Supreme Court Sets Aside Bombay HC Order Acquitting GN Saibaba, Remands Appeals to HC for Consideration by Another Bench

“In view of the consensus between the parties and without entering into the merits of the case, with the consent of the counsel of the respective parties, we set aside the impugned common judgement and order passed by the Bombay High Court. The matters are remitted back to the high court to decide the said appeals afresh in accordance with law and on its own merits, including the question of sanction.”

A bench headed by Justice MR Shah was hearing a plea filed by the Maharashtra government challenging the decision of the high court to allow appeals against the conviction and life sentence imposed on Saibaba and five others under the anti-terror law Unlawful Activities (Prevention) Act, 1967.

The bench categorically stated that the Bombay High Court could consider all questions arising in the matter, including that of sanction. It would be open for the State to contend that once an accused is convicted after the conclusion of a trial, the validity of the sanction or the lack thereof would become insignificant, Justice Shah added.

However, the Supreme Court judge clarified, “This court has not expressed anything on merits.” He also added that the high court would have to dispose of the matter strictly on its merits and in accordance with the law, without being influenced by the earlier order by the Nagpur Bench. All the contentions and defences available to the respective parties would be kept open to be considered by the high court, the bench further added.

The bench also directed the Bombay High Court to dispose of the appeals at the earliest, preferably within a period of four months. Before concluding, Justice Shah also specified that in the interest of propriety, the appeals would have to be placed before a bench other than the one that had acquitted Saibaba and the others, in order “to avoid any further apprehensions”.

Yesterday, during the final hearing, senior advocate R Basant, appearing on behalf of the embattled professor, proposed that the matter can be remanded to the Bombay High Court to be heard afresh on all concerned issues. The senior counsel also suggested that the special leave petition before the top court be kept pending. Justice Shah, however, observed that the acquittal order would have to be set aside, before remitting the appeals to a subordinate court.

On a previous occasion, after a nearly two-hour long hearing in a special sitting held on Saturday, a Bench comprising Justices MR Shah and Bela M Trivedi issued notice in the plea filed by the State Government and suspended the Bombay High Court's order in the interim. It noted that the offences involved are very serious in nature and the accused were convicted after a detailed appreciation of the evidence. Thus, if the State succeeds on merits, offences are very serious against the interest of the society, sovereignty and integrity of India. 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 a 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 by the Solicitor General, Mr Tushar Mehta for early listing. He was granted the liberty to file an application for an administrative decision of the then Chief Justice of India, Justice UU Lalit to list the matter on a Saturday. During the course of the hearing on Saturday, Justice Shah had orally remarked, “We are finding a fault with the High Court for not entering the merits of the case and for finding a shortcut to decide (on the basis of sanction).”

Justice Trivedi pointed out that as per Section 386 CrPC, the 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).

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

1. Whether considering Section 465 CrPC, after the accused is convicted on merits, whether the appellate court is justified in discharging the accused on the ground of irregular sanction?
2. In a case where the trial court has convicted the accused on merits, whether the appellate court is justified in discharging the accused on the ground of want of sanction, particularly when objection wrt no sanction was not raised specifically during the trial?
3. What will be the consequences of not raising the dispute with respect to sanction during the trial and thereafter permitting to the trial court to proceed further despite the opportunities given to the accused?

Background

Saibaba, who is bound by a 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 & Ors. | Diary No. 33164/2022

Citation : 2023 LiveLaw (SC) 438

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