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On Saturday, the Supreme Court suspended an order by the Bombay High Court that acquitted former Delhi University professor GN Saibaba and five others in a case surrounding their Maoists links. The SC held that the HC had not considered merits of the case and instead granted the acquittals on the grounds of lack of sanction. The result of this urgently heard intervention filed by the Maharashtra government is that professor GN Saibaba and all others, including Prashant Rahi will remain in jail.
LiveLaw quoted excerpts from the Order as it was being dictated: “High Court has not considered the merits. HC has discharged the accused only on the ground that sanction was invalid and some material which was placed before the appropriate authority and sanction was granted on the same day.”
The SC further held, “We are of the firm opinion that the impugned judgment of the High Court is required to be suspended…It is not in dispute that even considering Section 319 CrPC and the decision of this court in the case of 1976(3) SCC 1 the appellate court in an appeal against acquittal, can suspend the order of acquittal/discharge. Therefore, this court can suspend the HC order.”
The Supreme Court’s Order may be read here:
Acquittal by the Bombay High Court
Readers would recall that on Friday, a Nagpur Division Bench of the Bombay High Court had acquitted GN Saibaba (accused no.6), who is 90 percent disabled and wheelchair-bound. The court had also acquitted accused no. 1-5: Mahesh Kariman Tikri, Pandu Pora Narote (who died in August 2022), Hem Keshavdatta Mishra, journalist Prashant Rahi Narayan Sanglikar and Vijay Nan Tirki. In 2017, they had been accused of “waging war” against the nation and had been convicted under sections 13 and 18 of the Unlawful Activities (Prevention) Act (UAPA) read with Section 120 (B) of the Indian Penal Code by a Sessions Court in Gadhchiroli.
On Friday, the HC bench of Justice Rohit Deo and Anil Pansare, allowed their appeals and ordered their immediate release. The HC noted that the sanction to prosecute GN Saibaba under UAPA was granted by the Maharashtra government after the trial began, and not before it as is procedure. The court thus held that the entire trial was thus invalid. In case of the other five accused, the court held that the grant for sanction was sought without proper reasons, and was therefore a breach of the mandatory provisions of UAPA. The court noted, “We are inclined to hold that every safeguard, however miniscule, legislatively provided to the accused, must be zealously protected.”
The HC had ordered, “Sessions Trials 30/2014 and 130/2015 are null and void in the absence of valid sanction under Section 45(1) of the UAPA, and the common judgment impugned is liable to be set aside, which we do order.”
Urgent hearing in the Supreme Court
Shortly after the Bombay HC Order, Solicitor General Tushar Mehta demanded an urgent hearing against the appeal, claiming the acquittal was not justifiable. LiveLaw quoted excerpts from the State’s appeal against the acquittal: “The High Court by the impugned judgment has reversed a well-reasoned and detailed judgment of conviction of the accused which was after considering at length the provisions under the UAPA Act, the material collected against the accused and other facts and circumstances of the matter.” As the bench of Chief Justice UU Lalit had risen by then, the matter was presented before a bench of Justice DY Chandrachud and Justice Hima Kohli who directed him to move an application before the registry for urgent listing. On Friday evening, the matter was listed for hearing on Saturday, a holiday, before Justice MR Shah and Justice Bela M Trivedi at 11 A.M.
Arguments by both sides
On Saturday, Solicitor General Tushar Mehta informed the court that as far as accused number 1-5 were concerned, the contention was that the sanction was not proper. At this point Justice Shah pointed out that the High Court was of the opinion that the Central Forensic Science Laboratory (CFSL) report was not considered and that the sanction was granted the same day without adequate reason. Then SG Mehta pointed out that as far as accused no.6 i.e GN Saibaba was concerned, SG Mehta said that the grounds of sanction were not raised during the course of the trial, but only at the appellate stage.
He further invoked Section 465 of the Code of Criminal Procedure as per which mere irregularity in sanction was not a ground for acquittal. The section is reproduced here:
Cr PC 465 – Finding or sentence when reversible by reason of error, omission irregularity.
(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
SG Mehta further submitted that the purpose of the sanction was to prevent a vexatious trial, that if after a full-fledged trial, persons are found guilty, the trial itself cannot be deemed vexatious later.
Senior Advocate R Basant appeared for professor GN Saibaba and submitted that while the date of framing charges was February 21, 2015, the date of obtaining the sanction to prosecute the accused under UAPA was April 6, 2015. He also submitted that though no application was made during the trial stage about the delay in obtaining sanction, a plea to this effect was raised during the cross examination stage.
He also appealed that the HC order not be suspended, saying the accused was prepared to execute under section 437 A of the CrPC requiring accused to remain present before appellate court. He prayed that the order to release the accused not be suspended as it would only serve to prolong their incarceration.
Senior Advocate Basant drew the court’s attention to the fact that professor GN Saibaba was paraplegic with 90 percent disability. He submitted that Saibaba’s heath was deteriorating that he should be permitted to preserve his health. He further argued that while the State had claimed that he was the mastermind, there was nothing to show his involvement.
SC Bench passes order
The Supreme Court Bench then proceeded to dictate its order. It noted that even according to Saibaba, the appeals were argued on merit. However, the High Court did not enter into the merits of the case or consider anything on the merits of conviction.
The Bench proposed a detailed examination of the following questions:
1) Whether considering Section 465 CrPC, after the accused is convicted on merits, whether the appellate court is justified in discharging accused on the ground of irregular sanction?
2) In a case where the trial court has convicted the accused on merits, whether the appellate court is justified in discharging accused on the ground of want of sanction, particularly when objection with respect to no sanction was not raised specifically during the trial?
3) What will be consequences of not raising the dispute with respect to sanction during the trial and thereafter permitting to trial court to proceed further despite the opportunities given to accused?
The court finally ruled, “We are of the opinion it is a fit case to suspend the impugned judgment and order of the High Court.” Suspending the HC order until further notice, the SC also said, “Counter if any to be filed on behalf of A6 within a period of four weeks. Counter is any on behalf of other accused to be filed withing four weeks of receipt of notice.”