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NAGPUR: The division bench of the Bombay HC while acquitting GN Saibaba and four others pointed out that the DU ex-professor’s prosecution under UAPA didn’t have mandatory prior sanction when the trial court took cognisance of the chargesheet in 2014.
The ruling of Justices Rohit Deo and Anil Pansare came with a bunch of observations about how Section 45(1) of the UAPA, which mandates valid sanction from the home department for prosecution, had been bypassed by the police and the trial court in Saibaba’s case. “The siren song that the end justifies the means, and that the procedural safeguards are subservient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by the voice of rule of law,” it said.
The judges also quoted former Union home minister P Chidambaram, who had moved a bill in the Lok Sabha to amend UAPA, about the need to have an independent authority to review evidence in any such case and recommend to the state or Centre to prosecute the accused.
The bench said the legislative imperative was that sanction for prosecution shall be given only after considering the report of the independent authority. “We hold, on the authority of Supreme Court constitution bench’s decision in Baij Nath Prasad Tripathi’s case, that if cognisance is taken without complying with the requirement of valid sanction, entire trial shall stand vitiated, and the conviction or acquittal recorded would not be by court of competent jurisdiction.”
The bench ordered that Saibaba, Mahesh Kariman Tirki, Hem Keshavdatta Mishra and Prashant Rahi Narayan Sanglikar “be released from custody forthwith, unless required in any other case”. Pandu Pora Narote, another of those who had been convicted in the case, died of swine flu. The court discharged the bail bonds of Vijay Nan Tirki, who is out on bail. All of those freed are required to execute a bond of Rs 50,000 each with a surety of the same amount.
Saibaba and his co-accused in the UAPA case had been convicted on March 7, 2017, by the then principal district and sessions judge Suryakant Shinde of the Gadchiroli court under sections 13, 18, 20, 38 and 39 of the UAPA and Section 120-B of the IPC for colluding with Maoists and conspiring against the state. It was the first instance in Maharashtra of a conviction based purely on electronic evidence.
Criticising the observations of sessions judge, Justices Deo and Pansare said those may have the unintended consequence of rendering the verdict vulnerable to the charge of lack of dispassionate objectivity. “We have consciously rested by indicating the contours of the evidence on record and the findings recorded. We have refrained from dealing with the evidence on merits, since in our considered view, the appeals can be decided on the point of invalidity and absence of sanction under Section 45 of the UAPA.”
Maharashtra deputy CM Devendra Fadnavis, who holds the home portfolio, termed Saibaba’s acquittal along with four others “a big disappointment” for the entire state, particularly for cops and commandos killed fighting Maoists. “The accused were acquitted on technical grounds, despite having sufficient evidence. We will do everything to get the verdict reversed in the apex court,” he said.
The ruling of Justices Rohit Deo and Anil Pansare came with a bunch of observations about how Section 45(1) of the UAPA, which mandates valid sanction from the home department for prosecution, had been bypassed by the police and the trial court in Saibaba’s case. “The siren song that the end justifies the means, and that the procedural safeguards are subservient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by the voice of rule of law,” it said.
The judges also quoted former Union home minister P Chidambaram, who had moved a bill in the Lok Sabha to amend UAPA, about the need to have an independent authority to review evidence in any such case and recommend to the state or Centre to prosecute the accused.
The bench said the legislative imperative was that sanction for prosecution shall be given only after considering the report of the independent authority. “We hold, on the authority of Supreme Court constitution bench’s decision in Baij Nath Prasad Tripathi’s case, that if cognisance is taken without complying with the requirement of valid sanction, entire trial shall stand vitiated, and the conviction or acquittal recorded would not be by court of competent jurisdiction.”
The bench ordered that Saibaba, Mahesh Kariman Tirki, Hem Keshavdatta Mishra and Prashant Rahi Narayan Sanglikar “be released from custody forthwith, unless required in any other case”. Pandu Pora Narote, another of those who had been convicted in the case, died of swine flu. The court discharged the bail bonds of Vijay Nan Tirki, who is out on bail. All of those freed are required to execute a bond of Rs 50,000 each with a surety of the same amount.
Saibaba and his co-accused in the UAPA case had been convicted on March 7, 2017, by the then principal district and sessions judge Suryakant Shinde of the Gadchiroli court under sections 13, 18, 20, 38 and 39 of the UAPA and Section 120-B of the IPC for colluding with Maoists and conspiring against the state. It was the first instance in Maharashtra of a conviction based purely on electronic evidence.
Criticising the observations of sessions judge, Justices Deo and Pansare said those may have the unintended consequence of rendering the verdict vulnerable to the charge of lack of dispassionate objectivity. “We have consciously rested by indicating the contours of the evidence on record and the findings recorded. We have refrained from dealing with the evidence on merits, since in our considered view, the appeals can be decided on the point of invalidity and absence of sanction under Section 45 of the UAPA.”
Maharashtra deputy CM Devendra Fadnavis, who holds the home portfolio, termed Saibaba’s acquittal along with four others “a big disappointment” for the entire state, particularly for cops and commandos killed fighting Maoists. “The accused were acquitted on technical grounds, despite having sufficient evidence. We will do everything to get the verdict reversed in the apex court,” he said.
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