Professor G. N. Saibaba Case order

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR .

CRIMINAL APPLICATION (BA) NO.785/2015

(Dr. Gokarakonda Naga Saibaba s/o G. Satyanarayana Murthy..vs..State of Maharashtra, through PSO P. S. Aheri, Dist. Gadchiroli and anr.)

__________________________________________________________________________Office Notes, Office Memoranda of Coram,appearances, Court's orders of directions Court's or Judge's orders.and Registrar's Orders.

Mr. S. P. Gadling, Advocate for applicant.Mr. S. G. Aney, Advocate General with Mrs. B. H. Dangre,Government Pleader and Mr. S. S. Doifode, A.P.P.for StateMr. S. P. Bhandarkar, Advocate for intervenor.Mr. A. S. Kilor, Advocate for intervenor.

CORAM : A. B. CHAUDHARI, J.

DATE : DECEMBER 23, 2015.

1. Following is the prayer clause (i) in this bail

application:

“(i) Release applicant on bail in crime

no.3017/2013 for offence punishable under 13, 18, 20, 38

and 39 of the Unlawful Activities Prevention Act

(Amendment 2008), registered with Police Station Aheri,

Distt. Gadchiroli on such terms and conditions, which this Hon'ble Court may deem fit and proper in the

circumstances of the case in the interest of justice.”

2. Indisputably, as stated by applicant, this is the

second bail application, after rejection of the first bail

application on merits as well as on the health grounds.

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Learned counsel for the applicant, however, raised an

additional ground about his prayer for grant of bail on the

ground of parity in relation to the other accused in the same

crime by name Mahesh Tirki, Pandu Narote, Vijay Tirki,

Prashant Rahi and Hem Mishra. The earlier Bail Application

No.485/2014 was heard at length and decided by the learned

Single Judge of this court by detailed order on 25.08.2014.

Insofar as the findings on merits of the bail application are

concerned, it would be appropriate to quote the same. Hence, I

quote para 9, 10, 11, 13 and 14, which read thus:

“9. However, before dealing with the

evidence collected against the applicant, it would be

necessary for me to consider as to whether the

Revolutionary Democratic Front (RDF) could be called as

frontal organization of the CPI (Maoist). It is not in

dispute that this organization has not been specifically

banned by the Central Government. What is banned at

serial No.34 is the CPI (Maoist). The relevant entry in

the Gazette of India of the notification dated

22/6/2009 reads as under.:“TERRORIST organizations

34. Communist Party of India (Maoist) all its formations

and front organizations”.

10. Learned Public Prosecutor for the State has

submitted that the documents collected from the hard-

disks of the applicant would sufficiently establish, at


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this stage, the fact that RDF is a frontal

organization of the banned organization CPI (Maoist) as it

follows the same ideology and directs its activities towards

rendering of support to the said banned organization with

an intention to further activities of the banned

organization. On the other hand, learned Counsel for the

applicant does not agree.

11. Upon perusal of various documents filed

in the charge-sheet, I find that there is substance in the

said submission of the learned Public Prosecutor, at

least at this stage. There are various letters retrieved

from the hard-disks of the computer of the applicant, which

show that these letters were initially signed by him under

proxy name as “Prakash” and later on some letters were

signed in his present name i.e. “Saibaba”. These letters

indicate amongst others that the applicant is

complaining about his having not been assigned

proper role in his organization. They further show that

the applicant is also complaining about his being

discriminated by not giving him a job of interaction with

the underground activists of the banned organization.There is also a press release dated 23/4/2012 of the First

All India Conference of Revolutionary Democratic Front

held on 22/4/2012 and from this press release, it can be

seen that all the activists of RDF have been directed towards

lending support to the banned organization CPI (Maoist),

prima facie with an intention to further its activities. There


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is further material which shows that RDF has been

protesting against the arrest of some Maoist leaders and

demanding their immediate release and also sharing same

ideology as the said banned organization. This material, at

this stage, prima facie show that the RDF is nothing but a

front organization of the said banned organization.

12. …..

13. With due respect, I must say, at this stage, that

from the material collected against the applicant by

the prosecution, one can very well see that the activities

of the applicant, prima facie, do not stop at expressing

an agreement with the ideological thoughts

advocated by the banned organization. He is not only a

member of the Revolutionary Democratic Front, which has

been prima facie found to be frontal organization of the

banned organization CPI (Maoist), but also one who has

been complaining about not giving him an active role

commensurate with his capibility and also being

discriminated in the organization by denying him

access to an interaction with the underground

activists of the banned organization. There arealso documents prima facie showing professing and

supporting violent methods of the banned organization

by the applicant. It cannot be forgotten that not only

the offence under Section 20 is registered against

the applicant, but Section 38 and Section 39 offences are

also applied against him. Section 38 offence is


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for association with a terrorist organization with

intention to further it's activities. Section 39 relates to

giving support with intent to further the activity of a

terrorist organization. Aforestated material, in my

opinion, at this stage, would be prima facie sufficient to

find that the allegations that have been made against the

applicant are true and, therefore, in my opinion, at this

stage, the applicant would not be entitled to be released on

bail on these grounds.

14. Section 43-D(5) of the UAP Act clearly places

an embargo upon discretion of the Court in granting bail

to the accused persons, who have been charged for

the offences punishable under various sections

contained in Chapters IV and VI of the UAP Act. Proviso to

this Section lays down, inter alia, that the accused persons

shall not be released on bail if, upon perusal of the case

diary or the report made under Section 173 of the Code of

Criminal Procedure, the Court is of the opinion that there

are reasonable grounds for believing that the accusation

against such person is prima facie true. In my opinion, the

prohibition as contained in Section 43-B(5), at this stage of the case, would be applicable and, therefore, the applicant

would not be entitled to be released on bail.”

3. Learned counsel for the applicant made submissions

on merits of the bail application and tried to show that the

evidence considered by this Court as above was insufficient to


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continue the detention of the applicant in jail. However, upon

fresh look of the entire evidence placed before me by the

prosecution in this bail application and considering the same in

juxtaposition, I find that I have absolutely no reason to diverge

from the view taken by or finding recorded by the learned

Single Judge in the aforesaid bail application. In fact, there is

no reason for me to do so. Therefore, the submission made on

merits of the matter of bail will have to be rejected, which I do.

4. The next submission made by Mr. Gadling, learned

counsel for the applicant, is about the ground of parity in

respect of the other accused persons, who have been released

on bail either by the trial Judge or by this Court. With the

assistance of the learned counsel for the parties, I have gone

through all these orders in relation to the accused persons, whohave been released on bail. The coordinate Bench or the

learned Single Judge of this Court in those cases found no

prima facie case against those accused persons and it is

pursuant to the said finding, they were released on bail but that

is not the case at hand. As stated earlier, there is a prima facie

case against the applicant based on the strong evidence and in

fact the applicant who is an intellectual has used his

intelligentsia for anti national activities for which there is

strong evidence against him as discussed and, therefore, case of

the applicant cannot be considered on the ground of parity. I,

therefore, reject the submission made by learned counsel for

the applicant, on the ground of parity.


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5. The next ground for claiming the grant of bail raised

by the learned counsel for the applicant is the most important

ground and a large controversy has come to the fore in that

context. After rejection of the bail application by order dated

25.08.2014 by this Court, it does not appear that the said order

was challenged before the apex Court on any ground. As a

matter of fact, this Court had, in paragraph 15 and 16 of the

order which are quoted hereunder, while dealing with the issue

regarding prayer for bail on medical grounds, observed thus:

“15. Learned Counsel for the applicant has submitted

that the applicant is 90% handicapped person, who

requires specific treatment to the ailments suffered by

him and it may not be possible to administer him

the treatment, if he is detained in jail.

16. From the reply of the prosecution, I find that

the applicant is being properly treated in jail and all the

modern medical facilities are being extended to him in

Nagpur Central Jail. There is also report of the doctor

annexed to the reply of the prosecution and upon perusal of the same, I am satisfied that at this stage, proper

treatment is being given to the applicant and, therefore, on

this count alone, there is no reason for me to consider the

release of the applicant on bail.”


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themselves as the Maharashtra Police and described the

abduction as an arrest.

Why did they abduct him in this way when they

could easily have arrested him formally, this professor who

happens to be wheelchair-bound and paralysed from his

waist downwards since he was five years old? There were

two reasons: First, because they knew from their previous

visits to his house that if they picked him up from his home

on the Delhi University campus they would have to deal

with a crowd of angry people—professors, activists and

students who loved and admired Professor Saibaba not just

because he was a dedicated teacher but also because of his

fearless political worldview. Second, because abducting him

made it look as though they, armed only with their wit and

daring, had tracked down and captured a dangerous

terrorist. The truth is more prosaic. Many of us had known

for a long time that Professor Saibaba was likely to be

arrested. It had been the subject of open discussion for

months. Never in all those months, right up to the day of

his abduction, did it ever occur to him or to anybody else

that he should do anything else but face up to it fair and square. In fact, during that period, he put in extra hours

and finished his PhD on the Politics of the Discipline of

Indian English Writing. Why did we think he would be

arrested? What was his crime?

….In 2010 and 2011, when Operation Green

Hunt was at its most brutal, a campaign against it began


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to gather speed. Public meetings and rallies took place in

several cities. As word of what was happening in the forest

spread, the international media began to pay attention.

One of the main mobilisers of this public and entirely un-

secret campaign against Operation Green Hunt was

Dr Saibaba. The campaign was, at least temporarily,

successful.

…On September 12, 2013, his home was raided

by 50 policemen armed with a search warrant for stolen

property from a magistrate in Aheri, a small town in

Maharashtra. They did not find any stolen property.

Instead they took away (stole?) his property. His personal

laptop, hard disks and pen drives. Two weeks later, Suhas

Bawache, the investigating officer for the case, rang Dr

Saibaba and asked him for the passwords to access the

hard disks. He gave it to them. On January 9, 2014, a

team of policemen interrogated him at his home for several

hours. And on May 9, they abducted him. That same night

they flew him to Nagpur and from there drove him to Aheri

and then back to Nagpur with hundreds of policemen

escorting the convoy of jeeps and mine-proof vehicles. Hewas incarcerated in the Nagpur central jail in its notorious

‘Anda Cell’, adding his name to the three hundred thousand

undertrials who crowd our country’s prisons. In the midst

of all the high theatre, his wheelchair was damaged. Dr

Saibaba is what is known as “90 per cent disabled”. In

order to prevent his physical condition from further


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deteriorating, he needs constant care, physiotherapy and

medication. Despite this, he was thrown into a bare cell

(where he still remains) with nobody to assist him even to

use the bathroom. He had to crawl around on all fours.

None of this would fall under the definition of torture. Of

course not. The great advantage the state has over this

particular prisoner is that he is not equal among prisoners.

He can be cruelly tortured, perhaps even killed, without

anybody having to so much as lay a finger on him.

...Another of the serious offences listed in the

chargesheet is that Dr Saibaba is the joint secretary of the

Revolutionary Democratic Front (RDF), an organisation

that is banned in Orissa and Andhra Pradesh where it is

suspected to be a Maoist ‘front’ organisation. It is not

banned in Delhi. Or Maharashtra.

...Dr Saibaba’s trial has not begun. When it

does, it is likely to take months, if not years. The question

is, can a person with a 90 per cent disability survive in

those abysmal prison conditions for so long?

...In the year he’s been in prison, his physical

condition has deteriorated alarmingly. He is in constant,excruciating pain. (The jail authorities have helpfully

described this as “quite normal” for polio victims.) His

spinal cord has degenerated. It has buckled and is pushing

up against his lungs. His left arm has stopped functioning.

The cardiologist at the local hospital where the jail

authorities took him for a test has asked that he be given


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an angioplasty urgently. If he does undergo an angioplasty,

given his condition and the conditions in prison, the

prognosis is dire. If he does not, and remains incarcerated,

it is dire too. Time and again the jail authorities have

disallowed him medication that is vital not just to his well-

being, but to his survival. When they do allow the

medicines, they disallow the special diet that is meant to go

with it.

Despite the fact that India is party to

international covenants on disability rights, and Indian law

expressly forbids the incarceration of a person who is

disabled as an undertrial for a prolonged period, Dr

Saibaba has been denied bail twice by the sessions court.

On the second occasion, bail was denied based on the jail

authorities demonstrating to the court that they were

giving him the specific, special care a person in his

condition required. (They did allow his family to replace

his wheelchair.) Dr Saibaba, in a letter from prison, said

that the day the order denying him bail came, the special

care was withdrawn. Driven to despair, he went on a

hunger strike. Within a few days, he was taken to hospitalunconscious.

...No matter what the charges against him are,

should Professor Saibaba get bail? Here’s a list of a few

well-known public figures and government servants who

have been given bail.


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On April 23, 2015, Babu Bajrangi, convicted

and sentenced to life imprisonment for his role in the 2002

Naroda Patiya massacre in which 97 people were murdered

in broad daylight, was released on bail by the Gujarat High

Court for an “urgent eye operation”. This is Babu Bajrangi

in his own words speaking about the crime he committed:

“We didn’t spare a single Muslim shop, we set everything on

fire, we set them on fire and killed them—hacked, burnt,

set on fire.... We believe in setting them on fire because

these bastards don’t want to be cremated. They’re afraid of

it.”—‘After killing them, I felt like Maharana Pratap’ in

Tehelka, September 1, 2007.

...On July 30, 2014, Maya Kodnani, a former

minister of the Modi government in Gujarat, convicted and

serving a 28-year sentence for being the ‘kingpin’ of that

same Naroda Patiya massacre, was granted bail by the

Gujarat High Court. Kodnani is a medical doctor and says

she suffers from intestinal tuberculosis, a heart condition,

clinical depression and a spinal problem. Her sentence has

been suspended.

They’ve allowed his wheelchair to be replacedbut denied Saibaba bail twice. Babu Bajrangi was let off for

eye surgery. Maybe he’ll replace the murderous lens he

views the world with.

Amit Shah, also a former minister in the Modi

government in Gujarat, was arrested in July 2010, accused

of ordering the extrajudicial killing of three people—


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Sohrabuddin Sheikh, his wife Kausar Bi and Tulsiram

Prajapati. The CBI produced phone records showing that

Shah was in constant touch with the police officials who

held the victims in illegal custody before they were

murdered, and that the number of phone calls between him

and those police officials spiked sharply during those days.

Amit Shah was released on bail three months after his

arrest. (Subsequently, after a series of disturbing and

mysterious events, he has been let off altogether.) He is

currently the president of the BJP, and the right hand man

of Prime Minister Narendra Modi.

...Will Dr Saibaba come out of the Nagpur

central jail alive? Do they want him to? There is much to

suggest they do not.”

8. A careful reading of the above passages from the

article clearly reveals a game plan of the author to have an

order of bail on merits as well as on medical grounds for the

applicant, knowing fully well that the plea for bail was turned

down by the Sessions Court as well as Single Judge of this

Court (Hon'ble Shri Justice S. B. Shukre). The tenor of thearticle shows that the author knows each and every details

about the applicant and is highly interested in anyhow getting

his release on bail. Instead of challenging the orders passed by

Sessions Court and the learned Single Judge of this Court, the

author appears to have invented a novel idea of bashing the

Central Government, the State Government, the Police


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machinery so also judiciary and that was, prima facie, with a

mala fide motive to interfere in the administration of justice.

The language used by the author in her article against the

Government and the police machinery is as nasty as it could be

and one really wonders whether the same would befit to the

prestigious awards the author is said to have won. Calling the

Government and police as being “afraid” of the applicant,

“abductor” and “thief” and the Magistrate from a “small town”,

demonstrate the surly, rude and boorish attitude of the author

in the most tolerant country like India. When she described

about the innocence of the applicant, the question arises

whether she was an eye witness to the arrest, search and

seizure. Whether she has any evidence to make such vitriolic

remarks about the Government, the police machinery and the

judiciary. As to the physical condition of the applicant, whether

she verified the Government hospital records of the jail and the

special and super medical treatment given to him or whether

whatever she has written in the article for somehow getting the

release of the applicant-Dr. Saibaba from Jail is out of her

imagination and bombastic ideas. The author has even gone to

the extent of scandalizing and questioning the credibility of the

higher judiciary by giving examples of the orders of bail

granted to “Babu Bajrangi”, “Maya Kodnani” and “Amit Shah”.

Does the author know that the grant of bail depends on the

facts and evidence in each case and there cannot be any such

comparison. Is it not the fact that the Central Government, the

State Government, the police machinery and the armed forces


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are fighting for prevention of unlawful and terrorist activities in

the country when the Naxal plague has taken a pincer grip.

Prima facie, it appears to me that the author thinks

that she is above the law and the same stood established when

she had indulged in similar scurrilous remarks and was

convicted by the apex Court which sentenced her to undergo

imprisonment for one day and to pay a fine in the sum of

Rs.2000/- vide judgment in ARUNDHATI ROY IN RE; 2002

(3) SCC 343.

This Court is also surprised that despite the

intemperate and humiliating language used against the Central

Government, the State Government, the police machinery and

the armed forces, they have not taken any action against the

author who, in the name of freedom of speech, is exploiting the

situation.

9. It then appears that one Ms Purnima Upadhyay, the

alleged social worker in the tribal area of Amravati District sent

an E-mail to the Hon'ble the Chief justice of the Bombay High

Court, relying upon a comment dated 08.06.2015 of Mr. Pavan

Dahat in “The Hindu” and the sou motu Criminal PIL

No.4/2015 was registered at the Bombay High Court. The

Principal Bench at Mumbai passed various orders in the said

PIL registered for considering the plea for bail on the health

ground in respect of the applicant. But the applicant was not

even a party to the said PIL till it was disposed of and as a

matter of fact, the learned Senior Counsel for the applicant Ms


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Rebecca John, made a statement before this Court on

20.11.2015 that the applicant had never applied for grant of

bail before the High court in the aforesaid PIL on any ground

including the medical ground. Be that as it may. The Division

Bench called medical reports in respect of the health condition

of the applicant and considered the medical reports and lastly

made an order granting bail to the applicant for a period of

three months. Paragraph nos. 20 and 21 of the said order read

thus:

“20. Having carefully considered the rival

submissions, we are of the view that the proviso to sub-

section (5) of section 43-D of the Act does not and cannot

take away the constitutional remedy of an accused under

Article 226 of the Constitution. Of course, it is only in

exceptional cases that the Court would consider

exercising its extraordinary, prerogative and discretionary

writ jurisdiction under Article 226 of the Constitution for

the purpose of granting bail or temporary bail in extremely

rare and exceptional cases. In the facts and circumstances

indicated above, the present case is one such rare andexceptional case.

21. In the circumstances, if this Court does

not exercise extraordinary jurisdiction under Article 226

of the Constitution this Court would be failing in its

duty of protecting the fundamental rights of Prof.

Saibaba under Articles 14 and 21 of the Constitution, who


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was confined to a secluded cell and was not in a position to

move this Court on his own. Hence we are inclined to direct

the respondents to release the undertrial prisoner Prof. G.N.

Saibaba on temporary bail for a period of 3 months for his

medical treatment and supportive care by his family

and medical personnel at New Delhi.”

10. The Division Bench then on 04.09.2015 made the

last order in the said PIL which reads thus:

“Having heard the learned counsel for the petitioner and

the learned Public Prosecutor and also having gone through

the report dated 31 August, 2015 of the Indian Spinal

Injuries Centre, New Delhi, we extend the period of

temporary bail granted to Prof. G. N. Saibaba for medical

treatment up to 31 December, 2015 on same bond.

2. Learned counsel for the petitioner states that

five other accused in the same criminal case pending in the

Sessions Court, Gadchiroli have recently been granted

regular bail by Nagpur Bench of this Court.

3. In view of above, we dispose of the Suo MotuWrit Petition No.1 of 2015 with liberty to the petitioner to

move the Nagpur Bench of this Court for regular bail. In

view of disposal of Suo Motu Writ Petition No.1 of 2015,

Criminal Application No.383 of 2015 does not survive and

stands disposed of as such.”


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11. Pursuant to the above liberty granted in paragraph

3, this application has been filed in this Court. The next aspect

is about consideration of the prayer for releasing of the

applicant on medical grounds. There is a report dated

16.06.2015 at Annexure-I along with reply filed by the State

furnished by Chief Medical Officer, Central Prison, Nagpur.

Perusal of the report shows that the applicant was given special

treatment due to his health problems existing even prior to his

arrest. It is not in dispute that the applicant suffered 90%

disability from his childhood. He had also undergone cardiac

surgery about 8 to 10 years before and, therefore, the

projection made by the applicant, the author Arundhati Roy or

Purnima Upadhyay, the so called human right champions, on

account of his arrest and thereafter detention in Jail in such a

serious crime or absence of medical facilities and his health isdeteriorating in jail and so and so forth, is nothing but a

subterfuge and excuse to come out of jail. The report shows

that the applicant was provided with necessary treatments and

was rather a special guest in the jail and was provided medical

treatment and the experts from the Government Medical

College and Hospital and Super Speciality Hospital, Nagpur

had examined him. In paragraph 2 of the letter, it is stated by

the Chief Medical officer that on 12.03.2015, upon

examination by the expert Doctor of Government Super

Speciality Hospital, Nagpur, an advise was given to undergo

Coronary Angiography but the applicant denied to do so and

stated that “You do so only in private hospital of his choice.”


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That apart, the cluster of papers on record, which I have

perused carefully, clearly shows that the health of the applicant

was taken care of by the expert Medical Officers of the

Government Medial College and Hospital and Super Speciality

Hospital of the Government and not only that if required even

in the private hospitals at Nagpur. As a matter of fact, the

applicant himself has produced on record a certificate dated

02.12.2015 signed by the applicant issued by Indian spinal

Injury Centre, Vasant Kunj, New Delhi which reads as under:

“This is to certify that Mr.G.N.Saibaba, aged 47

years/male, presented at Indian Spinal Injuries Centre on

02/12/2015, vide OPD registration no.466562 with

known case of post polio residual paralysis with chief

complaints of reduction in left shoulder movements and

pain in back for which he has managed conservatively with

supportive medication. He is undergoing treatment under

me from OPD basis with regular follow-up and continues

medications prescribed. Patient is advised continue

treatment and physiotherapy +shoulder strengthening

exercises for 3 months.”

12. Perusal of the above certificate clearly shows the

present health condition of the applicant. It is perfectly normal

and is in the same position as it was when he was in jail. There

is no change therein from the date of his arrest. However, he is

advised for his treatment on OPD basis with regular follow up,


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(ii) The applicant-Dr. Gokarakonda Naga Saibaba s/o

G. Satyanarayana Murthy shall, within forty eight hours,

surrender by reporting to Central Jail, Nagpur. Upon failure,

he shall be arrested by the police.

(iii) Office is directed to register Criminal Contempt

against the author Arundhati Roy in the light of the discussion

made above.

(iv) Issue notice to the author Arundhati Roy for action

for contempt of Court, returnable on 25.01.2016.

Place the matter before the appropriate Bench

JUDGE

At this stage, learned counsel for the applicant seeks

one month's time to surrender.

In view of the reasons given in the judgment, the

prayer is rejected.

JUDGE

kahale

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Professor G. N. Saibaba Case order

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