The second important issue of law that the High Court has dealt with equally brilliantly relates to section 45 (2) of UAPA which requires an exhaustive review of the prosecution evidence by an authority independent of the prosecution. (File)Acting in apparent haste on a Saturday and dealing with the convicted prisoner who has served in excess of seven years and has been acquitted by the Bombay High Court with a well-written and exhaustive order, the Supreme Court has done injustice to G N Saibaba. One wonders what the tearing urgency was to handle this matter in the manner in which it was done.
The High Court judgment had two core findings. The first was that cognisance was taken by the trial court without sanction being granted by the sanctioning authority as required by the Unlawful Activity Prevention Act (UAPA) under section 45(1). The high court records: “We must note in all fairness to the learned Special Public Prosecutor that the position that the learned Sessions Judge took cognisance of the offence against accused Saibaba and framed charges in the absence of sanction, is not disputed.”
What are the consequences of the absence of sanction? Section 41(1) of UAPA deals with sanction thus: “No Court shall take cognisance of any offence…without the previous sanction of the Central Government.” The High Court answers the question thus: “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. This is a complete answer to the strenuous submission that the invalidity or absence of sanction is a curable defect”.
The second important issue of law that the High Court has dealt with equally brilliantly relates to section 45 (2) of UAPA which requires an exhaustive review of the prosecution evidence by an authority independent of the prosecution. It reads thus: “Sanction for prosecution …shall be given only after considering the report of such authority appointed by the Central Government … which shall make an independent review of the evidence gathered in the course of the investigation and make a recommendation…The report must incorporate the summary of the review of the evidence gathered as would assist and aid the sanctioning Authority… The then Home Minister Mr P Chidambaram spoke in the Lok Sabha; before you sanction prosecution the evidence gathered in the investigation must be reviewed by an independent authority…. So we are providing safeguards. Before sanction is granted we are interposing an independent authority which will review the entire evidence gathered in the investigation and then make a recommendation whether this is the fit case of prosecution.”
Perusing the report of the Director of Prosecution of the State of Maharashtra and finding that the report which is supposed to be an exhaustive inquiry into the evidence gathered by the police, was a six-line report, the High Court described the report as “laconic” and said “the report contains the conclusion sans reasoning. The authority did not have the benefit of the report of the CFSL of the digital data allegedly retrieved from the electronic gadgets. It is bereft of the summary of the analysis of the evidence collected during the investigation… 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…we unhesitatingly hold that the sanctioning authority paid lip service to the legislative mandate and the report of the appointed authority was sought, and unfortunately given as a ritualistic formality.”
The Supreme Court then gives its main reason for staying the High Court order: “It is required to be noted that 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.”
The answer to this is simple. 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 because if the initial flaw is fatal, no further adjudication is to be done and the accused is to be released immediately. This is why the trial court said, “We hold, on the authority of the Constitution Bench decision of the Hon’ble Supreme Court in Baij Nath Prasad Tripathi, that if cognisance is taken without complying with the requirement of valid sanction, the entire trial shall stand vitiated”.
The Supreme Court did not find this conclusion to be even prima facie wrong. It did not deal with the equally important conclusion of the High Court regarding the report of the reviewing authority being no report at all. All that the Supreme Court says is that these are “important questions of law and facts to be considered”. Herein lies the fatal flaw and the doing of the injustice. This was not a civil case where such an approach could be taken. This was a criminal case. Furthermore, this was a case where the accused was acquitted and was scheduled to leave jail today. His return to jail has been ordered on the ground that though the Supreme Court found no prima facie case that the High Court was wrong, questions of law have to be considered.
On the State counsel’s plea that the offences alleged were “serious and grave” one has only to look at the “laconic report” of the Director of Prosecution who, though legally bound to record such serious and grave evidence against the accused, did not do so.
At the end of the day, one wonders 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.
The writer is a senior advocate, Supreme Court, and founder-director of the Human Rights Law Network