New Delhi: Considering what happened when the Nagpur Bench of the Bombay High Court acquitted the accused persons in criminal appeal Nos. 136 and 137 of 2017 in October 2022, it is understandable if nobody had quite celebrated the second acquittal delivered by the Bombay High Court on 5 March 2024. 

The appeals were filed by Mahesh Tirki, Pandu Narote, Hem Mishra, Prashant Rahi, Vijay Tirki, and former Delhi university professor Gokarkonda Naga or G N Saibaba, challenging their 2017 convictions for offences under the Unlawful Activities Prevention Act (UAPA) 1967 and other crimes (for a detailed overview of the allegations and a discussion on trial court verdict, see here, and here). 

While professor Saibaba became a cause celebre, little was spoken about the other accused. Mahesh Tirki, Vijay Tirki, and Pandu Narote were all reportedly farmers/labourers and tribals; Prashant Rahi a noted activist (who had been arrested and acquitted in other cases for his alleged Maoist links), and Hem Mishra a student of Delhi’s Jawaharlal Nehru University. One of the appellants, Pandu Narote, reportedly died of swine flu while his appeal was still pending.  

The first acquittal, readers may recall, led to an extraordinary special bench of the Supreme Court being constituted to first stay the judgment a few days later and then set it aside entirely in April 2023. This led to fresh hearings being conducted before a different bench of the High Court, which again overturned the convictions. 

On 11 March, the Supreme Court refused to stay the second acquittals, perhaps allowing for a hint of celebration to flicker across the minds of these persons who, it can now be said, were wrongfully incarcerated. 

A wrongful incarceration that lasted a decade since the registration of Case FIR No. 3017 / 2013 at P.S. Aheri in Gadchiroli District, with many of those years spent in the notorious anda cell in Nagpur Central Jail. One wonders what emotions cross the mind upon reading news about the first acquittal being set aside and the second one not being interfered with. 

The second acquittal by the Bombay High Court, which now tells us that practically every step of the investigation was carried out in a manner contrary to law, renders almost all of the evidence tendered before the court as either inadmissible or extremely unreliable.

The Importance Of Procedure

It is the insistence upon procedures that makes the Bombay High Court’s judgement of acquittal stand out, and something that requires our attention. 

This is by no means a unique strategy in terror trials, as Mayur Suresh’s excellent book demonstrates for a bygone era, but one that has historically proven itself as a valuable tool to undermine prosecutions in terror cases. 

The judgement of the Bombay High Court is a timely reminder of that famous adage about the history of the rule of law and personal liberty being a history of rigorous insistence to adherence to criminal procedure. 

Such an approach, the High Court rightly notes, is even more necessary where the offences alleged are of the most serious sort—threatening the sovereignty of the state itself. A reminder that could not have been more timely, considering the gradual rise of the executive adopting an ‘act now, think later’ kind of approach to all things possible. 

In the era of bulldozer justice where speedy trial has become a proxy for reckless administration of the law, it is perhaps necessary to spend a little more time recognising why adherence to procedures matters, especially where life and liberty are at stake. 

The rules of procedure are the only protection ordinary citizens have against the almighty coercive power of the state; the legal personification of the idea that personal liberty is precious and ought not to be lightly trifled with by the State. 

Without these rules, nothing stands in the way of the local police officer entering our homes at night, rummaging through our belongings, and taking us away without anyone ever knowing about it. Such a system does not privilege liberty, but scorns it.     

India, of course, is not yet a regime which scorns personal liberty (at least not in times when an emergency is not in force). Article 21 of the Constitution guarantees that life and personal liberty shall not be interfered with except in accordance with the procedure established by law. 

It is this procedure which the Bombay High Court turned its gaze upon, to demonstrate the utter and complete failure on part of the police machinery to comply with the legal mandate. 

Thus, the High Court concluded that the arrests were illegal (with some interesting interpretations about the legal provisions involved), the searches were illegal, the chain of custody of materials was improper, and the electronic evidence relied upon was inadmissible. 

In this regard, perhaps what stands out is the sheer disregard for the mandates of procedure while exercising coercive powers. Only one example would suffice here, and this is the search conducted at G N Saibaba’s residence. 

This was critical for the prosecution case, which relied upon the electronic material yielded from this search to contend that Saibaba was not only an active member in banned terrorist organisations but a ‘think tank’ behind the specific operation that had been busted at Aheri. 

What the High Court found when it turned to the specifics of the search was that even though the police had gone to a university area teeming with people, for a search that they had planned in advance, the independent witness to the search was an illiterate and uneducated man who had no idea about the material that had been seized. 

This man did not know what a memory card was and had been made to sign off on papers detailing the specifics of memory cards, external hard disks, and the like. In fact, the witness had seemingly deposed as being excluded from the search for some parts. 

Such was the zeal with which the agencies investigated and prosecuted the case that it seemed as if procedural requirements had become secondary to them in their pursuit of ‘justice’. 

The Bombay High Court has unequivocally reminded us that no version of justice in criminal law can exist without proper and faithful compliance with criminal procedure.

The Requirement Of Sanction

Linked to the idea of insisting upon compliance with procedures is the discussion by the High Court about the issue of requiring prior sanction to prosecute offences under the UAPA. 

A word on the sanction regime under section 45 of the UAPA will help. 

Unlike other laws which require only a sanction to prosecute to be granted by the government before a court can proceed with the case, the UAPA requires a separate sanction to be granted by an independent authority after its review of the evidence. In the case at hand, the independent authority notified by the state government was the prosecutor. 

The first acquittal in this matter by the High Court had been based entirely upon the conclusion that no proper sanction to prosecute had been granted. In the second acquittal, a different bench came to the same conclusions about the invalidity of the sanction, and while doing so it took an approach consistent with the culture of justification demanded by the Constitution.

Here, the report by the independent authority granting sanction contained no reasons, and it was argued by the state that since the statute prescribed no explicit requirement to give reasons, there was no impropriety involved. The High Court made little of such a claim, noting that the very idea behind having such a dual-sanction regime necessitated a reflection in the sanction order that there was a reasoned application of mind by the authority. 

Otherwise, if a cryptic, non-speaking, and unreasoned sanction order could be permitted, then what was the point of installing a dual check in the first place?

The Membership Offence

Out of 293 pages, almost 240 of those are dedicated to a threadbare examination of a litany of procedural non-compliances in the prosecution case that tainted the evidence before the trial court. 

It is towards the end of its judgement that the court turned its attention to the substance of the allegations made by the State, which pertained to offences of conspiracy and membership in banned terrorist organisations. 

The state had relied upon a provision (section 43-E) to reverse the burden of proof. The High Court ruled that this reversal of burden had no application to the present case, limited as it was to cases involving allegations of terrorist acts being committed, and not second-order crimes of pure conspiracy or membership. 

There was no lightening of the load for the state in proving its case, which was built almost exclusively upon surmises, conjectures, and inferences drawn from, amongst other things, the literature recovered from the possession of various accused persons. Literature which, as the investigating officer had himself deposed, was readily available on the internet. 

Between the conviction in 2017 and the second acquittal in 2024, some water has flown under the bridge when it comes to offences of membership and conspiracy under the UAPA. The Supreme Court has dealt with the interpretation of the relevant clauses while dealing with bail applications in cases such as Thwaha Fasal (2021) and Vernon Gonsalves (2023). 

The Bombay High Court has not reinvented the wheel on such issues and expressed its agreement with the views expressed in those decisions which conclude that the scope of the second-order membership offences under the UAPA cannot be stretched infinitely. Such an approach would offer no resistance to the prosecution resorting to flights of fancy, allowing for any innocent conduct to be labelled as preparatory towards commission of crimes.

Instead, the Bombay High Court reasoned that a more grounded approach was called for, one that sought for clear and cogent links between terrorist acts and the conduct of the accused. In this approach, mere possession of literature pertaining to certain ideologies or theories could never amount to an offence pertaining to terrorism without something more to show for it. 

In this case, the Bombay High Court found that there was no admissible or reliable evidence to show that something more.   

The Janus-Faced Rule of Law

In 2017, the trial court swatted aside almost all arguments around the procedural illegalities by the police in case FIR No. 3017 / 2013 and convicted all the accused persons.

Seven years later, the Bombay High Court turned its sentinel-like gaze upon precisely those issues to overturn the conviction. 

That both judgments could refer to precedent justifying their position about the importance of complying with procedure, or lack thereof, reflects the janus-faced nature of the rule of law in how India has administered criminal law both before and after independence. 

One can only hope that the Supreme Court continues to build upon that side of the rule of law invoked by the Bombay High Court; the side which does not bend backwards to accommodate the exercise of power, but actively questions it to keep alive the spirit of liberty.  

(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)

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