because a document is marked “secret” it doesn’t attract the special Act meant for acts affecting sovereignty of State, he said.
“The state is playing hard and fast with justice and upholding of HC orders and law, trying to subvert the legal process,” argued Jethmalani.
The state began its arguments to oppose her plea. Khambata said Shukla is with absolute “frivolous and reckless charges” abusing the legal and judicial process and it is she who “is seeking to subvert the truth.”
Responding to Jethmalani’s submission that the state has not even filed its affidavit in reply yet, Khambata said he does not want a situation of admission of petitioner’s contentions for ‘non traverse’ (a doctrine where, for want of written denial, allegations made are treated as admitted) by state. He said, “There cannot be an argument that because state has not filed reply,” it has accepted Shukla’s contentions in her quashing plea, whose very maintainability too he is opposing. Because there was no notice the state did not file an affidavit, he said, expressing his willingness to proceed with final submissions if Jethmalani does not press the lack of affidavit argument.
The HC bench of Justices S S Shinde and N J Jamadar paused the hearing, noted that the matter has been listed for hearing 10 times since May 6, and gave the state till September 4 to file its reply and a few days after that for Shukla’s rejoinder, and will hear it on September 13.
Jethmalani in concluding arguments said Shukla has already responded to the departmental enquiry against her and sought to furnish her reply in a sealed cover for HC to peruse, “if necessary.” Citing former additional chief secretary Sitaram Kunte’s March 25 report to the government which mentioned Shukla’s offer to withdraw her report, he said she was not even authorized to withdraw it, and only the DGP Subodh Jaiswal who forwarded it on August 26, 2020 could. When the judges asked about his reference to Kunte, who was not even a party to the HC hearing, Jethmalani said he was referring to his report as government’s alter ego. He said it was only because of Kunte’s report that the advocate general had on March 31 “significantly” informed the HC that the file over Shukla’s report was “closed”, but the HC was not informed of the March 26 FIR into its alleged ‘leak’.