[Prof GN Saibaba Case] 'Matter Be Remanded To High Court To Decide All Issues Afresh’: Saibaba’s Counsel To Supreme Court

In a plea filed by State of Maharashtra challenging the order of the Bombay High Court whereby it allowed appeals against the conviction and life sentence imposed on DU Professor GN Saibaba and five others under the anti-terror law UAPA, a suggestion was floated before the Supreme Court, on Tuesday. Senior Advocate, Mr. R. Basant appearing on behalf of Saibaba proposed if the matter can be remanded to the High Court to be heard afresh on all concerned issues. The suggestion was made on the basis of the observation made by the Apex Court on a previous occasion that the High Court had not gone into the merits of the case and discharged the accused based on ground of irregular sanction. However, Mr. Basant sought a day’s time to discuss the process proposed by him with the accused persons and take instructions. 

At the request of Mr. Basant a Bench comprising Justice MR Shah and Justice Sanjay Karol deferred the hearing of the matter to 19th April, 2023 (Wednesday). 

Initially, Mr. Basant requested if the present Special Leave Petition can be kept pending and the matter be remanded to the High Court. He submitted  “Last time when the matter came up your lordship had said that the High Court should have considered on merits also. I am making a request, ask the High Court to decide...keeping this open on merit."

Justice Shah pointed out that the only difficulty was that whether the question of sanction is to be kept open or not. Mr. Basant submitted that it ought to be kept open. 

ASG, Mr. Raju appearing for the State submitted that if the suggestion is accepted then the impugned order of the High Court ought to be set aside. 

Justice Shah reckoned that it would be necessary to set aside the order of the High Court because the discharge was on the ground of sanction and all the issues will be kept open for fresh consideration by the High Court. 

“Can it be that this (impugned order) also stands and the matter be remanded? It cannot be”, said Justice Shah. 

Mr. Basant submitted that the impugned order is already stayed and in the said circumstances the High Court can be asked to decide the matter on merit. Justice Shah stated that the same would not be permissible. The judge opined that the order of the High Court under challenge is to be set aside and then it can be remanded for the consideration of the High Court. He added that all contentions on the issue of sanction is kept open. The issue of sanction in its entirety along with the trial on merits would be decided by the High Court. 

It was clarified that if there is no agreement with respect to the present proposal the matter would be heard on merits before the Apex Court. Mr. Basant submitted that if the matter is heard by the Apex Court on merits then he would make submissions to refer the matter to a larger Bench. He submitted, "So far as S. 465 CrPC curing of irregularities is concerned, we have a two judge decision which says that in a draconian law like this, S. 465 cannot come to the rescue of prosecution. It that case it has to go to a larger bench."

On a previous occasion, 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 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 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.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 by the Solicitor General, Mr. Tushar Mehta for early listing. He was granted liberty to file an application for administrative decision of the then CJI, 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 short cut to decide (on the basis of sanction)."

Justice Trivedi had 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).

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?

Background

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]