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New Delhi: The Supreme Court on Saturday suspended the Bombay high court judgment discharging G.N. Saibaba and other accused in a Maoist links case, staying their release from jail.
The order was passed by a bench of Justices M.R. Shah and Bela M. Trivedi after a special sitting that was held at 11 am.
According to Bar and Bench, “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 court during a bail plea earlier. Thus, high court order stands suspended. Issue notice.”
The Maharashtra government argued that failure to grant sanction cannot lead to acquittal in view of Section 465 of the Code of Criminal Procedure.
The high court had discharged the six persons in the case after saying the sanction order required under Section 45 of the Unlawful Activities (Prevention) Act (UAPA) was null and void. It said that while the war against terror must be waged by the state with “unwavering resolve”, a democratic society can “ill afford sacrificing the procedural safeguards” at the altar of “perceived peril to national security”.
The top court said that the HC did not consider the merits of the case but discharged them on technical grounds. “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.
Because the accused were convicted after detailed appreciation of evidence, the Supreme Court said they cannot be let off on technical grounds. “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 noted, according to Bar and Bench.
The top court said the accused would be at liberty to move for bail but turned down Saibaba’s plea to be kept under house arrest on medical grounds – considering his physical disabilities and ailments – instead of jail. It noted that the former Delhi University professor’s bail plea was turned down in 2020 by the Bombay HC, even after considering medical grounds.
The apex court said that the Bombay HC order discharging the accused raises certain important questions of law. Issuing notice to Saibaba, the court framed certain questions of law for consideration, according to Bar and Bench. These questions are:
1. Whether considering Section 465 CrPC after conclusion of trial and accused is convicted on merits, can appellate court discharge the accused on ground of irregular sanction?
2. In a case where trial court has convicted accused on basis of material and appreciation of evidence, is appellate court justified in discharging accused on ground of want of sanction…. since no ground of sanction was raised during trial?
3. What will be the consequences of not raising the issue with respect to sanction before trial court even though opportunity given under section 313 CrPC. Aforesaid are broad questions which this court will consider in detail.
Apart from Saibaba, the court other accused in the case are Mahesh Kariman Tirki, Pandu Pora Narote (both farmers), Hem Keshavdatta Mishra (student) and Prashant Sanglikar (journalist), who were sentenced to life imprisonment, and Vijay Tirki (labourer), who was sentenced to 10 years in jail. Narote died during the pendency of the appeal.
Saibaba, 52, who is wheelchair-bound due to a physical disability, is currently lodged in the Nagpur central prison. He was arrested in February 2014.
Appearing for Saibaba, senior advocate R. Basant said his client is paraplegic with 90-95% disability and wheelchair-bound with almost zero mobility.
“He has a 23-year-old daughter and a wife. His bones are touching his lungs, which is further complicating the things. Looking at these aspects, please do not drag him back into jail. Please release him from jail and put him under house arrest and he will abide by any conditions which the court would impose,” Basant said.
Opposing the prayer for house arrest, solicitor general Tushar Mehta said, “Nowadays, there is a tendency of urban naxals that seek house arrest, but everything can be done from home. This house arrest cannot be an option.”
Basant said the court may order the cutting of Saibaba’s phone lines.
During the hearing, Mehta said there were certain disturbing facts in the case and Saibaba was involved in various activities, including an armed separatist movement in Jammu and Kashmir, waging war against the democratic setup of the country and arranging meetings of Maoist commanders.
“He was their brain and used to propagate their ideology,” Mehta said.
Referring to Mehta’s submission, Basant said Saibaba may have some inclination towards the Maoist ideology, but he was certainly not their brain.
The bench said, “We are not referring to this case but in general. The brain is the most dangerous thing. For terrorists or Maoists, the brain is everything.”
It framed several questions to be decided by the apex court and noted that Saibaba never raised the issue of absence of the mandatory sanction to prosecute under UAPA during the trial stage and did so only at the appellate stage in the high court.
The bench also agreed with Mehta’s submission that the high court did not pass an acquittal order but a discharge order and no finding of the trial court was reversed.
Justice Trivedi said it is a settled law that an acquittal order cannot be passed by an appellate court without reversing the findings of the trial court’s conviction order.