Thread by @barandbench

[Special Saturday Hearing in #SupremeCourt]

Justice MR Shah led bench to shortly hear the appeal filed by Maharashtra govt against the decision of the Nagpur Bench of the Bombay High Court, acquitting former Delhi University professor #GNSaibaba in an alleged Maoist links case

In its appeal, the Maharashtra government has contended that the case was decided by the High Court on the procedural lapse without going into the merits of the evidence #GNSaibaba

barandbench.com/news/gn-saibab…

Solicitor General Tushar Mehta to argue for the Maharashtra government
#SupremeCourt #GNSaibaba

SG Mehta: sorry for troubling you all

Justice Shah: It is our duty

SG: The order discharges the accused also.

#SupremeCourt #GNSaibaba

SG: There are 8 accused. so far as 6 is considered sanction was not raised in trial and it was raised in appellate stage. This is atrial under #UAPA where CrPC applies which means rigours of Section 465

#SupremeCourt #GNSaibaba

SG: Rigour of 465 meaning that mere inadequacy of sanction will not vitiate the trial. The judgment relies on TADA cases. sanction is to ensure the accused is not subject to vexatious trial. this is not a vexatious investigation and courts are prevented to take cognisance

SG: But if full fledged trial takes places then there is no question of sanction and thus comes Section 465 of CrPC. Facts are very very disturbing. Supports use of arms in throwing out parliamentary form of democracy and encourages separatist actions in J&K

SG: All actions against nation, attacking our security forces and even arranging meeting of commanders of naxalite forces.

SG Reads Section 465 of CrPC

#SupremeCourt #GNSaibaba

SG: At appellate stage it cannot be done unless the appellate court says there is a failure of justice. UAPA makes CrPC applicable.

#SupremeCourt #GNSaibaba

SG: So far as accused 1 to 5 is concerned, sanction was granted in 2014.

Justice Shah: HC says only CFSL report was not there and no reasons were given by sanctioning authority and thus sanctio is bad it is held

SG: But as far as trial court is concerned...
#GNSaibaba

SG: Yesterday afternoon judgment was pronounced and our appeal was ready with translations.

SC: Judgment was in Marathi?

SG: no no some material

#SupremeCourt #GNSaibaba

Justice Shah: do you have the statement recorded under Section 313 CrPC?

SG: we are finding out the page. Till then please see the judgment where it says sanction cannot be raised in appeal if not raised before the trial court

SC: Give us the copy of the judgment

#GNSaibaba

SG: So far as accused 6 is concerned sanction order came late and IO was already examined so that was recalled and accused did not object to that. It was placed before the HC and the HC did not even touch that aspect.

#SupremeCourt #GNSaibaba

SG: Role of 1 to 5 were foot soldiers and the accused 6 was the master. the role of accused was considered elaborately while considering sanction of first 5

SC: What is the current status: all are in jail?

SG: yes all in jail. accused number 2 has expired
#GNSaibaba

Sr Adv R Basant: It has been fairly accepted that there was no sanction order against GN Saibaba.

#SupremeCourt #GNSaibaba

Justice Shah : We are asking was any specific independent objection raised by you during trial regarding sanction. Yes or No? A simple question. Show us that, if any application was made.

Sr Adv Basant : No application was made. But during cross-examination, plea was raised

Justice Shah: : In the entire Section 313 statement, the question of sanction was put to you, but except saying you are falsely implicated, you did not raise this plea

Sr Adv Basant : sanction was there, factually I cannot dispute that

SC: On the ground there was non application of mind by sanctioning authority in case of accused 1 to 5.. this is on basis of CDSL report. this is a question of law...whether further reasons are to be recorded when sanctioning authority is prima facie satisfied about the sanction

SC: We will formulate the questions of law and you can respond till then. But in the meantime we have to decide what has to be done

Basant: as a caveator please do not suspend the sentence

Justice Shah: you can submit on that

Justice Trivedi: you all are very experienced lawyers. have you given any judgment of HC where the accused has been acquitted solely on the basis of validity of sanction without going into merits or reversing the finding on merits?

Basant: Section 437 applies when the person is acquitted or discharged. Therefore there is no need to suspend the sentence now. What will happen is by under Section 437A i will execute the bond and be available before your lordships

#SupremeCourt #GNSaibaba

Basant: We had argued the matter in full and the HC did not consider the matter in full and passed an order only the basis of sanction. So if it is halted then I continue to suffer incarceration

#SupremeCourt #GNSaibaba

SC: So HC committing a mistake by not considering this and taking a shortcut.. can the benefit of that be available to the accused? We are only finding fault with the High court here

#SupremeCourt #GNSaibaba

Basant: it was not a shortcut but a correct legal argument. it is fairly admitted that there is no sanction against me. I will point our certain circumstances which will persuade you to not suspend the sentence. I am aged 55, i have 23 year old unmarried daughter in Delhi

Basant: The accused is physically disabled to the extent of 90%. He has multiple other ailments which is judicially accepted. the person is confined to the wheel chair and he is sick and infirm. no criminal antecedent against him and not even an prosecution

Basant: there may be ideological leanings. SG said it was brain involved but there is no record for that

Justice Shah: for terrorism and naxal activities, brain usage is more important than any other physical involvement

#SupremeCourt #GNSaibaba

Basant: he suffers 90 percent disability owing to post polio paralysis. Please see his medical condition

Justice Shah: thereafter he is not on bail right?

Basant: after bombay hc granted bail, nagpur bench asked him to surrender #GNSaibaba

Basant: bail was granted twice and not once I have abused any of the conditions imposed. I am only trying to show why I should not be retained in custody. If this court thinks, i can be even ordered to be only inside the house. SC has held that I can be asked to be in house.

Basant: he is in wheelchair and there is no one to even handle his calls of nature. Lay co jailed persons are helping him and it is causing him stress.

SC: you can file an application for bail, we will consider it. #GNSaibaba

Basant: there is an absence of sanction for me. Please see section 45 of UAPA, just to see how good a case I have. HC has dealt with the section. #gnsaibaba

Basant: as far as UAPA is considered, sanctioning authority has to consider whether they are to be prosecuted under this Act. The nature and effect of sanction under 45 UAPA must be seen. In Maharashtra, the head of Prosecution is the sanctioning authority.

Basant: this as per me it is a betrayal of statutory provision. I submit the High Court has not committed any error. Such is the importance of sanction under UAPA.

Justice Trivedi : According to Section 386 CrPC, appellate court can acquit only after reversing trial findings

Basant: there is no sanction and the very prosecution is without basis. court considers sanction under 193, sanction under cv act.. but court says sanction under TADA and UAPA is a different ballgame #GNSaibaba

Basant: let me preserve my health. please let me remain in my house

SG: He applied for bail after being taken into custody and then his bail was rejected. please see that #GNSaibaba

SG: The court noted that bail was rejected noting the nature of accusations against him and there is nothing on record to show anything apart from his health reasons. there is sanction but it was only delayed sanction #GNSaibaba

Justice Shah: we will issue notice and list the matter for final disposal. Such a matter has to be decided at the earliest. #GNSaibaba

Justice Shah: my practice is that whenever notice is issued we know why notice is issued.

Basant: please do not drag me back to prison

SG: He is already in prison #GNSaibaba

Justice Shah: at the outset it is required to be noted that learned trial court after appreciating entire record convicted the accused under UAPA. The trial court verdict was appealed before the HC by all the accused.

#GNSaibaba

Justice Shah: The HC has discharged 1 to 5 except 2 who died, inter alia on the ground that sanction to prosecute them was invalid sanction as there was a non application of mind.

#GNSaibaba

Justice Shah: GN Saibaba discharged since there was no sanction at the time of arrest.: Even according to accused no.6, the appeals were argued on merits. HC has not entered into the merits of the case and considered anything on the merits of the conviction.

ORDER: Justice Shah: The following important questions of law arise in this present appeal: while considering section 465 crpc after conclusion of trial and accused in convicted on merits, whether appellate court in discharging the accused on ground of irregular sanction

Justice Shah: (2) in a case where trial court has convicted accused on basis of material and appreciation of evidence, is appellate court justified in discharging accused on ground of sanction.... since ground of no sanction was raised during trial and trial moved as is?

Justice Shah: (3) what will be the consequences of not disclosing this before trial court even though opportunity given under section 313 crpc. Aforesaid are broad questions which this court will consider in detail.

Justice Shah: at present the question is whether the judgment granting acquittal be suspended at this stage or not. It cannot be disputed that while considering section 319 of crpc appellate court can suspend such an order. thus this court can suspend such an order

Justice Shah: this court is of prima facie opinion that a detailed scrutiny is required with regard to the impugned judgment since HC has not considered the merits of the case including the gravity of the offence alleged against him #GNSaibaba

Justice Shah: the bail plea by accused was rejected by HC in 2020 even on medical grounds which was pressed then as well. #GNSaibaba

Justice Shah: We are of the opinion that it is a fit case to exercise power under 319 of CrPC and SUSPEND THE ORDER OF THE HIGH COURT

#GNSaibaba

SG Mehta: There is a recent tendency from urban naxals that please allow house arrests. But everything can be done from within the home for them. even by phone. Please say that house arrest can never be an option

Basant: please cut my phone line then

Corrigendum: Read as Section 390 of CrPC (Arrest of accused in appeal from acquittal.) #GNSaibaba

Justice Shah: Accused were convicted after detailed appreciation of evidence. Offences are very serious and if the State succeeds on merits, offences are very serious against the interest of the society, sovereignty and integrity of India. HC order is based on no sanction

Justice Shah: The HC order is required to be considered in detail and discharged the accused only on the ground that sanction was invalid and some material which was placed before the appropriate authority and sanction was granted on the same day.

Justice Shah: the medical grounds of the accused was presented and rejected by the HC during a bail plea earlier. thus HC order stands suspended. Issue notice. We are only saying judgment suspended but you can file bail application. #GNSaibaba

Bench deletes the part of no house arrest at this stage

Justice Shah: Issue notice, returnable on December 8, 2022. Shri Basant accepts notice on behalf of GN Saibaba. Thus HC order stands suspended till further orders.

#GNSaibaba