Supreme Court Stays Release Of Prof GN Saibaba & Others In UAPA Case, Suspends Bombay HC's Acquittal Order

After a nearly two-hour long hearing in a special sitting held on Saturday, a Bench comprising Justices M.R. Shah and Bela M. Trivedi passed the order while issuing notice on the appeal preferred by the State of Maharashtra.

"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 390 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 bench observed in its order.

It said that the offences involved are very serious in nature and the accused were convicted after detailed appreciation of evidence. Thus, if the State succeeds on merits, offences are very serious against the interest of the society, sovereignty and integrity of India.

"High Court has not considered the merits. High Court 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 Court noted in the order.

On Friday, the Bombay High Court had allowed their appeals against conviction and life sentence imposed under the anti-terror law UAPA. It held that the trial was null and void as valid sanction as required under Section 45 of the UAPA was not obtained. The Court observed that procedural safeguards cannot be sacrificed at the altar of a "perceived peril to national security".

Hours after the acquittal, the SLP assailing the said order was mentioned before the Bench comprising Justices D.Y. Chandrachud and Hima Kohli by Solicitor General, Mr. Tushar Mehta for early listing. He, orally, sought for a stay on the order of the Bombay High Court in the interim. Reluctant to grant stay of operation of an order of discharge the Bench, at the request of the SG granted him liberty to file an application for administrative decision of the CJI, Justice UU Lalit to list the matter on Saturday (today).

During the hearing, Justice Shah orally remarked,

"We are finding a fault with the High Court for not entering the merits of the case and for finding a short cut to decide (on the basis of sanction)."

Justice Trivedi pointed that as per Section 386 CrPC, appellate court can acquit only after reversing the findings of the trial court. (In this case, the accused was discharged on the basis of sanction, without going into merits).

Can accused be discharged by the appellate court on the ground of irregular sanction after they have been convicted by the trial court on merits?

The bench has formulated the following questions of law and posted the matter after vacation:

-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?

-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 wrt no sanction was not raised specifically during the trial?

-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?

Courtroom Exchange

Solicitor General Tushar Mehta appearing for the State submitted that Saibaba did not raise the ground of sanction at trial stage and the issue was raised only at appellate stage.

He submitted that sanction to prosecute Saibaba came late. By that time, Investigating Officer was examined. An application was filed to recall his evidence. However, at that time, Saibaba did not object. "That was the first opportunity to raise the ground of sanction. He waived."

The SG then submitted that Section 43C of UAPA makes CrPC applicable. Section 465 CrPC states that mere irregularity in sanction is not a ground for acquittal.

Reliance was placed on the case of Lal Singh vs State of Gujarat, 1998(5) SCC 529, where it was held that the issue of sanction cannot be raised in appeal if it is not raised in trial.

The SG argued that the purpose of sanction is to ensure at threshold that a person is not put to vexatious trial. However, this is not a vexatious trial, he argued. "If after a full fledged trial persons are found guilty, there is no vexatious trial."

He pointed that though Saibaba had not raised the issue at trial stage, the trial court nonetheless considered the issue and held that it has not occasioned any failure of justice.

Senior Advocate R Basant appearing for Saibaba submitted that on date of cognisance or on date of framing charge, there was no sanction. He argued that Section 465 talks about error or irregularity of sanction, not absence of sanction. "So far as I am concerned, there is no sanction…

21.02.2015 is the date of framing of charges against all accused. Sanction against accused 6 was obtained on 06.04.2015," he pointed.

At this juncture, Justice Shah asked if any specific, independent objection regarding sanction was raised by the accused during trial. "Yes, or No? A simple question."

Basant responded that the issue was raised.

"Show us that, if any application was made," Justice Shah said.

"No application was made. But at the stage of cross-examination, this plea was raised," Basant responded.

The senior counsel also drew the Court's attention to Saibaba's physical disability and urged the Court to not suspend the High Court's order. "He is disabled to 90%. Paraplegic. He is having multiple other ailments which are judicially accepted. He is confined to his wheel chair. No dispute… "

He claimed that that there are no trained persons in prison to help Saibaba to answer the calls of nature. "Lay co-prisoners are helping him. Doctors say it is affecting him… When I am discharged, kindly do not send me back to prison. Any conditions be imposed. It is a case of life and health for him."

The SG however submitted that the High Court had noted while rejecting bail that his application did not specify medical grounds and, in any event, the Prison authorities were giving medical treatment.

Basant then submitted that the High Court had demanded Saibaba and other accused to execute a Bond to appear before next appellate Court under Section 437A CrPC. Thus, his presence is already secured and there is no need to suspend the High Court's order, he submitted.

"We have argued on full on merits. High Court only considers one aspect (of sanction). Kindly see my plight, our incarceration will be prolonged," Basant said.

Here, the Top Court responded,

"We are not finding fault with you (Saibaba), we are finding fault with the HC for not entering the merits of the case… You may have argued everything, but can the benefit of the mistake committed by the HC be given to the accused?"

Basant then submitted that the State has accused Saibaba of being the 'mastermind'. However, he argued that there is nothing to show his involvement.

Here, Justice Shah orally remarked,

"So far as terrorist or Maoist activities are concerned, the brain is more dangerous. Direct involvement is not necessary." He added, "I am generally observing, not with respect to this specific case."

Basant then pointed that Saibaba has no criminal antecedents, he was arrested in 2015 and has been in custody for over 7 years. He was released on bail for a brief period on medical grounds, during which period, Basant submitted, he did not abuse the conditions of bail.

"I am only trying to point out the circumstances that why I should not be detained in custody anymore. Already the bond under 437A is there. I can even be directed to remain in my house. I am a wheelchair bound person."

About the Case

Saibaba, who is bound by wheelchair due to post-polio paralysis, had earlier filed an application seeking suspension of sentence on medical grounds. He said that he is suffering from multiple ailments, including kidney and spinal cord problems. In 2019, the High Court rejected his application to suspend the sentence.

The order of conviction and sentence was passed by the Sessions Court at Gadchiroli, Maharashtra, in March 2017, for offences under Sections 13, 18, 20, 38 and 39 of the UAPA and 120 B of the Indian Penal Code for alleged association with Revolutionary Democratic Front(RDF), which was alleged to be an affiliate of outlawed Maoist organisation. The accused were arrested in 2014.

One of the accused, Pandu Pora Narote, died in August 2022. Mahesh Tirki, Hem Keshwdatta Mishra, Prashant Rahi and Vijay Nan Tirki are the other accused. The court has ordered the immediate release of Saibaba and the other accused.

[Case Title: State of Maharashtra v. Mahesh Kariman Tirki And Ors. Diary No. 33164/2022]

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