Second acquittal of GN Saibaba by Bombay High Court not just on procedural grounds but also on merits

The Bombay High on Tuesday acquitted former Delhi University professor GN Saibaba and five others in a case alleging Maoist links [Mahesh Tirki & Ors v. State of Maharashtra & Ors.].This is the second time the High Court is acquitting Saibaba in the same case. Earlier on October 14, 2022, another bench of the High Court had acquitted Saibaba in the same case only for the Supreme Court to set aside that judgment and remand the matter back to the High Court for fresh hearing.However, what is distinct about the latest judgment by bench of Justices Vinay Joshi and Valmiki SA Menezes is that the acquittal of Saibaba today was on both procedural grounds as well as merits.The earlier bench of Justices Rohit B Deo and Anil Pansare had acquitted Saibaba on the ground that the sessions court framed charges against Saibaba in the absence of sanction from the Central government as per Section 45(1) of the Unlawful Activities (Prevention) Act (UAPA).The High Court had the recorded that while terrorism poses an ominous threat to national security and every legitimate weapon in the armoury must be deployed against it, a civil democracy cannot sacrifice procedural safeguards afforded to the accused.That bench, however, had not gone into the merits of the allegations against Saibaba.However, the bench of Justices Joshi and Menezes which delivered Tuesday's verdict, besides finding that there was absence of sanction under UAPA, also proceeded to hold Saibaba innocent on the merits of the case as well..Procedural omissions.On procedure, the Court in its Tuesday's verdict opined that the there was total non-compliance with various provisions of Unlawful Activities (Prevention) Act (UAPA) in the present case."The sanction accorded to prosecute to the 6 accused is invalid. Taking of cognizance by the trial court without valid sanction or no sanction goes to the root of the case, which renders the entire proceedings null and void. We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice," the bench recorded in its order..On Merits - mere possession of Maoist literature not offence.On the merits, the bench noted that the prosecution failed to establish legal arrest and seizure of the five accused and could also not establish seizure of of any incriminating material from Saibaba's house. "The prosecution has also failed to prove the electronic evidence in terms of the provisions of the Indian Evidence Act, and the Information Technology Act. In view of the above conclusion, the common judgment rendered by the trial court is not sustainable in the eyes of law. We therefore, allow both appeals by setting aside the common judgment and order of conviction of March 2017 under challenge", the bench held. .Importantly, the Court held that mere possession of Maoist literature by itself was not an offence under UAPA.The sessions court at Gadchiroli had, in March 2017, convicted Saibaba and the others for alleged Maoist links on the ground that they possessed naxal literature with the intent and purpose of circulation amongst underground naxlites at Gadchiroli and residents of the district with the aim to incite the people to resort to violence.However, the High Court said that said that such literature is now available easily on internet for anyone to access and read and a citizen cannot be held liable under UAPA merely because he downloads or reads such material or sympathises with the philosophy."It is by now common knowledge that one can access a huge amount of information from the website of Communist or Naxal philosophy, their activities including videos and video footage of even violent nature; Merely because a citizen downloads this material or even sympathizes with the philosophy, would itself not be an offence unless there is specific evidence led by the prosecution to connect an active role shown by the accused with particular incidents of violence and terrorism, which would be offences within the purview of Sections 13, 20 and 39 of the UAPA," the Court said..The bench explained further that accusing a person of an offence merely because material or literature which the accused has chosen to read contains a particular philosophy, would to a certain extent violate the fundamental right to free speech and expression under Article 19 of the Constitution. .Another allegation against two of the accused was that there were videos of speeches made by them at a rally at Hyderabad in the year 2012. However, the Court noted that the speeches were delivered in open space, accessible to any member of the public. As regard the content of the speeches, the Court said that same on its own did not reveal any "act of terrorism"."The content of the speeches may portray dissent or criticism or even a streak of militancy, but by themselves, the content of these videos do not in any manner portray any acts of “terrorism” contained in the various provisions of the UAPA. In fact, there is no evidence brought forth by the prosecution to connect the persons in these videos with any actual act of terrorism which had taken place in the past or to demonstrate how the persons in the video were directly connected with and responsible for the commission of any other act of terrorism.".In the present case, the Court held that no evidence was produced by the prosecution of any witness to any incident, attack, act of violence or even evidence collected from some earlier scene of offence where a terrorist act has taken place, in order to connect the accused to such act."The content of the (alleged) documents if taken cumulatively, would perhaps demonstrate that the accused were sympathisers of a Maoist philosophy or sympathized with the cause of certain tribal groups or certain people who were perceived to be marginalized or disenfranchised, and mere possession of such literature, having a particular political and social philosophy by itself is not contemplated as an offence under the UAPA," the Court observed..The Court also said that though a great deal of electronic evidence was produced in the form of printed/hard copies of the content stored in digital form or in the nature of video footage, no evidence was led by any witness identifying the various persons in these videos, or deposing as to the specific statements made by such persons and quoting them, or how these statements or actions in videos would make out an offence under UAPA. "Playing several videos or requesting the Court to read through hundreds of pages of literature does not constitute evidence. In our opinion, there should have been specific evidence led through witnesses with the making out of an offence", the court added..Delay in arrest.The division bench led by Justice Joshi also took notice that the prosecution had not arrested Saibaba till May 2014, almost 8 months after filing of chargesheet against him. "The reason for not arresting Saibaba for considerable period despite knowing his alleged complexity and his place of abode has not been explained to our satisfaction," the Court concluded while acquitting the accused..[Read Judgment]