New Delhi: Non-compliance with provisions of the Unlawful Activities (Prevention) Act, 1967, failure to maintain a hard-bound case diary, writing of FIRs with pens of different ink, discrepancies in date of arrest in police documents, recording of accused’s confession statement while they were in police custody, use of stock witnesses at the time of arrest and invalid prosecution sanction — these are the factors that weighed heavily with the Nagpur bench of the Bombay High Court Tuesday when it threw out Maharashtra Police’s case against former Delhi University professor G.N. Saibaba and five more persons Tuesday.
The six were arrested more than a decade ago for their alleged association with the outlawed Communist Party of India (Maoist) and its frontal organisation, the Revolutionary Democratic Front (RDF).
In its 293-page ruling, the HC faulted the trial court for framing charges against Saibaba in the absence of a valid sanction to prosecute him.
The court also observed that he was arrested in May 2014 — eight months after a chargesheet was filed against him. The prosecution had failed to explain the delay in Saibaba’s arrest, the court said.
On an in-depth scrutiny of the articles that were seized from Saibaba’s house and the others, the HC termed the entire process of search and seizure as “doubtful”. The seized articles were the very foundation of the prosecution case.
Given that the seizures happened in the presence of “stock” witnesses, the HC refused to consider them as corroborative evidence to substantiate the prosecution case. Further, it pointed to “several admissions” given by these witnesses, which it said “created substantial doubt about the entire process of seizure”.
“Admissions given by these witnesses made us hold that they are not natural, responsible, and reliable witnesses. They are, in fact, regular stock witnesses of the police and that too illiterate used by the police (sic) to prove the seizure which we do not accept,” the bench said.
With the evidence before it, the court held it “is difficult to accept” that the accused “conspired and made preparation to commit a terrorist act”, which was not spelt out by the prosecution during the arguments. The call details record (CDR) of the accused only showed their acquaintance with each other, which without corroboration “will yield nothing”, the bench said.
Not only did the police fail to establish that the accused’s arrests were legal, but they also failed to prove the electronic evidence in terms of the Indian Evidence Act and the Information Technology Act due to procedural irregularities, it said.
The prosecution had accused Saibaba of sending some secret messages stored in a 16GB memory card related to CPI (Maoist) and charged him and the remaining five — including Prashant Sanglikar and Vijay Tirkey — of actively supporting “terrorist organisation with an intention to facilitate” its activities.
While the first three arrests — Mahesh Tirkey, Pandu Narote, and Hem Mishra — were made in Aheri in Maharashtra’s Gadchiroli on 22 September, 2013, Sanglikar and Vijay Tirkey were arrested on 1 September, 2013, at Chichgarh T-point in Deori, Bilaspur. According to the prosecution, their investigation revealed Saibaba’s involvement in the “lead role.”
Although his house was searched in the late afternoon on 12 September, 2013, he was arrested only on 9 May, 2014.
According to the prosecution, Naxal-related documents, various communications, and reports on meetings in the electronic form disclosed that the accused conspired to commit a terrorist act. The documents seized from his residence disclosed that Saibaba rejected a parliamentary form of governance and supported an armed struggle, it further said.
The prosecution examined 23 witnesses, but its evidence mainly consisted of police personnel and panch witnesses who were present when the accused were arrested and seizure memos that were prepared.
The police claimed their investigation into the case was based on secret inputs that disclosed Tikrey and Narote’s involvement with CPI (Maoist). Subsequently, their arrests led them to the remaining three persons.
Sanction invalid
The court ruled that the sanction accorded to prosecute the accused was invalid. It also noted that in the case of Saibaba, there was no sanction — valid or invalid — when the trial court proceeded to prosecute him, saying that without a valid sanction, the entire proceedings against Saibaba were “null and void”.
It also said that in Saibaba’s case, there was an “unexplainable” delay in giving the sanction, which came much after the charges were framed against him by the trial court.
“The trial court could not take cognizance of the case and has acted without jurisdiction,” the HC bench said.
Given how stringent UAPA is, sanction for prosecution is necessary for trying crimes under the UAPA. According to Section 45 of the law, “no court shall take cognizance of any offence, without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf”.
Section 45(2) further says that sanction for prosecution shall be given within a stipulated time only after considering the report of an independent authority appointed by the central or state government. This authority has to make an independent review of the evidence gathered during the investigation and make a recommendation to the sanctioning authority within the prescribed time.
In the current case, the sanctioning authority was an officer of the state’s home ministry, while the independent authority was the director of prosecution of the Maharashtra government.
The court noted that the independent authority’s report recommending sanction of the accused in the case was a “half-page communication”, which it said cannot be “called a report” since it did not contain any material to infer that it had reviewed the evidence and formed an opinion on that basis.
Such an act, the court said, betrayed the legislative intent of section 45(2), which was to provide an additional filter in the stringent anti-terror law to prevent unauthorised arrest or misuse of the law or frivolous prosecution.
“The report at least should indicate broadly the basis on which the conclusion was reached. However, we cannot find a single word in the report to lay such a foundation for making a recommendation for the grant of sanction. The report displays total non-application of mind to the material on the record,” the court concluded.
The purpose behind Section 45(2) was that the sanctioning authority would receive “a good deal of assistance” from the independent authority, the court said, adding that it was lacking in the present case.
Since the accused were arrested under a “harsh law”, the police were required to follow the steps and procedures laid down in it “scrupulously”, the bench said. “Scanty communication of the director of prosecution does not stand the test of (a) valid report expected under the special law,” the court ruling said, holding that the sanction accorded in the absence of compliance with the mandatory prerequisite in the law cannot be a valid sanction.
As for Saibaba, the court held that his sanction was received after the trial commenced. Also, there was non-adherence to the mandatory time frame fixed for according sanction. In his case, the sanction was accorded on 6 April, 2015 — a month after the sanctioning authority got the report from the director of prosecution, approving his prosecution, the court said.
The police could not explain the delay, which was an obligatory task, the bench said.
Statutory presumption & pamphlets recovered from Saibaba’s house
The HC rejected the prosecution’s submission that the charges against Saibaba should be assumed to be true and the former DU professor should prove them to be false.
Significantly, under the UAPA, there is a statutory presumption against the accused, reversing the burden on them to establish they are innocent. This provision makes the law stringent compared to the Indian Penal Code (IPC), where the prosecution has to prove the case in the court beyond reasonable doubt.
In the current case, the HC disagreed with the prosecution’s contention that Saibaba was arrested under Section 43-E, which pertains to the recovery of arms or explosives or any other substances specified in Section 15 of UAPA.
While Section 15 of UAPA defines a terrorist act, Section 16 provides for punishment for the offence.
Saibaba’s advocates argued that statutory presumption is restricted to an offence under sections 15 and 16 and not 43-E, as argued by the prosecution.
Accepting the defence’s contention, the HC said Saibaba was not charged for the offence of terrorist act as given in Sections 15 and 16. To accept the police version, HC said, recovery of articles seized from Saibaba’s house should have been essentially those that were either used or were to be used in a terrorist act.
Moreover, the language of the provision also indicated that the articles mentioned in it refer to arms or explosives used in the commission of a terrorist act. “Apparently, the seizure must be of some articles used to create violence resulting in death, injury, damage, destruction, etc.” the court said.
However, none of this was recovered from Saibaba’s residence, the court said, adding that police had only seized documentary and electronic evidence allegedly containing incriminating communication and texts.
The court also maintained that statutory presumption would apply only in prosecution for an offence under Section 15 punishable under Section 16 of the UAPA of which the present accused have not been charged.
The court held that mere possession of Maoist literature, recovered from Saibaba’s house, by itself was not an offence under UAPA.
“Such literature is now available easily on the internet for anyone to access and read and a citizen cannot be held liable under UAPA merely because he downloads or reads such material or sympathises with the philosophy,” it said.
‘Doubtful’ seizures
The HC came out in support of the defence’s theory that the process of arrest and seizure was doubtful on account of material irregularity, lack of transparency, manipulation, and a case of fabrication.
After holding that it was the prosecution that had to establish the guilt of the accused beyond reasonable doubt, the court analysed and scanned the evidence proffered by the prosecution, and considered each seizure separately to assess their credibility.
The HC held that the arrest of Tirkey, Narote, and Mishra was antedated, meaning they were probably arrested before the FIR was lodged or before the official date of arrest as was recorded in the documents. It drew this conclusion after finding that the police had used the service of a home guard attached to the Aheri Police Station since 2000 as a witness to arrest the three.
The court held that the home guard had accepted this in the trial court while also saying that police had another witness to testify to the three arrests. However, the second witness was never produced during the trial.
Though the police had claimed to have found Naxal-related pamphlets from the three, the court found these documents were not described in the seizure memo prepared at the time of their arrest. There was also variance in evidence as to which police personnel summoned the senior officer who prepared the seizure memo.
The court held it was difficult to treat the home guard as an independent witness to confirm the timing and date of the arrest of the three accused. It also noticed discrepancies and overwriting in the FIR prepared in connection with their arrest. Further, documentary examination showed that the arrest memos of the three were written in different handwriting.
Another act that raised doubt in the court’s mind was the use of different pens to write the date and time of arrest in the FIR. Besides, it also saw that in the arrest memo of the three, two dates of arrest were mentioned — while the first page bore the date 23 August, 2013, the foot of the document had the date 22 August, 2013, in a different ink.
“It is surprising to note that three police officers have simultaneously committed the same mistake of putting another date at the end of panchnama as 23.08.2013 which again enhances the degree of suspicion,” the court said. Against this background, the court refused to vouch for the credibility of the evidence produced to establish the date and time of the arrest.
Even on the arrest of Tirkey and Sanglikar, the HC found that the arrest memos did not specify the time of their arrest and the seizure memo did not contain the documents possessed by them. Once again, the witness, who, the police said was there at the time of their arrest, was found to be a stock witness.
The court did not rely upon him as he was a sweeper working with the Aheri police station.
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An ‘Illiterate witness’ at the time of raid at Saibaba’s house
The HC found it strange that the Maharashtra Police chose to take an illiterate witness when it went to raid Saibaba’s house. The professor’s counsel had alleged that the entire process of seizure was illegal and planted.
During the search, the police said it collected six CDs, 24 DVDs, 3 Pen-drives, 32 GB memory card, five hard disks, a laptop, Bluetooth, three mobiles, 2 SIM cards, and documents related to Naxal literature, among other things.
The first infirmity found in the seizure process was improper sealing and labelling of the articles taken into custody.
The court found that during the search conducted at Saibaba’s house with the help of the Delhi Police, the Maharashtra Police team took a barber as their independent witness. This witness, the court observed, was illiterate and could not distinguish between the multiple electronic devices seized.
In his evidence before the trial court, the witness had admitted that there were thousands of students and professors available in the area to act as a witness but it was he who was chosen. He also admitted that at the time of the search, he and Saibaba were kept out by locking the door from inside.
“This witness has, in so many words, stated that he is totally illiterate and he should not be taken as panch on account of his illiteracy,” the HC observed, adding, “He does not know how to read the English language, but is also digitally illiterate and thus, it is difficult to hold that this witness has identified the articles claimed to be seized during the house search”.
The court also suspected the seizure procedure because the memo carried no “reference to either the articles which were sealed with wax or with label with witness’s signature”. Police could not produce the video to corroborate its action as legal, the bench said.
It further said that the electronic evidence seized from Saibaba’s house was not a secure electronic record in terms of the Information Technology Act, 2000, and, hence, cannot be treated as valid evidence. There was no physical identification of the device that contained the electronic record nor was any co-relation established between the device, which was not physically identified in the seizure memo, and the electronic record sought to be relied upon as evidence in court, it said.
Confession statements
The court also refused to accept the confession statement of Tirkey and Narote, saying they were recorded when the two were in police custody.
Both had sought to retract their confession within days of being sent to judicial custody claiming in their application that police had threatened to implicate their relatives and cause destruction of their property and family.
In their application before the magistrate, the two had also claimed they were tortured in police custody. The magistrate had testified about the statement before the trial court.
Authorisation for search and seizure
In its ruling, the court held that the officer who led the arrest and searches had no authorisation to do so from the competent authority.
Under Section 43 of the UAPA, an officer making a search or arrest should be authorised to do so by the designated authority.
“The legislative intent was, therefore, to confer powers of arrest and search on an officer specifically authorized on that behalf by the Competent Authority and such search and arrest can be conducted only under the supervision and control of this Higher Ranking Government Officer (The Designated Authority) which is independent to Police Authority,” the court said, adding that such authorisation was absent in the case.
(Edited by Uttara Ramaswamy)
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