GN Saibaba Case | No Evidence To Connect Accused To Terrirost Act; Trial Failure Of Justice : Bombay High Court

The Bombay High Court observed today that the trial of former Delhi University Professor GN Saibaba and others was held despite violation of mandatory provisions of the Unlawful Activities Prevention Act (UAPA) pertaining to arrest, search and seizure, and sanction to prosecute.

A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes, while acquitting GN Saibaba and others in an alleged Maoist-links case, observed that the trial, held without mandatory compliance, amounts to a failure of justice.

“There is total non-compliance of various provisions of UAPA. The sanction accorded to prosecute Accused Nos.1 to 5 is invalid. Taking of cognizance by the Trial Court without valid sanction or no sanction to prosecute accused No.6 G.N. Saibaba goes to the root of the case, which renders the entire proceedings null and void. There is non-compliance of the provisions of Sections 43-A and 43-B of the UAPA pertaining to arrest, search and seizure. Statutory presumption under section 43- E of the UAPA would not apply for the offences charged. We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice.”

The Court also observed, "No evidence has been led by the prosecution by 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, either by participating in its preparation or its direction or in any manner providing support to its commission."

One of the accused, Pandu Pora Narote, died in August 2022. Saibaba's other co-accused are - Mahesh Tirki, Hem Keshwdatta Mishra, Prashant Rahi, and Vijay Nan Tirki.

In a detailed judgment, the High Court observed that objections regarding the validity of the sanction for prosecution of the accused under UAPA had been consistently raised throughout the proceedings, from the stage of bail applications to final in the trial.

The court held that the conviction rendered by the Trial Court was not sustainable in the eyes of the law and did not hinder the consideration of objections to the sanction's validity during the appeal process.

The court held that since the entire case of the prosecution was based on seizures of allegedly incriminating material, the seizure must pass the test of reliability. The court highlighted that accessing Communist or Naxal philosophy content, including videos of violent nature, is not inherently illegal unless there is evidence linking the accused to specific acts of violence or terrorism.

The prosecution failed to provide such evidence connecting the accused to any terrorist acts, and videos showing dissent or criticism do not constitute terrorism under the UAPA, the court held.

Seizure of incriminating evidence doubtful

The Bombay High Court observed that the seizure of alleged incriminating materials by the Police from his University residence was doubtful.

"..we hold that prosecution has failed to prove seizure and search of incriminating material from the house search of accused No.6 Saibaba by leading credible evidence", the HC said.

In reaching the conclusion, High Court listed the following factors:

* An illiterate panch witness was chosen for the seizure of electronic evidence, despite the availability of independent educated witnesses at the university complex.

* Seizure was a closed-door affair as Saibaba and Panch witness were kept out. Therefore, the HC said it is difficult to accept the seizure as genuine.

* Hashvalue of electronic gadgets was not drawn.

* Panchnama does not bear reference to sealing and labeling of seized articles.

"The seizure being the very foundation of prosecution, it must pass the test of reliability," the Court observed.

Merely downloading Communist or Naxal philosophy materials not offence 

The Court observed that no inference of guilt can be drawn because of the mere presence of alleged Communist or Naxal materials on the part of the accused.

"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. No evidence has been led by the prosecution by 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, either by participating in its preparation or its direction or in any manner providing support to its commission"

The court stated that the prosecution had failed to establish legal grounds for the arrest and seizure of incriminating material. The prosecution also failed to prove the electronic evidence in terms of the provisions of the Indian Evidence Act, and the Information Technology Act, the court held.

Consequently, the court set aside the conviction rendered by the Sessions Court and acquitted all six accused of charges under Sections 10, 13, 20, 38, 39 of the UAPA and Section 120-B of the IPC.

"We summarize that, the entire prosecution is vitiated on account of invalid sanction to prosecute accused Nos.1 to 5 and against accused No.6, for want of valid sanction in terms of Section 45(1) of the UAPA. The prosecution has failed to establish legal arrest and seizure from accused Nos.1 to 5, and failed to establish the seizure of incriminating material from the house search of accused No.6  G.N. Saibaba. 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."

Following the judgment, the State of Maharashtra Government sought a stay on the implementation of the acquittal, pending appeal before the Supreme Court. However, the court rejected the application, citing its lack of jurisdiction to reconsider its decision and emphasizing the importance of individual liberty, especially in serious cases.

Background

GN Saibaba and his co-accused have been in custody since their arrest in 2014 on charges of having links with Maoist organizations and waging war against India. The prosecution contended that they were working for the banned CPI (Maoist) group through front organizations such as RDF. The prosecution relied on evidence including seized pamphlets and electronic material deemed as anti-national, allegedly seized at the behest of GN Saibaba in Gadchiroli. It was further alleged that Saibaba handed over a 16GB memory card intended for Naxalites sheltering in the Abuzmad forest area.

A previous bench of the Bombay High Court set aside the conviction in 2022 due to procedural irregularities, highlighting the absence of a valid sanction under Section 45(1) of the UAPA. 

However, in a special Saturday sitting, which attracted controversy, the Supreme Court stayed the High Court order the very next day after an urgent mentioning by the Maharashtra Government.

Later, the Supreme Court overturned this decision in a plea filed by the Maharashtra government challenging the acquittal and directed the Bombay High Court to reevaluate the case afresh.

Appearances:

Mr. Pradeep Mandhyan with Mr. Barunkumar and Mr. H.P. Lingayat, Advocates for appellant Nos. 1 to 3 (Appeal No. 136/2017).

Mr. Trideep Pais, Sr. Advocate with Mr. Barunkumar & Mr. H.P. Lingayat, Advocates for appellant Nos. 4 & 5 (Appeal No. 136/2017).

Mr. S.P. Dharmadhikari, Sr. Advocate with Mr. N.B.Rathod, Advocate for appellant (Criminal Appeal No.137/2017).

Mr. Aabad Ponda, Sr. Advocate Mr. H.S. Chitale and Mr. Jugal Kanani, Advocates for State, Mr. P.K. Sathinathan Special Counsel for State.

Case no. – APEAL/137/2017

 Click here to read the judgment