The Supreme Court on Friday agreed to hear on Saturday Maharashtra's plea for a stay on the Bombay high court order acquitting G N Saibaba, after Solicitor General Tushar Mehta's persistent pitch that the acquittal was not on merit but for want of appropriate sanction to prosecute him under the anti-terror law UAPA.
Mounting a spirited argument against the release of wheelchair-bound Saibaba, incarcerated in the Nagpur Central Jail, Mehta said the offence committed by him were "against the nation".
Mehta's assertions notwithstanding, the apex court bench of Justices DY Chandrachud and Hima Kohli was unyielding and told him that the court cannot stay Saibaba's acquittal as the parties are not before it.
The bench also said it has not gone through the case file or the verdict of the high court.
"You move an application before the registry for taking administrative decision on urgent listing of the matter from the Chief Justice of India," the bench advised the solicitor general, who appeared for Maharashtra police.
Later in the evening on Friday, the Supreme Court website said the matter was listed for hearing on Saturday, usually a holiday at the apex court, at 11 am by a bench of justices M R Shah and Bela M Trivedi.
Earlier, the court noted in its order: "At this stage, we deem it appropriate to mention that the proceedings have been mentioned before this court since the bench presided over by the Chief Justice has risen for the day.
"The solicitor general states that he will move an application before the registry for obtaining administrative directions of the Chief Justice for listing of the special leave petition tomorrow (October 15)".
"We have not lost on merit but for want of sanction. The matter will become infructuous as they will be released from jail, if (the case is) not urgently listed," Mehta pleaded before the two judges.
"The accused were involved with CPI-Maoist and the high court acquitted them. The offence committed by these persons is serious in nature and against the nation. Subsequently UAPA was invoked and the question before the high court was whether UAPA was correctly invoked or not," Mehta said.
The bench, however, contended the matter will not become infructuous.
"It will not become infructuous. They have an acquittal order in their favour. We cannot stay the acquittal order without issuing notice to them and would list the matter for Monday (October 17) and may take the matter on top of the board," the court said.
"If you want a special bench, then you move an application before the registry for administrative direction from the CJI in that regard,” it added.
Mehta, however, insisted hat two days will not cause prejudice to those acquitted as courts are staying orders of acquittal every other day.
The bench, however, did not agree with his contention.
Earlier in the day, more than eight years after his arrest, the Bombay high court acquitted Saibaba and ordered his release from jail, noting that the sanction order issued to prosecute the accused in the case under the stringent provisions of the UAPA was "bad in law and invalid".
The Nagpur bench of the high court allowed the appeal filed by Saibaba challenging a 2017 order of the trial court convicting and sentencing him to life imprisonment.
Apart from Saibaba, the court acquitted Mahesh Kariman Tirki, Pandu Pora Narote (both farmers), Hem Keshavdatta Mishra (student) and Prashant Sanglikar (journalist), who were sentenced to life imprisonment, and Vijay Tirki (labourer) who was awarded 10 years in jail. Narote died during the pendency of the appeal.
Saibaba, 52, who is wheelchair-bound due to a physical disability, is currently lodged in the Nagpur central prison. He was arrested in February 2014.
In March 2017, a sessions court in Maharashtra's Gadchiroli district convicted Saibaba and others, including a journalist and a Jawaharlal Nehru University (JNU) student, for alleged Maoist links and for indulging in activities amounting to waging war against the country.
The court had held Saibaba and others guilty under various provisions of the stringent anti-terror law UAPA and the Indian Penal Code (IPC).
Sanction to prosecute the accused under the UAPA was granted in 2014 against the five accused, who were arrested first, and against Saibaba in 2015.
The high court bench noted that in 2014, when the trial court took cognisance of the charge-sheet filed by the prosecution, there was no sanction to prosecute Saibaba under the UAPA.
Under UAPA, an independent authority is appointed to review the evidence in a case and submit a report stating if the provisions of the Act can be invoked against the accused.
The prosecution had alleged that the convicts were active members of the banned outfit CPI-Maoist and its frontal organisation Revolutionary Democratic Front.
The high court declared the trial court proceedings "null and void" in the absence of a valid sanction under the UAPA and quashed its judgment.
