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‘Wage war on terrorism but follow procedure’: What HC said as it quashed GN Saibaba’s conviction

GN Saibaba and five others were convicted under UAPA in 2017. The Bombay HC has said the earlier conviction is 'null and void', and has ordered their release.

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Delhi: The Nagpur bench of the Bombay High Court (HC) Friday set aside the conviction and life sentence awarded to former Delhi University professor G.N. Saibaba in a case alleging links with the banned organisation Communist Party of India (Maoist) under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

A bench comprising Justices Rohit B. Deo and Anil L. Pansare held that the proceedings before the trial court were “null and void” because they took place without valid sanction under Section 45(1) of the UAPA against the six accused — Mahesh Tirki, Pandu Narote, Hem Mishra, Prashant Rahi, Vijay Tirki and G.N. Saibaba. Narote passed away while the appeal was pending. The court ordered all the other accused to be released immediately.

Section 45 of UAPA bars courts from taking cognizance of any offence without previous sanction of the central or state Government.

The HC found that the sanction against the first five accused was based on the director of prosecution’s report that did not contain the reasons for recommending grant of sanction.

As for the sanction against Saibaba, it was given by the government after the charges were framed against him and the first witness on behalf of the prosecution was examined. This means that the sanction was granted after the trial began, instead of it being given before framing of charges.

Highlighting the importance of adhering to the procedure laid down by law, the bench said that while the war against terror should be waged by the State “with unwavering resolve”, a civil democratic society cannot afford “sacrificing the procedural safeguards legislatively provided…at the altar of perceived peril to national security”.

“Any aberration shall only be counter productive, since empirical evidence suggests that departure from the due process of law fosters an ecosystem in which terrorism burgeons and provides fodder to vested interests whose singular agenda is to propagate false narratives,” it asserted.

The court was hearing appeals filed by the six accused against a March 2017 judgment passed by the sessions court in Gadchiroli, convicting them under Sections 13 (punishment for unlawful activities), 18 (punishment for conspiracy for committing terrorist act), 20 (punishment for being member of terrorist gang or organisation), 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA, read with Section 120B (criminal conspiracy) of the Indian Penal Code (IPC).

Five of them were awarded life sentences, and Vijay Tirki was sentenced to a 10-year jail term.

Before the High Court, the prosecution demanded that since the appeal is decided on the point of sanction and not on merits, they may be granted liberty to get proper sanction and conduct a fresh trial against the accused.

In response, the court pointed out that it was established law that the “rule against double jeopardy” does not apply if the trial is held to be impaired due to invalidity or absence of sanction.

Therefore, the Maharashtra government can still grant fresh sanction and conduct a trial against the accused on the same allegations.

They have already filed an appeal against the judgment in the Supreme Court.

The court is set to have a special sitting on Saturday to hear the appeal. Justice M.R. Shah will head the bench.

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‘Bad in law’

In its judgment, the court noted that the sanction under Section 45 of UAPA has to be given only after considering the report of a government appointed authority, which needs to independently review the evidence.

This report, the court said, should also have the reasons for making the recommendation as well as a summary of the evidence. In this case, this authority was the director of prosecution who recommended sanction against the accused.

However, the court noted that the director’s report for prosecution of the first five accused was “laconic”, without any reasoning. It asserted that “the report of the authority which makes an independent review must, at the very minimum, incorporate a summary of the evaluation or review of the evidence gathered in the course of investigation”.

The court said that sanction is “not a ritualistic formality nor is an acrimonious exercise”.

The requirement, it added, provides a “safeguard to the accused from unwarranted prosecution and the agony and trauma of trial, and in the context of the stringent provisions of the UAPA, is an integral facet of due process of law”.

The court asserted that this lack of sanction is not a “curable defect” and that “every safeguard, however miniscule, legislatively provided to the accused, must be zealously protected”.

It then ruled that in this case, for the first five accused, the sanctioning authority “paid lip service to the legislative mandate” and gave a report as a “ritualistic formality”. This, it said, renders the sanction “bad in law”.

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‘Unwarranted observations’

In this case, Mahesh Tirki, Narote and Mishra were picked up by the police from a bus stop in Aheri, Gadchiroli in August 2013. Rahi and Vijay Tirki were arrested in September 2013.

Sanction for prosecution of the first five accused was granted on 15 February, 2014, and a charge sheet was filed against the six accused the next day. Saibaba was arrested in May 2014 and charges were framed against all the six accused in February 2015. However, the sanction to prosecute Saibaba was granted only in April 2015.

In March 2017, the trial court in the case had found that Mahesh, Mishra and Saibaba possessed Naxal literature with the purpose of circulating them among the underground Naxalites in Gadchiroli and the residents of the district, to incite the people to resort to violence.

The trial judge also rejected arguments on absence of valid sanction to prosecute Saibaba, saying that the absence did not result in failure of justice. It had then said that no leniency can be shown to Saibaba, who suffers from “90 per cent disability”.

According to the HC judgment, the lower court said that he was “mentally fit and is a think tank of the banned organisation which by its violent activities has brought the industrial and other development in the Naxal affected areas to grinding halt”.

The trial court felt that life term was not sufficient punishment for Saibaba but that its hands were tied. However, these “unwarranted observations” were criticised by the HC, which said that they “may have the unintended consequence of rendering the verdict [of the trial court] vulnerable to the charge of lack of dispassionate objectivity”.

(Edited by Theres Sudeep)

Also Read: ‘Divergence in opinion’ — Full text of Supreme Court’s split judgement in Hijab ban case


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