In a significant gesture, the Supreme Court bench of Justices D.Y.Chandrachud and Hima Kohli refused to stay the high court’s acquittal order on Friday, on the basis of oral mentioning by the Solicitor General, Tushar Mehta, even while noting that the State of Maharashtra may move an application seeking the CJI’s administrative direction to the Registry to list it on Saturday. The bench, according to reports, orally made it clear that even if the court agrees to hear the matter and issue notice, an order of acquittal by the high court, cannot be stayed.
Nagpur, Oct 14 (PTI) More than eight years after his arrest, the Bombay High Court on Friday acquitted former Delhi University professor G.N. Saibaba in an alleged Maoist links case, and ordered his release from jail, noting that the sanction order issued to prosecute him in the case under the stringent provisions of the Unlawful Activities (Prevention) Act (‘UAPA’) was “bad in law and invalid”.
The high court’s Nagpur division bench of Justices Rohit Deo and Anil Pansare allowed the appeal filed by Saibaba challenging a 2017 order of the trial court convicting him and sentencing him to life imprisonment.
Saibaba, 52, who is wheelchair-bound due to a 90 per cent physical disability and multiple health issues, is currently lodged at the Nagpur central prison. He was arrested in February 2014.
In March 2017, a Sessions court in Maharashtra’s Gadchiroli district had convicted Saibaba and others, including a journalist and a Jawaharlal Nehru University student, for alleged Maoist links and for indulging in activities amounting to waging war against the country. The court had held Saibaba and others guilty under various provisions of the stringent UAPA and the Indian Penal Code (‘IPC’). Sanction to prosecute the others accused under the UAPA was granted in 2014, who were arrested first, and then against Saibaba in 2015.
The bench noted that in 2014, when the trial court took cognisance of the charge-sheet filed by the prosecution, there was no sanction to prosecute Saibaba under the UAPA.
The prosecution had alleged that the convicts were active members of banned terrorist outfit, the Communist Party of India (Maoist) and its frontal organisation, the Revolutionary Democratic Front.
The court in its judgment noted that the trial court proceedings were “null and void” in the absence of valid sanction under the UAPA, and hence, the decision of the trial court was liable to be set aside and quashed.
The court admitted that terrorism poses an ominous threat to national security, and vile and abhorrent acts of terror do evoke collective societal anger and anguish.
“While the war against terror must be waged by the State with unwavering resolve, and every legitimate weapon in the armoury must be deployed in the fight against terror, a civil democratic society can ill afford sacrificing the procedural safeguards legislatively provided, and which is an integral facet of the due process of law, at the altar of perceived peril to national security,” the judgment cautioned.
The bench noted that the legislative imperative is that sanction for prosecution shall be given only after considering the report of the independent authority (appointed under the UAPA), which shall make an independent review of the evidence gathered during the investigation and make a recommendation.
It added that the report of the appointed authority in the present case renders no aid or assistance to the sanctioning authority, being devoid of reasons or a brief summary of the analysis of the review of evidence gathered.
“We unhesitatingly hold that the sanctioning authority paid lip service to the legislative mandate and the report of the appointed authority was sought, and unfortunately given as a ritualistic formality. The transgression of the legislative imperative renders the sanction order bad in law and hence invalid,” the court said in its judgment.
It said that any departure from the due process of law fosters an ecosystem in which terrorism burgeons and provides fodder to vested interests, whose singular agenda is to propagate false narratives. Ideally, the sanction order must be self-explanatory and relevant facts and circumstances on the basis of which sanction is accorded must ordinarily appear on the face of the sanction order, it added.
“We are inclined to hold that every safeguard, however minuscule, legislatively provided to the accused, must be zealously protected,” the court said.
“The Siren Song that the end justifies the means, and that procedural safeguards are subservient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by the voice of Rule of Law,” it noted.
“Sanction is a solemn and sacrosanct act that empowers the Court to take cognizance of offence. Sanction serves the salutary object of providing safeguard to the accused from unwarranted prosecution and the agony and trauma of trial and in the context of the stringent provisions of the UAPA, is an integral facet of due process of law,” it said.
Under UAPA, an independent authority is appointed to make an independent review of the evidence in the case and then submit a report recommending if the provisions of the Act can be invoked against the accused.
“The authority claims to have perused the copies of the FIR, panchnama, copies of witness statements and other related documents and then concludes that there is prima facie evidence against the accused under UAPA,” the court noted.
This purported report contains the conclusion sans reasoning, the judgment holds, adding that the report was just a communication in the form of recommendation.
“In our view, a laconic communication conveying only the recommendation sans summary of analysis of the review of the evidentiary material is not a report which the legislature intended the appointed authority shall submit to the sanctioning authority, and stands on the same footing as absence of report,” the bench decided.
Apart from Saibaba, the court acquitted farmers Mahesh Kariman Tirki and Pandu Pora Narote, student Hem Keshavdatta Mishra, and journalist Prashant Sanglikar, who were sentenced to life imprisonment, and labourer Vijay Tirki, who was sentenced to ten years in jail. Narote died during the pendency of the appeal hearing.
The bench directed for the convicts to be released forthwith from jail unless they are accused in any other case.
Meanwhile, later in the afternoon, the National Investigation Agency moved the Supreme Court, challenging the high court’s decision acquitting Saibaba.
Saibaba case: A timeline
August 22, 2013: Accused persons – Mahesh Tirki, Pandy Narote and Hem Mishra – apprehended after being under surveillance in Naxal-affected areas of Gadchiroli district in Maharashtra. First information report (‘FIR’) registered by police.
September 2, 2013: Two more accused – Vijay Tirki and Prashant Sanglikar – arrested by police.
September 4, 2013: Warrant sought by police from Magistrate court to conduct a search at the house of Prof. G.N. Saibaba, pursuant to revelations made by accused Mishra and Sanglikar during interrogation.
September 7, 2013: Search warrant issued by Magistrate court.
September 9, 2013: Police conduct a search at Saibaba’s residence in Delhi.
February, 15, 2014: Sanction to prosecute the five arrested accused under the provisions of the UAPA granted by the sanctioning authority.
February 16, 2014: Final report/charge-sheet submitted by police before Magistrate court.
February 26, 2014: Magistrate court commits the case to sessions court, as offences are sessions triable.
February 26, 2014: Police obtain an arrest warrant to arrest Saibaba, but fail to arrest “due to sympathisers”.
May 9, 2014: Saibaba arrested and produced before court that remanded him to judicial custody.
February 21, 2015: Sessions court frames charges against all six accused. All accused pleaded not guilty.
April 6, 2015: Sanction to prosecute Saibaba under UAPA granted by sanctioning authority.
October 31, 2015: Supplementary charge-sheet filed by police.
December 14, 2015: Sessions court orders joint trial in both cases (Saibaba and five accused). Trial begins.
March 3, 2017: Sessions court at Gadchiroli in Maharashtra convicts Saibaba and five others under UAPA and IPC. Saibaba and four others sentenced to life imprisonment; one imprisoned to ten years in jail.
March 29, 2017: Saibaba and others file appeal against conviction and the sentence in Nagpur bench of the Bombay High Court.
July 2020: National Platform for the Rights of the Disabled submits petition to National Human Rights Commission pointing out the difficulties faced by Saibaba considering his multiple medical issues and warning it of the dangers of his contracting COVID-19.