Quite clearly, the entire proceedings against Saibaba are null and void without the previous sanction to prosecute him. Despite this, the SC took the unprecedented step of suspending the Bombay HC order to discharge him.
O horror, horror, horror! Tongue nor heart
Cannot conceive nor name thee! …….
Confusion now hath made his masterpiece!
These lines from Macbeth were my first thoughts on learning that the Supreme Court had ‘suspended’ the Bombay high court order discharging G.N. Saibaba thereby continuing his detention, effectively declared illegal by the high court. There are several reasons for these thoughts, one of them being that the suspension order in a case of discharge by the SC is unprecedented and, to the best of my knowledge, not supported by any previous order of the top court. Is this the beginning of another new abnormal?
Background of the case against Saibaba
For the present, I confine myself only to the case of Saibaba. While investigating alleged terrorist offences, the residence of Saibaba was searched by the police on or about September 9, 2013. The search party seized a CD, DVD, pen drive, papers and so on. Saibaba was arrested on May 9, 2014, after about eight months. The police did not demonstrate any urgency in arresting him.
In the meanwhile, the director of prosecutions submitted a report recommending sanction against all the accused, including Saibaba. However, the sanctioning authority granted sanction for prosecution on February 15, 2014 – only against five accused, and Saibaba was not one of them. This is important because it suggests that either there was no case against him or the evidence against him was thin. The next day, on February 16, a final report on the investigations against six persons was filed by the police before a magistrate. Saibaba was one of them, even though sanction for his prosecution had not been granted. The final report made allegations against the accused of having committed terrorist offences under the Unlawful Activities (Prevention) Act (UAPA).
After committal proceedings on February 26, 2014, the case was taken up by the sessions judge against the six accused, including Saibaba. Cognizance of the offences was taken by the sessions judge on February 15, 2014. (There appears to be a typo here in the High Court judgment). Charges were framed against all accused on February 21, 2015. They pleaded not guilty. Thereafter, PW-1 was examined on behalf of the prosecution (later recalled).
On April 6, 2015 an order was passed by the competent authority according sanction to prosecute Saibaba.
Now, please appreciate the sequence of events. Before the sanction order to prosecute Saibaba was passed, the sessions judge had taken cognizance of the offences against him. Before the sanction order, charges were framed against Saibaba and he pleaded not guilty. Before the sanction order, and PW-1 was examined. After all this, a supplementary chargesheet was filed by the police on October 3, 2015.
In the meanwhile, Saibaba applied for bail sometime in 2014. He appears to have contended that there was no sanction on record to prosecute him. (The sanction came on April 6, 2015). The application was rejected by the sessions judge on April 13, 2014 – apparently relying on the sanction order of February 15, 2014, which did not pertain to Saibaba. The learned judge also observed that the validity of the sanction order would be decided later, after the sanctioning authority is examined as a witness. So far so good – or not so good.
Laws enacted by parliament on sanction
The question is: Can a Sessions Judge take cognizance of an offence, frame charges against an accused person, record his plea and examine a witness without a sanction order permitting prosecution of an accused? You don’t need a law degree or too much imagination to answer that question.
Let us look at some legislations, starting with the Terrorist and Disruptive Activities Act (TADA) which deals with such a situation. Section 20-A(2) of TADA reads:
“No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector- General of Police, or as the case may be, the Commissioner of Police.”
Plain and simple English. This does not need any paraphrasing and can be understood by anybody. Just in case you have any doubt, section 20-A(2) of TADA prohibits any court from taking cognizance of any offence under TADA without the previous sanction (not subsequent sanction) of the specified authority. By the way, taking cognizance is the first step taken by a court after sanction is granted.
What does the Prevention of Terrorism Act (POTA) say? Section 50 of POTA provides:
“Cognizance of offences. – No court shall take cognizance of any offence under this Act without the previous sanction of the Central Government or, as the case may be, the State Government.”
Plain and simple English again. And again, is there any need to paraphrase the section?
Section 23(2) of the Maharashtra Control of Organised Crime Act (MCOCA) provides:
“(2) No Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police.”
Again, plain and simple English.
Now, what does UAPA provide? Section 45 of UAPA reads:
“Cognizance of offences. – (1) No Court shall take cognizance of any offence-
(i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf;
(ii) under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.”
A little more elaborate, but very clear again – no court shall take cognizance of an offence without previous sanction of the competent authority.
Section 45 should be read in conjunction with section 48 of the UAPA, which has an overriding effect as far as any other law is concerned. Section 48 reads:
“Effect of Act and rules etc., inconsistent with other enactments.
The provisions of this Act or any rule or order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.”
In the case of Saibaba, the accepted and undisputed fact is that the sessions judge took cognizance of the offence allegedly committed by him and framed charges against him in the absence of any previous sanction. Could the sessions judge have done so? I think the answer is pretty obvious.
What do you think should be the answer to this utterly vexed question?
What did the high court have to say?
The Bombay high court referred to section 20-A of TADA and the judgment of the Supreme Court in Rambhai Nathabhai Gadhvi (1997) which held that:
“Thus a valid sanction is sine qua non for enabling the prosecuting agency to approach the court in order to enable the court to take cognizance of the offence under TADA as disclosed in the report. The corollary is that, if there was no valid sanction the Designated Court gets no jurisdiction to try a case against any person mentioned in the report as the court is forbidden from taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction.”
This decision was subsequently overruled by the Supreme Court, though on another conclusion and not on this conclusion.
The high court also referred to section 23 of MCOCA and the decision of the Supreme Court in Jamiruddin Ansari (2009). In this judgment, the Supreme Court held:
“The wording of Sub-Section (2) of Section 23 leaves no room for doubt that the learned Special Judge cannot take cognizance of any offence under MCOCA unless sanction has been previously given by the police officer mentioned hereinabove. In such a situation, even as far as a private complaint is concerned, sanction has to be obtained from the Police Officer not below the rank of Additional Director General of Police, before the Special Judge can take cognizance of such complaint.”
In other cases, dealing with similar laws, the Supreme Court merely stated the obvious – namely, that previous sanction is mandatory before cognizance can be taken. All that the Bombay high court did was follow these and other similar decisions and arrive at the following conclusion:
“We are inclined to hold, that every safeguard, however minuscule, legislatively provided to the accused, must be zealously protected. In interpreting the provisions of Section 45 of the UAPA, we deem it safer to be guided by the authoritative enunciation of the Hon’ble Supreme Court while considering pari materia provisions of the TADA.
… The sequel of the discussion supra, is that the accused shall have to be discharged from Crime 3017/2013 for offences punishable under Sections 13, 18, 20, 38 and 39 of the UAPA read with Section 120-B of the IPC.”
Distinction between discharge and acquittal
Saibaba was discharged, as noted above. What does this mean? Is it different from an acquittal? The answer is to be found in section 227 and section 232 of the Code of Criminal Procedure. Section 227 states:
“Discharge. – If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”
Simply put, this means that if there is no sufficient ground for proceeding against an accused person, the court should not proceed. Therefore, if the court does not have previous sanction to take cognizance of the offence, it has no jurisdiction to proceed further in the matter and there is, therefore, no sufficient ground to proceed against the accused. Consequently, since the court cannot proceed any further, it must discharge the accused.
In other words, in the case of Saibaba, the court could not have taken cognizance of the offence alleged, charges could not have been framed against him, his plea of not guilty could not have been recorded and the testimony of PW-1 could not have been recorded. Quite clearly, the entire proceedings against Saibaba are null and void without the previous sanction to prosecute him.
In this context, the high court referred to the case of Baij Nath Tripathi (1957), a decision of the constitution bench of the Supreme Court in which it was held:
“If no Court can take cognizance of the offences in question without a legal sanction, it is obvious that no Court can be said to be a Court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void …..”.
An acquittal is provided for in section 232 of the Code of Criminal Procedure and this provision reads:
“Acquittal. – If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.”
It is clear that an acquittal is based on the evidence recorded and therefore on the merits of the case. However, if the entire proceedings are without jurisdiction and null and void, the evidence recorded has no legal value whatsoever since it is also null and void and therefore an acquittal or a conviction based on such null and void evidence is meaningless.
Therefore, a case of discharge places an accused person on a stronger footing than an acquittal. But that is only temporary – since a fresh trial can take place in the case of discharge, but a fresh trial cannot take place in the case of an acquittal.
What did the Supreme Court do?
It is not necessary to go into the listing of the case by the SC on a Saturday, otherwise a non-working day for the Supreme Court judges. Suffice it to say that it appears from reports that a petition directed against the decision of the high court was filed and mentioned at about 4 pm on Friday before a Bench of two judges. It seems to have been indicated to learned counsel that the matter would be taken up for consideration on Monday. An article or two suggest that the petition was then taken up for consideration before the Registry and disregarding what was said by the bench, the Registry listed the case for consideration on Saturday. The concerned officer in the Registry must have taken necessary orders from the Chief Justice of India for listing the case on a Saturday. But that’s not an issue for consideration at present.
On Saturday morning, the Supreme Court heard the petition filed by the State of Maharashtra challenging the judgment and order passed by the Bombay HC. After hearing learned counsel, the Supreme Court noted that three important questions had arisen for consideration. The first question does not refer to Saibaba’s case. The next two questions are:
“In a case where the learned trial Court has convicted the accused on merits on appreciation of the evidences on record and thereafter having found the accused guilty for the offences for which they are tried, whether the appellate court is justified in discharging the accused on the ground of want of sanction and/or irregular sanction, more particularly, when the objection with respect to no sanction was not specifically raised by an appropriate application during the trial and trial was permitted to be proceeded further and thereafter the trial Court has convicted the accused on appreciation of evidences on record?
What will be consequences of not raising the dispute with respect to sanction during the trial and thereafter permitting the trial Court to proceed further, and despite the opportunities given to the accused even at the stage of recording the further statement under Section 313 Cr.P.C. when no objection to the want of sanction at the time of taking cognizance was taken?”
With respect, the answer to both these questions is fairly obvious. Protecting personal liberty is the obligation of all courts, including a trial court. It is not dependent upon what an accused person says or does or does not say or do. The Supreme Court will, in any event, decide these questions.
However, what is rather surprising is the subsequent part of the order passed by the Supreme Court. I refer to the suspension of the order passed by the high court, the consequence of which is that Saibaba continues to remain a convicted prisoner since his conviction by the trial court stands revived.
Should Saibaba have been released?
In recent times, matters of custody have undergone a massive transformation. Those who should not be in custody are denied release and some even die in jail. Those who should remain in custody are released on the flimsiest of reasons and sometimes without any reason.
Sarojini Naidu was detained in the Aga Khan Palace in Pune during the Quit India Movement. The signboard in the room where she was detained states that because of her bad health, she was unconditionally released. If nothing else, her unconditional release shows that the authorities concerned had some compassion.
What is the health condition of Saibaba? He is said to be 90% disabled and in a wheelchair. According to a joint statement issued by a few organisations on June 21, 2022 he has a disability due to polio, a heart condition, brain cyst, hypertension, breathing difficulties and in 2018 his left arm was paralysed due to nerve damage. The inflammation is said to have spread to his right arm and he cannot use his hands for writing or daily functions. He needs the support of two persons for setting up, eating, drinking water and using the toilet. Of course, the contents of the joint statement need verification from some independent authorities and not jail authorities, but nobody seems to have taken the trouble to actually verify his physical condition, except that it is more or less confirmed that he is 90% disabled.
He has been in jail since May 9, 2014, that is, for more than eight years. Yet, he has not been released. Is compassion missing somewhere? Justice?
More importantly, even though Saibaba was convicted of terrorist offences by the sessions judge, the Bombay high court found the trial to be null and void. As such, he is today not guilty of any offence – let alone any terrorist offence. Why then should he continue in jail, even without taking all the health conditions into consideration? Due to his disabilities, he obviously cannot be a flight risk, he cannot influence witnesses because the “trial” is over and there are no more witnesses to be influenced by him or by anybody else. He cannot tamper with the evidence because it is all on the record of the sessions judge. Why then should he continue to remain in jail? Are all these factors now irrelevant? Issues of personal liberty are not technicalities. Personal liberty is a substantive fundamental right guaranteed by Article 21 of the constitution. Thank God for that.
The Supreme Court held that it has the power to suspend a judgment and order passed by the high court acquitting or discharging an accused. In fact, this proposition was not disputed, as indeed it cannot. However, merely because there is power to suspend a judgment discharging an accused and deny release does not mean that the power must be exercised in all circumstances. It must be exercised sparingly and rarely since it pertains to the personal liberty of an individual who has legally not been validly convicted of any offence. In these circumstances, it is wise to recall the words of Uncle Ben [of Spiderman fame], who said, “Remember, with great power comes great responsibility.”
The article was first published by The Wire. You can read the original article here.