17 March 2022 3:52 PM GMT
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 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. The enactments which sought to prevent terrorist activities brought out subsequently also had the very same requirement of a consent without any stipulation of time.
"From the wealth of experience gleaned over more than half a century, when such enactments were in force; the Parliament consciously in the year 2008 brought in a provision where the requirement was not only a sanction form the appropriate Government but a prior recommendation from an Authority constituted under the Act, which had to be perused by the appropriate Government before sanctioning a prosecution. As has been noticed in the various precedents the provisions under the UA(P)A have an added rigour."
Significantly, the Court observed that Section 45(2) makes it mandatory for the Authority to make an independent review of the evidence gathered during investigation and make a recommendation within prescribed time to the appropriate Government. However, it was clarified that this does not absolve the appropriate Government from applying its mind since otherwise there was no requirement for a further sanction from the appropriate Government.
It was further found that in the case of UAPA despite the independent review made by the Authority, the Government has to arrive at a satisfaction without merely adopting the recommendation of the Authority. The Government, it was emphasized, has no obligation to act in accordance with the recommendation of the Authority.
The Court noted that in the present case, there appeared to be no application of mind by the Government.
"We find the sanction order of the UA(P)A to be not brought out in time, as statutorily mandated and bereft of any application of mind; both vitiating the cognizance taken by the Special Court."
Regarding the offence of section, it was held that the power of the designated court to try the accused for any offence other than the offences under the special statute can be exercised only in a trial conducted for any offence under the special statute. Therefore, when the cognizance taken of the offences under the UAPA is held to be without jurisdiction for want of valid sanction, there is no question of a valid trial being held by the Special Court into any offence under the IPC.
On these grounds, the cognizance taken by the Sessions Court under the IPC and UAPA were set aside and the Criminal Revision Petitions were allowed accordingly.
Case Title: Roopesh v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 130
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