High Court Discharged GN Saibaba, Why Has Supreme Court Kept Him Back in Jail?

Questions have also been raised regarding the rush with which the appeal was heard by the apex court.

A mere twenty-four hours after the Bombay High Court order a special bench of the Supreme Court sat especially on a Saturday, suspended the high court judgment and stayed Saibaba’s release.

(Photo: The Quint archives)

“...Yes, and how many years must a mountain exist

Before it is washed to the sea?

And how many years can some people exist

Before they're allowed to be free?...”

(Bob Dylan, Blowin’ in The Wind)

As autumn uncurled it’s fangs and the late summer-air started to curl into a wet, pre-winter chill, AS Vasantha made plans to immediately shift her husband to a hospital.

He is 90% disabled, inflicted by 19 chronic and acute post-polio conditions and wheel-chair bound. It is reasonable to expect that the winter won’t bring him any relief, unless his ailments are urgently attended to.

Vasantha had told a newspaper that she was going to wheel him at once either to Delhi or to Hyderabad for treatment.

But alas, that was not to be.

Because former Delhi University professor GN Saibaba never got a chance to exit the Nagpur jail, where he is still serving a life sentence in an alleged ‘Maoist-links’ case.

File photo of GN Saibaba. Image used for representation.

(Photo: IANS)

When the Bombay High Court order came on Friday, 14 October, discharging him in the UAPA case and ordering his release, Vasantha told The Telegraph:  

“We are hopeful that he (Saibaba) will be released tonight or tomorrow morning. My brother-in-law is there, and the lawyers are filing the documents required. I will also go.”

But a mere twenty-four hours later a special bench of the Supreme Court sat especially on a Saturday, and suspended the high court judgment and stayed Saibaba’s release.

But what had the High Court said? And what did the Supreme Court order? And did it have to be that way?

WHAT HAD THE HIGH COURT SAID?

“In view of the findings recorded by us, we hold that the proceedings in Sessions Trials 30/2014 and 130/2015 are null and void in the absence of valid sanction under Section 45(1) of the UAPA, and the common judgment impugned is liable to be set aside, which we do order.”

Nagpur Bench of the Bombay High Court

Discharging Saibaba and his co-accused in the case, the High Court noted the want of adequate, legal sanction before the start of the trial. The High Court found that the trial court, which convicted the accused, took cognisance of the offence even in the absence of sanction.

Section 45(1) of UAPA makes prior sanction of the Central Government mandatory for a court taking cognisance of any offence under the Act.

The High Court said that for this reason, in keeping with a previous apex court judgment, the entire trial stands vitiated.

“We hold, on the authority of the Constitution Bench decision in Baij Nath Prasad Tripathi, that if cognisance is taken without complying with the requirement of valid sanction, the entire trial shall stand vitiated.”

Nagpur Bench of the Bomabay High Court

Further, the High Court noted that the Director of Prosecution of the State of Maharashtra had filed a “laconic” report containing “conclusion sans reasoning.” 

“In our view, a laconic communication conveying only the recommendation sans summary of the analysis of the review of the evidentiary material is not a report which the legislature intended the appointed authority to submit to the sanctioning authority, and stands on the same footing as an absence of report.” 

Nagpur Bench of Bombay High Court

Section 45(2) of the UAPA mandates “an independent review of the evidence gathered in the course of investigation” and a recommendation to be made within a time-period prescribed by the government.

The high court pointed out that they are not suggesting that this report should be elaborate or akin to a judicial order, but that “the report must be self explanatory and must incorporate the summary of the review of the evidence gathered as would assist and aid the sanctioning authority.”.

WHAT DID THE SUPREME COURT SAY? 

In their judgment suspending the High Court’s order, the apex court said “the High Court has not entered into the merits of the case and considered anything on merits of the judgment and order of conviction and sentence passed by the learned trial Court.” 

Further, elaborating on their reasons, the bench said:

• The accused were convicted after detailed analysis of the evidences on record

• The offences for which the accused were convicted by the trial court are very serious

• The High Court has not at all dealt with and considered anything on the merits of the judgment and order passed by the trial court

• The High Court discharged Saibaba on the ground that there was no sanction on the day on which the court took cognisance, but that “question is required to be considered in detail”

Thereby, the court formulated questions for the apex court to go into in subsequent hearings.

'BUT APEX COURT DID NOT SAY THAT HIGH COURT'S CONCLUSION WAS PRIMA FACIE WRONG'

Senior Advocate Colin Gonsalves, in an article for The Indian Express, however, noted:

“If the High Court finds that there is a preliminary flaw in the prosecution of such a nature and seriousness that it goes to the root of the legality of the prosecution, it is not at all necessary to waste time going through a lengthy trial…”

This, according to Gonsalves, is because “if the initial flaw is fatal, no further adjudication is to be done and the accused is to be released immediately.”

In Baij Nath Prasad Tripathi vs The State of Bhopal — on which the High Court placed reliance in this matter — it was held by the apex court that the entire trial shall stand vitiated if cognisance is taken without complying with the requirement of valid section.

“If no Court can take cognizance of the offences in question without a legal sanction, it is obvious that no Court can be said to be a Court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void...(sic)”

Baij Nath Prasad Tripathi vs The State of Bhopal

Gonsalves noted in his article that the Supreme Court did not even find the high court’s conclusion, citing Baij Nath Prasad Tripathi, to be prima facie wrong.

Further, in conversation with The Quint, Gonsalves elaborated: “They have not said that this proposition of law that sanction puts an end to everything is prima facie not correct.”

“Unless, a superior court finds that the lower court’s order is unsustainable, you cannot stay the order. Not just because the court wants to look into the very fine points of law.” 

Gonsalves also noted that this is not civil case, but a criminal case, where a man was scheduled to leave the jail, but is no longer allowed to.

AND 'WHY A SPECIAL SITTING?'

Questions have also been raised regarding the tearing rush with which the appeal was heard by the apex court. 

In a article (published in LiveLaw) about this “extraordinary special sitting” held by the apex court on Saturday, the website's founding-editor Manu Sebastian wrote:

“The tearing hurry with which the petition filed at 3.59 PM yesterday (on Friday) was listed for hearing on a non-working day, that too before a special bench (as per the present sitting arrangement, there is no regular bench consisting of Justice MR Shah and Justice Bela M Trivedi) has startled many.” 

He pointed out that yes, there have been extraordinary sittings is the past — such as those on pleas to stop the execution of capital punishment for Yakub Memon and the ‘Nirbhaya’ case convicts, or to protect journalists from arrest — but they have been held “when pressing issues of personal liberty are involved or to avert grave constitutional crisis.“ 

But “why a special sitting for a plea to take away the personal liberty granted by a High Court?” Sebastian asked.

Gonsalves too, in his article, wondered “why the Supreme Court treated this matter as if the heavens would fall if the State appeal was not heard calmly and comprehensively on a normal working day”.

WAS AN ALTERNATE APPROACH POSSIBLE?

And it is not as if the law does not permit an alternative to this approach. 

“The Supreme Court could have said that his release from jail is subject to final orders in the appeal,” Gonsalves told The Quint. 

“They could have let him go for a month, two months, three months, however long it takes to hear the appeal properly. And then if they wanted they could have set aside the order and directed him to return to jail," he added.

SO, FOR NOW...

For now, however, it will be several weeks before the matter is taken up next. The order says that the notice issued by the top court is returnable on 8 December.

On Friday, after the high court had pronounced its order, Saibaba's wife AS Vasantha had said that the judgment gave her hope for all others in jail. But as she expressed hope for the others and planned Saibaba's immediate medical treatment on his release, she also lamented the death of his co-accused Pandu Narote.

File photo of Pandu Narote.

(Photo: Altered by The Quint)

Narote (33) had died reportedly from the highly-contagious swine flu on 25 August. He was admitted at the Government Medical Hospital, and still a prisoner at the time of his death. His death also raised questions about the health and hygiene condition of prisons and the treatment of ailing inmates.

“...Yes, and how many times must a man look up

Before he can see the sky?

And how many ears must one man have

Before he can hear people cry?

Yes, and how many deaths will it take 'til he knows

That too many people have died?

The answer, my friend, is blowin' in the wind

The answer is blowin' in the wind.”

(Bob Dylan, Blowin’ in The Wind)

(With inputs from The Telegraph, The Indian Express and Livelaw.)