1
(Corrected)
ITEM NO.301 COURT NO.2 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s). 33164/2022
(Arising out of impugned final judgment and order dated 14-10-2022
in CRLA No. 136/2017 14-10-2022 in CRLA No. 137/2017 passed by the
High Court Of Judicature At Bombay At Nagpur)
THE STATE OF MAHARASHTRA Petitioner(s)
VERSUS
MAHESH KARIMAN TIRKI & ORS. Respondent(s)
Date : 15-10-2022 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE M.R. SHAH
HON'BLE MS. JUSTICE BELA M. TRIVEDI
For Petitioner(s) Mr. Tushar Mehta, SG
Mr. Siddharth Dharmadhikari,Adv.
Mr. Aditya A. Pande, AOR
Mr. Hrishikesh Chitaley, Adv.
Mr. Kanu Agarwal, Adv.
Ms. Gunjan Mangla, Adv.
Mr. Abhikalp Pratap Singh, Adv.
Mr. Bharat Bagla, Adv.
Mr. Suyog Deshpande, Adv.
Mr. Kaustubh Kadasne, Adv.
Mr. Pratyush Shrivastava, Adv.
For Respondent(s) Mr. R. Basant, Sr. Adv.
Mr. Jawahar Raja, Adv.
Mr. Chinmay Kanojia, Adv.
Mr. Akshay Sahay, Adv.
Mr. Archit Krishna, Adv.
Ms. Varsha Sharma, Adv.
Ms. Mooksha Sharma, Adv.
Mr. Manu Krishnan, Adv.
Mr. Vishnu P., Adv.
Mr. [Link] Vinod, AOR
UPON hearing the counsel the Court made the following
Signature Not Verified
O R D E R
Digitally signed by
NIRMALA NEGI
Date: 2022.10.17
17:52:25 IST
Reason: Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court discharging the accused
mainly on the ground of irregular and/or invalid sanction to
2
prosecute Accused Nos. 1 to 5 and no sanction to prosecute at the
time of taking cognizance by the learned trial Court, so far as A-6
and not deciding the appeals on merits, the State of Maharashtra
has preferred the present Special Leave Petition(s).
We have heard Mr. Tushar Mehta, learned Solicitor General,
appearing on behalf of the State of Maharashtra and Mr. R. Basant,
learned Senior Advocate, appearing on behalf of Accused No.6 (G.N.
Saibaba) at length.
We have also gone through the judgment and order of conviction
passed by the learned trial Court as well as the impugned judgment
and order passed by the High Court.
At the outset, it is required to be noted that the learned
trial Court, by a detailed judgment and order and on appreciation
of the entire evidence on record, convicted the accused for the
offences punishable under Sections 13, 18, 20, 38 and 39 of
Unlawful Activities (Prevention) Act, 1967 read with Section 120-B
of the IPC.
The judgment and order passed by the learned trial Court was
the subject-matter of the appeals at the instance of the respective
accused including A-6. By the impugned judgment and order, the
High Court has discharged the Accused No.1-5 (except Accused No.2,
who died during the pendency of the proceedings), inter alia, on
the ground that the sanction to prosecute those accused was
vitiated and was invalid sanction as there was non-application of
mind on the part of the sanctioning/review authority inasmuch as
some material was not before the authority and no reasons were
assigned while granting the sanction. Accused No.6 has been
3
discharged on the ground that, at the time of taking cognizance
and/or framing the charge, there was no sanction to prosecute A-6
at all.
It is required to be noted that, even according to Accused
No.6, the appeals were argued on merits, 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.
Thus, it is an admitted position and even otherwise, it cannot
be disputed that, while discharging the accused, the learned High
Court has not at all gone into the merits of the case and the
findings recorded by the learned trial Court, recorded while
convicting the accused for the aforesaid offences.
Having heard learned counsel for the respective parties and
having gone through the material on record, including the impugned
judgment and order passed by the High Court and even the trial
Court, the following important questions of law and facts arise to
be determined/considered in the present Special Leave Petition by
this Court.
1. Whether considering Section 465 Cr.P.C. whether after the
conclusion of the trial and the accused is convicted on merits
and on appreciation of evidences whether the appellate Court
is justified in discharging the accused (so far as Accused
Nos. 1 to 5 are concerned) on the ground of irregular
sanction, if any?
2. In a case where the learned trial Court has convicted the
accused on merits on appreciation of the evidences on record
4
and thereafter having found the accused guilty for the
offences for which they are tried, whether the appellate
court is justified in discharging the accused on the
ground of want of sanction and/or irregular sanction, more
particularly, when the objection with respect to no sanction
was not specifically raised by an appropriate application
during the trial and trial was permitted to be proceeded
further and thereafter the trial Court has convicted the
accused on appreciation of evidences on record?
3. What will be consequences of not raising the dispute with
respect to sanction during the trial and thereafter permitting
the trial Court to proceed further, and despite the
opportunities given to the accused even at the stage of
recording the further statement under Section 313 Cr.P.C.
when no objection to the want of sanction at the time of
taking cognizance was taken?
The aforesaid are the broad questions on which this Court is
required to consider in detail.
Then the next question which is posed at present is whether
the impugned judgment and order passed by the High Court
discharging the accused is required to be suspended at this stage
or not.
We have heard Mr. Tushar Mehta, learned Solicitor General,
appearing for the State of Maharashtra and Mr. R. Basant, learned
Senior Advocate, appearing for Accused No.6 (G.N. Saibaba) at
length on whether the impugned judgment and order passed by the
5
High Court discharging the accused is required to be suspended at
this stage or not.
It cannot be disputed and it is not in dispute that even
considering Section 390 of the Cr.P.C. and the decision of this
Court in the case of State of U.P. vs. Poosu and Another, (1976) 3
SCC 1, the appellate court in an appeal against acquittal may/can
even suspend the order of acquittal/discharge passed by the
appellate Court. Therefore, it is not disputed that this Court can
suspend the judgment and order passed by the High Court
acquitting/discharging the accused.
On merits, Shri Mehta, has vehemently submitted that looking
into the seriousness and gravity of the offences for which the
accused were convicted by the learned trial Court and this Court is
prima facie of the opinion that a detailed scrutiny is required so
far as the impugned judgment and order passed by the High Court is
concerned and as the High Court has not at all dealt with and/or
considered anything on merits, more particularly, the seriousness
and gravity of the offences for which the accused were convicted
and that during the pendency of the appeal, the accused were in
jail, except for a short time that too in the year 2015 on medical
grounds and thereafter the application filed by A-6 to suspend the
sentence under Section 389 Cr.P.C. was specifically rejected by the
High Court in the year 2020 including on the medical ground which
was pressed into service before the High Court, it is prayed to
suspend the impugned judgment and order passed by the High Court in
the peculiar facts and circumstances of the case.
6
Shri R. Basant, learned Senior Advocate, appearing for A-6 has
submitted that Accused No.6 is aged 55 years; he was a professor in
the University; he has a family staying in Delhi; his medical
condition is such that he is required to be released on bail; that
he is on wheel-chair; earlier also this Court specifically observed
in the order dated 04.04.2016 in SLP (Crl.) No. 249 of 2016 that a
case is made out for bail considering the medical condition of
Accused No.6 and that the accused are ready and willing to furnish
bail bond as per Section 437-A of the Cr.P.C. and even the High
Court, while passing the impugned judgment and order has also
directed the accused to furnish the fresh bond and therefore the
presence of the accused is secured, it is prayed not to suspend the
judgment and order passed by the High Court. It is further
submitted by Mr. Basant, learned Senior Advocate, that even the
petitioner may be released on bail on any condition that may be
imposed by this Court looking to the medical condition of A-6.
Having heard learned counsel for the respective parties and on
whether in the facts and circumstances of the case, the impugned
judgment and order passed by the High Court is required to be
suspended or not and giving our anxious thoughts, for the reasons
stated hereinbelow, we are of the opinion that this is a fit case
to exercise powers under Section 390 Cr.P.C. and to suspend the
impugned judgment and order passed by the High Court.
1. That the accused are convicted for the offences punishable
under Sections 13, 18, 20, 38 and 39 of Unlawful Activities
(Prevention) Act, 1967 read with Section 120-B of the IPC by
the learned trial Court, after detailed analysis of the
7
evidences on record and on re-appreciation of the entire
evidences on record;
2. The offences for which the accused were convicted by the
learned trial Court are very serious and if ultimately they
are tested by the High Court on merits and on merits the
State succeeds and the judgment and order passed by the
learned trial Court is upheld, the offences are very serious
against the sovereignty and integrity of the country;
3. the High Court has not at all dealt with and considered
anything on the merits of the judgment and order passed by the
learned trial Court, though even according to the learned
counsel appearing on behalf of A-6, the detailed
submissions were made on behalf of the Accused on merits of
the appeal and on the judgment and order of conviction and
sentence imposed by the learned trial Court;
4. The High Court has discharged the accused Nos. 1-5 only on the
ground that the sanction was invalid, mainly on the ground
that some material which was placed before the appropriate
authority at the time of sanction/review were placed were
available on the very day and that no reasons are given
while granting sanction. The same is required to be
considered in detail considering provision of Section 465
Cr.P.C. So far as the A-6 is concerned, the accused has been
discharged on the ground that there was no sanction the day on
which the learned trial Court took cognizance and even famed
the charge. However, the same question is required to be
considered in detail, more particularly, on the ground
8
stated hereinabove.
Now, so far as the prayer on behalf of A-6 to release him
on bail and/or not to suspend the impugned judgment and order
passed by the High Court is concerned and the reliance placed upon
some observations made by this Court in the order dated 04.04.2016
in SLP (Crl.) No.249 of 2016 is concerned, at the outset, it is
required to be noted that the observations made by this Court in
the oder dated 04.04.2016 were prior to the A-6 was convicted by
the learned trial Court. Thereafter, the A-6 has been convicted by
the learned trial Court on merits and on appreciation of evidences.
Thereafter, an application under Section 389 Cr.P.C. was made by
the A-6 which had been rejected by the High Court. In the recent
order dated 28.07.2020 while considering the request made by the A-
6 to release him on bail during the pendency of the appeal on
medical ground, the same came to be dismissed/rejected by the High
Court by a detailed order. The medical ground also came to be
considered by the High Court and in para 8, it is observed as
under:
“8. As regards worsening medical condition of the
applicant as sought to be urged by him, we find that
in the application moved by the applicant except for
narrating the ailments said to be suffered by him,
there are no further details given. It has not been
pointed out in the application that after 25.03.2019
when the application under Section 389 of the Code
was rejected, the applicant has further contracted
ailments as alleged. In any event, we find from the
reply filed by the Chief Medical Officer, Central
Prison Nagpur that appropriate medical aid is being
provided to the applicant. The treatment being
rendered and the applicant’s examination by experts
is also evident on record.”
In view of the above, we are of the firm opinion that the
9
impugned judgment and order passed by the High Court is required to
be suspended.
For the reasons stated above, the impugned judgment and order
passed by the High Court is ordered to be suspended till further
orders.
Issue notice, returnable on 08.12.2022.
Shri N. Sai Vinod, learned AOR, accepts service of notice on
behalf of A-6 (G.N. Sai Baba). For rest of the respondents, dasti,
in addition, is permitted.
Counter, if any, be filed on behalf of A-6 within a period of
four weeks from today. Counter on behalf of rest of the accused be
filed within 4 weeks from service of notice of the present order.
(R. NATARAJAN) (NISHA TRIPATHI)
ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR
10
ITEM NO.301 COURT NO.2 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s). 33164/2022
(Arising out of impugned final judgment and order dated 14-10-2022
in CRLA No. 136/2017 14-10-2022 in CRLA No. 137/2017 passed by the
High Court Of Judicature At Bombay At Nagpur)
THE STATE OF MAHARASHTRA Petitioner(s)
VERSUS
MAHESH KARIMAN TIRKI & ORS. Respondent(s)
Date : 15-10-2022 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE M.R. SHAH
HON'BLE MS. JUSTICE BELA M. TRIVEDI
For Petitioner(s) Mr. Tushar Mehta, SG
Mr. Siddharth Dharmadhikari,Adv.
Mr. Aditya A. Pande, AOR
Mr. Hrishikesh Chitaley, Adv.
Mr. Kanu Agarwal, Adv.
Ms. Gunjan Mangla, Adv.
Mr. Abhikalp Pratap Singh, Adv.
Mr. Bharat Bagla, Adv.
Mr. Suyog Deshpande, Adv.
Mr. Kaustubh Kadasne, Adv.
Mr. Pratyush Shrivastava, Adv.
For Respondent(s) Mr. R. Basant, Sr. Adv.
Mr. Jawahar Raja, Adv.
Mr. Chinmay Kanojia, Adv.
Mr. Akshay Sahay, Adv.
Mr. Archit Krishna, Adv.
Ms. Varsha Sharma, Adv.
Ms. Mooksha Sharma, Adv.
Mr. Manu Krishnan, Adv.
Mr. Vishnu P., Adv.
Mr. [Link] Vinod, AOR
UPON hearing the counsel the Court made the following
O R D E R
Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court discharging the accused
mainly on the ground of irregular and/or invalid sanction to
11
prosecute Accused Nos. 1 to 5 and no sanction to prosecute at the
time of taking cognizance by the learned trial Court, so far as A-6
and not deciding the appeals on merits, the State of Maharashtra
has preferred the present Special Leave Petition(s).
We have heard Mr. Tushar Mehta, learned Solicitor General,
appearing on behalf of the State of Maharashtra and Mr. R. Basant,
learned Senior Advocate, appearing on behalf of Accused No.6 (G.N.
Saibaba) at length.
We have also gone through the judgment and order of conviction
passed by the learned trial Court as well as the impugned judgment
and order passed by the High Court.
At the outset, it is required to be noted that the learned
trial Court, by a detailed judgment and order and on appreciation
of the entire evidence on record, convicted the accused for the
offences punishable under Sections 13, 18, 20, 38 and 39 of
Unlawful Activities (Prevention) Act, 1967 read with Section 120-B
of the IPC.
The judgment and order passed by the learned trial Court was
the subject-matter of the appeals at the instance of the respective
accused including A-6. By the impugned judgment and order, the
High Court has discharged the Accused No.1-5 (except Accused No.2,
who died during the pendency of the proceedings), inter alia, on
the ground that the sanction to prosecute those accused was
vitiated and was invalid sanction as there was non-application of
mind on the part of the sanctioning/review authority inasmuch as
some material was not before the authority and no reasons were
assigned while granting the sanction. Accused No.6 has been
12
discharged on the ground that, at the time of taking cognizance
and/or framing the charge, there was no sanction to prosecute A-6
at all.
It is required to be noted that, even according to Accused
No.6, the appeals were argued on merits, 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.
Thus, it is an admitted position and even otherwise, it cannot
be disputed that, while discharging the accused, the learned trial
Court has not at all gone into the merits of the case and the
findings recorded by the learned trial Court, recorded while
convicting the accused for the aforesaid offences.
Having heard learned counsel for the respective parties and
having gone through the material on record, including the impugned
judgment and order passed by the High Court and even the trial
Court, the following important questions of law and facts arise to
be determined/considered in the present Special Leave Petition by
this Court.
1. Whether considering Section 465 Cr.P.C. whether after the
conclusion of the trial and the accused is convicted on merits
and on appreciation of evidences whether the appellate Court
is justified in discharging the accused (so far as Accused
Nos. 1 to 5 are concerned) on the ground of irregular
sanction, if any?
2. In a case where the learned trial Court has convicted the
accused on merits on appreciation of the evidences on record
13
and thereafter having found the accused guilty for the
offences for which they are tried, whether the appellate
court is justified in discharging the accused on the
ground of want of sanction and/or irregular sanction, more
particularly, when the objection with respect to no sanction
was not specifically raised by an appropriate application
during the trial and trial was permitted to be proceeded
further and thereafter the trial Court has convicted the
accused on appreciation of evidences on record?
3. What will be consequences of not raising the dispute with
respect to sanction during the trial and thereafter permitting
the trial Court to proceed further, and despite the
opportunities given to the accused even at the stage of
recording the further statement under Section 313 Cr.P.C.
when no objection to the want of sanction at the time of
taking cognizance was taken?
The aforesaid are the broad questions on which this Court is
required to consider in detail.
Then the next question which is posed at present is whether
the impugned judgment and order passed by the High Court
discharging the accused is required to be suspended at this stage
or not.
We have heard Mr. Tushar Mehta, learned Solicitor General,
appearing for the State of Maharashtra and Mr. R. Basant, learned
Senior Advocate, appearing for Accused No.6 (G.N. Saibaba) at
length on whether the impugned judgment and order passed by the
14
High Court discharging the accused is required to be suspended at
this stage or not.
It cannot be disputed and it is not in dispute that even
considering Section 390 of the Cr.P.C. and the decision of this
Court in the case of State of U.P. vs. Poosu and Another, (1976) 3
SCC 1, the appellate court in an appeal against acquittal may/can
even suspend the order of acquittal/discharge passed by the
appellate Court. Therefore, it is not disputed that this Court can
suspend the judgment and order passed by the High Court
acquitting/discharging the accused.
On merits, Shri Mehta, has vehemently submitted that looking
into the seriousness and gravity of the offences for which the
accused were convicted by the learned trial Court and this Court is
prima facie of the opinion that a detailed scrutiny is required so
far as the impugned judgment and order passed by the High Court is
concerned and as the High Court has not at all dealt with and/or
considered anything on merits, more particularly, the seriousness
and gravity of the offences for which the accused were convicted
and that during the pendency of the appeal, the accused were in
jail, except for a short time that too in the year 2015 on medical
grounds and thereafter the application filed by A-6 to suspend the
sentence under Section 389 Cr.P.C. was specifically rejected by the
High Court in the year 2020 including on the medical ground which
was pressed into service before the High Court, it is prayed to
suspend the impugned judgment and order passed by the High Court in
the peculiar facts and circumstances of the case.
15
Shri R. Basant, learned Senior Advocate, appearing for A-6 has
submitted that Accused No.6 is aged 55 years; he was a professor in
the University; he has a family staying in Delhi; his medical
condition is such that he is required to be released on bail; that
he is on wheel-chair; earlier also this Court specifically observed
in the order dated 04.04.2016 in SLP (Crl.) No. 249 of 2016 that a
case is made out for bail considering the medical condition of
Accused No.6 and that the accused are ready and willing to furnish
bail bond as per Section 437-A of the Cr.P.C. and even the High
Court, while passing the impugned judgment and order has also
directed the accused to furnish the fresh bond and therefore the
presence of the accused is secured, it is prayed not to suspend the
judgment and order passed by the High Court. It is further
submitted by Mr. Basant, learned Senior Advocate, that even the
petitioner may be released on bail on any condition that may be
imposed by this Court looking to the medical condition of A-6.
Having heard learned counsel for the respective parties and on
whether in the facts and circumstances of the case, the impugned
judgment and order passed by the High Court is required to be
suspended or not and giving our anxious thoughts, for the reasons
stated hereinbelow, we are of the opinion that this is a fit case
to exercise powers under Section 390 Cr.P.C. and to suspend the
impugned judgment and order passed by the High Court.
1. That the accused are convicted for the offences punishable
under Sections 13, 18, 20, 38 and 39 of Unlawful Activities
(Prevention) Act, 1967 read with Section 120-B of the IPC by
the learned trial Court, after detailed analysis of the
16
evidences on record and on re-appreciation of the entire
evidences on record;
2. The offences for which the accused were convicted by the
learned trial Court are very serious and if ultimately they
are tested by the High Court on merits and on merits the
State succeeds and the judgment and order passed by the
learned trial Court is upheld, the offences are very serious
against the sovereignty and integrity of the country;
3. the High Court has not at all dealt with and considered
anything on the merits of the judgment and order passed by the
learned trial Court, though even according to the learned
counsel appearing on behalf of A-6, the detailed
submissions were made on behalf of the Accused on merits of
the appeal and on the judgment and order of conviction and
sentence imposed by the learned trial Court;
4. The High Court has discharged the accused Nos. 1-5 only on the
ground that the sanction was invalid, mainly on the ground
that some material which was placed before the appropriate
authority at the time of sanction/review were placed were
available on the very day and that no reasons are given
while granting sanction. The same is required to be
considered in detail considering provision of Section 465
Cr.P.C. So far as the A-6 is concerned, the accused has been
discharged on the ground that there was no sanction the day on
which the learned trial Court took cognizance and even famed
the charge. However, the same question is required to be
considered in detail, more particularly, on the ground
17
stated hereinabove.
Now, so far as the prayer on behalf of A-6 to release him
on bail and/or not to suspend the impugned judgment and order
passed by the High Court is concerned and the reliance placed upon
some observations made by this Court in the order dated 04.04.2016
in SLP (Crl.) No.249 of 2016 is concerned, at the outset, it is
required to be noted that the observations made by this Court in
the oder dated 04.04.2016 were prior to the A-6 was convicted by
the learned trial Court. Thereafter, the A-6 has been convicted by
the learned trial Court on merits and on appreciation of evidences.
Thereafter, the applications under Section 389 Cr.P.C. was made by
the A-6 which had been rejected by the High Court. In the recent
order dated 28.07.2020 while considering the request made by the A-
6 to release him on bail during the pendency of the appeal on
medical ground, the same came to be dismissed/rejected by the High
Court by a detailed order. The medical ground also came to be
considered by the High Court and in para 8, it is observed as
under:
“8. As regards worsening medical condition of the
applicant as sought to be urged by him, we find that
in the application moved by the applicant except for
narrating the ailments said to be suffered by him,
there are no further details given. It has not been
pointed out in the application that after 25.03.2019
when the application under Section 389 of the Code
was rejected, the applicant has further contracted
ailments as alleged. In any event, we find from the
reply filed by the Chief Medical Officer, Central
Prison Nagpur that appropriate medical aid is being
provided to the applicant. The treatment being
rendered and the applicant’s examination by experts
is also evident on record.”
In view of the above, we are of the firm opinion that the
18
impugned judgment and order passed by the High Court is required to
be suspended.
For the reasons stated above, the impugned judgment and order
passed by the High Court is ordered to be suspended till further
orders.
Issue notice, returnable on 08.12.2022.
Shri N. Sai Vinod, learned AOR, accepts service of notice on
behalf of A-6 (G.N. Sai Baba). For rest of the respondents, dasti,
in addition, is permitted.
Counter, if any, be filed on behalf of A-6 within a period of
four weeks from today. Counter on behalf of rest of the accused be
filed within 4 weeks from service of notice of the present order.
(R. NATARAJAN) (NISHA TRIPATHI)
ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR