While releasing former Delhi University Professor GN Saibaba and five others in the alleged Maoist links case, the Nagpur bench of the Bombay High Court observed that a person merely sympathising with a philosophy is not an offence under the Unlawful Activities (Prevention) Act (UAPA) and that it would need evidence of them having an active role in particular incidents of violence and terrorism. A division bench of Justices Vinay Joshi and Valmiki SA Menezes passed the judgement on March 5, acquitting the six persons. The bench also observed that the trial in the case was held even though there were violations of procedural requirements for UAPA, amounting to a “failure of justice”. The academician, who is a wheelchair user, was released from Nagpur Central jail on March 7, a decade after his arrest.
The court took into notice that the entire prosecution case was built upon the seizures of allegedly incriminating material and said that just accessing Communist or Naxal philosophy content was not inherently illegal, if there is no evidence linking the accused persons to specific acts of violence or terrorism.
“It is by now common knowledge that one can access a huge amount of information from the website of Communist or Naxal philosophy, their activities including videos and video footage of even violent nature; merely because a citizen downloads this material or even sympathises with the philosophy, would itself not be an offence unless there is specific evidence led by the prosecution to connect an active role shown by the accused with particular incidents of violence and terrorism,” the court said.
The Nagpur Bench of the Bombay HC, in its judgement, noted that the prosecution failed to establish legal arrest and seizure of materials from the accused, and also failed to prove the electronic evidence in terms of the provisions of the Indian Evidence Act and the Information Technology Act. The Court declared the sanction against the accused under the UAPA “null and void.”
The court also observed that there was non-compliance with the provisions of Sections 43-A and 43-B of the UAPA pertaining to arrest, search, and seizure. “No evidence has been led by the prosecution by any witness to any incident, attack, act of violence or even evidence collected from some earlier scene of offence where a terrorist act has taken place, in order to connect the accused to such act, either by participating in its preparation or its direction or in any manner providing support to its commission,” the bench said.
The court also expressed doubt in the alleged incriminating material that was collected, for multiple reasons, including that an illiterate witness was chosen for the seizure, despite the fact that there were independent educated witnesses in the university complex. The court also said that the hash value of the gadgets were not noted, which made the evidence unreliable.
Saibaba was arrested along with five others – Mahesh Tikri, Pandu Pora Narote (deceased), Hem Keshavdatta Mishra, Prashant Rahi, and Vijay Tikri – in 2014 for their alleged association with the outlawed Communist Party of India (Maoist) and that they were planning to wage a war against India. The prosecution alleged that Saibaba had given a 16GB memory card to another person to be handed over to Naxalites sheltering in the Abujmarh forest area.
In 2022, the Bombay HC had set aside the conviction order of the Gadchiroli Sessions Court and acquitted all the accused in the case. However, following an appeal by the Maharashtra government, the Supreme Court immediately suspended the Bombay HC order and sent the accused back to prison. The apex court remanded the order back to the High Court for fresh hearing. After the hearing, the Bombay HC acquitted all of them on March 5. The same day, the Maharashtra government yet again moved the Supreme Court challenging the Bombay HC’s order.