Supreme Court stays Bombay High Court’s order discharging former DU professor Saibaba, delays his freedom

The Supreme Court, in an unprecedented hearing on a non-working day, granted a stay of the high court’s discharging of Dr. Saibaba, despite the latter’s 90 per cent disability, and his willingness to accept any restriction on his freedom and be placed under house arrest.

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IN a special sitting held on Saturday, a division bench of the Supreme Court suspended the judgment/order of the Bombay High Court passed yesterday, discharging/acquitting former Delhi University professor, Dr. G.N. Saibaba in an Unlawful Activities (Prevention) Act (UAPA) case on the want of the sanction against him. The court observed that the high court virtually took a short-cut route in the matter.

Interestingly, while the high court avoided using the words ‘discharge’ or ‘acquit’ while quashing the trial court’s order convicting Dr. Saibaba, the Supreme Court readily accepted the Maharashtra government’s argument that the high court merely discharged and did not acquit him.  On Friday, another bench of the Supreme Court had observed while hearing the oral mentioning by the state government in the same case, that an order of acquittal by the high court cannot be stayed.

The bench, comprising Justices M.R. Shah and Bela S. Trivedi, passed the order to this effect on an urgent appeal preferred by the Maharashtra government against the Bombay high court’s order. The bench also refused to grant any relief to Dr. Saibaba on the ground of his ill health.

The bench has also suspended the judgment/order of the Bombay High Court with regard to the discharge/acquittal of five other convicts in the same case due to improper/irregular sanctions against them. The bench was of the view that detailed scrutiny is required with regard to the judgment of the high court since it has not considered the merits of the case, including the gravity of the offence alleged against those convicted by the trial court.

On Friday evening, Solicitor General of India, Tushar Mehta had mentioned the appeal before Justice Dr. D.Y. Chandrachud, the second senior-most judge of the Supreme Court, for urgent listing of the appeal. The bench, comprising Justices Dr. Chandrachud and Hima Kohli, made the following order upon the mentioning: “The Solicitor General states that he will move an application before the Registry for obtaining administrative directions of Hon’ble the Chief Justice for listing of the Special Leave Petition tomorrow (15.10.2022)”. Accordingly, the Chief Justice of India U.U. Lalit listed the matter for Saturday.

The bench said that it would consider certain questions of laws in the matter. First, it would examine whether the high court was justified in discharging the first five accused persons on the ground of alleged irregularity in sanction after conclusion of trial and conviction by the trial court. Second, with regard to Dr. Saibaba, the bench said the issue is that when a trial court has convicted him based on evidence, can the appellate court discharge him on want of sanction without adverting to the merits of the case, more so when no specific plea of want of sanction was made by the accused at the earliest point of time, that is, trial.

The bench will now hear the matter on December 8

Maharashtra Government’s arguments

Solicitor General Mehta, for the state government, submitted that Dr. Saibaba never raised the issue of sanction but still the high court felt it appropriate to decide on that basis. He submitted that the trial court had held no failure of justice due to non-sanction.

Mehta further submitted that the purpose of a sanction is to avoid a vexatious trial. But, he added, in the present case, there is a judicial verdict holding the accused persons guilty of serious offences. Referring to Section 465 of the Criminal Procedure Code (‘CrPC’), Mehta said this section applies merely when there is an irregularity in a grant of sanction, and it is not a ground for acquittal.

Mehta submitted that Bombay high court’s order is not an order of acquittal but an order of discharge.

Dr. Saibaba’s plea

Senior advocate R. Basant, appearing for Dr. Saibaba, argued that there was no sanction at the time when a court took cognisance against him. He argued that section 465 of the CrPC is applicable where there is a sanction, but in his case, there was an absence of sanction. Basant submitted that under the UAPA, paramount importance is given to sanction. He said that no court could take cognisance without sanction for an offence under UAPA.Arguing against the suspension of judgment, Basant submitted that Saibaba is:

Basant cited an earlier order of the Supreme Court pertaining to Dr. Saibaba’s case wherein it was observed that it was unfair on part of the State to oppose his medical bail application in view of the underlying medical health of Saibaba.

Basant pleaded for bail, and said his client would abide by whatever the conditions the court might like to impose. He also urged the court that if needed, Dr. Saibaba may be kept under house arrest with no movement outside the home. Mehta took objection to this, and submitted that nowadays, “naxals” and “urban naxals” are coming up with this new plea of house arrest.

At one point, Basant pleaded with the bench that it could impose any restrictions during the house arrest of Saibaba, including on his access to any communication facilities. But his submissions were in vain, with the bench determined to stay the high court’s order.

Click here to read the order.

The Leaflet