Gokarakonda Naga Saibaba vs State of Maharashtra and Others

A.B. Chaudhari, J.—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."

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. 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

Communist Party of India (Maoist) all its formations and front organizations".

Learned Public Prosecutor for the State has submitted that the documents collected from the hard-disks of the applicant would sufficiently establish, at 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.

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 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.

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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 capability and also being discriminated in the organization by denying him access to an interaction with the underground activists of the banned organization. There are also 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 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.

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."

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 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.

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, who have 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.

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.

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."

The coordinate Bench of this Court, while considering his plea on medical grounds noted that the applicant is 90% handicap person from his childhood and recorded a categorical finding about the proper treatment and medical facilities provided to the applicant after arrest. It is true that this Court can still consider the grant of bail on medical grounds since the said order was passed in August, 2014 but the applicant could have approached this Court on medical grounds and needless to say that this Court would have certainly considered the request if justified.

However, on 12.05.2015 an article appeared in Outlook along with a photograph of the applicant written by Arundhati Roy with following title:

"So afraid is the government of this paralysed wheelchair-bound academic that the Maharashtra police had to abduct him for arrest."

The article then reads thus:

"May 9, 2015, marks one year since Dr G.N. Saibaba, lecturer of English at Ramlal Anand College, Delhi University, was abducted by unknown men on his way home from work. When her husband went missing and his cellphone did not respond, Vasantha, Dr Saibaba''s wife, filed a missing person''s complaint in the local police station. Subsequently the unknown men identified 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 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. He was 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 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 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 hospital unconscious.

...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.

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 replaced but 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--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."

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 the article 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 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 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 In Re: Arundhati Roy, .

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.

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 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 and exceptional case.

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 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."

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.

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.

In view of above, we dispose of the Suo Motu Writ 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."

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 is deteriorating 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." 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."

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, medications and physiotherapy exercise for three months. This was the same condition, when he was arrested.

As discussed above, the scandalous and scurrilous allegations are made by author Arundhati Roy in the said article against the judiciary. Not only that, she has indirectly questioned the sanctity of the order made by the learned Judge of this Court (Hon''ble Shri Justice S.B. Shukre) for rejecting the bail application filed by the applicant vide order dated 25.08.2014 in Bail Application No. 485/2014 by comparing the case of the present applicant with Babu Bajrngi, Maya Kodnani and Amit Shah. It is not in dispute that by making the above allegations and remarks about the rejection order made by this Court as above and then asking as to why the applicant should not also get relief of bail by scandalizing the Court, in my opinion, amounts to interfering in the administration of justice and lowering down the image of the judiciary without any basis and with selfish motive. This, prima facie, constitutes criminal contempt and, therefore, it is a fit case where an order of issuance of notice for criminal contempt against the author Arundhati Roy is required to be made.

The upshot of the above discussion is that there is no substance in this application. Hence, the order.

(i) Criminal Application No. 785/2015 is dismissed.

(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.

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.