Prof. Saibaba’s Release Suspended By SC

Justices Shah and Trivedi suspended the Bombay HC's Order, stating it did not deal with the merits of the case against Prof. Saibaba.

Today, a Supreme Court Bench comprising Justices M.R. Shah and B.M. Trivedi suspended the Bombay High Court’s October 14th Order releasing Prof. G.N. Saibaba and five others who were sentenced to life imprisonment by the trial court in Gadchiroli, Maharashtra. The Bench stated that the High Court had solely focused on the procedural errors made and incorrectly ignored the merits of the case.

The Bombay High Court ruled that the trial court framed charges and began the proceedings against Prof. Saibaba under the Unlawful Activities (Prevention) Act, 1967 (UAPA) before receiving ‘sanction’ to do so from the Maharashtra government. Section 45 of the UAPA mandates government sanction before a Court can hear the case of an individual charged under that Act.

Solicitor General Tushar Mehta, for the State of Maharashtra, argued that a mere ‘irregularity’ in obtaining sanction cannot be a ground for releasing the accused persons. Senior Advocate R. Basant passionately pleaded with the Bench not to suspend the Bombay HC Order and allow Prof. Saibaba’s release on account of his deteriorating health.

How Did This Case Reach the SC?

On May 9th, 2014, Prof. Saibaba was arrested for allegedly having ties to the Revolutionary Democratic Front of the banned Communist Party of India (Maoist). He was charged with supporting terrorism, committing unlawful activities and criminal conspiracy under the UAPA. However, the Maharashtra government only sanctioned the case against him on April 6th, 2015. By this time, the Gadchiroli Trial Court had already framed the charges against Prof. Saibaba and began cross-examining witnesses.

On March 7th, 2017, the Trial Court sentenced Prof. Saibaba and five others to life imprisonment, which he challenged at the Bombay High Court. Three weeks later on March 29th, they challenged their conviction at the Nagpur Bench of the Bombay High Court where the case would remain pending for over five years. In the meantime, he was terminated from his position as an English Professor at Delhi University.

On October 14th, 2022, a 2-Judge bench of the Bombay High Court held that the sanction to proceed with the case against Prof. Saibaba and the five others was granted after the conviction proceedings had begun, rendering their conviction ‘null and void’. The HC’s Order highlights the importance of abiding by procedural requirements, especially in cases filed under ‘draconian’ laws like the UAPA.

On the same day, the Maharashtra government filed a petition against the HC’s Order at the Supreme Court. SG Tushar Mehta requested a Bench led by Justice Chandrachud to stay the Order but his request denied. However, the Bench allowed him to file an application before the Chief Justice for an early hearing in the case which was accepted. The case was placed before a special Bench comprising Justices Shah and Trivedi who heard the case the next day, despite Saturdays being a non-working day at the SC.

SG Tushar Mehta: Irregularities in Obtaining Sanction Not a Ground for Release

Mr. Mehta’s arguments hinged on Section 465 of the Code of Criminal Procedure, 1973. He attacked the HC’s Order which released Prof. Saibaba with the same blade forged in criminal law procedure. This provision states that a Court of Appeal (like the High Courts or the Supreme Court) cannot reverse or alter a sentence based on any error or irregularity in the sanction obtained to prosecute an accused. If there is a ‘failure of justice’ because of this irregularity, the Court of Appeal must consider if the accused raised an objection regarding this irregularity during the original proceedings.

Mr. Mehta pointed out that Prof. Saibaba never raised such an objection during the trial court proceedings. He further highlighted that the Trial Court addressed the sanction issue despite Prof. Saibaba not raising any objections. It found that there was no failure of justice as a result of the sanction being obtained after the proceedings began. On the other hand, the Bombay HC did not consider the merits of the case in their Order which is required to determine that there was such a failure.

Further, Mr. Mehta referred to the SC’s Judgment in Lal Singh v State of Gujarat (1998). When determining if a procedural irregularity resulted in a failure of justice, the 3-Judge Bench held that the Court must look into whether the objection was raised at an earlier stage in the proceedings.

Sr. Adv. R. Basant: Consider Detereriorating Health and Allow Prof. Saibaba to Return Home

Mr. Basant immediately contradicted Mr. Mehta’s argument that they had not raised any objection regarding the sanction during the Trial Court proceedings. He pointed out that the HC Judgment highlights four instances where they raised objections. Additionally, he argued that they objected to the lack of sanction during the cross-examination stage in the Trial Court.

He passionately pleaded with the Bench not to suspend the Order and suggested that Prof. Saibaba be placed under house arrest along with any additional restrictions the Bench thought necessary. He drew attention to Prof. Saibaba’s litany of medical conditions which confine him to a wheelchair, including post-polio paralysis. He also mentioned that the Professor did not a criminal history in the slightest before he was convicted by the Trial Court.

Justice Shah and Mr. Mehta suggested that a person’s ‘brain’ was the most integral part of committing terrorism-related offences and house arrest would not preclude anyone from coordinating further offences from their home. With no hesitation, Mr. Basant said they would be willing to accept an Order to cut the phone lines to Prof. Saibaba’s house.

Justices Shah & Trivedi: HC Order Suspended and Issues Framed

In their Order, the Bench drew a distinction between the Trial Court’s Judgment and the HC’s Order. The Trial Court convicted the accused after considering the evidence and the merits of the case. Meanwhile, the HC released the accused on the sole ground that the sanction was invalid. Therefore, due to the seriousness of the charges and the HC’s lack of consideration on the merits of the case, the Bench suspended the HC Order. The accused including Prof. Saibaba will resume their imprisonment.

The Bench framed three issues to deal with in the next hearing:

  1. Can a Court of Appeal release an accused on the ground of an ‘irregular’ sanction?
  2. When a Trial Court convicts an accused based on the merits of the case, can a Court of Appeal release them based on procedural irregularity without considering the merits?
  3. What are the consequences of failing to raise objections on irregular sanction before the Trial Court?

The Bench gave Mr. Basant four weeks to file a counter-affidavit and listed the next hearing for December 8th, 2022.