The Saibaba case: questionable Saturday or timely intervention?

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Supreme Court justices have increasingly come under fierce, often vicious, attack on the orders they have made. Arguably, this trend coincided with the rise to power of the BJP under Prime Minister Modi. As forces across the country opposed to the new dispensation have suffered setbacks in the highest court in politically tinged cases, the tenor of the attacks on the individual judges responsible for the legal setbacks these forces have faced has become venomous. A discernible pattern of the attacks also emerged: they came from a loud and powerful coterie of successful Supreme Court lawyers, they were not rational criticism of the judgments handed down, but were an ad hominem assault on the relevant judiciary. and were invariably mounted either in politically motivated cases, but more alarmingly anti-national flavored cases involving jihadist or Naxal subversion.

The most recent example of the trend is also one of the boldest. The protagonist is a very famous member of the Supreme Court Bar with brilliant political credentials. The occasion was a celebration of his 50 years at the bar hosted by his lawyer admirers. Speaking at the event, this worthy lamented the failure of all institutions in the country to stand up to the government in place. Although no apparent reason was given as to why “all the institutions” – the media, the investigative agencies, the electoral commission – were government acolytes, the anger of the veteran lawyers was directed specifically against the regime. Judiciary: “The silence of the judiciary is the loudest part of the Indian system now. The immediate provocation was a hearing on Saturday of a bench of two Supreme Court judges suspending the judgment of the Bombay High Court which had at its round quashed an order convicting GN Saibaba and five others for offenses under UAPA and life sentences and other jail sentences: “Never heard of suspended acquittal in a special hearing on Saturday” thundered the veteran.

Before analyzing the extravagant claim of the learned seasoned lawyer, the facts of the case before the trial court, the conclusions of the high court on the basis of which the conviction order and the sentence of the trial court have have been overturned and the SC’s intervention and reasons are relevant and instructive.

First, the facts: GN Saibaba along with five (5) other defendants have been charged by the State of Maharashtra under the UAPA for offenses relating to Maoist terrorism, specifically, inciting violence against the state in Gadchiroli. The investigation took place between 2013 and 2014 and the trial began in 2015. After the charges against them were formulated and after the recording of detailed eye, documentary and electronic evidence on behalf of the prosecution and the accused, the session court found the accused guilty. of having fomented a criminal conspiracy the object of which was to make war on the government of India. This process, after the lengthy adversarial process, is what is called a “conviction” which involves the court coming to actual findings against the accused after an elaborate trial. The High Court, in its impugned judgment, observed that the Sessions Judge “wrote a copious judgment which painstakingly brings together the material in the case and concludes that the prosecution has carried the charge to the end”.

All the defendants in the present case appealed to a divisional bench of the Bombay High Court. The UAPA contains a provision that requires the investigative body to obtain prior authorization from the central government to prosecute the accused without which no court can take cognizance of the offenses listed in the indictment. The penalty was pronounced in this case and none of the defendants raised any objection to the existence or validity of the penalty at any time during the trial. For the first time in the High Court, a plea was made by the defendant regarding the validity of the sanction of prosecution granted by the government and in the case of Saibaba that no sanction was granted at all.

According to Article 465(1) of the CrPC, “no finding, sentence or order made by a court of competent jurisdiction may be set aside or varied by a court of appeal…by reason of any error or irregularity in a sanction imposed on the prosecution”. unless, in the opinion of this Court, a breach of justice has in fact been occasioned thereby.


Further, section 465(2) expressly provides that: “In determining whether… an error or irregularity in a sanction imposed on the prosecution has resulted in a breach of justice, the Court shall have regard to the fact that the objection could and should have been raised at an earlier stage of the proceedings.

Notwithstanding this statutory position, on appeal against conviction by the Sessions Court, the High Court quashed the order of conviction and sentence of all defendants on the ground that the order of punishment was invalid and in the Saibaba case – no sanction. In the specific case of Saibaba, although the sanction was obtained after the testimony of the first witness in the trial, the witness was recalled after obtaining the sanction to ensure that no prejudice was caused to Saibaba. Saibaba also did not raise the reason for the lack of sanction at the trial stage. The extraordinary and unusual approach to a conviction under terrorism laws revealed by the High Court may have no parallel precedent in law. This situation has reportedly led to the release of convicted terrorists after an elaborate trial, and the state of Maharashtra has therefore approached the Supreme Court with utmost speed. Given the seriousness of the crime, which was the subject of the appeal to the Supreme Court, the latter entered and heard the case the next day, which was a Saturday.

During the hearing, the bench put the following pertinent question to counsel for the accused: “Has there been an incident in the history of criminal law where a sentencing order recorded after a trial was overturned on appeal on the technical issue of the prosecution’s sanction in the UAPA offences?” Counsel for the accused rightly conceded that this is a unique question of law that merits consideration. to be examined and only asked for bail for his client Saibaba on medical grounds, which the court rejected.

After hearing both parties, the court formulated three important questions of law that needed to be decided on appeal and set them out in full in its order of the day. The Court also considered separately whether the impugned High Court judgment should be stayed and, having heard both parties on the matter, recorded four detailed reasons as to why the High Court order was likely to be stayed.

Seasoned lawyers’ portrayal of the Supreme Court’s order as an unprecedented order to stay a judgment of acquittal by way of a Saturday trial is misleading. First, the ‘Saturday hearing’ charge is unfounded as it is mere coincidence that the High Court order was passed on a Friday and the Supreme Court did not hear the case. the next day – a Saturday – the appeal would have been rendered unsuccessful. If it had been any other day of the week, the hearing would have taken place on the next designated business day. Second, the allegation that GN Saibaba’s “acquittal” was suspended is either maliciously false or born out of blatant ignorance. GN Saibaba and others were not acquitted by the High Court. Acquittal means a decision of a court on the merits that the evidence does not establish the guilt of the accused in the offenses charged. Saibaba and others were released on grounds of invalidity/lack of sanction. It was not an acquittal or a conclusion or the innocence of the charges. Even if the issue of sanction is ultimately decided in favor of the accused by the Supreme Court, the accused is still subject to a new trial if a valid sanction has been obtained. Indeed, the High Court itself in its contested order recognized as such when it recorded in its conclusions as follows:

“(iii) the prosecution argued that if the appeal is decided not on the merits but only on the point of sanction, we can grant the prosecution freedom to obtain an appropriate sanction and try the case. ‘accused. Given the entrenched legal position that the rule against double jeopardy does not apply if the trial is found to be flawed due to invalidity or lack of sanction, we see no reason to expand further on said argument.

If only the seasoned lawyer had bothered to read the very judgment he so ardently defended, he might have realized that his denunciation of the Supreme Court’s stay of the “acquittal” order of the High Court was totally wrong.

This lie based on the cliché of “individual liberties” or “human rights” is nothing more than a weaponization of these lofty concepts to undermine the majesty of the courts for the subsequent purpose of pressuring them to that they are more sensitive to the causes dear to a powerful legal power. lobby that seeks to bend the court to its will.

This does not mean that Naxalites or other accused terrorists do not deserve due process or rule of law warrants. But what this means is that the rule of law itself and those who administer it are protected from the ungodly machinations of those who would overthrow it for their own nefarious purposes.

The Naxalite movement in India has inflicted a huge cost on the Indian state. He undermined the unity and integrity of the country. The movement seeks to poison the chalice it drinks from by replacing a stable constitutional order with one that is repressive by violent means. Its supporters are men of high eminence and powerful voices. These subversive voices can only be controlled by a vigilant administration, a fair and transparent justice, held by men of spirit and character. As our Prime Minister recently urged, “the armed, pen-wielding naxals must be rooted out.” On Saturday, October 22, by its timely intervention, a bench of the Supreme Court prevented a miscarriage of justice committed by urban naxals posing as defenders of our constitutional ideals.

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