Mumbai: In its detailed judgment acquitting former Delhi University professor G.N. Saibaba and five others of ‘terrorism’ charges, the Nagpur bench of the Bombay high court has virtually shredded the state’s case against the six to pieces. Noting that fatal violations occurred in the manner in which sanction to prosecute was granted – a key statutory safeguard in India’s otherwise draconian terrorism law – the court also rejected key claims made by the prosecution in the case, noting that they were not supported by evidence.
The 293- page judgment which describes the trial court’s ‘guilty’ verdict as a “failure of justice” was uploaded by the court on the evening of March 5.
But even before the judgment copy was made available to the state, they had moved a Special Leave Petition (SLP) in the Supreme Court challenging the HC’s verdict. The state also sought a stay on the HC’s order but the application was instantly rejected.
Earlier in the day, Justice Vinay G. Joshi and Justice Valimiki S. Menezes acquitted Saibaba, along with journalist Prashant Rahi, Mahesh Tikri, Hem Keshwdatta Mishra and Vijay Nan Tikri of all charges. The sixth person in the case, Pandu Narote, died in August 2022, awaiting this verdict.
The state claimed the accused were members of the banned Communist Party of India (Maoist) and charged them under various sections of the Unlawful Activities (Prevention) Act (UAPA). In 2017, the trial court convicted the six and sentenced Saibaba and five others to life, only Vijay Tikri was handed down 10 year sentence. Most of them have spent nearly a decade behind bars.
The UAPA mandates a two-layered sanction process before a court can put a person on trial. This involves clearance from an “independent” authority as well as the sanctioning authority.
Saibaba was the sixth and last person to be arrested in the case. The trial court framed charges under UAPA against Saibaba on February 21, 2015 even though the order sanctioning his prosecution was issued only on April 6, 2015. In other words, well before the sanctioning authority’s mandatory clearance, the trial court had taken cognizance of the charges against Saibaba, framed its charges and even gone on to record evidence in the case.
Independent authority did not apply mind
For the other five persons, the high court noted that while the official sanction granted was in order, the independent authority’s report which preceded it was not. The independent authority is required to assess the material evidence against the accused persons and give her opinion before the sanctioning authority finally grants sanction for prosecution. But the judges had serious objections to the way the process played out.
The independent authority in this case was Vidya Gundecha, the then director of prosecution. The high court pointed to section 45(2) of the UAPA that “creates a statutory bar on grant of sanction unless independent authority ‘reviews’ the evidence gathered and gives its recommendation in a time bound manner”. “Recommendations of an independent authority are not an empty formality,” the court observed. In this case, however, Gundecha had merely noted, “It is clear that there is prima facie evidence against the arrested and non-arrested accused persons….”, and recommended that sanction be accorded in the case.
Calling Gundecha’s non-reasoned recommendation “cryptic”, the court said that her act (or lack of it in this case) has frustrated the law’s object. A cryptic communication cannot be considered a “report” as expected under the law, the judgment notes.
The state, represented by senior counsel Aabad Ponda, had argued that there is no set format in which the recommendation can be made. To this, the court observed,
“Having regard to the language used under Sub-clause (2), though the reasons are not required, but the independent authority is certainly expected to at least communicate in brief as to what prompted the authority to make the recommendation. It was an important facet of the process of sanction which has to be passed to the Sanctioning Authority to enable it to take an appropriate decision. We do agree that statute has not prescribed any format or a form in which the report is to be made. However, it was the minimum expectation from the Authority that the report would convey due application of mind. The very purpose was to provide assistance to the Sanctioning Authority. In turn, besides a go-ahead signal of the authority, there is nothing before the Sanctioning Authority for its consideration while granting sanction. As such the legislative object has been completely frustrated by said communication which was not in tune with the additional filter provided by the statute.”
Senior defence counsel Subodh Dharmadhikari, who appeared for Saibaba in the high court, pointed to the legal history of the UAPA and the amendments which had been made to the law. Since the law was stringent, Dharmadhikari said that it provided various safeguards in the shape of power to arrest and search. He argued that section 45 of UAPA is a unique provision which added a very important pre-cognizance, presanction filter to the law.
Since the sanction provision goes to the root of this case, and has virtually raised doubts over the entire trial, the high court observed that:
“There is total non-compliance with the sanction provision which goes to the very root of the case, vitiating everything against accused No.6 (Saibaba) from its inception for want of authority of the trial court to proceed. In sum and substance, the prosecution against accused No.6 G.N. Saibaba for want of valid sanction is also totally vitiated.”
As the defence team systematically built its argument in the case, Ponda contended that the issue of sanction was not raised by the defence at the time of framing of charges or at other important stages of the trial so it could not be brought up now. The defence responded by bringing the bail application filed by the accused way back in June 2014 where the issue of sanction was raised.
Not simply a ‘technical’ error
While the prosecution insisted that the lack of proper sanction was at best a ‘technical’ glitch – something that could be overlooked – the court rejected this argument. It observed that while Section 465 of the Code (CrPC) does allow an “error” or “irregularity” in grant of sanction to be cured, it “does not cover omission or total absence of sanction”:
“In our view, there is total non-compliance of various provisions of UAPA. The sanction accorded to prosecute Accused Nos.1 to 5 is invalid. Taking cognizance by the trial court without valid sanction or no sanction to prosecute accused No.6 G.N. Saibaba goes to the root of the case, which renders the entire proceedings null and void… We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice.”
Along with the sanction aspect, the court also took an independent look at the nature of the witnesses who deposed in the case. The prosecution case was entirely built on the statements of 23 witnesses, comprising only police personnel and panch witnesses. The court also looked at the three seizures—primarily electronic evidence—that the prosecution relied on to prove its case.
Although no offence was shown to be committed or arms recovered from either of the six persons convicted in the case, the prosecution had relied upon section 43 (E) of the UAPA which allows “presumption” of an offence to be committed. The section, however, can be applied only if the accused were booked section 15 and subsequently punished under section 16 (i.e. for terrorist acts) or found to be in possession of arms or explosives. In this case, neither were arms recovered nor were any of them booked under section 15 or 16 of the UAPA.
“…In criminal jurisprudence, it is a well-recognised principle that the onus of proof lies on the prosecution and is higher than the mere preponderance of probability. The prosecution is under an obligation to establish the guilt of the accused beyond reasonable doubt,” the court observed.
Prosecution fails to provide evidence to back up charges
The high court examined witness statements and the electronic evidence the police said it had seized but came to the conclusion that the prosecution had failed to make out a credible case. Referring to video footage, for example, the court noted:
“Though a great deal of electronic evidence is produced in the form of printed/hard copies of the content stored in digital form or in the nature of video footage, no evidence has been led by any witness identifying the various persons in these videos, or deposing as to the specific statements made by such persons and quoting them, or how these statements or actions in videos constitute material to make out an offence under the Act. Playing several videos or requesting the Court to read through hundreds of pages of literature does not constitute evidence. In our opinion, there should have been specific evidence led through witnesses to connect with the making out of an offence. In the absence of any depositions to this effect, we are afraid we cannot consider all this footage to be evidence.”
Making clear that the decision to acquit Saibaba and the others was not just on account of the failure to grant sanction to prosecute, the judgment notes:
The prosecution has failed to establish legal arrest and seizure from accused Nos.1 to 5, and failed to establish the seizure of incriminating material from the house search of accused No.6 G.N. Saibaba. The prosecution has also failed to prove the electronic evidence in terms of the provisions of the Indian Evidence Act, and the Information Technology Act.
“In view of the above conclusion”, it said, “the common judgment rendered by the Trial Court …is not sustainable in the eyes of law.”
Saibaba’s lawyer jailed in Bhima Koregaon case
Incidentally, Saibaba’s defence in the trial court was handled by the Nagpur-based human rights lawyer Surendra Gadling, who, soon after the completion of trial, was himself arrested in the Elgar Parishad case. Arrested on June 6, 2018, he continues to be incarcerated. Gadling and other defence lawyers in the Elgar Parishad case have said that he was targeted mainly because he had defended Saibaba in the trial court.
