[BREAKING] Supreme Court suspends Bombay High Court acquittal of GN Saibaba

The Supreme Court on Saturday suspended the decision of the Nagpur Bench of the Bombay High Court acquitting former Delhi University professor GN Saibaba in an alleged Maoist links case. (State of Maharashtra vs Mahesh Tirki and ors).The order was passed by a bench of Justices MR Shah and Bela M Trivedi at a special sitting held at 11 am. "We are of the opinion that it is a fit case to exercise power under 390 of Code of Criminal Procedure and suspend the order of the High Court....the medical grounds of the accused was presented and rejected by the High Couyrt during a bail plea earlier. Thus, High Court order stands suspended. Issue notice," the top court directed.The Court, however, said that the accused would be at liberty to move for bail."We are only saying judgment suspended but you can file bail application," the bench said.The Court also turned down the plea by Saibaba to be kept under house arrest on medical grounds, instead of being put in jail."The bail plea by accused was rejected by High Court in 2020 even on medical grounds which was pressed then as well," the Court said.This was after Solicitor General (SG) Tushar Mehta, appearing for the Maharashtra government, strongly objected to the same."There is a recent tendency from urban naxals to seek house arrests. But everything can be done from within the home for them. even by phone. Please say that house arrest can never be an option," the SG argued.The order was passed after the Maharashtra government contended that failure to grant sanction cannot lead to acquittal in view of Section 465 of the Code of Criminal Procedure.The Court said that the High Court did not consider the case on merits bit acquitted the accused due to lack of sanction of the Central government required under Section 45 of the Unlawful Activities Prevention Act (UAPA). "This court is of prima facie opinion that a detailed scrutiny is required with regard to the impugned judgment since High Court has not considered the merits of the case including the gravity of the offence alleged against him," the order said.The Court further opined that the accused were convicted after detailed appreciation of evidence. "Offences are very serious and if the State succeeds on merits, offences are very serious against the interest of the society, sovereignty and integrity of India. High Court order is based on no sanction," the bench opined. Pertinently, it noted that the issue raises certain important questions of law and proceeded to issue notice to GN Saibaba while framing the following questions of law for consideration:Whether considering Section 465 Cr.P.C. whether after the conclusion of the trial and the accused is convicted on merits and on appreciation of evidences whether the appellate Court is justified in discharging the accused (so far as Accused Nos. 1 to 5 are concerned) on the ground of irregular sanction, if any? In a case where the learned trial Court has convicted the accused on merits on appreciation of the evidences on record 4 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?.The Supreme Court does not in the normal course sit to hear cases on Saturdays and Sundays.The matter was listed for Saturday after an urgent mentioning was made on Friday evening by Solicitor General Tushar Mehta seeking listing of the case on priority. The mentioning was made hours after the High Court delivered its judgment. .The Bombay High Court bench of Justices Rohit Deo and Anil Pansare had allowed the appeal filed by Saibaba challenging a 2017 decision of the trial court convicting and sentencing him to life imprisonment based on the fact that the Sessions Court framed charges against Saibaba in the absence of sanction from the Central government under Section 45(1) of the Unlawful Activities (Prevention) Act (UAPA).The High Court had 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.“We are inclined to hold, that every safeguard, however miniscule, legislatively provided to the accused, must be zealously protected,” the High Court had said..During the hearing before the apex court on Saturday, SG Mehta said that mere inadequacy of sanction will not vitiate the trial."Sanction is to ensure the accused is not subject to vexatious trial. This is not a vexatious investigation. If full fledged trial takes place, then there is no question of sanction, and thus comes Section 465 of Code of Criminal Procedure (CrPC)," the SG said.Section 465 provides that "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.""Rigour of 465 meaning that mere inadequacy of sanction will not vitiate the trial," the SG contended..Further, he said that the facts of the case are very disturbing. "(The accused) supports use of arms in throwing out parliamentary form of democracy and encourages separatist actions in Jammu and Kashmir. All actions against nation, attacking our security forces and even arranging meeting of commanders of naxalite forces," it was submitted.The SG also submitted that with respect to accused 1 to 5, sanction was granted in 2014. "So far as accused 6 (GN Saibaba) is concerned sanction order came late and IO was already examined so that was recalled and accused did not object to that. It was placed before the High Court and the High Court did not even touch that aspect," the SG said.Accused 1 to 5 were foot soldiers while accused 6 was the mastermind, he added. "The role of accused was considered elaborately while considering sanction of first 5 accused," Mehta argued."What is the current status: all are in jail," the bench asked."Yes all in jail. Accused number 2 has expired," the SG responded..Senior Advocate R Basant, appearing for Saibaba, said that it has been fairly accepted that there was no sanction order against GN Saibaba..The bench, however, asked whether any independent objection was raised regarding sanction during trial."We are asking was any specific independent objection raised by you during trial regarding sanction. Yes or No? A simple question. Show us that, if any application was made," Justice Shah queried."No application was made. But during cross-examination, plea was raised," Basant replied."In the entire Section 313 statement, the question of sanction was put to you, but except saying you are falsely implicated, you did not raise this plea," Justice Shah pointed out..The bench then said that it will formulate the questions of law to be considered."We will formulate the questions of law and you can respond. But in the meantime we have to decide what has to be done ," Justice Shah said."As a caveator please do not suspend the order," Basant replied."You all are very experienced lawyers. Have you given any judgment of High Court where the accused has been acquitted solely on the basis of validity of sanction without going into merits or reversing the finding on merits," asked Justice Trivedi..Basant contended that Saibaba' case before High Court was argued in full including on merits of the allegations against him; however, the High Court chose to grant relief only based on the procedural lapse and without going into the merits."We had argued the matter in full and the High Court did not consider the matter in full and passed an order only the basis of sanction. So if it is halted then I continue to suffer incarceration," he said."So High Court committing a mistake by not considering this and taking a shortcut.. can the benefit of that be available to the accused? We are only finding fault with the High court here," the bench said..Basant said that it was not a short cut but a legally correct approach. He then highlighted the medical condition of Saibaba. "I will point our certain circumstances which will persuade you to not suspend the order. I am aged 55, I have 23-year-old unmarried daughter in Delhi. The accused is physically disabled to the extent of 90%. He has multiple other ailments which is judicially accepted. The person is confined to the wheel chair and he is sick and infirm. no criminal antecedent against him and not even a prosecution," Basant pointed out.Basant also pointed out the accused was granted bail twice before and he never abused any of the bail conditions."He is in wheelchair and there is no one to even handle his calls of nature. Other jailed persons are helping him and it is causing him stress," Basant said. The bench said that he can then move for bail and it will be considered. "You can file an application for bail, we will consider it." .Basant then proceeded to stress upon the importance of sanction under Section 45. "The nature and effect of sanction under Section 45 UAPA must be seen. In Maharashtra, the head of Prosecution is the sanctioning authority. This as per me it is a betrayal of statutory provision. I submit the High Court has not committed any error. Such is the importance of sanction under UAPA," he contended.Basant also prayed that the accused be kept under house arrest instead of jail."Let me preserve my health. please let me remain in my house," it was contended..The SG, however, opposed the same."He applied for bail after being taken into custody and then his bail was rejected. The court noted that bail was rejected noting the nature of accusations against him and there is nothing on record to show anything apart from his health reasons. There is sanction but it was only delayed sanction," he asked..[Read order]

[BREAKING] Supreme Court suspends Bombay High Court acquittal of GN Saibaba

Debayan Roy

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