'Stipulated Time Mandatory & Sacrosanct': Kerala High Court Discharges Alleged Maoist Leader Of UAPA Charges Citing Delay In State Sanction

The Kerala High Court on Thursday discharged alleged Maoist leader Roopesh of charges under Unlawful Activities (Prevention) Act and sedition under Section 124A (sedition) of the Indian Penal Code on the ground of irregularities in the order granting sanction for prosecution.A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran noted that the word 'shall' in the Act and the Rules cannot be said to be merely directory and pointed out that Section 45(2) specifically speaks of the recommendation of the authority and the sanction by the appropriate Government 'shall' be within such time as prescribed. "We are of the opinion that the provision for sanction is mandatory and the stipulation of time also is mandatory and sacrosanct."Therefore, it was held that the sanction under the UAPA granted after six months from the date of receipt of recommendation of the authority is not a valid sanction. "Amidst the raging controversy as to the retention of offence of sedition in the IPC; which the naysayers categorise as a relic of the colonial past; a symbol of British hegemony and the votaries support in the wake of rising anti-national feelings under the cloak of liberal thought, the Government sat over a sanction for six months, violating the time frame prescribed in the rules."It is imperative to note that in September, 2019, a single bench had allowed a revision petition filed by Roopesh to discharge him of the offences under Sections 20 and 38 of UAPA and Section 124A of IPC. The High Court had quashed the charges framed by the Special Court under UAPA on the ground that the sanctioning authority had not followed the statutorily prescribed time limit while granting sanction for prosecution.However, the Supreme Court set aside this order holding that a revision petition against an order passed by a Special Court under the National Investigation Agency can lie only before a division bench of a High Court. Accordingly, the matter was remanded back to the High Court for being heard by a division bench. As such, the Division Bench considered three revision petitions filed by Roopesh challenging the orders of the Sessions Court Kozhikode that dismissed his applications seeking discharge funder Section 227 of the CrPC.The petitioner is reported to be a member of the Communist Party of India [Maoist]. The allegation was that Roopesh, along with members of the banned Maoist organization, distributed pamphlets containing "seditious writings" in tribal colonies in Wayanad district. It was further contended that they threatened the members of colony and barged into some of the houses demanding food. Apart from sedition and UAPA offences, they were booked for offences of unlawful assembly and criminal intimidation (Sections 143, 147, 148, 506(ii) r/w. Section 149 of the IPC) and Section 25(1A) of the Arms Act.Advocates K.S.Madhusoodanan, K.S.Mizver, Thushar Nirmal Sarathy, M.M.Vinod Kumar and P.K.Rakesh Kumar appearing for the petitioner urged that the provisions of UAPA be read in juxtaposition with the provisions under the Terrorist and Disruptive Activities [Prevention] Act, 1987 (TADA) and the Prevention of Terrorism Act, 2002 (POTA).It was argued that the provision for sanction as a condition for taking cognizance in all these enactments were an important safeguard to the fundamental rights of the citizen guaranteed under the Constitution; which otherwise would be used to stifle every voice of dissent.The counsel further highlighted that while TADA and POTA did not stipulate the specific time within which the sanction has to be granted; in the UAPA a specific time of seven days is provided, within which the Authority has to make a recommendation, after which the appropriate Government also has to issue a sanction within another seven days from the receipt of the recommendation. When the said stipulation is not followed to the letter, it goes against the spirit of the safeguard provided and the cognizance taken by the Special Court is vitiated, it was contended. However, Government Pleader A. Anas submitted that the time stipulated is directory and not mandatory.The Bench observed that Rules 3 and 4 of the Unlawful Activities (Prevention) Rules, 2008 prescribe seven working days as the time within which the recommendation is to be made and the sanction has to be issued; Applying this to the facts of the case, the Court noted that the evidence gathered in the investigation were placed before the Authority constituted under S.45 of UAPA. before 11.01.2018. Yet the sanction of the State Government in the first two crimes were granted on 11.06.2018 and in the other crime on 07.04.2018; both delayed. The Court also revised the evolution of the UAPA Act to examine the legislative intent behind its enactment and subsequent amendments. Thereby it noticed that UA(P)A when enacted in 1967 only had the requirement of a sanction by the appropriate Government without any stipulation of time....

'Stipulated Time Mandatory & Sacrosanct': Kerala High Court Discharges Alleged Maoist Leader Of UAPA Charges Citing Delay In State Sanction

Hannah M Varghese

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