GN Saibaba: Aquitted twice over now, despite the Supreme Court

The Nagpur bench of the Bombay High Court on Tuesday, 5 March, acquitted Delhi University professor G.N. Saibaba and five others, noting that the prosecution failed to prove the charges against him.

The bench also rejected the stay application filed by the Maharashtra government, noting that if the order is stayed, it would affect the personal liberty of the accused persons who have been acquitted.

The division bench of justices Vinay Joshi and Valmiki S.A. Menezes had acquitted all six convicts because the sessions judge had framed charges against the appellants and examined the first witness without sanction. The order is yet to be made public.

Advocate General Birendra Saraf, appearing for the government, informed the bench that an appeal against the high court judgement has been filed in the Supreme Court on Tuesday afternoon. Saraf sought that the high court to stay its judgment for six weeks.

He said the “offences are of serious nature” and “a Special Leave Petition (Criminal) bearing Diary No.1050 1/2024” has been filed in the apex court.

The state claimed, “The nature of the matter is urgent since in case the judgement and order in question is implemented, serious prejudice will be caused to the state. The judgement in question thus if implemented, it will have serious repercussions and ramifications on the proceedings under the UAPA Act.”

This is the second instance of the Bombay High Court acquitting Saibaba.

Meanwhile, the state government continues to argue that as the matter “is of grave importance to the state and the matter involves intricate questions which the state seeks to raise before the Supreme Court”, the court must stay the effect and operation of its own judgement for six weeks “in the interest of justice”.

In effect, the state wanted the court to recall its order.

However, as senior advocate Trideep Pais and advocate-on-record Nihal Singh Rathod—who were representing Saibaba—submitted, a criminal court does not have the provision to recall its own after having ordered that “the accused be released forthwith”.

Pais underscored that there had to be a provision in law to pass such an order—but there isn't.

Justice Joshi too asked the prosecution which provision of the law they were relying upon when asking the court to exercise such a power as to recall its order. The state wasn’t able to show any provision.

Pais, for his part, cited a 2004 Supreme Court judgement in Adalat Prasad vs Rooplal Jindal, where it was stated that a criminal court can only exercise a power vested in it by a statute. So, if a power is not vested by the CRPC to hold back the accused after the court stated that the accused could be released forthwith, then such an order could not be passed.

Finally, it was pointed out that bail is usually a discretionary relief, but here the court had given a ruling stating that the persons are innocent. After that ruling, the court cannot keep them in custody as it would be contrary to the court’s own finding.

The court then dismissed the state’s application for a stay.

While reading out the order on Tuesday morning, Joshi asserted that there was no evidence against the convicts. The division bench concluded the hearing and reserved its verdict of 6 September 2023.

Earlier, the six persons accused in this case had been convicted by the trial court under UAPA and were sentenced to life imprisonment. They had been arrested in 2014 on charges of having links with Maoist organisations and waging war against India.

During the trial at the sessions court in Maharashtra’s Gadchiroli, the prosecution claimed that the appellants had connections with the CPI Maoist and its frontal organisation, the Revolutionary Democratic Front (RDF). They alleged that Saibaba and the others assisted CPI (Maoist) cadre by providing information, material, facilitation of travel and relocation of members.

The prosecution claimed that they had seized electronic material and pamphlets, that all of this material was “anti-national” and that Saibaba had handed over a 16GB memory card intended for Naxalites being sheltered in Chhattisgarh’s Abuzmad forest area.

The sessions court had accordingly convicted the six accused in the case of having links with “Maoists” and of waging war against the state in March 2017 under sections 13, 18, 20, 38 and 39 of the UAPA and 120-B of the IPC.

Mahesh Tirki, Hem Keshwdatta Mishra, Prashant Rahi and Vijay Nan Tirki are the other surviving persons accused. One of the accused, Pandu Pora Narote, died in August 2022.

In October 2022, another bench of the Bombay High Court, comprising justices Rohit Deo and Anil Pansare, had set aside the prior conviction stating that the trial by the sessions court was void because there was no valid sanction under section 45(1) of the UAPA.

The court had underscored the importance of procedural compliance in cases involving terrorism and emphasised that departures from due process could foster an environment conducive to terrorism.

Most recently, however, at the behest of the Maharashtra government, in a special sitting on Saturday, 2 March, the Supreme Court stayed the high court order again—until today's hearing.