Bombay High Court
Mahesh Kariman Tirki And Others vs State Of Maharashtra Thr. Pso Aheri ... on 5 March, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:2711-DB
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NOs. 136 & 137 OF 2017.
.....
CRIMINAL APPEAL NO. 136 OF 2017.
1. Mahesh Kariman Tirki,
Age about 22 years,
Occupation - Agriculturist,
R/o Murewada, Taluqa-Etapalli,
District - Gadchiroli.
2. Pandu Pora Narote,
Age about 27 years,
Occupation - Agriculturist,
R/o Murewada, Taluqa-Etapalli,
District - Gadchiroli.
3. Hem Keshavdatta Mishra,
Age about 32 years,
Occupation - Education,
R/o Kunjbargal, Post - Nagarkhan,
District - Almoda (Uttarakhand).
4) Prashant Rahi Narayan Sanglikar,
Age about 54 years,
Occupation - Journalist,
R/o 87, Chandrashekhar Nagar,
Krushikesh, Deharadun, Uttarakhand.
5) Vijay Nan Tirki,
Age about 30 years,
Occupation - Labour,
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R/o Beloda, Post - P.V. 92, Dharampur,
Taluqa - Pakhanjoor, District - Kanker
(C.G.). .... APPELLANTS.
VERSUS
State of Maharashtra,
through PSO Aheri, Gadchiroli,
Maharashtra. .... RESPONDENT.
WITH
CRIMINAL APPEAL NO. 137 OF 2017.
G.N. Saibaba,
Aged about 47 years,
Occupation - Service (suspended),
R/o 100, B-Block, Hill View Apartments,
Vasant Vihar, Near PVR Cinema,
New Delhi. .... APPELLANT.
VERSUS
State of Maharashtra,
through PSO Aheri, Gadchiroli,
Maharashtra. .... RESPONDENT
_________________________________________________________
Mr. Pradeep Mandhyan with Mr. Barunkumar and Mr. H.P. Lingayat,
Advocates for appellant Nos. 1 to 3 (Appeal No. 136/2017).
Mr. Trideep Pais, Sr. Advocate with Mr. Barunkumar & Mr. H.P.
Lingayat, Advocates for appellant Nos. 4 & 5 (Appeal No.
136/2017).
Mr. S.P. Dharmadhikari, Sr. Advocate with Mr. N.B.Rathod, Advocate
for appellant (Criminal Appeal No.137/2017).
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Mr. Aabad Ponda, Sr. Advocate Mr. H.S. Chitale and Mr. Jugal
Kanani, Advocates for State, Mr. P.K. Sathinathan Special Counsel for
State.
____________________________________________________________
CORAM : VINAY JOSHI AND
VALMIKI SA MENEZES JJ.
JUDGMENT RESERVED ON : 07.09.2023
JUDGMENT PRONOUNCED ON : 05.03.2024
JUDGMENT :
(PER VINAY JOSHI, J.)
Heard.
2. Common judgment and order of conviction dated
07.03.2017 in Sessions Case Nos.13/2014 and 130/2015 under the
provisions of the Unlawful Activities (Prevention) Act, 1967
(hereinafter referred to as 'the UAPA' for short) and Section 120-B
of the Indian Penal Code (hereinafter referred to as 'the IPC' for
short) led convicted accused to challenge the judgment and order
by filing two separate appeals.
3. On 22.08.2013, Crime No.3017/2013 was initially
registered with the Police Station Aheri, District Gadchiroli against
the appellant Mahesh Tirki (accused No.1), Pandu Narote (accused
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No.2), and Hem Mishra (accused No.3). During the course of
investigation, the role of Prashant Sanglikar (accused No.4), Vijay
Tirki (accused No.5) and G.N. Saibaba (accused No.6) was revealed.
On completion of investigation, charge-sheet came to be filed and
numbered as Sessions Case No. 13/2014. It was followed by filing
of supplementary charge-sheet on 31.10.2015 numbered as Sessions
Case No. 130/2015.
4. After ensuring compliance in terms of Section 208 of the
Code of Criminal Procedure (hereinafter referred to as 'the Code' for
short), the Trial Court framed charges on 21.02.2015 against all six
accused for the offence punishable under Sections 10, 13, 20, 38, 39
read with Section 18 of the UAPA and under Section 120-B of the
IPC. On the accused pleading to be tried, the prosecution has
examined as many as 25 witnesses to establish the guilt of accused.
The prosecution was also banking upon certain documents to
establish the guilt with requisite standard of proof. On completion
of evidence, statements of accused were recorded in terms of Section
313 of the Code to seek their explanation on incriminating material.
The defence of the accused is of total denial and false implication.
The accused have denied seizure of incriminating material from their
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possession claiming it to be planted and fabricated. The accused did
not examine any witnesses in defence. On the assessment of oral
and documentary evidence, the Trial Court has recorded a finding of
guilt against all the accused vide impugned common judgment. The
Trial Court has convicted all accused for different offences and
imposed punishment alongwith fine. For the sake of convenience,
we deem it appropriate to set out the details of conviction and
sentence of each of them in following table:-
Sr. Names Conviction Sentence
No
1. Accused 1-Mahesh Section 13 of the Rigorous
Kariman Tirki, UAPA read with imprisonment for
Accused 2-Pandu Pora Section 120-B of seven years each
Narote, the IPC. and to pay fine of
Rs.1000/- and in
Accused 3-Hem default Rigorous
Keshavdatta Mishra, Imprisonment for
Accused 4-Prashant Rahi six months each.
Narayan Sanglikar, Section 18 of the Imprisonment for
Accused 6-Gokalkonda UAPA read with Life each and to
Naga Saibaba Section 120-B of pay a fine of
the IPC. Rs.1000/- and in
default to suffer
Rigorous
Imprisonment for
Six Months.
Section 20 of the Imprisonment for
UAPA read with Life each and to
pay a fine of
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Section 120-B of Rs.1000/- and in
the IPC. default to suffer
Rigorous
Imprisonment for
Six Months each.
Section 38 of the Rigorous
UAPA read with Imprisonment for
Section 120-B of ten years each and
the IPC. to pay a fine of
Rs.1000/- and in
default to suffer
Rigorous
Imprisonment for
Section 39 of the Six Months each.
UAPA read with Rigorous
Section 120-B of Imprisonment for
the IPC. ten years each and
to pay a fine of
Rs.1000/- and in
default to suffer
Rigorous
Imprisonment for
Six Months each.
2. Accused 5-Vijay Nan Section 13 of the Rigorous
Tirki UAPA read with Imprisonment for
Section 120-B of four years and to
the IPC. pay a fine of
Rs.1000/- and in
default to suffer
Rigorous
Imprisonment for
Six Months.
Section 18 of the
UAPA read with Rigorous
Section 120-B of Imprisonment for
the IPC. ten years and to
pay a fine of
Rs.1000/- and in
default to suffer
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Rigorous
Imprisonment for
Six Months.
Section 20 of the
UAPA read with Rigorous
Section 120-B of Imprisonment for
the IPC. ten years and to
pay a fine of
Rs.1000/- and in
default to suffer
Rigorous
Imprisonment for
Section 38 of the Six Months.
UAPA read with
Rigorous
Section 120-B of
Imprisonment for
the IPC.
five years and to
pay a fine of
Rs.1000/- and in
default to suffer
Rigorous
Section 39 of the Imprisonment for
UAPA read with Six Months.
Section 120-B of Rigorous
the IPC. Imprisonment for
five years and to
pay a fine of
Rs.1000/- and in
default to suffer
Rigorous
Imprisonment for
Six Months.
5. Being aggrieved by the aforesaid common judgment
and order of conviction, accused Nos 1 to 5 preferred criminal
appeal No. 136/2017 whilst accused No.6 preferred criminal appeal
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No. 137/2017 before this Court. Both appeals were heard by this
Court and vide common judgment and order dated 14.10.2022, this
Court principally held that the proceedings of Sessions Case No.
13/2014 and 130/2015 was null and void for want of valid sanction
in terms of Section 45(1) of the UAPA and accordingly set aside the
order of conviction. During the pendency of the appeal, accused No.
2 Pandu Narote died, however this Court observed that his appeal
does not abate. Dealing with the issue of sanction qua accused Nos.
1 to 5 and accused No. 6 G.N. Saibaba separately, this Court was of
the view that sanction for prosecution vitiates and concluded as
below:-
" We record our conclusions thus :
(i) In view of the findings recorded by us, we hold
that the proceedings in Sessions Trials 30/2014 and 130/2015
are null and void in the absence of valid sanction under Section
45(1) of the UAPA, and the common judgment impugned is
liable to be set aside, which we do order.
(ii) We are conscious of the demise of accused 2-
Pandu Pora Narote during the pendency of the appeal. We are of
the considered view, that in view of the decision of the Hon'ble
Supreme Court in Ramesan (Dead) through LR. Girija v. State of
Kerala, AIR 2020 SC 559 which is rendered on the anvil of the
provisions of Section 394 of the Code of 1973, appeal preferred
by accused 2-Pandu Pora Narote does not abate.
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(iii) The prosecution did submit that if the appeal is decided,
not on merits, but only on the point of sanction, we may grant
liberty to the prosecution to obtain proper sanction and try the
accused. In view of the well entrenched position of law, that the
rule against double jeopardy has no application if the trial is held
vitiated due to invalidity or absence of sanction, we see no reason
to dilate any further on the said submission.(iv) Accused 5-Vijay
Nan Tirki is on bail, his bail bond stands discharged.
(v) Accused 1-Mahesh Kariman Tirki, accused 3-Hem
Keshavdatta Mishra, accused 4-Prashant Rahi Nrayan Sanglikar
and accused 6-G.N. Saibaba be released from custody forthwith,
unless their custody is required in any other case.
(vi) The appellants shall execute bond of Rs.50,000/-
(Rupees Fifty Thousand) each with surety of like amount, to the
satisfaction of the trial Court, in compliance with the provisions of
Section 437-A of the Code of 1973.
(vii) The appeals are disposed of in the aforestated
terms."
6. Aggrieved with the judgment and order of this Court
dated 14.10.2022, the State preferred criminal appeal Nos. 1184-
1185 of 2023 arising out of SLP (Crl.) Nos. 11072-11073/2022
before the Supreme Court. Since this Court had not considered
and/or decided the appeals on merit, by consent of the parties, the
judgment and order of this Court dated 14.10.2022 was set aside
and the matters are remitted to this Court for fresh decision on
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merits as also on the question of validity of the sanction. For the
sake of convenience, the relevant portion of the order of the
Supreme Court dated 19.04.2023 has been extracted below:-
"6. In view of the above broad consensus between the
respective parties recorded hereinabove and without further
entering into the merits of the case and/or expressing
anything on merits in favour of either of the parties, with the
consent of learned Counsel for the respective parties, we set
aside the impugned common judgment(s) and order(s) passed
by the High Court in Criminal Appeal Nos. 136 and 137 of
2017. The matters are remitted back to the High Court to
decide the said Appeals afresh in accordance with law and on
its own merits, including the question of sanction. It will be
open for the State to contend that once the accused are
convicted after conclusion of the trial, the validity of the
sanction and/or no sanction in case of one of the accused
cannot be gone into and/or the same would become
insignificant and as and when such issues are raised, the same
be considered by the High Court in accordance with law and
on its own merits. It will be open for the accused to counter
the same. We have also specifically observed that all the
contentions and the defences, which may be available to the
respective parties are kept open to be considered by the High
Court in accordance with law and on its own merits and on
the basis of the evidence, which is already on record before
the learned trial Court.
7. We request the High Court to decide and dispose of the
Appeals on merits at the earliest and preferably within a
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period of 4 months from the date of receipt of the present
order. It is also observed that the propriety demands that, on
remand, the Appeals be placed before another Bench so as to
avoid any further apprehensions. Therefore, we request the
Hon'ble Chief Justice of the High Court to see that the Appeals
are placed for final hearing before the Bench other than the
Bench, which passed the impugned judgment(s) and order(s).
The present appeals are, accordingly, allowed."
7. In turn, the learned Acting Chief Justice of this Court vide
order dated 19.05.2023 assigned both appeals to the Bench headed
by one of us (Vinay Joshi, J.). As per convenience of the learned
Counsels appearing for different accused and learned special
prosecutor, the appeals were heard extensively including through
Video Conferencing. Both sides have canvassed various issues and
relied on several decisions in support of their respective contentions.
They have also filed written notes of arguments with charts
indicating the factual chronology and events. With this prologue, we
proceed to decide the Appeals.
8. The judgment and order under challenge is for the
offfences punishable under a special statute namely UAPA. The
UAPA was introduced with the aim and object of providing a more
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effective mechanism for prevention of certain unlawful activities of
individuals and organizations and for matters connected therewith.
A special mechanism and procedure has been introduced right from
the stage of investigation containing various checks and balances.
9. The present case relates to the act of terrorism or related
activities covered under the UAPA. Initial arrest on suspicion has
revealed the involvement of the accused in acts of terrorism covered
under the provisions of UAPA. After completing all the formalities of
investigation, charge-sheet was filed, which was followed by filing a
supplementary charge-sheet with sanction to prosecute accused No.6
G.N. Saibaba.
10. The prosecution case can be stated in brief as below:-
At the relevant time, the informant, Assistant Police
Inspector ('API') Atul Awhad was attached to the Special Branch,
Gadchiroli. He received secret information that accused No.1
Mahesh Tirki and accused No.2 Pandu Narote were involved with a
banned terrorist organization CPI (Maoist) and its frontal
organization (RDF). They were active members of the said banned
terrorist organization CPI (Maoist) and its frontal organization RDF.
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API Awhad also received information that both of them were
supplying material to the underground naxalites and they were
providing protection to them. They were also facilitating the
members of banned terrorist organization CPI (Maoist) and its
frontal organization RDF to travel from one location to another. In
pursuance of the said information, API Awhad and his team were
keeping watch on the movements of accused No.1 Mahesh Tirki and
accused No.2 Pandu Narote in naxal affected area of Etapalli, Aheri
and Murewada. API Awhad received secret information that both of
them, with their unknown associates were transmitting secret
information to the banned terrorist organization CPI (Maoist) and its
frontal organization RDF. The information led API Awhad and his
team to keep them under surveillance.
11. On 22.08.2013 around 06.00 p.m., both accused No.1
Mahesh Tirki and accused No.2 Pandu Narote were found standing
in suspicious conditions at a secluded place near Aheri Bus Stand.
Within short time, by around 06.15 p.m. one person wearing a white
cap came to them and they were conversing with each other. From
the overall appearance and movements, their activities were found
to be suspicious. API Awhad accosted them and made necessary
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inquiries, to which however they gave evasive answers strengthening
his suspicions of these accused. API Awhad took these three accused
to the Police Station at Aheri. All three suspects were brought to the
Police Station by API Awhad pursuant to which the Police Station
incharge Narendra Dube, made a station diary entry No. 29/2013
around 06.35 p.m. Two panch witnesses were summoned. In their
presence, accused No.1 Mahesh Tirki and accused No.2 Pandu
Narote disclosed their names whilst the third person (accused no.3)
who had come to meet them, disclosed his name as Hem Mishra.
Police Inspector ('PI') Anil Badgujar has made further inquiries, but
did not get any response. In the presence of panch witnesses, a
personal search of all three accused was taken.
12. Initially, the search of accused No.1 Mahesh Tirki revealed
on his person, three pamphlets of the banned terrorist organization
CPI (Maoist) and its frontal organization RDF, one purse containing
cash of Rs.60/-, platform ticket of Ballarshah Railway Station dated
28-5-2013, Identity Card and one Cell Phone of Micromax Company,
which were all seized. During the search from accused No.2 Pandu
Narote, one Cell Phone of Samsung Company, one purse containing
cash of Rs.1480/-, platform ticket of Delhi Railway Station dated
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28.05.2013, Pan Card and Identity Card, were seized. Then
personal search of accused No.3 Hem Mishra was taken. During his
search, one memory card of Scandisc Company of 16 GB, one purse
containing cash of Rs.7,700/-, railway ticket of Delhi to Ballarshah
dated 19-8-2013, Camera along with Charger, Pan Card, Identity
Card and Cloth Bag were seized. All the articles were seized in
presence of a panch witnesses under panchama (Exh.137). The
seized property was taken into custody by PI Anil Badgujar.
13. On the basis of the seized material, API Awhad lodged a
report (Exh. 219) containing the details of the seizure and official
information regarding the material collected. API Awhad, during his
preliminary inquiry concluded that accused No.1 Mahesh Tirki,
accused No.2 Pandu Narote and accused No.3 Hem Mishra were
involved with the banned terrorist organization CPI (Maoist) and its
frontal organization RDF. The Officer Incharge of Police Station
Aheri PW-15 Narendra Dube has registered a crime vide Crime No.
3017/2013 against them, for the offence punishable under Sections
13, 18, 20, 38, 39 of the UAPA read with Section 120-B of the Indian
Penal Code and made a Station Diary entry to that effect.
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14. Since the crime was registered under the provisions of
UAPA, the investigation was handed over to PW-11 Sub-divisional
Police Officer ('SDPO') Suhas Bawche. The apprehended accused
were produced before the Magistrate on the following day and were
remanded to police custody for the purpose of investigation. During
interrogation, it was revealed that a lady named Narmadakka who
was a Naxalite belonging to banned terrorist organization CPI
(Maoist) and its frontal organization RDF, had assigned the job to
accused No.1 Mahesh Tirki and accused No.2 Pandu Narote to
receive accused No.3 Hem Mishra, who was arriving from Delhi and
safely escort him to Murewad forest area. During interrogation of
accused No.3 Hem Mishra, it was revealed that one person from
Delhi i.e. accused No.6 G.N. Saibaba was an active member of the
banned terrorist organization CPI (Maoist) and its frontal
organization RDF. That accused no.6 had given one memory card to
accused No.3 Hem Mishra which was wrapped in paper with a
direction to deliver the same to naxalite Narmadakka.
15. Further interrogation of accused No.3 Hem Mishra
uncovered the involvement of accused No.4 Prashant Rahi Narayan
Sanglikar ('Prashant Rahi'). The investigating Officer also came to
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know that accused No.4 Prashant Rahi was about to visit Raipur or
Deori. The Investigating Officer passed this information to Police
Station Chichgarh. On 01.09.2013, PW-14 PI Rajendrakumar Tiwari
found accused No.4 Prashant Rahi and accused No.5 Vijay Tirki at
Chichgarh T-point, Deori under suspicious circumstances, hence they
were brought to Aheri Police Station on 02.09.2013 around 05.00
a.m. The Investigating Officer Suhas Bawche effected arrest of
accused No.4 Prashant Rahi and accused No.5 Vijay Tirki under
arrest panchnama Exh. 239 and 240. A personal search was carried
out by the Investigating Officer Suhas Bawche. During the personal
search of accused No.4 Prashant Rahi, one purse, cash of Rs.8,800/-,
one Visiting Card, one Driving Licence, one Yatri Card, one
Newspaper "Dainik Bhaskar" and eight papers containing naxal
literature along with typewritten papers pertaining to the under-trial
Maoist leader Narayan Sanyal were seized. Likewise while carrying
a personal search of accused No.5 Vijay Tirki, one Cell Phone of
silver colour, cash of Rs.5,000/-, four pieces of paper on which
certain phone numbers were written and one newspaper "Dainik
Bhaskar" were seized.
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16. During investigation accused No.5 Vijay Tirki, revealed
that he was assigned a job by one Ramdar, an active member of
banned terrorist organization CPI (Maoist) and its frontal
organization RDF to receive accused No.4 Prashant Rahi and to
escort him safely to Abuzmad forest area to meet senior maoist
cadre. Investigation further led to the revelation that accused No.3
Hem Mishra, accused No.4 Prashant Rahi and accused No.6 G.N.
Saibaba entered into criminal conspiracy, pursuant to which accused
No.6 G.N. Saibaba arranged a meeting of accused No.3 Hem Mishra
and accused No. 4 Prashant Rahi with underground members of the
banned terrorist organization CPI (Maoist) and its frontal
organization RDF who were hiding themselves in Abuzmad forest
area. It was revealed that accused No.6 G.N. Saibaba handed over a
micro chip SD memory card of 16 GB of Sandisk company
containing vital maoist communications to accused No.3 Hem
Mishra and accused No.4 Prashant Rahi with instructions to deliver
the same to the naxalities with an intention to furthering the
activities of banned terrorist organization CPI (Maoist) and its
frontal organization RDF.
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17. It is the prosecution's case that during investigation, it was
revealed on 26.08.2013 that accused No.3 Hem Mishra was using his
face-book account for these activities. The Investigating Officer
called two panch witnesses and in their presence, the face-book
account of accused No.3 Hem Mishra was opened on the lap-top of
Aheri Police Station. After opening the face-book account of accused
No.3 Hem Mishra, some screen shots and their printouts were taken
in the presence of panch witnesses. The entire process was video-
graphed and panchnama was prepared vide Exh. 199. The material
collected from the face-book account of accused No.3 Hem Mishra
was seized vide panchnama Exh.200. The 16 GB memory card of
Sandisk Company seized after the personal search of accused No.3
Hem Mishra was sent to Central Forensic Science Laboratory,
Mumbai ('CFSL'). Scientific expert PW-21 Bhavesh Nikam has
examined the said material and submitted his report at Exh.266.
The certified hard copies printed from the data contained in the
mirror images/clone of the data in the said memory card of Sandisk
Company were annexed along with the CFSL report Exh. 266.
18. On completing the process of investigation, sanction under
Section 45(1) of the UAPA was sought. PW-19 Dr. Amitab Ranjan
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has accorded sanction vide order dated 15.02.2014 for the
prosecution of accused Nos. 1 to 5 only. After obtaining sanction,
final report in terms of Section 173(2) of the Code was filed in the
Court of Judicial Magistrate First Class, Aheri on 16.02.2014. The
case was committed to the Court of Sessions on 26.02.2014 which
was registered and numbered as Sessions Case No. 13/2014.
19. During investigation and interrogation of accused No.3
Hem Mishra and accused No.4 Prashant Rahi, involvement of
accused No.6 G.N. Saibaba was revealed. In turn, PW-11
Investigating Officer Suhas Bawche sought a search warrant from
the Judicial Magistrate First Class, Aheri on 07.09.2013 for search of
the house of accused No.6 G.N. Saibaba at New Delhi. The
investigating Officer along with police staff proceeded to Delhi on
09.09.2013 after making a station diary entry to that effect. The
Investigating Officer Suhas Bawche sought assistance from the Local
Police of Maurice Nagar Police Station, New Delhi. The Local Police
provided the police staff, computer expert and videogrpaher to
facilitate the house search of accused No.6 G.N. Saibaba which was
in the campus of Delhi University.
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20. Investigating Officer Suhas Bawche along with his search
party proceeded to the house of accused No.6 G.N. Saibaba. The
Investigating Officer disclosed the purpose of his visit to the accused
No.6 G.N. Saibaba in presence of panch witnesses. During the house
search, seizure was made of a Compact Disk, Digital Versatile Disk,
Pen Drive, Hard Disk, three Cell Phones, two Sim Cards, Books,
Magazines and certain other articles vide panchnama (Exhibit 165).
Electronic and digital gadgets and devices which were seized during
the house search of accused 6-G.N. Saibaba, were sent to the CFSL,
Mumbai for forensic analysis. Mr. Bhavesh Nikam (PW 21) has done
the forensic analysis of the electronic gadgets and data and
submitted a report at Exhibit 267, along with the cloned
copies/mirror images of the data contained in the electronic gadgets
and hard disk.
21. Investigating Officer Suhas Bawche attempted to arrest
accused No. 6 G.N. Saibaba, however members of banned terrorist
organization CPI (Maoist) and its frontal organization RDF
protested. The Investigating Officer Suhas Bawche therefore,
obtained an arrest warrant for accused No.6 G.N. Saibaba from the
Judicial Magistrate First Class, Aheri on 26.02.2014 and then
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effected his arrest vide panchnama Exh. 269 on 09.05.2014. From
personal search of accused No.6 G.N. Saibaba, one mobile phone, RC
Book of a vehicle and cash amount of Rs. 320/- was seized. Accused
No.6 was brought from Delhi and produced before the Judicial
Magistrate First Class, Aheri who in turn remanded him to the
judicial custody.
22. The sanction for prosecution under Section 45(1) of the
UAPA pertaining to accused No.6 G.N. Saibaba was applied for. PW-
18 sanctioning authority Mr. K.P. Bakshi has accorded sanction vide
order dated 06.04.2015 which led to filing of supplementary charge-
sheet registered as Sessions Case No. 130/2015. Since both
Sessions Cases No. 13/2014 and Sessions Case No. 130/2015 arose
out of the same incident, the learned Sessions Judge directed a joint
trial of both cases.
23. The learned Counsels for the appellants adopted two
arguments to press for the acquittal of the accused. The validity of
the sanction under Section 45(1) of the UAPA was challenged after
which the veracity of the evidence was attacked to persuade us to
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hold that the evidence led by the prosecution was unrealistic,
unreliable and fabricated. We make it clear that though accused no.2
Pandu died, his appeal survives.
24. It is advantageous to advert first to the contentions
relating to validity of the sanction being an important facet of the
criminal prosecution under UAPA.
SANCTION FOR PROSECUTION UNDER SECTION 45 [1] OF UAP
ACT.
25. Legality of sanction has been seriously challenged by the
learned Counsels appearing for different accused. For the sake of
convenience, we prefer to deal with sanction qua accused Nos. 1 to
5, separately from the challenge to the sanction qua accused No.6
G.N. Saibaba. Except the ground of non-application of mind by the
Sanctioning Authority, the grounds for challenges are distinct.
26. Both sides have vehemently argued the point of prior
sanction for the Special Court to take cognizance in terms of Section
45(1) of the UAPA. The learned special prosecutor submitted that
sanction qua accused No1. 1 to 5 is a valid sanction issued by the
competent authority after due application of mind. He would
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submit that sanction as regards accused No.6 G.N. Saibaba, though
issued post taking cognizance, does not vitiate the proceeding for
two reasons. Firstly, in the absence of raising a specific challenge at
initial stage itself, and secondly, it is a curable defect in terms of
Section 465 of the Code. Per contra, the learned defence Counsel
attacked the validity of sanction with all seriousness. It is the
precise submission of the accused that the provisions of UAPA are
quiet stringent in nature, the Act providing harsh punishment even
for preparatory acts, or likelihood of the involvement, or for mere
membership of a banned organization.
The UAPA was amended from time to time adding various
stringent provisions. One of the major and extensive amendment
was by amendment to the UAPA was amendment Act 35 of the year
2008. The central theme behind amendment of the year 2008 was
to make further provisions to cover various facets of terrorism and
terrorist activities. The object of avoiding possible misuse of the
stringent provisions has direct nexus with amended Section 45 of the
UAPA which pertains to prior sanction. It is argued that Section
45(2) of UAPA provides a special mechanism in the form of a two
apeal136 & 137.17.odt
tier filter to protect the personal liberty which was to be strictly
complied.
27. Before dealing with the rival submissions, it would be
apposite on our part to note some dates and events connecting to the
aspect of sanction.
Sr. Date Event
No.
1 11.02.2014 Received recommendation of reviewing authority.
2. 15.02.2014 Sanction for prosecution Against accused Nos. 1 to 5.
3. 16.02.2014 Charge-sheet against all six accused.
4. 13.06.2014 Validity of sanction challenged in Bail Application No.
96/2014.
5. 21.02.2015 Charge framed against all accused.
6 04.03.2015 Received recommendation of Reviewing authority on
accused No.6 G.N. Saibaba.
7. 06.04.2015 Sanction as regards to accused No.6 G.N. Saibaba.
8. 27.10.2015 First prosecution witness was examined.
9. 30.11.2015 Supplementary charge-sheet against accused No.6 G.N.
Saibaba with sanction order.
10. 05.01.2016 Recall of PW-1
28. We have heard Mr. Ponda learned senior Counsel for
State at length on the point of sanction. Mr. Ponda initially drew
apeal136 & 137.17.odt
our attention to the questions framed by the Supreme Court in its
earlier order dated 15.10.2022 which are as below:-
"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 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
apeal136 & 137.17.odt
Section 313 Cr.P.C. when no objection to the want of
sanction at the time of taking cognizance was taken?"
29. The prosecution endeavoured to establish that sanction
qua accused Nos. 1 to 5 issued by PW-19 Dr. Amitabh Ranjan was
legal and valid. Secondly, sanction qua accused No.6 G.N. Saibaba
though granted post cognizance, however for want of specific
challenge and demonstrating some failure of justice, is a curable
defect in terms of section 465 of the Code.
30. For the sake of convenience, we have reproduced Section
465 of the Code herein below:-
"465. Finding or sentence when reversible by
reasons of error, omission or irregularity - (1) Subject
to the provisions hereinbefore contained, no finding,
sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered by a Court of
appeal, confirmation or revision on account of any
error, omission or irregularity in the complaint,
summons, warrant, proclamation, order, judgment or
other proceedings before or during trial or in any
inquiry or other proceedings under this Code, or any
error, or irregularity in any sanction for the prosecution
unless in the opinion of that Court, a failure of justice
has in fact been occasioned thereby.
apeal136 & 137.17.odt
(2) In determining whether any error, omission
or irregularity in any proceeding under this Code, or
any error, or irregularity in any sanction for the
prosecution has occasioned a failure of justice, the
Court shall have regard to the fact whether the
objection could and should have been raised at an
earlier stage in the proceedings."
31. It is argued that the provisions of the Code would squarely
apply to the prosecution under UAPA. In particular, it is submitted
that Section 45 of the UAPA does not open with a non-obstante
clause, meaning thereby the general provisions of the Code would
apply with full force. Our attention is specifically drawn to Sub-
clause (2) to Section 465 of the Code to contend that while
determining the question as to whether there was any error or
irregularity or omission, in grant of any sanction, the Court shall
consider whether the objection has been raised at the earliest stage
of the proceedings.
According to the prosecution, the accused did not raise
any specific challenge at various stages of the case i.e. at the time of
taking cognizance, framing of charge, recording of evidence, during
cross-examination, during recording of statement under Section 313
apeal136 & 137.17.odt
of the Code and while advancing final arguments in the Trial Court.
It is submitted that the accused have neither claimed discharge nor
invoked inherent powers of this Court in terms of Section 482 of the
Code to question the tenability of prosecution on account of
irregularity/omission or invalidity of the sanction. It is contended
that the accused cannot raise the issue of sanction first time in
appeal that too in re-joinder. Moreover, it is submitted that no such
specific ground was raised in the appeal memo.
32. It is contended that the irregularity of sanction cannot
determine the competence of the Court to try the matter once having
faced the trial and availed the opportunity of cross-examination.
After issuance of sanction qua accused No.6 G.N. Saibaba dated
06.04.2015, PW-1 was recalled as well as cross-examined. Fullest
opportunity was given in the Trial Court and thus it is not a case of
failure of justice.
33. Mr. Ponda would submit that accused Nos. 1 to 5 have not
challenged the validity of sanction by initiating substantive
proceedings. Even if the order is void, it is required to be set aside
by a competent Court of law and such order cannot be declared to
apeal136 & 137.17.odt
be void in collateral proceeding. Accused Nos. 1 to 5 have not
challenged the validity of sanction during cross-examination. Full
opportunity was given in Trial Court to inspect the original sanction
file. There is no substance in the contention that the entire material
was not placed either before Reviewing Authority or Sanctioning
Authority.
34. According to Mr. Ponda, Section 45 of the UAPA does not
prescribe for the recording of reasons nor provides a format in which
sanction or opinion or recommendation is to be made. The accused
cannot challenge the independence of the Reviewing Authority. The
act of making recommendations is an executive or administrative
order which is not amenable to an appeal. Moreover, legislative
debates cannot be relied upon for the purpose of interpreting
statutory provisions. Mr. Ponda relied on various decisions to which
we will advert shortly.
35. Mr. Mandhyan, learned Counsel appearing for accused
Nos. 1 to 3 has seriously challenged the legality of sanction. He
submits that sanction is accorded without considering an
independent review by the authority appointed by the Government.
apeal136 & 137.17.odt
The intention of the legislature in mandating sanction is to prevent
the misuse of the stringent provisions. The recommendation for
according sanction was given in absence of part of the material
which was later produced as evidence, that too without any
application of mind. He would submit that in absence of an
independent opinion by the Reviewing Authority, the sanction is
defective and tantamounts to absence of sanction which is an
incurable defect. In the absence of valid sanction, the Court is not
empowered in law to take cognizance. He has attacked the legality
of the sanction based upon total non-application of mind by an
independent reviewing authority as well as sanctioning authority. In
support of his contention, he relied on several decisions, to which we
would advert to.
36. Mr. Pais, learned senior Counsel appearing for accused
Nos. 4 and 5 has on similar lines challenged the legality of the
sanction by making exhaustive submissions backed by several
reported decisions. He would submit that Section 386(b)(i) of the
Code applies only to a stage after a full-fledge trial and thus, the
Appellate Court is well within its competence to discharge the
accused. When the entire trial is without jurisdiction, the accused
apeal136 & 137.17.odt
are entitled for discharge. Pre-condition of previous sanction under
UAPA is done in a more specific and stringent manner than the other
laws, because the consequences are serious. Though no particular
form has been prescribed for recommendation, however it requires
to reflect due application of mind.
37. Mr. Pais would submit that Section 45(1) of the UAPA bars
a Court from taking cognizance of any offence in absence of valid
sanction. The sanction has to be accorded only after consideration
of the report of an independent authority which reviews the
evidence and the material available on record. Valid sanction is
essential to lift the statutory bar, and in its absence, the Court lacks
jurisdiction to taking cognizance. He would submit that a
fundamentally invalid sanction amounts to no sanction and goes to
the root of the jurisdiction of the Court, being an incurable defect.
The effect of invalid sanction would be as if the Court had tried the
matter without jurisdiction. Mere formal order of sanction without
due application of mind would not automatically render the validity
nor could be cured with the aid of Section 465 of the Code.
Sanction dated 15.02.2014 qua accused Nos. 1 to 5 is only for
prosecution of acts under Section 45(1)(ii) under Chapter IV and VI
apeal136 & 137.17.odt
of the UAPA. There was no sanction for the offence falling under
Chapter III of the UAPA. The sanction order is devoid of reasons as
to how each specific charged offence applies to each of the accused
against whom sanction has been accorded. It is criticized that the
sanction order is nothing but a reproduction of the draft sanction
order provided by the Investigating Officer.
38. In order to emphasize the importance of sanction under
UAPA, it is submitted that the UAPA is a stringent statute and an
extraordinary piece of legislation. The statute itself has provided a
safeguard against its misapplication or misuse. The legislature
thought that mere executive sanction is not enough, hence a two
stage filter has been specifically provided. Every sanction must be
preceded by reviewing of the entire material by an independent
authority. The authority issuing the recommendation shall
independently apply its mind to the material qua each accused. The
recommendation is bereft of reasons or anything from which it could
be perceived that there was due application of mind. Resultantly,
the Sanctioning Authority was deprived from considering an
independent review report mandated by law.
apeal136 & 137.17.odt
39. Mr. Pais submitted that the objection as to validity of
sanction was very much taken at the earliest possible opportunity.
While applying bail for accused No.6 G.N. Saibaba in Bail
Application No. 96/2014, legality of sanction dated 15.02.2014 qua
accused Nos. 1 to 5 was challenged, however the Trial Court kept
these objections pending till examination of the Sanctioning
Authority. The cross-examination of relevant witnesses and
arguments advanced before the Trial Court equally suggest, the
objection taken as to the legality of sanction. In sum and substance,
the entire proceeding would stand vitiated in the absence of valid
sanction in view of the specific statutory mandate provided under
UAPA.
40. Mr.S.P. Dharmadhikari, Senior Counsel appearing for
accused No.6 G.N. Saibaba while challenging the legality of sanction
took us to the background of introduction of UAPA and more
particularly the objects and reasons for introducing time to time
amendments to the UAPA. His endevour was to impress that the
provisions of the UAPA are stringent, hence the statute itself has
provided various safeguards in the shape of power to arrest and
search, procedure for arrest and seizure, modified application of
apeal136 & 137.17.odt
certain provisions of the Code, presumption as to the offences under
Section 15, obligation to furnish information and more particularly
the necessity of prior sanction, that too in the manner required
under Section 45 of the UAPA. According to him, Section 45 is a
unique provision adding a very important pre-cognizance, pre-
sanction filter. The UAPA departs from the general procedure at
every stage, provides a presumption as well as stringent punishment.
The endeavour was to ensure that the UAPA and its provisions are
not misused and citizens are not harassed, therefore various checks
and balances are incorporated therein. With the said object, a two-
layer filter has been provided at pre-cognizance stage. Even before
the stage of grant of sanction, a review of the entire material was
contemplated from an independent authority. Section 45(2) creates
a statutory bar on grant of sanction unless independent authority
"reviews" the evidence gathered and gives its recommendation in a
time bound manner. Recommendations of an independent authority
are not an empty formality.
41. On facts, it is submitted that the Trial Court has framed
charge against accused No.6 G.N. Saibaba on 21.02.2015 whilst
sanction against accused No.6 G.N. Saibaba was accorded on
apeal136 & 137.17.odt
06.04.2015 and filed in the Court with supplementary charge-sheet
on 30.11.2015. Prior to sanction, cognizance as against accused
No.6 had already been taken, charge was framed and evidence has
commenced.
42. It is strenuously argued that Section 465 of the Code
would cure the "error" or "irregularity" in grant of sanction, but does
not cover omission or total absence of sanction. With the aid of
Section 465 of the Code, cognizance taken by the Court in violation
of the mandatory provisions of Section 45(1) of the UAPA cannot be
cured. Absence of sanction is an illegality, rendering the whole trial
vitiated. Only a valid sanction would confer the jurisdiction on the
Court to take cognizance, and in absence of the same, all acts get
vitiated. Departure from the statutory provision amounts to
deprivation of the fundamental right of freedom and liberty violating
Article 21 of the Constitution of India. In support of said
submission, he took us through various provisions as well as
reported decisions.
43. To address the issue, we feel it necessary to see the origin
of UAPA. The genesis of The Unlawful Activities (Prevention) Act
apeal136 & 137.17.odt
1967 lies in the recommendations of the Committee on National
Integration and Regionalism set-up by the National Integration
Council to look, inter alia, into the aspect of putting reasonable
restrictions on certain freedoms in the interests of the sovereignty
and integrity of India. As reflected in the Statement of Objects and
Reasons of the UAPA, it was pursuant to the recommendations of the
said committee that Parliament enacted the Constitution (Sixteenth
Amendment) Act 1963 to impose reasonable restrictions in the
interest of sovereignty and integrity of India on:
(i) the freedom of speech and expression;
(ii) the right to assemble peacefully and without arms; and
(iii) the right to form associations and unions.
44. Pursuant thereto, the Unlawful Activities (Prevention)
Bill was introduced in Parliament to make powers available for
dealing with activities directed against the sovereignty and integrity
of India, which bill came on the statute book as the Unlawful
Activities (Prevention) Act 1967 ('UAPA', for short) w.e.f. 30.12.1967.
The Preamble to the UAPA as originally enacted read as
follows :
apeal136 & 137.17.odt
"An Act to provide for the more effective prevention of
certain unlawful activities of individuals and
associations and for matters connected therewith".
In 2004, the Preamble to the UAPA was amended and
"terrorist activities" were brought within its fold by amending the
Preamble and long-title with retrospective effect from 21.09.2004.
The amended Preamble reads as under:
"An Act to provide for the more effective prevention of
certain unlawful activities of individuals and
associations, and dealing with terrorist activities and for
matters connected therewith".
(emphasis supplied)
45. Subsequently, in order to give effect to certain resolutions
passed by the Security Council of the United Nations and to give
effect to the Prevention and Suppression of the Terrorism
(Implementation of Security Council Resolution) Order 2007 and
further, to make special provisions for prevention of, and for coping
with, terrorist activities and for matters connected therewith or
incidental thereto, the UAPA was further amended in the year 2008
inter alia by substituting the then existing Section 15 relating to
"terrorist act" with effect from 31.12.2008.
apeal136 & 137.17.odt
46. It was followed by further amendment by Act 3 of 2013
and then by the Amendment Act No. 28 of 2019. The legislative
history indicates that from time to time, to tackle the challenges,
UAPA was amended to provide effective remedy to cope-up with
unlawful activities and the act of Terrorism.
47. In this background, we shall examine the much argued
challenge regarding the validity of sanction in terms of Section 45 of
the UAPA, and its effect on taking cognizance of the offences by the
special Court. For the sake of convenience, Section 45 of the UAPA
as it stands after amendment of the year 2008 reads as under:-
"45. Cognizance of offences - (1) No Court shall
take cognizance of any offence-
(i) under Chapter III without the previous
sanction of the Central Government or any officer
authorised by the Central Government in this behalf;
(ii) under Chapters IV and VI without the previous
sanction of the Central Government or, as the case may
be, the State Government, and (if) such offence is
committed against the Government of a foreign
country without the previous sanction of the Central
Government.
apeal136 & 137.17.odt
(2) Sanction for prosecution under sub-section
(1) shall be given within such time as may be
prescribed only after considering the report of such
authority appointed by the Central Government or, as
the case may be, the State Government which shall
make an independent review of the evidence gathered
in the course of investigation and make a
recommendation within such time as may be
prescribed to the Central Government or, as the case
may be, the State Government."
48. We take note that Sub-clause (2) has been inserted in the
year 2008 mandating additional compliances to the initial
requirement of Section 45 of the UAPA. Before insertion of Sub-
clause (2), the original Section 45 precluded the Court from taking
cognizance of the offence without previous sanction as contemplated
under Sub-clause(i) and (ii) of Clause 1 to Section 45 of the UAPA.
The initial fetter on the powers of the Court to take cognizance was
akin to the other statutes. However, the legislature in its wisdom
thought it fit to put an additional safeguard or a filter in terms of
Sub-clause (2) to Section 45 of the UAPA. This necessitates
examination of the background behind insertion of one more filter in
the process of sanction. The best course to unfold the legislative
apeal136 & 137.17.odt
intent is to go through the Statement of Objects and Reasons of
amendment Act 35 of 2008. This being of great significance, we
have reproduced the same as below:-
"Amendment Act 35 of 2008 - Statement of Objects and
Reasons - In view of the concerns and complaints
expressed about the manner in which provisions of the
Prevention of Terrorism Act, 2002 had been applied
including instances of misuse, the Act was repealed in
2004. At the same time, keeping in view that India has
been a front-runner in the global fight against terrorism,
its commitments in terms of the United Nations Security
Council Resolution 1373, dated 28 th September, 2001
and the resolve not to allow any compromise in the
fight against terrorism, the Unlawful Activities
(Prevention) Act, 1967 was amended to make
provisions to deal with terrorism and terrorist activities.
There have been significant developments since then
at the national and the international level. Terrorist
incidents and activities sponsored from across the
borders, in various parts of India and elsewhere,
continue to cause concern. Hence, the legal framework
for dealing with such activities, including measures
related to financing of terrorism, has been further
reviewed.The Administrative Reforms Commission in its
Report "Combatting Terrorism - Protecting by
Righteousness', has also made various recommendations
in this regard. Suggestions in this respect have also been
received from various other sources.
apeal136 & 137.17.odt
After due consideration and examination of these
recommendations and suggestions, the Government is
of the view that further provisions are required to be
made in the law to cover various facets of terrorism
and terrorist activities, including financing of
terrorism, which are not fully covered in the present
law, and to make further provisions with the aim of
strengthening the arrangements for speedy
investigation, prosecution and trial of cases related to
terrorism related offences, while at the same time
ensuring against any possible misuse of such
provisions.
These provisions are proposed to be incorporated in
the Unlawful Activities (Prevention) Amendment Bill,
2008."
49. Much has been canvassed on the genesis behind
introducing the bill to amend the UAPA in the year 2008. Rival
submissions have been made about the use and utility of the
Parliamentary Debates while interpreting statutory object. Elaborate
submissions have been made on whether it is permissible to use
Parliamentary Debates as an extrinsic aid to interpret construction of
statutes. We do not wish to delve into the said aspect since to our
mind the statement of objects and reasons behind amendment is the
best guide to unfold the legislative intent in bringing the provision
into the statute book.
apeal136 & 137.17.odt
50. The object was loud and clear to make additional provision
for speedy investigation, prosecution and trial of cases related to
terrorism, related offences, coupled with ensuring against any
possible misuse of such provision. The initial provision requiring the
sanction for taking cognizance was an important safeguard
protecting the fundamental rights of the citizens guaranteed under
the Constitution. Besides that, one additional safeguard was
provided by insertion of Sub-clause (2) to ensure that the citizens
are not unnecessarily engulfed into frivolous prosecution by the
Investigating Agency. A second pre-sanction layer was put in
requiring the scrutiny of material by an independent authority. Sub-
clause (2) of Section 45 of the UAPA provides that the sanction for
the prosecution under Sub-Section (1) shall be given "only after"
considering the "report" of such authority appointed by the
appropriate Government. The mode and manner for providing a
report has also been specified. It provides that the authority so
appointed, shall make an "independent review" of the evidence
gathered in the course of investigation and make
"recommendation" within a stipulated period. The colour is
perceivable from the context in which the amendment has been
apeal136 & 137.17.odt
made i.e. to avoid curtailment of infringement of the fundamental
rights guaranteed under the Constitution of India.
51. The UAPA as was originally enacted did not cover terrorist
activities. After repeal of the POTA, the UAPA was strengthened with
the amendment of the year 2008 continuing initial Section 45 of the
UAPA prohibiting cognizance by any Court in absence of sanction in
terms of Sub-clause (1) of Section 45 of the UAPA. The said initial
provision pertaining to sanction under Section 45 of the UAPA was in
juxtaposition with the provisions under the Terrorist and Disruptive
Activities (Prevention) Act, 1987 ('TADA') and the POTA vide Section
20-A and 50 respectively. Despite that a need was felt to put an
additional rider in the shape of one more filtering process by some
authority other than the Investigating Agency, with a mandate to
have an independent review before according a sanction. Obviously,
an independent authority so appointed may take its own decision,
which was the very purpose behind the insertion of Sub-clause (2) of
the 45 of the UAPA. As stated above, the object of amendment is
clearly discernible from the aims and objects of the amended Act.
The rival submissions are required to be considered in the light of
said specific provision introduced in the amended statute.
apeal136 & 137.17.odt
52. Mr. Ponda has strenuously argued that the sanction orders
meet the requirement of law and they are in tune with Section 45(2)
of the UAPA. We have been taken through the recommendations of
the independent authority, sanction order and related evidence led
by the respective Sanctioning Authorities. In addition, it is
submitted that even if there is any error in the process of sanction,
the same is a curable defect in terms of Section 465 of the Code.
Much emphasis is laid on the point that the defence has not
challenged the validity of sanction at any earlier point of time and
thus, at a later stage they cannot challenge the same, more so after
conviction recorded by the First Court.
53. The statute itself provides twin safeguards against misuse of a
stringent law. The statute has engrafted an additional filter of
review by an independent authority before granting conventional
executive sanction as contained in other Acts. It is argued that
though the independent authority has submitted its report, it is
nothing, but a sheer formality without application of mind. It has
frustrated the very legislative object by such mechanical exercise. In
this regard, we have been taken through the report of the Reviewing
apeal136 & 137.17.odt
Authority i.e. the Director of prosecution (Exh. 358) which reads
thus:-
"Report regarding review of evidence gathered during
Investigation in C.R.No.3017 of 2013, Registered at Police
Station Aheri, District Gadchiroli
------------------------------------------------------------------------------
I perused -
1. Copy of F.I.R.
2. Copy of panchnama.
3. Copy of Statement of witnesses, etc.
4. And other related documents (Image
documents).
It is clear that there is prima facie evidence against the
arrested and non-arrested accused persons in the Police
Station, Aheri, Gadchiroli C.R. No. 3017/2013 (1) Mahesh
K. Tiraki, (2) Pandu P. Narote, (3) Hem K. Mishra, (4)
Prashant Rahi, (5) Prasad @ Vijay N. Tirki, (6) G.N.
Saibaba u/s. 13, 18, 20, 38 and 39 of Unlawful Activities
Prevention Act.
I therefore recommend to accord sanction in this
case.
This report regarding review of evidence is only with
regard to the offences under the Unlawful Activities
(Prevention) Act, 1967.
sd/-
(Vidya Gundecha)
I/c. Director,
Directorate of Prosecution,
Maharashtra State, Mumbai."
54. We have examined the report to understand what was
perused by the Reviewing Authority, and what material prompted
apeal136 & 137.17.odt
the authority to form an opinion that there exists prima facie
evidence against the accused, and therefore the recommendation.
Can such a report be treated to be in conformity with the legislative
expectations, and can the said report would achieve the purpose of
assisting the Sanctioning Authority in forming its opinion?
55. Mr. Ponda submitted that Section 45(1) of the UAPA
nowhere prescribes for assigning reasons for grant of sanction. He
would submit that the law does not prescribe or mandate that the
authority must assign reasons for grant of sanction, but according to
him in case of refusal to grant sanction, it must be backed with
reasons. He would submit that the provisions of Section 45(2) does
not mandate the Authority so appointed to assign reasons while
forwarding its recommendations. In support of this contention, the
learned Special Prosecutor invited our attention to some of the
provisions of the Code to impress that for taking action, reasons are
not warranted, but for denial, reasons are necessary. He drew
support from the decision of the Supreme Court in case of U.P.
Pollution Control Board1. In the said decision, relating to the
provisions of Section 203, 204 of the Code, it has been observed that
1.U.P. Pollution Control Board Vs. Mohan Meakins Ltd., (2000) 3 SCC 745
apeal136 & 137.17.odt
there is no legal requirement to pass detailed order for issuance of
process, but for dismissal of complaint brief reasons are required.
Applying the said analogy, it is submitted that the reasons are not
required for grant of sanction since Section 45 of the UAPA does not
prescribe assignment of reasons like the case of Section 204 of the
Code. On similar lines, he drew our attention to the decision of the
Supreme Court in case of Kanti Bhadra Shah.2 where, in the context
of framing of charge, it has been expressed that, in view of the
language employed under Sections 239 and 240 of the Code, for
framing charge reasons are not required, but for discharge, the Court
must assign the reasons.
56. We are afraid that adopting this analogy drawn from
general provisions of the Code would not be the correct course
under UAPA. The said analogy could be made applicable at the stage
of issuance of process, or framing of charge, but certainly not in the
context of Section 45(2) of the UAPA which prescribes strict
compliances in line with the objects of fair play sought to be
achieved. We have no doubt in our mind that the
report/recommendations of the Reviewing Authority is an executive
2.Kanti Bhadra Shah and another Vs. State of W.B (2000) 1SCC 722
apeal136 & 137.17.odt
act which is not at par with the quasi judicial orders amenable to the
appellate jurisdiction. However, in the context of preserving the
statutory spirit behind incorporating the pre-sanction layer, the
provision is to be read and understood. The legislature thought the
traditional executive sanction was inadequate for providing
sufficient safeguards to the accused. The very provision of a two tier
system took birth on the background of repeal of similar statutes,
namely POTA and TADA, which were widely criticized. The UAPA
came into force in the year 1967, however substantial amendments
to tackle acts of terrorism have been introduced in the year 2004
and then elaborated in the year 2008 along with additional
safeguards under Section 45(2) of the UAPA. The very statement of
object and reasons behind Amendment Act 35 of 2008 conveys the
reason for expanding the term "terrorist act" along with the statutory
safeguards enacted in the same stroke. The object was clear, that the
repealed POTA was largely criticized, hence to control the terrorist
acts, expansive provision was made by way of amendment of the
year 2008 along with a statutory safeguard. In the light of the said
statutory object, the provisions of Section 45(2) are to be
understood and interpreted.
apeal136 & 137.17.odt
57. Before amendment of the year 2008, Section 45 of the
UAPA pertaining to cognizance of offences was in existence with a
rider to obtain prior sanction like other parallel statutes. However,
by way of amendment, Sub-clause (2) has been added with the
object to protect uncalled prosecution and to prevent misuse. It puts
in place a check on the Investigating Agency by intervention of an
independent authority to independently examine the material and
make recommendations as the authority deems fit. The wordings of
Sub-clause (2) do not merely state that the prior "consent" of the
independent authority is required, but spells out the mode and
manner in which such pre-sanction exercise has to be done, that too
within a prescribed time frame. At the cost of repetition, for ready
reference, we once again extract Sub-clause (2) to Section 45 of the
UAPA which reads as below:-
"45. Cognizance of offences - (1) ......
(i) ......
(ii) ......
(2) Sanction for prosecution under sub-section
(1) shall be given within such time as may be prescribed
only after considering the report of such authority
apeal136 & 137.17.odt
appointed by the Central Government or, as the case may
be, the State Government which shall make an
independent review of the evidence gathered in the
course of investigation and make a recommendation
within such time as may be prescribed to the Central
Government or, as the case may be, the State
Government."
58. Words employed in the section itself conveys the legislative
intent, that recommendation by an independent authority is
prerequisite for grant of sanction. The Sub-clause (2) is specific, and
mandates that the authority shall make an "independent review" of
the evidence gathered and submit its recommendations. It is a
prerequisite for Sanctioning Authority to consider the "report" of the
independent authority before grant of sanction. The term report has
its own significance. The word "report" does not mean to pass on
assent, but is to be read in context. It is generally understood that a
report is a concise piece of writing that refers to facts and evidence
to look at issues, situations, events or findings. Reports are
informative texts that aim at analyzing material with a specific
purpose and audience in mind.
apeal136 & 137.17.odt
59. It is a statutory mandate for the authority to take
independent review of the entire evidence. The legitimate
expectation is that the authority will apply its mind, consider the
entire material, re-scan the evidence before reaching to the
particular conclusion. The term "review" in general parlance
connotes to reconsider or to view again or to give second thought on
the existing material or to re-examine. The report at least should
indicate broadly the basis on which the conclusion was reached,
however we cannot find a single word in the Report to lay such a
foundation for making a recommendation for grant of sanction. The
Report displays total non-application of mind to the material on
record.
60. In the light of the above statutory requirement, we have
looked at the report (Exh. 358) of the Director of Prosecution. The
report only indicates in cryptic manner as to what the authority has
perused. The report does not convey anything beyond the
conclusion of finding of prima facie evidence and the
recommendations to that effect. Cryptic non-speaking report neither
gives an idea about the exercise done by the authority, nor convey
anything even briefly, while reaching a conclusion. We find it
apeal136 & 137.17.odt
difficult to treat the said communication as a "report" in terms of
Section 45(2) of the UAPA. Certainly, this was not the legislative
intent. Rather it was expected that the Sanctioning Authority would
get a good deal of assistance from the report of the independent
authority for its consideration which is totally lacking. In the result,
what was with the Sanctioning Authority for its consideration was
nothing more than a mere green signal and certainly not an
independent opinion. A cryptic communication cannot be
considered as a "report" as expected under the law.
61. Having regard to the language used under Sub-clause
(2), though the reasons are not required, but the independent
authority is certainly expected to at least communicate in brief as to
what prompted the authority to make the recommendation. It was
an important facet of the process of sanction which has to be passed
to the Sanctioning Authority to enable it to take an appropriate
decision. We do agree that statute has not prescribed any format or
a form in which the report is to be made. However, it was the
minimum expectation from the Authority that the report would
convey due application of mind. The very purpose was to provide
assistance to the Sanctioning Authority. In turn, besides a go ahead
apeal136 & 137.17.odt
signal of the authority, there is nothing before the Sanctioning
Authority for its consideration while granting sanction. As such the
legislative object has been completely frustrated by said
communication which was not in tune with the additional filter
provided by the statute.
62. Mr. Ponda not only adhered to the legality of sanction, but,
also endeavoured to impress that even if there happens to be an
error or irregularity, it is a curable defect in terms of Section 465 of
the Code. He would submit that an irregularity in the process of
sanction cannot be capitalized on to stifle the genuine prosecutions.
To avoid failure of genuine prosecution, Section 465 of the Code is
to be taken into consideration. It is emphasized that Section 465 of
the Code is meant for Appellate Courts/Revisional Courts to condone
the irregularity in sanction unless failure of justice has occasioned
thereby. Moreover, it is strenuously argued that in terms of Sub-
clause (2) to Section 465 of the Code unless the objection to the
validity of sanction has been raised at an earlier stage, the same
cannot be entertained in appeal, that too after accused is held guilty.
apeal136 & 137.17.odt
63. On the other hand, the learned defence Counsel would
submit that though ideally objection to the sanction was to be raised
at an initial stage, however it can be raised at any stage even in
appeal. The Central theme of submission is that it is not a case of
mere error or omission, but the sanction is totally invalid, resulting
in the Court lacking jurisdiction to take cognizance, which goes to
the root of the case. Therefore, even if the validity of sanction has
been challenged in context to a subsequent stage, still the objection
has to be entertained.
64. Section 465 of the Code is undoubtedly meant for the
Appellate Court to save the prosecution from its failure on mere
error or irregularity. Sub-clause (2) to Section 465 of the Code
conveys that objection to the sanction should be raised at an earlier
stage, however the statue itself provides that it is one of the
consideration for the assessment. Sub-clause (2) to Section 465 of
the Code never precludes the Appellate Court from entertaining an
objection, if raise at belated stage, but the Court shall have regard to
the stage of objection.
[ 65. Since the stage of raising objection to the validity of
sanction is one of the major factor for consideration, we have
apeal136 & 137.17.odt
examined the said aspect in great detail. The learned Special
Prosecutor emphasized that the validity of sanction has not been
challenged during the entire trial. It is submitted that neither the
accused have claimed discharge nor argued the aspect of sanction in
the final submissions, nor during recording their statement under
Section 313 of the Code. Rather, it is submitted that the accused
gave no objection to frame the charge. It is submitted that though
after framing of charge, sanction to prosecute accused No.6 G. N.
Saibaba was tendered, the prosecution has recalled PW-1 Santosh
Bawne to which accused No.6 G.N. Saibaba gave no objection and
thus, there was no challenge to the legality of sanction during trial.
Mr. Ponda would submit that the accused could have claimed
discharge on account of invalidity of sanction or applied for
quashing of the prosecution in terms of Section 482 of the Code, but
they did not. In substance, he would submit that post conviction,
the said objection cannot be entertained in terms of Section 465(2)
of the Code.
66. Mr. Ponda relied on the decision of the Supreme Court
in case of Lal Singh3 to contend that the objection pertaining to the
3. Lal Singh Vs. State of Gujarat and another, (1998) 5 SCC 529
apeal136 & 137.17.odt
validity of sanction shall be raised at the earliest occasion. In this
decision it has been observed that in view of Sub-clause (2) to
Section 465 of the Code, the objection could and should have been
raised at an earliest stage and if not, mere error or irregularity in
sanction becomes ignorable. The said decision was later
distinguished by the Supreme Court in case of Ashrafkhan to which
we will advert.
67. In response, Mr. Pais would submit that though ideally
the objection to the validity of sanction should be raised at the initial
stage, however it can also be raised at different stages of trial i.e. at
the time of taking cognizance, framing of charge, final argument and
even in appeal. In support, reliance is placed on the decision in case
of S. Subbegowda4 which reads below:-
"10. Having regard to the afore-stated provisions
contained in Section 19 of the said Act, there remains no
shadow of doubt that the statute forbids taking of
cognizance by the Court against a public servant except
with the previous sanction of the Government/authority
competent to grant such sanction in terms of clauses (a),
(b) and (c) to Section 19(1). It is also well settled
proposition of law that the question with regard to the
validity of such sanction should be raised at the earliest
4.State of Karnataka, Lokayukta Police Vs. S. Subbegowda, 2023 SCC Online SC 911
apeal136 & 137.17.odt
stage of the proceedings, however could be raised at the
subsequent stage of the trial also. In our opinion, the
stages of proceedings at which an accused could raise the
issue with regard to the validity of the sanction would be
the stage when the Court takes cognizance of the
offence, the stage when the charge is to be framed by the
Court or at the stage when the trial is complete i.e., at
the stage of final arguments in the trial. Such issue of
course, could be raised before the Court in appeal,
revision or confirmation, however the powers of such
court would be subject to sub-section (3) and sub-section
(4) of Section 19 of the said Act. It is also significant to
note that the competence of the court trying the accused
also would be dependent upon the existence of the
validity of sanction, and therefore it is always desirable
to raise the issue of validity of sanction at the earliest
point of time. It cannot be gainsaid that in case the
sanction is found to be invalid, the trial court can
discharge the accused and relegate the parties to a stage
where the competent authority may grant a fresh
sanction for the prosecution in accordance with the law."
(Emphasis supplied.)
68. In order to butress the submission that the objection
regarding proper sanction can be considered at a later stage, reliance
is also placed on the decision in the case of C. Nagarajaswamy5
5.State of Karnataka through CBI Vs. C. Nagarajaswamy, (2005) 8 SCC 370
apeal136 & 137.17.odt
with special reference to para 16 of the decision which is quoted
below:-
"16. But, even if a cognizance of the offence is taken
erroneously and the same comes to the court's notice
at a later stage a finding to that effect is permissible.
Even such a plea can be taken for the first time before
an appellate court. [See B. Saha and Others Vs. M.S.
Kochar, (1979) 4 SCC 177, para 13 and K. Kalimuthu
Vs. State, (2005) 4 SCC 512]".
(Emphasis supplied.)
69. Besides that, the learned Counsel appearing for defence
denied the submission of Mr. Ponda by stating that at each and every
stage, the validity of sanction was challenged in the proceedings
before the Trial Court. In order to impress that the objection to the
validity of sanction was very much raised at initial stage, the defence
heavily relied on the objection to the sanction raised in the bail
application itself. Our attention has been invited to the order of
rejection of bail dated 13.06.2014 passed by the Trial Court in the
Miscellaneous Criminal Bail Application 96/2014. Bare perusal of
the said order reflects that the validity of sanction was challenged
with specific objection that the sanction was not issued after taking
apeal136 & 137.17.odt
into consideration the report of the authority. To bring clarity, we
deem it appropriate to reproduce certain portion of the bail rejection
order which is quoted below:-
"4............. The learned advocate appearing for
applicant accused also submitted that the sanction to
prosecute accused under the provisions of UAP Act is
not legal and valid as the same was not issued after
taking into consideration the report of Advisory
Committee. Hence he submitted that the sanction order
produced on record is invalid and cannot be considered
against accused. He submitted that in absence of the
same, the court cannot take cognizance of the offence
punishable under UAP Act against accused. For all these
reasons he submitted that there is no evidence against
applicant accused to prosecute him under the provisions
of UAP Act. The sanction accorded to prosecute accused
under the provisions of UAP Act is invalid. The
cognizance of the offences under the provisions of UAP
Act cannot be taken against accused................."
11. The ld. Advocate appearing for accused has also
mainly contested case on the ground that the sanction
given by State government to prosecute accused under the
provisions of UAP Act is invalid. Hence he submitted that
court cannot take cognizance of the offence punishable
under the provisions of UAP Act against applicant
accused. For that purpose he submitted that the State
apeal136 & 137.17.odt
Government had not considered the report of authorised
officer before according sanction. I had gone through
record of the case. On perusal of the same it has become
clear that the State government had accorded sanction
within the period of limitation to prosecute accused
persons under the provisions of UAP Act. At this stage, it
will have to be presumed that the sanction must have been
given by following due process of law by the State
government. At this stage, there is nothing on record to
sow that the due process of law was not followed by the
state government while granting sanction. I am of the
opinion that the same will be decided on merit in the case
when sanction authority will be examined in the case.
However, at this stage, it will have to be considered that
sanction was accorded after following due process of law
by the State government."
(Emphasis supplied.)
70. The above order makes it abundant clear that at the
inception before framing of charge, the validity of sanction was
challenged, but the Court has postponed its consideration. It is a
matter for consideration as to whether the accused are expected to
challenge the sanction midway when the Court has postponed the
objections till conclusion of recording of the evidence.
apeal136 & 137.17.odt
71. Defence submitted that the line of cross-examination as
well as the arguments advanced before the Trial Court, indicates that
validity of sanction has been challenged and was the subject matter
of scrutiny by the Trial Court. In this regard, we have been taken
through the suggestions put in the cross-examination of PW-11
Suhas Bawche (Investigating Officer), PW-18 Mr. K.P. Bakshi, PW-19
Dr. Amitabh Ranjan (Sanctioning Authority). Moreover, it is
submitted that the Trial Court has exhaustively dealt with the
objection to the validity of sanction by spending as many as 58 pages
which itself demonstrates that the validity of sanction was very
much under challenge before the Trial Court.
72. Besides that we have also gone through the cross-
examination of PW-19 Dr. Amitab Ranjan who has accorded sanction
qua accused Nos.1 to 5. It is evident from the line of cross-
examination that the process of sanction has been challenged.
During cross-examination, it has been suggested that there was no
due application of mind. The cross-examination was on the lines that
the entire papers were not placed before the Sanctioning Authority.
The conclusions were reached without supporting material and thus,
sanction was accorded without application of mind. We have also
apeal136 & 137.17.odt
gone through the cross-examination of PW-18 Mr. K.P. Bakshi who
has accorded sanction as regards to accused No. 6. G.N. Saibaba. He
was also subjected to lengthy cross-examination giving various
suggestions indicating that the entire material was not produced and
the sanction was mechanically accorded without application of
mind.
73. After recording of evidence, accused were examined in
terms of Section 313 of the Code. It was one of the argument
advanced by the State that during recording of his statement, the
point of sanction was not challenged. We have gone through the
statements of accused to that extent. The accused have specifically
denied suggestions to that effect by stating that said evidence is
false. For ready reference, we have quoted the answers given by the
accused to sanction related questions in the following form:-
Accused Name Page Nos. Question Answers
of paper nos.
book
Accused No.1 Mahesh 798 144 to Denied by stat-
Kariman Tirki. 150 ing to be false.
Accused No.2 Pandu Pora 843 154 to Denied by stating to
Narote. 160 be false.
apeal136 & 137.17.odt
Accused No.3 Hem 931 121 to Denied by stat-
Keshavdatta Mishra. 127 ing to be false.
Accused No.4 Prashant 864 64 to 70 Shown ig-
Rahi Narayan Sang- norance to
likar. question Nos. 64 to
67 and 70 denied
by stating to be
false with ques-
tion Nos. 68 to 69.
Accused No.5 Vijay Nan 900 51 to 57 Shown ignor-
Tirki. ance by stating I do
not know.
Accused No.6 G.N. 1002 112 to Denied by stating
Saibaba. 119 to be false and a
case of false
implication.
74. The accused Nos. 1 to 6 have filed point wise written notes
of arguments (Exh. 489) in the Trial Court making final submissions
on various aspects, and particularly on the validity of the first
sanction dated 14.02.2014 which was challenged under the separate
caption. The relevant portion of written notes of argument is
extracted herein below:-
21.0. THE GRANT OF SANCTION DATED 14.02.2014
VIOLATIVE OF MANDATORY PROVISIONS OF LAW
AND WITHOUT APPLICATION OF MIND.
21.2. Non-application of mind by pw-19 Dr. Amitabh Ranjan
apeal136 & 137.17.odt
and in granting the sanction dated 15.02.2014.
21.3. Non-application of mind by the Director of Prosecution
in performing the independent review while
recommending the sanction.
21.4. Possibility of prior consultation of Pw-19 with the
interested party before his deposition in the court:
prejudice caused to the accused.
75. Likewise, the second sanction order dated 06.04.2015 for
accused No.6 G.N. Saibaba was challenged under the following
caption:-
22 VIOLATION OF MANDATORY PROVISIONS OF LAW IN
GRANTING SANCTION DATED 06.04.2015 AGAINST
G.N. SAIBABA.
22.1. Admissions made by Pw-18 in his cross-examination
causing prejudice to the accused.
22.2.
-------
22.3. No independent review by the director of prosecution.
22.4. Delay in granting sanction which goes beyond the
statutory time limit - makes the sanction orders invalid
and bad in law - no explanation given by the
prosecution for the delay - prejudice caused to the
accused.
22.5. The office of director of prosecution as well as the
director of public prosecution are the same: it casts a
apeal136 & 137.17.odt
doubt over the independent role to be played by the
director of prosecution.
76. The above exercise is a complete answer to the submission
that the defence has not challenged the validity of sanction before
the Trial Court. Rather we may add that the Trial Court has devoted
total of 58 pages (Page No. 1772 to 1830 of the paper book) in
dealing with the point of sanction. At the first instance, even before
framing of charge, sanction was challenged in the bail application
itself. The Trial Court has specifically concluded that the point of
sanction shall be considered after recording of evidence of the
Sanctioning Authority. Thus, the objection regarding sanction was
kept in abeyance by the Trial Court till the conclusion of evidence.
The line of cross-examination, answers given in the statements
recorded under Section 313 of the Code and in particular written
notes of arguments, overwhelmingly point out that the sanction was
very much challenged before the Trial Court.
77. Needless to say that in the appeal before us, the point of
sanction has been exhaustively argued, meaning thereby the
question of sanction was one of the main issues in challenge raised
apeal136 & 137.17.odt
by the defence. Paragraph No.36 of the appeal memo equally
indicates the challenge to the sanction. Therefore, it is not a case to
say that the validity of sanction was not challenged at the earliest
point of time which is one of the factor for consideration while
dealing with the aspect of sanction.
78. Mr. Pais argued another dimension of this issue by bringing
to our attention, the powers of the Appellate Court in terms of
Section 386(b)(i) of the Code, which empowers the Appellate Court
to reverse the finding and sentence and acquit or discharge the
accused or order for re-trial. In the said lines, he has argued that the
Appellate Court is well empowered to discharge the accused even
after conviction, which is provided for in the procedural law itself.
According to him, recording of conviction by the Trial Court would
by no means foreclose the right of the accused to object to the
legality of sanction in appeal and claim discharge.
79. Though Sub-clause (2) to Section 465 of the Code
contemplates that the objection to the sanction shall be raised at an
earlier stage, however the Section itself postulates that stage of
objection is a factor for consideration but not a decisive one. In
apeal136 & 137.17.odt
other words, Sub-clause (2) conveys that ideally objection to lack of
sanction shall be raised at an earlier stage and said would be
considered while dealing with the objection. By no means would
Sub-clause (2) convey that objections to sanction, if raised at a
belated stage, shall not be considered. Moreover, we have
sufficiently demonstrated above that the validity of sanction was
challenged in the Trial Court.
80. Mr. Dharmadhikari, the learned senior Counsel took us
through Sub-clause (1) to Section 465 of the Code to contend that
the language employed in the Section itself is specific and which
cures procedural errors, omissions, or irregularity, but it does not
speak about omission of sanction. True, Sub-clause (1) to Section
465 of the Code states that any error, omission or irregularity in the
complaint, summons, warrant, proclamation, order, judgment or
other proceedings before or during trial or other proceedings under
this Code are curable. As regards sanction, the section is specific,
that any error or irregularity in the sanction would be saved.
Emphasis is laid on the later part of Sub-clause (1) pertaining to
sanction which only speaks about error or irregularity and not about
omission.
apeal136 & 137.17.odt
81. It is argued that the word omission, pertaining to the
former part of Section is about other irregularities which do not
cover sanction. Mr. Ponda responded to this submission by
submitting that the former part about error, omission, and
irregularity pertains to the "proceedings" before the Trial Court
which according to him includes sanction. We are not in agreement
with this submission because, if such an interpretation is accepted
then there would be no reason to make a separate reference in the
later part of section pertaining to sanction, which speaks about error
or irregularity and not about the omission. The above submission
assumes significance in the context of language employed in Section
465 of the Code which saves error or irregularity of sanction and not
the omission which is the case relating to accused No.6 G. N.
Saibaba.
82. Mr. Chitale, learned Counsel for prosecution would submit
that this is not a case of omission of sanction qua accused No.6 G. N.
Saibaba, but it is a case of delayed sanction for accused No.6 G.N.
Saibaba. Admittedly, when cognizance was taken and charge was
framed, there was no sanction for prosecution of accused No.6 G.N.
apeal136 & 137.17.odt
Saibaba and thus, under colour of delayed sanction, we cannot
assume that while taking cognizance, there was a valid sanction
which was a mandate of law in terms of Section 45(1) of the UAPA.
We say so because of the negative language employed in the statute
under Section 45(1) of the UAPA, which precludes the Court from
taking cognizance in the absence of sanction and thus, it is a vital
stage as there is a complete prohibition on the Court to take
cognizance in the absence of sanction.
83. Mr. Ponda relied on the decision of Bhooraji6 to contend
that a procedural irregularity does not vitiate the trial unless failure
of justice has been demonstrated. The Court of competent
jurisdiction would not cease having competence merely because
there happens to be a procedural lapse. To note the context in
which the decision in Bhooraji's (supra) case was rendered, is a
matter of significance. The long drawn trial for offences under the
Indian Penal Code, and Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act ('SC and ST Act') resulted in
conviction. The Investigating Agency had directly filed a charge-
sheet in the special Court, which, after taking cognizance ended the
6. State of M.P. Vs. Bhooraji and others, (2001) 7 SCC 679
apeal136 & 137.17.odt
trial in conviction. The accused filed appeal before the High Court
of Madhya Pradesh. During the pendency of the said appeal, the
Supreme Court, while deciding the case of Ganguli Ashok held that
committal proceedings are necessary for special Courts to take
cognizance. Till the said decision of the Supreme Court, the Full
Bench decision of Madhya Pradesh High Court in the case of Anand
Swaroop was followed holding that, for proceeding under the SC
and ST Act, committal orders are not required. However, taking
note of the change in legal position, the High Court of Madhya
Pradesh held that the trial without committal was sans jurisdiction
and thereby, quashed the entire trial and returned the charge-sheet
for re-submission.
84. In the aforesaid background, in case of Bhooraji (supra),
the Supreme Court considered that there were demerits for the
accused at the stage of committal prior to the introduction of the
Code of 1973, however the Court noted that after the Code of 1973
came into operation, there are no disadvantages to the accused at
the stage of committal. In the said context, coupled with the fact
that, after conviction only by noticing the change in legal position,
objection was raised, the issue was considered. In the aforesaid
apeal136 & 137.17.odt
background, Section 465 under Chapter XXXV "irregular
proceedings" was considered and it was held that the procedural
irregularity does not make a validly constituted Court incompetent
on account of such irregularity. In substance, it was held that there is
no prejudice occasioned to the accused under the new Code of 1973
at the stage of committal which is totally a procedural aspect,
curable under general provisions contained in Chapter XXXV of the
Code. The issue of sanction was not involved in the said decision.
85. On the same line, prosecution relied on the decision of the
Supreme Court in case of Rattiram7, wherein the decision rendered
in Bhooraji 's case (supra) was held to be the correct position of law.
In the case of Rattiram, the trial under the provisions of SC and ST
Act had commenced and concluded without committal of case to the
Court of Sessions. It was canvassed that by virtue of the bar created
under Section 193 of the Code, the entire trial stood vitiated. The
Court has considered the substantive rights enjoyed by accused prior
to the committal in context with the old Code of 1898. Note was
taken of the fact that after the new Code of 1973, the Magistrate was
only required to see whether the offence was exclusively triable by a
7.Rattiram and ors. Vs. State of Madhya Pradesh (2012) 4 SCC 516,
apeal136 & 137.17.odt
Court of Sessions. Earlier at the time of committal, the Magistrate
was required to hold inquiry, record satisfaction, take evidence, and
the accused had a right of cross-examination, but after the Code of
1973, the limited role was ascribed to the Magistrate to commit on
satisfaction of cognizable offence. In the said context, it has been
held that, since the accused did not have substantial rights at the
time of committal under the new Code, there was no occasion for
failure of justice. Considering the said position in the light of
Section 465 of the Code, it was observed that the procedural lapses
which do not vitiate the valuable rights of accused would not
frustrate the trial as there is no failure of justice. The issue of invalid
sanction or no sanction was not considered in the context of Section
465 of the Code.
86. Our attention has been invited to the decision of
Kalpanath Rai8 to contend that the legislature has purposefully
introduced Sub-clause (2) to Section 465 in the Code of 1973 to
save failure of prosecution on mere error or irregularity in
prosecution. Likewise merely because an objection is raised at
earlier point of time, it does not invalidate the proceedings, but it is
8.Kalpanath Rai Vs. State (through CBI) (1997) 8 SCC 732
apeal136 & 137.17.odt
only one of the consideration to be weighed. The relevant
observations are extracted below:-
"27. When Parliament enacted the present Code
they advisedly incorporated the words "any error or
irregularity in any sanction for the prosecution" in
Section 465 of the present Code as they wanted to
prevent failure of prosecution on the mere ground of
any error or irregularity in the sanction for
prosecutions. An error or irregularity in a sanction may,
nevertheless, vitiate the prosecution only if such error
or irregularity has occasioned failure of justice.
29. Sub-section (2) of Section 465 of the Code is not
a carte blanche for rendering all trials vitiated on the
ground of the irregularity of sanction if objection
thereto was raised at the first instance itself. The sub-
section only says that "the court shall have regard to
the fact" that objection has been raised at the earlier
stage in the proceedings. It is only one of the
considerations to be weighed but it does not mean that
if objection was raised at the earlier stage, for that very
reason the irregularity in the sanction would spoil the
prosecution and transmute the proceedings into a void
trial."
(Emphasis supplied.)
87. Undisputedly, by virtue of Sub-section (2) of Section 465
of the Code, error or irregularity in sanction is saved, unless failure
of justice has occasioned. It is a question of fact whether in the
apeal136 & 137.17.odt
context of given facts, process of sanction can be termed as mere
error or irregularity and if so, whether failure of justice has
occasioned.
88. Prosecution relied on the decision of the Supreme Court in
case of Girish Kumar9 under the provisions of Prevention of
Corruption Act, to contend that mere absence or error or irregularity
in grant of sanction, does not vitiate the proceeding in absence of
raising objection at the initial stage. Moreover, after judicial scrutiny
and the conclusion of guilt, the point of absence or error or omission
would become inconsequential. The relevant observation made in
paras 67 and 77 are as under:-
67. In CBI v. V.K. Sehgal, (1999) 8 SCC 501, it was
held that for determining whether the absence of or any
error, omission or irregularity in the grant of sanction has
occasioned or resulted in a failure of justice, the
court has a duty to consider whether the accused had
raised any objection on that score at the trial stage. Even
if it had been raised at the trial and early enough, it
would not be sufficient to conclude that there was a
failure of justice. Whether in fact and in law there was a
failure of justice would differ from case to case but it was
made clear that if such an objection was not raised in the
9.Girish Kumar Suneja Vs. Central Bureau of Investigation, (2017) 14 SCC 809
apeal136 & 137.17.odt
trial, it certainly cannot be raised in appeal or in revision.
It was explained that a trial involves judicial scrutiny of
the entire material before the Special Judge. Therefore, if
on a judicial scrutiny of the evidence on record the
Special Judge comes to a conclusion that there was
sufficient reason to convict the accused person, the
absence or error or omission or irregularity would
actually become a surplusage. The necessity of a sanction
is only as a filter to safeguard public servants from
frivolous or mala fide or vindictive prosecution. However,
after judicial scrutiny is complete and a conviction is
made out through the filtration process, the issue of a
sanction really would become inconsequential.
77. An allegation of 'failure of justice' is a very
strong allegation and use of an equally strong
expression and cannot be equated with a miscarriage
of justice or a violation of law or an irregularity in
procedure - it is much more. If the expression is to be
understood as in common parlance, the result would
be that seldom would a trial reach a conclusion since
an irregularity could take place at any stage,
inadmissible evidence could be erroneously admitted,
an adjournment wrongly declined etc. To conclude,
therefore, Section 19(3)(c) of the PC Act must be given
a very restricted interpretation and we cannot accept
the over-broad interpretation canvassed by learned
Counsel for the appellants."
(Emphasis supplied.)
apeal136 & 137.17.odt
89. In the said decision a note was taken of the specific
provision of Section 19 of the PC Act pertaining to the previous
sanction for prosecution. Relying on the decision in case of V.K.
Sehgal,10 it has been observed that absence or error or omission or
irregularity in grant of sanction would not ipso facto result in failure
of justice. Moreover, if objection to the sanction has not been raised
at the initial stage, post conviction, such absence, error or
irregularity would become a surplusage. The term "failure of
justice" has been explained in that it cannot be equated to
miscarriage of justice or a violation of law, but is much more than
that.
90. The said decision was rendered in context of the
provisions of Section 19 of the PC Act pertaining to previous
sanction for prosecution. Notably, Sub-clause (3) to Section 19 of
the PC Act is a specific provision to cure or save any error, omission
or irregularity in the sanction. For the sake of convenience, we have
extracted clause (3) to Section 19 of the PC Act as below:-
"19 (1).....
(2)....
(3) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974),
10.C.B.I. Vs. V. K. Sehgal, (1999) 8 SCC 501
apeal136 & 137.17.odt
(a) no finding, sentence or order passed by
a special Judge shall be reversed or altered
by a Court in appeal, confirmation or
revision on the ground of the absence of, or
any error, omission or irregularity in, the
sanction required under sub-section (1),
unless in the opinion of that Court, a failure
of justice has in fact been occasioned
thereby;
(b) no Court shall stay the proceedings
under this Act on the ground of any error,
omission or irregularity in the sanction
granted by the authority, unless it is satisfied
that such error, omission or irregularity has
resulted in a failure of justice;
(c) no Court shall stay the proceedings
under this Act on any other ground and no
Court shall exercise the powers of revision
in relation to any interlocutory order passed
in any inquiry, trial, appeal or other
proceedings."
(Emphasis supplied.)
91. Clause (3) of Section 19 of the PC Act gives overriding
effect to the provisions of the Code. It provides that the sanction
does not vitiate the proceeding on the ground of absence of, or any
error, omission or irregularity in the sanction unless in the opinion of
the Court, a failure of justice has been occasioned. The clause
apeal136 & 137.17.odt
specifies the term "omission" which is not the position in case of
Section 465 of the Code pertaining to sanction, on which much
emphasis is laid by the prosecution. Sub-clause (1) of Section 465 of
the Code saves procedural irregularities which are "omissions", but
the later portion pertaining to sanction only cures the error or
irregularity in the sanction and does not speak about omission of
sanction.
92. PC Act has a specific inbuilt provision under Section 19(3)
(a) to save omission in sanction, which is not the position under
Section 45 of the UAPA which does not have such an arrangement.
Moreover, the UAPA being a special stringent statute, the
observations made in a different context cannot be made applicable
in the light of specific requirements of Section 45(2) of the UAPA.
93. Nishan Singh11 was a case under Section 302 of the
Indian Penal Code. The issue about non-compliance of the
provisions of Section 319(4)(a) of the Code was under
consideration. It provides that on addition of an accused the
proceeding shall be commenced afresh, and witnesses shall be re-
heard. In the said context, the Court has reiterated the principles
11.Nishan Singh Vs. State of Punjab, (2008) 17 SCC 505,
apeal136 & 137.17.odt
enunciated in case of V.K. Sehgal (supra). Being different on facts
and issues, it is of no assistance to the prosecution.
94. Mr. Ponda relied on the decision of the Supreme Court in
case of Pradeep Wodeyar12 to contend that generally a finding or
order is not reversible due to irregularity unless a "failure of
justice" is proved. The objection about irregularity should be raised
at the earliest opportunity. The Court has considered the purport
of Chapter XXXV of the Code which relates to the irregular
proceedings. The relevant paras 46 and 47 of the decision runs
thus:-
"46. Rattiram (supra), had distinguished
Gangula Ashok (supra) on the basis of the stage of the
proceedings since the trial had not begun in the latter but
was completed in the former. Rattiram (supra) does not
hold that Section 465 CrPC would not be applicable to
pre-trial cases. The differentiation between trial and pre-
trial cases was made only with reference to sub-Section
(2) of Section 465. Since the cognizance order was
challenged after the trial was over, the accused could not
prove failure of justice in view of Section 465(2).
However, Section 465(2) only provides one of the factors
that shall be considered while determining if there has
been a failure of justice. Section 465(2) by corollary does
12.Pradeep S. Wodeyar Vs. State of Karnataka, 2021 SCC Online SC 1140
apeal136 & 137.17.odt
not mean that if the alleged irregularity is challenged at
an earlier stage, the failure of justice is deemed to be
proved. Even in such cases though, where the challenge is
made before the trial begins, the party has the burden of
proving a failure of justice'. Further, even if the challenge
is made before the trial begins, the Court still needs to
determine if the challenge could have been made earlier.
47. The test established for determining if there has
been a failure of justice for the purpose of Section 465
is whether the irregularity has caused prejudice to the
accused. No straitjacket formula can be applied.
However, while determining if there was a failure of
justice, the Courts could decide with reference to inter
alia the stage of challenge, the seriousness of the
offence charged, and apparent intention to prolong
proceedings. It must be determined if the failure of
justice would override the concern of delay in the
conclusion of the proceedings and the objective of the
provision to curb the menace of frivolous litigation."
(Emphasis supplied.)
95. In case of Pradeep Wodeyar (supra), relating to the
provisions of Mines and Minerals Act, 1957, the Supreme Court
has considered the effect of irregularity in committal proceedings
and its consequence in the context of failure of justice. Emphasis
apeal136 & 137.17.odt
is laid on the test as to whether the irregularity has caused failure
of justice with reference to the stage of challenge.
96. Prosecution relied on the decision in case of V.K. Sehgal
(supra). The relevant para 10 and 11 are as quoted below:-
"10. A court of appeal or revision is debarred from
reversing a finding (or even an order of conviction and
sentence) on account of any error or irregularity in the
sanction for the prosecution, unless failure of justice
had been occasioned on account of such error or
irregularity. For determining whether want of valid
sanction had in fact occasioned failure of justice the
aforesaid sub-section (2) enjoins on the court a duty to
consider whether the accused had raised any objection
on that score at the trial stage. Even if he had raised any
such objection at the early stage it is hardly sufficient to
conclude that there was failure of justice. It has to be
determined on the facts of each case. But an accused
who did not raise it at the trial stage cannot possibly
sustain such a plea made for the first time in the
appellate court. In Kalpnath Rai v. State (through CBI)
this Court has observed in paragraph 29 thus :
29. Sub-section (2) of Section 465 of the Code is
not a carte blanche for rendering all trials vitiated on the
ground of the irregularity of sanction if objection thereto
was raised at the first instance itself. he sub-section only
says that `the court shall have regard to the fact' that
apeal136 & 137.17.odt
objection has been raised at the earlier stage in the
proceedings. It is only one of the considerations to be
weighed but it does not mean that if objection was
raised at the earlier stage, for that very reason the
irregularity in the sanction would spoil the prosecution
and transmute the proceedings into a void trial.
11. In a case where the accused failed to raise the
question of valid sanction the trial would normally
proceed to its logical end by making judicial scrutiny of
the entire materials. If that case ends in conviction
there is no question of failure of justice on the mere
premise that no valid sanction was accorded for
prosecuting the public servant, because the very
purpose of providing such a filtering check is to
safeguard public servants from frivolous or mala fide
or vindictive prosecution on the allegation that they
have committed offence in the discharge of their
official duties. But once the judicial filtering process is
over on completion of the trial the purpose of
providing for the initial sanction would bog down to a
surplusage. This could be the reason for providing a
bridle upon the appellate and revisional forums as
envisaged in Section 465 of the Code of Criminal
Procedure."
(Emphasis supplied.)
97. In this decision relating to the PC Act, the issue of
competence of the Sanctioning Authority was raised for the first
time in appeal which is not the case here.
apeal136 & 137.17.odt
98. Reliance is placed by Mr. Ponda on the decision of the
Supreme Court in case of Rajmangal Ram13 to impress that unless
the Court reaches to the conclusion that a failure of justice has
been occasioned, error, omission or irregularity in sanction may
not be entertained. In the said decision relating to the PC Act, the
objection about sanction was raised midway through the trial.
Taking note of the specific provision of Section 19(3) of the PC
Act, read with Section 465 of the Code, it is expressed that under
both the enactments any error, omission or irregularity in the
sanction does not vitiate the eventual conclusion in the trial unless
a failure of justice has occurred. The aspect of failure of justice
would be considered after leading evidence and not at the midst of
the trial.
99. Our attention has been invited to the decision of the
Supreme Court in case of Deepak Khinchi14, which was a case
under the Explosive Substances Act. In the said case, sanction was
accorded after three years of the occurrence which took the lives
of 14 innocent persons. Before framing charge, the Court directed
13.State of Bihar and others Vs. Rajmangal Ram, (2014) 11 SCC 388
14.Deepak Khinchi Vs. State of Rajasthan, (2012) 5 SCC 284
apeal136 & 137.17.odt
the prosecution to obtain sanction for which there was delay of
three years. In that context, it was observed that three years delay
in obtaining sanction cannot be considered fatal, but it is a duty of
the Court to see that the preparators of crime are tried and
convicted if offences are proved against them.
100. Though Mr. Ponda relied on the decision in case of
V.K. Sasikala15 the said decision is of no assistance. In the said
case, the issue was of denial of access to documents in custody of
the Court, but not relied upon by the prosecution. In that context,
it has been ruled that the objection of prejudice, if raised by the
accused, it should be dealt by the Court then and there.
101. Mr. Ponda relied on the decision of the Supreme Court
in case of Virender Kumar Tripathi16 to contend that in absence of
pleadings about failure of justice, the objection to the validity of
sanction cannot be entertained. Our attention has been invited to
paras 9 and 10 of the decision which read as under:-
"9. Further, the High Court has failed to consider the
effect of Section 19(3) of the Act. The said provision
15.V.K. Sasikala Vs. State represented by Superintendent of Police, (2012)9 SCC 771
16.State of Madhya Pradesh Vs. Virender Kumar Tripathi, (2009) 15 SCC 553
apeal136 & 137.17.odt
makes it clear that no finding, sentence or order passed
by a Special Judge shall be reversed or altered by a
court of appeal on the ground of absence of /or any
error, omission or irregularity in sanction required
under sub-section (1) of Section 19 unless in the
opinion of the Court a failure of justice has in fact been
occasioned thereby.
10. In the instant case there was not even a whisper or
pleading about any failure of justice. The stage when
this failure is to be established is yet to be reached
since the case is at the stage of framing of charge
whether or not failure has in fact been occasioned was
to be determined once the trial commenced and
evidence was led. In this connection the decisions of
this Court in State v. T. Venkatesh Murthy [2004(7)
SCC 763] and in Prakash Singh Badal v. State of
Punjab [2007(1) SCC 1] need to be noted. That being
so the High Court's view quashing the proceedings
cannot be sustained and the State's appeal deserves to
be allowed which we direct."
(Emphasis supplied.)
In the said decision, the Trial Court had not entertained the
objection to the sanction while framing charge. The accused has
filed a revision petition against said order on the ground that
sanction was accorded without consulting the parent department
in terms of Circular dated 09.02.1988. In that context, it was
apeal136 & 137.17.odt
observed that the provisions of Section 19(3) of the PC Act have
not been considered by the High Court. There was no whisper or
pleading of any failure of justice. Moreover, the stage when this
failure was to be established was yet to reach, therefore, the High
Court's decision of quashing was set aside. The above decision
was in the context of specific provision of Section 19(3) of the PC
Act, and the stage of prosecution.
102. The decision in case of Kuppuswamy17 has been cited
to contend that unless failure of justice is pleaded and proved, the
trial cannot be quashed. The relevant observations made in para
15 reads as below:-
"15. It is therefore clear that even if the trial before the
III Additional City Civil and Sessions Judge would have
in a Division other than the Bangalore Metropolitan Area
for which III Additional City Civil and Sessions Judge is
also notified to be a Sessions Judge still the trial could
not have been quashed in view of Sec. 462. This goes a
long way to show that even if a trial takes place in a
wrong place where the Court has no territorial
jurisdiction to try the case still unless failure of justice is
pleaded and proved, the trial can not be quashed. In this
17.State of Karnataka Vs. Kuppuswamy Gownder and others, (1987) 2 SCC 74
apeal136 & 137.17.odt
view of the matter therefore reading Sec. 462 alongwith
Sec. 465 clearly goes to show that the scheme of the
Code of Criminal Procedure is that where there is no
inherent lack of jurisdiction merely either on the ground
of lack of territorial jurisdiction or on the ground of any
irregularity of procedure an order or sentence awarded
by a competent court could not be set aside unless a
prejudice is pleaded and proved which will mean failure
of justice. But in absence of such a plea merely on such
technical ground the order or sentence passed by a
competent court could not be quashed."
(Emphasis supplied.)
103. The above decision was rendered in context of specific
saving provision of Section 462 of the Code. It has been observed
that on the ground of mere technicality or lack of territorial
jurisdiction the sentence cannot be set aside unless failure of justice
is shown. The issue of validity of sanction was not involved in the
said decision.
104. On the similar line, our attention was drawn to the
decisions of the Supreme Court in cases of Mohd. Shahabuddin18
and Fertico19 to impress the importance of pleadings of failure of
18.Mohd. Shahabuddin Vs. State of Bihar and others, (2010) 4 SCC 653
19.Fertico Marketing and Investment Private Limited Vs. CBI and another, (2021) 2 SCC 525
apeal136 & 137.17.odt
justice. The issue for consideration in case of Mohd. Shahabuddin
was about place of sitting of Court in context with Section 462 of the
Code. In case of investigation by C.B.I, prior consent under Section
6 of the Delhi Special Police Establishment Act was not obtained to
investigate a public servant, which was accorded later. In that
context, absence of pleading about prejudice to the accused was
considered.
105. On the other hand, the learned defence Counsel,
strenuously argued that the material defect in grant of sanction
goes to the root of the case. In view of special requirement of
section 45(2) of the UAPA in absence of valid compliance, sanction
vitiates the whole process which is an incurable defect. It is
submitted that the general provisions of the Code namely Section
465 would protect the procedural irregularity but nor the
fundamental defects which goes to the root of the case. According
to the learned Counsel for defence, the legislative object of providing
twin layers of protection was frustrated by flagrant breach
committed by the Reviewing Authority. The said material defect
itself amounts to failure of justice which touches the fundamental
rights of the citizen.
apeal136 & 137.17.odt
106. Mr. Mandhyan strenuously argued that the use of
negative words employed in the statute itself shows its mandatory
nature. For this purpose, he relied on the decision of the Supreme
Court in case of Rangku Dutta20 with special reference to para 18, 19
and 21of the decision:-
"18. It is obvious that Section 20(A)(1) is a mandatory
requirement of law. First, it starts with an overriding
clause and, thereafter, to emphasise its mandatory
nature, it uses the expression "No" after the overriding
clause. Whenever the intent of a statute is mandatory, it
is clothed with a negative command. Reference in this
connection can be made to G.P. Singh's Principles of
Statutory Interpretation, 12th Edition. At page 404, the
learned author has stated: .................
We are in respectful agreement with the aforesaid
statement of law by the learned author.
19. So there can be no doubt about the
mandatory nature of the requirement of this Section.
Apart from that, since the said section has been
amended in order to prevent the abuse of the provisions
of TADA, this Court while examining the question of
complying with the said provision must examine it
strictly.
20. Rangku Dutta alias Ranjan Kumar Dutta Vs. State of Assam, (2011) 6 SCC 358
apeal136 & 137.17.odt
21. Whether the Deputy Superintendent of Police
is a District Superintendent of Police or not is a different
question which we need not decide in this case. But one
thing is clear that the requirement of approval must be
made at the initial stage of recording the information. If
there is absence of approval at the stage of recording
the information, the same cannot be cured by
subsequent carrying on of the investigation by the DSP.
Reference in this connection is made to the principles
laid down by Lord Denning speaking for the Judicial
Committee of Privy Council in Benjamin Leonard
MacFoy Versus United Africa Co. Ltd. [1961(3) Weekly
Law Reports 1405]. Lord Denning, speaking for the
unanimous Bench, pointed out the effect of an act
which is void so succinctly that I better quote him:
......If an act is void, then it is in law a nullity. It is not
only bad, but incurably bad. There is no need for an
order of the court to set it aside. It is automatically null
and void without more ado, though it is sometimes
convenient to have the court declare it to be so. And
every proceeding which is founded on it is also bad and
incurably bad. You cannot put something on nothing
and expect it to stay there. It will collapse.
We are in respectful agreement with the aforesaid
view. Therefore, the evidence of PW 4 and PW 6 do not
come to any aid of the State Counsel in the facts of the
present case."
(Emphasis supplied.)
apeal136 & 137.17.odt
107. Above observations made in context of the provisions of
Section 20-A(1) of a similar statute such as TADA assist us in
interpretation of the mandatory nature of Section 45(1) of the UAPA.
108. In order to impress that defect in sanction is incurable,
initial reliance is placed on the decision of the Privy Council in case
of Gokulchand Dwarkadas21, with reference to para 12 of the
decision which reads as under:-
"12. It was argued by Mr. Megaw, though not very
strenuously, that even if the sanction was defective, the
defect could be cured under the provisions of Section
537, Criminal P. C., which provides, so far as material,
that no finding, sentence or order passed by a Court of
competent jurisdiction shall be altered or reversed on
account of any error, omission or irregularity in any
proceedings before or during the trial, unless such error,
omission or irregularity, has, in fact, occasioned a failure
of justice. It was not disputed that if the sanction was
invalid the trial Court was not a Court of competent
jurisdiction, but Mr. Megaw contends that there was in
this case a sanction, and that the failure of the Crown to
prove the facts on which the sanction was granted
amounted to no more than an irregularity. Their
Lordships are unable to accept this view. For the reasons
above expressed the sanction given was not such a
21. Gokulchand Dwarkadas Morarka Vs. The Kind, 1948, SCC Online PC 3
apeal136 & 137.17.odt
sanction as was required by Clause 23 of the Cotton
Cloth and Yarn (Control) Order, 1943, and was,
therefore, not a valid sanction. A defect in the
jurisdiction of the Court can never be cured under
Section 537."
(Emphasis supplied.)
In the said decision, it has been expressed that in absence of valid
sanction, the Court would loose jurisdiction and the defect in
jurisdiction of the Court can never be cured under Section 537 of the
old Code. The said decision was rendered on the canvass of the old
section which does not have specific enabling provision like Section
465(1) of the Code which requires to be noted.
109. Mr. Mandhyan relied on the decision of the Supreme
Court in case of Pulin Das22 to impress the mandatory nature of the
requirement of sanction with reference to para 23 of the decision
which is quoted below:-
"23. In a case of this nature, particularly, in the light of
the stringent provisions as provided in sub-section (1) of
Section 3 as well as Section 20-A which mandates that no
information about the commission of an offence under
this Act shall be recorded by the police without prior
approval of the D.S.P, and no court shall take cognizance
22.Pulin Das alias Panna Koch Vs. State of Assam, (2008) 5 SCC 89
apeal136 & 137.17.odt
of any offence under this Act without previous sanction of
the Inspector General of Police or Commissioner of Police,
we are of the view that PW9 DSP ought to have explained
all the details about the ULFA organization, its activities
and the alleged connection of the accused persons."
110. Mr. Mandhyan would submit that the UAPA is a special
statute with a dual safeguard in sanction process which cannot be
tinkered with in terms of the general provisions of the Code. By
relying on the decision of the Supreme Court in case of Dilwar
Singh23 it is contended that in case of special statute, maxim
"generalia specialibus non derogant" would apply.
111. Reliance is placed on the decision of the Supreme Court
in case of Rambhai Gadhvi24 to contend that validity of sanction is
sine qua non for enabling the Court to take cognizance. The
relevant observation made in para 8 of the decision runs as
below:-
"8. Taking cognizance is the act which the Designed
Court has to perform and granting sanction is an act
which the sanctioning authority has to perform. Latter
is a condition precedent for the former. Sanction
contemplated in the sub-section is the permission to
23.Dilwar Singh Vs. Parvinder Singh Alias Iqbal Singh and another, (2005) 12 SCC 709,
24.Rambhai Nathabhai Gadhvi and others Vs. State of Gujarat (1997) 7 SCC 744
apeal136 & 137.17.odt
prosecute a particular person for the offence or
offences under TADA. We must bear in mind that
sanction is not granted to the Designated Court to take
cognizance of the offence, but it is granted to the
prosecuting agency to approach the court concerned
for enabling it to take cognizance of the offence and to
proceed to trial against the persons arraigned in the
report. Thus, a valid sanction is sine qua non for
enabling the prosecuting agency to approach the court
in order to enable the court to take cognizance of the
offence under TADA as disclosed in the report. The
corrolary is that, if there was no valid sanction the
Designated Court gets no jurisdiction to try a case
against any person mentioned in the report as the
court is forbidden from taking cognizance of the
offence without such sanction. If the Designated Court
has taken cognizance of the offence without a valid
sanction, such action is without jurisdiction and any
proceedings adopted thereunder will also be without
jurisdiction."
(Emphasis supplied.)
112. The above decision relates to the pari materia provision of
Section 20-A(2) of the TADA which is as under:-
"20-A. Cognizance of offence.- (1) Notwithstanding,
anything contained in the Code, no information about the
commission of an offence under this Act shall be recorded
by the police without the prior approval of the District
Superintendent of Police.
apeal136 & 137.17.odt
(2) No court shall take cognizance of any offence under
this Act without the previous sanction of the Inspector-
General of Police, or as the case may be, the Commissioner
of Police."
TADA was a similar statute under which these observations have
been made which assumes significance. Observations made under
similar stringent statutes bears relevance in the context of UAPA
running on the same lines.
113. In order to emphasise the necessity of valid sanction,
heavy reliance is placed on the decision of the Supreme Court in
case of Ashrafkhan25 with special reference to para 34 which
reads as under:-
"34. From a plain reading of the aforesaid provision it is
evident that for the purpose of trial Designated Court is a
Court of Session. It has all the powers of a Court of
Session and while trying the case under TADA, the
Designated Court has to follow the procedure prescribed
in the Code for the trial before a Court of Session.
Section 465 of the Code, which falls in Chapter 35,
covers cases triable by a Court of Session also. Hence, the
prosecution can take shelter behind Section 465 of the
Code. But Section 465 of the Code shall not be a panacea
for all error, omission or irregularity. Omission to grant
prior approval for registration of the case under TADA by
the Superintendent of Police is not the kind of omission
25.Ashrafkhan Alias Babu Munnekhan Pathan Vs. State of Gujarat , (2012) 11 SCC 606
apeal136 & 137.17.odt
which is covered under Section 465 of the Code. It is a
defect which goes to the root of the matter and it is not
one of the curable defects.
35. The submission that absence of sanction under
Section 20-A(2) by the Commissioner of Police has been
held to be a curable defect and for parity of reasons the
absence of approval under Section 20-A(1) would be
curable is also without substance and reliance on the
decision of Lal Singh v. State of Gujarat, (1998) 5 SCC
529, in this connection, is absolutely misconceived. An
Act which is harsh, containing stringent provision and
prescribing procedure substantially departing from the
prevalent ordinary procedural law cannot be construed
liberally. For ensuring rule of law its strict adherence has
to be ensured. In the case of Lal Singh (supra) relied on
by the State, Section 20-A(1) of TADA was not under
scanner. Further, this Court in the said judgment
nowhere held that absence of sanction under Section 20-
A(2) is a curable defect. In Lal Singh (supra) the
question of sanction was not raised before the Designated
Court and sought to be raised before this Court for the
first time which was not allowed. This would be evident
from the following paragraph of the judgment:: (SCC
p.530, para).
38. ......However, the decision by the Designated Court to
proceed with the trial shall not prevent the accused to
contend in future that they cannot be validly prosecuted
under TADA. We hasten to add that even in a case which
is not fit to be tried by the Designated Court but it
apeal136 & 137.17.odt
decides to do the same instead of referring the case to be
tried by a court of competent jurisdiction, it will not
prevent the accused to challenge the trial or conviction
later on."
(Emphasis supplied.)
114. Considering its earlier pronouncement in case of Lal
Singh (supra), the Supreme Court in case of Ashrafkhan (supra),
observed that the defect in sanction goes to the root of the case
and is not a curable defect. The Court has observed that the
provisions of stringent and harsh statute are to be strictly followed.
Moreover, it is clearly observed that omission in prior approval in
taking cognizance under similar statute, TADA is not a curable
defect under Section 465 of the Code. Above observations are
quite relevant since both are stringent and harsh statutes made to
combat terrorist acts.
115. Mr. Pais has placed reliance on the decision in case of
Nanjappa26 to contend that grant of proper sanction is a sine qua
non for taking cognizance and even the plea of no sanction can be
raised for the first time before the Appellate Court. The special
emphasis is laid on para 22 of the decision which reads thus:-
26.Nanjappa Vs. State of Karnataka, (2015) 14 SCC 186
apeal136 & 137.17.odt
"22. The legal position regarding the importance of
sanction under Section 19 of the Prevention of
Corruption Act is thus much too clear to admit
equivocation. The statute forbids taking of cognizance
by the Court against a public servant except with the
previous sanction of an authority competent to grant
such sanction in terms of clauses (a), (b) and (c) to
Section 19(1). The question regarding validity of such
sanction can be raised at any stage of the proceedings.
The competence of the court trying the accused so
much depends upon the existence of a valid sanction.
In case the sanction is found to be invalid the court can
discharge the accused relegating the parties to a stage
where the competent authority may grant a fresh
sanction for the prosecution in accordance with law. If
the trial Court proceeds, despite the invalidity attached
to the sanction order, the same shall be deemed to be
non-est in the eyes of law and shall not forbid a second
trial for the same offences, upon grant of a valid
sanction for such prosecution."
(Emphasis supplied)
116. Mr. Pais further relied on the decision of the Supreme
Court in Seeni Nainar Mohammed27 where, having regard to the
stringent provisions of the TADA with special reference to Section
20-A. it is observed that non-compliance of those provisions vitiates
27Seeni Nainar Mohammed Vs. State (2017) 13 SCC 685,
apeal136 & 137.17.odt
the proceedings. Relying on the decision in case of Ashrafkhan
(supra), it is expressed that TADA being a stringent penal statute, it
requires strict interpretation and failure may vitiate the entire
proceeding. In this regard, we may reproduce para 11 and 21 of the
decision which read thus:-
"11. We, without hesitation, are of this considered
opinion that the answer to this question is in the
negative for settled principle of non- application of mind
by sanctioning authority while granting approval for
taking cognizance under TADA Act and undermining the
objective of the Act. This relevant provision was inserted
by Act 43 of 1993 which came into force on 23.05.1993
which is prior to the date of commission of the offence
i.e., 10.10.1994 disputed in instant appeal which makes
it crystal clear that Section 20-A(1) of TADA must be
construed by indicating that prior approval from the
competent authority is mandatory for taking cognizance
of offence punishable under TADA. However, it shall
always be borne in mind by the sanctioning authority
that application of such provisions which forms part of
penal statues requires strict interpretation and failure to
comply with the mandatory requirement of sanction
before cognizance is taken, as mentioned in TADA, may
vitiate the entire proceedings in the case. In the recent
past, it has been observed by this Court in respect of
Section 20-A of TADA in Hussein Ghadially Vs. State of
apeal136 & 137.17.odt
Gujarat, (2014) 8 SCC 425, at para 21, as follows: (SCC
p.438).
"21. A careful reading of the above leaves no
manner of doubt that the provision starts with a
non obstante clause and is couched in negative
phraseology. It forbids recording of information
about the commission of offences under TADA by
the Police without the prior approval of the
District Superintendent of Police."
21. We are therefore of this considered opinion that as
a result of illegal sanction order the criminal
proceedings for prosecution under the TADA Act are
vitiated entirely. Suffice it to say that Learned Court
under the TADA Act has grossly erred in taking
cognizance of the case."
(Emphasis supplied)
117. Mr. Pais submitted that the aspect of failure of justice may
not occur at the initial stage, but it is to be demonstrated after
conclusion of trial. He drew support from the decision of the
Supreme Court in case of Virender Kumar Tripathi (supra),
wherein, it is observed that whether or not failure has occasioned,
has to be determined once the trial commences and evidence was
led. Similarly, Mr. Pais would submit that all types of errors or
irregularity cannot be cured with the aid of Section 465(2) of the
apeal136 & 137.17.odt
Code, nor would delay in raising objections foreclose the right to
challenge the legality of sanction. In this regard, he would also rely
on the decision in case of Kalpnath Rai (supra).
118. Mr. Pais heavily relied on the decision of the Supreme
Court in case of Anwar Osman28 to contend that Sanctioning
Authority is under obligation to accord sanction specific to an
offence in relation to the provisions of TADA. It is observed that the
question of prior approval or prior sanction goes to the root of the
matter and is sine qua non for valid prosecution concerning offences
under TADA. The relevant observations made in para 19, 20 and 21
read thus:-
"19. On a bare perusal of Exh.57, there is nothing to
indicate as to whether the sanctioning authority was
conscious of the materials gathered during investigation
qua the concerned accused (respondent No.3), which
merely suggested possession and recovery of two walky-
talkies from him. If that is the only incriminatory
material against accused No.3-respondent No.3, the
sanctioning authority ought to have pondered over the
crucial aspects including as to how such possession would
entail in commission of any offence much less punishable
under Sections 4 or 5 of TADA. Further, section 3 of
28.State of Gujarat Vs. Anwar Osman Sumbhaniya and others, (2019) 18 SCC 524
apeal136 & 137.17.odt
TADA posits different offences, namely, terrorist acts
[Section 3(2)], being party to conspiracy or abetment or
knowingly facilitating the commission of terrorist acts
[Section 3(3)], harbouring or concealing any terrorist
[Section 3(4)], being member of a terrorist gang or
terrorist organization, which is involved in terrorist acts
[Section 3(5)], and to hold any property derived or
obtained from commission of any terrorist act [Section
3(6)]. The sanctioning authority was under a bounden
duty to accord sanction, specific to offences, from amongst
the different offences under sub-sections (1) to (6) of
Section 3 of TADA. Similarly, we are at a loss to know as to
how Sections 4 & 5 of TADA would apply to a case of mere
possession of walky-talkies. Section 4 refers to disruptive
activities whereas Section 5 refers to possession of
unauthorized classified arms and ammunition. A walky-
talky is certainly not one of those classified arms and
ammunition. In our opinion, the purported sanction vide
Exh.57 also suffers from the vice of non-application of
mind, on this count alone."
20. The necessity of obtaining prior sanction under
Section 20-A(2) need not be underscored considering the
draconian provisions of TADA. In our opinion, therefore,
even sanction qua Accused No.3-Respondent No.3 dated
1-4-2005 (Exh.57) does not stand the test of a valid
sanction to prosecute him for offences punishable under
TADA. Indeed, the prosecution has relied on the evidence
of PW10 and PW-13. That, in our opinion, at best,
apeal136 & 137.17.odt
would suggest that all the relevant papers gathered during
the investigation were placed for consideration before the
sanctioning authority. The fact remains that Exh.57 issued
under the signature of A.K. Bhargav, IGP, makes no attempt
to even remotely indicate as to why sanction to
prosecution for offences punishable under Sections 3, 4 or
5 of TADA has been accorded qua accused No.3-
Respondent No.3 merely on the basis of possession and
recovery of two walky-talkies from him. Further, he has
not been examined by the prosecution which also could
have thrown light on that crucial aspect. Therefore, we
have no hesitation in concluding that the sanction dated 1-
4-2005 (Exh.57), is not a valid sanction qua Accused
No.3-Respondent No.3.
21. We are conscious of the fact that the Designated
Court did not frame any issue regarding validity of
prior approval under Section 20-A(1) or prior sanction
under Section 20-A(2). As the question of prior
approval or prior sanction goes to the root of the
matter and is sine qua non for a valid prosecution
concerning TADA offences and including the
jurisdiction of the Designated Court, no fault can be
found with the Designated Court for having answered
that issue at the outset."
(Emphasis supplied)
In above decision it has been specifically observed that the issue of
prior sanction goes to the root of the matter and is a sine qua non for
apeal136 & 137.17.odt
valid prosecution under the TADA. Moreover, our attention has been
invited to the observations made therein that the duty of the
Sanctioning Authority cannot be underscored considering the
draconian provisions of TADA. In the said decision, the Supreme
Court, after considering its earlier pronouncements in the case of
Seeni Nainar (supra), Ashrafkhan (supra), Rambhai Gadhvi (supra)
reiterated the position of law about importance of sanction under a
stringent statute and its effect on prosecution.
119. The Supreme Court has consistently emphasized in a series
of decisions rendered under similar statute that validity of sanction
is a sine quo non for valid prosecution, and absence thereof vitiates
the proceedings. We find these decisions more relevant and
appropriate for consideration under the UAPA which was introduced
to achieve the same object. In this regard we drew support from the
observations of Supreme Court in case of Vernon29, particularly
paragaraph no.36 thereof, which reads as under.
"36.......When the statutes have stringent provisions
the duty of the Court would be more onerous.
Graver the offence, greater should be the care taken
to see that the offence would fall within the four
29 Vernon .vrs. State of Maharashtra and another - 2023 SCC online SC 885.
apeal136 & 137.17.odt
corners of the Act. Though these judgments were
delivered while testing similar rigorous provisions
under the Terrorist and Disruptive Activities
(Prevention) Act, 1987, the same principle would
apply in respeect of 1967 Act as well."
The above observations assist us to the great extent.
120. Mr. Dharmadhikari drew our attention to the decision of
the Supreme Court in case of Ajmer Singh30 to emphasize that by
virtue of Section 5 of the Code, in the absence of specific provision
to the contrary, it would not affect any special or local law for the
time being in force.
121. Mr. Dharmadhikari relied on the decision in case of Prakash 31
to emphasis the need of stricter interpretation of a stringent law of
which para 14 is relevant:-
"14. The more stringent the Law, the less is the discretion
of the Court. Stringent laws are made for the purpose of
achieving its objectives. This being the intendment of the
legislature the duty of the court is to see that the
intention of the legislature is not frustrated. If there is
any doubt or ambiguity in the statutes, the rule of
30.Ajmer Singh and others Vs. Union of India and others, (1987) 3 SCC 340
31.Prakash Kumar alias Prakash Bhutto Vs. State of Gujarat (2005) 2 SCC 409
apeal136 & 137.17.odt
purposive construction should be taken recourse to, to
achieve the objectives. (See Swedish Match AB vs.
Securities & Exchange Board, India, (2004) 11 SCC 641.
(2004) 7 Scale 158 para 84 at p. 176.)."
(Emphasis supplied)
122. Mr. Dharmadhikari would submit that a stringent law is to
be interpreted strictly. He relied on the decision of the Supreme
Court in case of Karnal Singh32 with special emphasis on para 6 of
the decision which reads as under:-
"6. The NDPS Act prescribes stringent punishment.
Hence a balance must be struck between the need of
the law and the enforcement of such law on the one
hand and the protection of citizens from oppression
and injustice on the other. This would mean that a
balance must be struck in. The provisions contained in
Chapter V, intended for providing certain checks on
exercise of powers of the authority concerned, are
capable of being misused through arbitrary or
indiscriminate exercise unless strict compliance is
required. The statute mandates that the prosecution
must prove compliance with the said provisions."
(Emphasis supplied)
123. We may take note of the Constitutional Bench decision in
case of Baij Nath33 in which while dealing with the provisions of
32.Karnal Singh Vs. State of Haryana, (2009) 8 SCC 539
33.Baij Nath Prasad Tripathi Vs. The State of Bhopal and another, AIR 1957 SC 494
apeal136 & 137.17.odt
Section 403 (Old Code) about maintainability of a second trial, it is
expressed that the trial without sanction is null and void being by a
Court not competent. The relevant observations made in para 6 are
quoted below:-
"6. ........... If no Court can take cognizance of the
offences in question without legal sanction, it is obvious
that no Court can be said to be a Court of competent
jurisdiction to try those offences and that any trial in the
absence of such sanction must be null and void, and the
sections of the Code on which learned Counsel for the
petitioners relied have really no bearing on the matter.
Section 530 of the Code is really against the contention
of learned Counsel, for it states, inter alia, that if any
Magistrate not being empowered by law to try an
offender, tries him, the the proceeding shall be voids.
Section 529(e) is merely an exception in the matter of
taking cognizance of an offence under Section 190, sub-
section (1), clauses (a) and (b); it has no bearing in a
case where sanction is necessary and no sanction in
accordance with law has been obtained."
(Emphasis supplied)
124. When confronted with various decisions rendered under
the provisions of TADA, Mr. Ponda responded by submitting that they
apeal136 & 137.17.odt
are of no assistance in view of peculiarity of Section 20-A of the
TADA which reads as below:-
"20-A. Cognizance of offence.- (1) Notwithstanding,
anything contained in the Code, no information about
the commission of an offence under this Act shall be
recorded by the police without the prior approval of the
District Superintendent of Police.
(2) No court shall take cognizance of any offence under
this Act without the previous sanction of the Inspector-
General of Police, or as the case may be, the
Commissioner of Police."
It is canvassed that Section 20-A(1) opens with a non-obstante
clause which specifically excludes the applicability of the general
provisions made under Chapter XXXV of the Code. The decisions
rendered under the TADA cannot be made applicable since Section
45 of the UAPA does not open with a non-obstante clause giving an
overriding effect. Though at first blush this submission seems to be
attractive, however the entire Section 20-A of the TADA requires
consideration with its true import. Sub-clause(1) to Section 20-A of
the TADA opens with non-obstante clause giving overriding effect to
the general provisions of the Code. The said clause pertains to the
prior approval of the District Superintendent of Police for
apeal136 & 137.17.odt
registration of crime. Certainly Sub-clause (1) gives overriding
effect to Section 154 of the Code which mandates the Police Officer
to register a crime on receiving information relating to the
commission of cognizable offence. We are afraid to stretch the effect
of a non-obstante clause to Sub-clause (2) of Section 20-A of the
TADA which pertains to pre-sanction required for the Court to take
cognizance. Sub-clause (2) of Section 20-A of the TADA does not
open with a non-obstante clause, but it is akin to Section 45(1) of
the UAPA with the only difference that such sanction is only of the
Sanctioning Authority spcified in the Section.
125. We cannot equate or import a non- obstante clause
incorporated in Sub-clause (1) of TADA into Sub-clause (2) which
does not have one. If it was the legislative intent to give overriding
effect to Sub-clause (2) pertaining to sanction, then Sub-clause (2)
would also have been opened with a non-obstante clause like the
case of Sub-clause (1). We cannot read something which is not
provided under the statute. For these reasons, we are unable to
accede the submission of Mr. Ponda for discarding the precedents
cited under the provisions of TADA. Rather in our opinion, TADA
was a similar stringent statute made to tackle acts of terrorism. We
apeal136 & 137.17.odt
can trace the genesis for amending UAPA Act of 2008 covering
terrorist acts to TADA and POTA. These statutes on the same subject
introduced with the object of tackling terrorism run on same lines.
Therefore, according to us, the guiding principles laid down by the
Supreme Court in the context of TADA would assist us to great
extent compared to other statutes like PC Act.
126. Mr. Ponda laid further emphasis on the absence of
pleadings and satisfaction on account of failure of justice. It is
strenuously argued that the accused have neither pleaded the case of
failure of justice on account of irregularity in the sanction, nor it has
been demonstrated before us. Adverting to Section 465(1) of the
Code, it is canvassed that unless the Court comes to the conclusion
that a failure of justice has occasioned, the error or irregularity in
sanction is of no consequence.
127. The legislative intent behind Section 465 is to save the
prosecution from technical errors or irregularity post conviction, that
too if it does not occasions failure of justice. The core issue is
whether in given facts, the sanction accorded in the manner as
discussed above can be termed as a mere error or irregularity. We
apeal136 & 137.17.odt
have extensively dealt the issue of sanction in the context of special
pre-requirement under the UAPA. The mechanical exercise done by
the Director of Prosecution cannot be termed as a mere curable
procedural error or irregularity. In case of mere error or irregularity,
it is for the defence to show the failure of justice, but if the sanction
itself is void for material defect, it goes to the root of the case and
vitiates the entire proceedings which itself is an instance occasioning
failure of justice.
128. In addition to Section 465 of the Code, our attention
has been invited by the learned special prosecutor to Section 460 of
the Code relating to the irregularity which does not vitiate the
proceedings. Chapter XXXV of the Code under caption of "irregular
proceedings" has specified the contingencies, in which the
irregularity does not vitiate the proceedings (Section 460 of the
Code) and eventualities in which irregularity would vitiate the
proceedings (Section 461 of the Code). It is argued that Section
460(e) of the Code provides that if any Magistrate not empowered
by law to take cognizance of an offence under Clause (a) or Clause
(b) of Sub-section (1) of Section 190 of the Code takes cognizance,
it does not vitiate the proceedings. Based upon these provisions in
apeal136 & 137.17.odt
addition to Section 465 of the Code, it has been canvassed that if
cognizance is taken without empowerment, it is a curable defect.
129. As a matter of fact, UAPA being a special stringent
statute, the provisions of the UAPA would prevail over the general
provisions of the Code. Section 45 of the UAPA specifically precludes
the Court from taking the cognizance of any offence in absence of
valid sanction which goes to the root of the case. The said material
deficiency cannot be cured by invoking general provisions of the
Code.
130. The next hurdle which the prosecution has to surmount
is the challenge to the sanction on account of non-application of
mind by the Sanctioning Authority. It is argued that both the
Sanctioning Authorities have not applied their mind nor satisfied
themselves about sufficiency of material to put accused on trial. The
relevant material and the relevant facts in relation to the commission
of offence were not considered by the authority. Particularly, it is
submitted that CFSL report was not available for consideration by
the Sanctioning Authority and PW-19 Dr. Amitab Ranjan despite that
made a statement about perusal of the CFSL report. Moreover, it is
apeal136 & 137.17.odt
submitted that the approach of the Sanctioning Authority was casual
and has merely approved the draft sanction forwarded by the
Investigating Officer.
131. Mr. Pais would submit that in order to demonstrate due
application of mind by the Sanctioning Authority, the entire relevant
material must be placed before the Authority. For this purpose, he
relied on the decision of the Supreme Court in case of Navjot
Sandhu34. In the said decision, it is observed that the test to be
applied is whether relevant material that form the basis of
allegations constituting the offence was placed before the
Sanctioning Authority and the same was perused before granting
sanction (para 16). It is also observed that grant of sanction is an
executive act and the validity thereof cannot be tested in the light of
principles applied to a quasi-judicial order.
132. Mr. Pais relied on the decision of the Supreme Court in
Ashok Kumar35 to contend that the entire relevant record must be
placed before the Sanctioning Authority who in turn applies its mind
to this material and passes an order of sanction. From following such
34.State (NCT of Delhi) Vs. Navjot Sandhu Alias Afsan Guru, (2005) 11 SCC 600.
35.Central Bureau of Investigation Vs. Ashok Kumar Aggarwal , (2014) 14 SCC 295
apeal136 & 137.17.odt
process one can conclude that the authority has applied its mind.
The relevant observations made in para 16 are as under:-
"16. In view of the above, the legal propositions can be
summarised as under:
16.1. The prosecution must send the entire relevant
record to the sanctioning authority including the FIR,
disclosure statements, statements of witnesses,
recovery memos, draft charge-sheet and all other
relevant material. The record so sent should also
contain the material/document, if any, which may tilt
the balance in favour of the accused and on the basis
of which, the competent authority may refuse sanction.
16.2. The authority itself has to do complete and
conscious scrutiny of the whole record so produced by
the prosecution independently applying its mind and
taking into consideration all the relevant facts before
grant of sanction while discharging its duty to give or
withhold the sanction.
16.3. The power to grant sanction is to be exercised
strictly keeping in mind the public interest and the
protection available to the accused against whom the
sanction is sought.
16.4. The order of sanction should make it evident that
the authority had been aware of all relevant
facts/materials and had applied its mind to all the
relevant material.
apeal136 & 137.17.odt
16.5. In every individual case, the prosecution has to
establish and satisfy the court by leading evidence that
the entire relevant facts had been placed before the
sanctioning authority and the authority had applied its
mind on the same and that the sanction had been
granted in accordance with law."
133. No doubt, grant of sanction is a sacrosanct act and is
intended to provide safeguard against frivolous and vexatious
litigation. The Sanctioning Authority after being apprised of all the
fact, must form an opinion that prima facie case is made out.
Application of mind by the Sanctioning Authority is a sine qua non
for valid sanction. Moreover, sanction order must speak for itself and
enunciate that the authority has gone through the entire record of
the investigation. Sanction as regards to accused Nos. 1 to 5 has
been accorded by the Additional Chief Secretary, Home Department
Dr. Amitabh Ranjan (PW-19) whilst sanction for accused No.6 G.N.
Saibaba was granted by the Additional Chief Secretary, Home Mr.
K.P. Bakshi (PW-18). Both the Sanctioning Authorities have been
examined by the prosecution. We have gone through the evidence of
apeal136 & 137.17.odt
the Sanctioning Authorities on the canvas of objection about non-
application of mind.
134. It is the evidence of PW-19 Dr. Amitabh Ranjan that on
11.02.2014, his office has received the independent review report
from in-charge Director of prosecution under signature of Mrs.
Gundecha (Exh.358). On 13.02.2014, the Section Officer and
Deputy Secretary of Home has studied the file which he received on
14.02.2014 for according sanction. It is his evidence that along with
the file, he received all investigation papers, calendar of events and
opinion of Director of Prosecution along with 257 pages. He
deposed that he carried the file to his residence for study. He has
gone through the investigation papers, CFSL report, soft copies of
the electronic data, mirror images of hard copies containing the
electronic gadgets. It is his evidence that after going through all the
documents, he came to the conclusion about commission of offence
and accorded sanction against accused Nos. 1 to 5 for the offence
punishable under Sections 13, 18, 20, 38, 39 of the UAPA which is
Exh. 17.
apeal136 & 137.17.odt
135. PW-19 Dr. Amitabh Ranjan has been subjected to cross-
examination. Certain technical as well as factual suggestions were
put to him, however, over all he has withstood cross-examination.
True, CFSL report was not available, however, he has categorically
deposed that mirror images of hard copies have been perused.
Pertinent to note that Director of Prosecution though recommended
grant of sanction against accused Nos. 1 to 6, has not granted
sanction to accused No.6 G.N. Saibaba who was not arrested. We
have gone through the sanction order (Exh.17) dated 15.02.2014
along with the schedule. Grant of sanction is an administrative act
which cannot be evaluated like a quasi judicial order. In that view of
the matter, we are not inclined to accept the case of non-application
of mind on his part.
136. We have also gone through the evidence of PW-18 Mr. K.P.
Bakshi who has accorded sanction for accused No.6 G.N. Saibaba. It
is his evidence that on 15.02.2015, his office has received proposal
for sanction which he forwarded to the Director of Prosecution for
independent review on 26.02.2015. He has received the
independent review on 04.03.2015. It is his evidence that all the
documents including search warrant, investigation papers, CFSL
apeal136 & 137.17.odt
report, hard copies certified by the CFSL, all seizure panchnamas,
arrest panchnamas and other papers were submitted to him. He
deposed that he has studied the file and gone through all the
documents. He was subjectively satisfied that there is a prima facie
case against accused No. 6 G.N. Saibaba for commission of offence
punishable under Sections 13, 18, 20, 38, 39 of the UAPA. He came
to the conclusion that it was a fit case for grant of sanction and
accordingly passed the sanction order on 06.04.2015 (Exh. 349).
His cross-examination does not reflect anything to construe the non-
application of mind. Such an inference cannot be drawn easily by
conjecture and surmise. The grant of sanction is an executive act
which cannot be treated at par with quasi judicial order. Therefore,
we are not inclined to accept the defence submission that the
sanction order suffers from non-application of mind by the
Sanctioning Authority.
137. We have given thoughtful consideration to the various
precedents cited by both sides. Though Mr. Ponda would submit
that he has cited more Supreme Court decisions rendered by a Three
Judge-Bench, however, we are not impressed by said submission,
since the applicability matters more than the number of citations.
apeal136 & 137.17.odt
We have carefully gone through all the reported decisions and
considered their applicability to the facts of this case. Most of the
decisions pertain to a specific provision under the PC Act and the
error in non committal of proceedings and of like nature.
138. Stringent nature of the provisions of UAPA necessitates
us to consider the precedents rendered by the Supreme Court
relating to the provisions of TADA which was a statute running on
the parallel lines, introduced with the same object. The necessity of
obtaining prior sanction under Section 45(1) of the UAPA cannot be
underscored in view of the stringent provisions of the UAPA. The
UAPA which is harsh containing stringent provisions prescribing
procedure substantially departing from the ordinary law cannot be
considered casually or liberally. In the case of Ashrafkhan (supra),
the Supreme Court in the context of invalid sanction, considered the
effect of general provisions of Section 465 of the Code. It is
worthwhile to note that in the said context, it has been observed that
Section 465 of the Code shall not be a panacea for all errors,
omissions or irregularities. The omission to grant prior approval for
prosecution is not a kind of omission covered under Section 465 of
apeal136 & 137.17.odt
the Code. It is a defect which goes to the root of the matter and it is
not one of the curable defects.
139. In the latter decision of Seeni Nainar Mohammed
(supra), the Supreme Court reiterates that the penal statute requires
strict interpretation and failure to comply with the mandatory
requirement of sanction before cognizance is taken, as mentioned in
TADA may vitiate the entire proceedings in the case. With those
observations, the Supreme Court concluded that as a result of illegal
sanction order, the criminal proceedings for prosecution under the
TADA Act are vitiated entirely. The Supreme Court considering its
earlier pronouncements in case of Rambhai Gadhvi (supra),
Ashrafkhan (supra), and Seeni Nainar Mohammed (supra) has re-
enforced the said view in its later decision in case of Anwar Osman
(supra) that in case stringent statute like TADA prior sanction goes
to the root of the matter and is sine qua non for valid prosecution.
Moreover, it is observed that the duty of the Sanctioning Authority
cannot be underscored considering the draconian provisions of the
TADA. The line of consistent decisions rendered in the same field
apeal136 & 137.17.odt
postulates that valid sanction for prosecution is sine quo non and in
absence, vitiates the entire proceedings.
140. We have elaborated that the accused have objected to the
validity of sanction during trial right from the bail application till
final arguments. It is not a case that post conviction, first time in
appeal the objection to the validity of sanction has been raised.
Rather the Trial Court while rejecting the bail, postponed the
objection for consideration till recording of the evidence.
141. We have no doubt that the report qua accused Nos. 1 to 5
was a mechanical empty formality complied by the Director of
Prosecution. The report is bereft of material to display consideration
to arrive at the conclusion of existence of a prima facie case. We
have already elaborated above that when terrorist acts have been
expansively brought under the umbrella of UAPA, the additional
filter was provided with the object of providing one more safeguard.
Re-visiting Sub-clause (2) of Section 45 of the UAPA makes the
legislative intent clearer, that the Sanctioning Authority is bound to
consider the report of an independent authority before taking a
decision. The laconic half page communication cannot be called a
apeal136 & 137.17.odt
report since there is no material found therein to infer that the
authority has reviewed the evidence gathered and formed a
particular opinion on that basis. The very legislative intent was for
the report to assist the Sanctioning Authority in arriving at the
conclusion by going into the report of the independent authority.
142. Section 48 of the UAPA postulates that the provisions of
UAPA or Rules made thereunder, shall have overriding effect over
anything inconsistent therewith contained in any other enactment.
The very intent of legislature is to give primacy to the provisions of
the UAPA, meaning thereby it shall be followed in stricter sense. The
principle expressed in the maxim "generalia specialibus non
derogant" would apply i.e. if a special provisions has been made in a
certain matter, it would have overriding effect over the general
provision. Therefore, there is no gainsaying that general provisions
of the Code would save acts which are not in tune with the special
Act i.e. UAPA.
143. The stringent provisions of the UAPA would preclude
the Court from taking cognizance of an offence in absence of
sanction accorded in the manner as provided by Section 45 of the
apeal136 & 137.17.odt
UAPA itself. The Special mechanism has been provided under the
statute for the process of sanction which is a statutory requirement
to make the sanction legal and valid. This Special arrangement
cannot be equated with general provisions of the Code nor can be
frustrated by applying the general law. Every statutory safeguard
made by a special statute must be followed scrupulously. The line of
decisions rendered by the Supreme Court in parallel legislation
(TADA) would provide the best guide to interpret the provisions of
the UAPA. In the case of Anwar Osman (supra), the Supreme Court
has succinctly ruled that the valid sanction is a sine qua non and its
invalidity vitiates the trial. The case in hand falls on the same lines
which persuades us to hold that the sanction is in variance with the
special requirement of the UAPA and would go to the root of the
matter making the entire process invalid.
144. As observed above, besides a half page communication to
go ahead, there is nothing on the part of the authority to
demonstrate its consideration. Scanty communication of the Director
of Prosecution does not stand the test of valid report expected under
the special law. Consequently, the sanction accorded in the absence
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of compliance with the mandatory pre-requisite cannot be termed as
a valid sanction within the meaning of Section 45(2) of the UAPA.
This was a fundamental error which has invalidated cognizance as
being without jurisdiction. Defect of this kind is fatal and cannot be
cured with the aid of general provisions of the Code. It must,
therefore follow that the Trial Court could not have taken
cognizance of the offence punishable under the provisions of the
UAPA for want of valid sanction.
145. As regards to the accused No.6 G.N. Saibaba the position is
even worse. We have amply expressed hereinabove that a valid
sanction is a pre-requisite for launching prosecution under the UAPA.
We may reiterate that Section 45(1) of the UAPA puts a complete
embargo on the Court to take cognizance in the absence of sanction.
Admittedly, the Trial Court has not only taken cognizance, but also
framed charge without sanction. To be noted here that the Trial
Court has taken cognizance and framed charge against accused No.
6 G.N. Saibaba on 21.02.2015 whilst sanction against him was
accorded on 06.04.2015 and tendered in the Court on 30.11.2015.
Thus, there is total non-compliance with the sanction provision
which goes to the very root of the case, vitiating everything against
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accused No.6 from its inception for want of authority of the Trial
Court to proceed. In sum and substance, the prosecution against
accused No.6 G.N. Saibaba for want of valid sanction is also totally
vitiated.
TIME FRAME FOR SANCTIONING PROCESS.
146. A further challenge that is thrown to the prosecution is about
non-compliance of the time frame in the process of grant of sanction
in terms of Section 45(2) of the UAPA, read with Rules 3 and 4 made
thereunder. It is argued that the period prescribed under the Rules
has not been followed, which vitiates the entire process of sanction.
Our attention has been invited to Section 45[2] of the UAPA, which
mandates following of the time frame provided under the Rules.
Section 45[2] of UAPA requires sanction for prosecution within such
a time as is prescribed, after considering the report of Authority so
appointed.
147. The 2008 Rules are enacted specifically to prescribe the
time as mandated in Section 45[2] of the UAPA. Rule 3 prescribes
the time for making the report containing recommendations by the
Authority to the appropriate Government, whilst Rule 4 prescribes
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the time limit for issuance of sanction for prosecution by the
appropriate Government. Both these Rules prescribe 7 [seven]
working days, as time within which the recommendation is to be
made and the sanction has to be accorded. Emphasis is laid to the
term 'shall' used in Section 45[2] of the UAPA as well as in Rules 3
and 4 of the Rules of 2008. The defence drew support from the
decision of Kerala High Court in case of Roopesh36, wherein the
time limit prescribed in Rules 3 and 4 is held to be mandatory.
148. Per contra, the learned Special Prosecutor would submit
that during the process of trial, sanction was not challenged on
account of non-compliance of the time limit prescribed under the Act
and Rules. It is contended that the term 'shall' is to be construed in
tune with the legislative intent and should be read as "may".
Particularly, it is submitted that the UAPA does not prescribe any
consequence for non-compliance of the Rules. Moreover, prejudice
has not been shown to have been caused because of non-compliance
of the time frame.
149. Generally the use of the word 'shall' prima facie
indicate that a particular provision is imperative, however, that is not
36 Roopesh .vrs. Sate of Kerala 2000 SCC Online Ker 1372
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so always. The meaning to be given to a particular word depends
upon the context in which it is used. It is the function of the Court
to ascertain the real intention of the legislature by carefully
examining the entire scope of the statute, the purpose it seeks to
achieve and the consequences that would flow from the construction
to be placed therein. The word 'shall' therefore, ought not to be
construed in accordance with the language with which it is clothed,
but, in the context in which it is used and consequences of its non-
compliance.
150. The special prosecutor heavily relied on the decision of the
T.V. Usman37 to contend that the provision as to the time specified
shall be construed as directory unless the delay has caused prejudice
to the rights of the accused. Particularly, reference is made to para
11 of the decision quoted below:-
"11. In Rule 7(3) no doubt the expression "shall" is used
but it must be borne in mind that the rule deals with
stages prior to launching the prosecution and it is also
clear that by the date of receipt of the report of the Public
Analyst the case is not yet instituted in the court and it is
only on the basis of this report of the Public Analyst that
the authority concerned has to take a decision whether to
institute a prosecution or not. There is no time-limit pre-
37. T.V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry, (1994) 1 SCC 754
apeal136 & 137.17.odt
scribed within which the prosecution has to be instituted
and when there is no such limit prescribed then there is
no valid reason for holding the period of 45 days as man-
datory. Of course that does not mean that the Public Ana-
lyst can ignore the time-limit prescribed under the rules.
He must in all cases try to comply with the time-limit. But
if there is some delay, in a given case, there is no reason to
hold that the very report is void and on that basis to hold
that even prosecution cannot be launched. May be, in a
given case, if there is inordinate delay, the court may not
attach any value to the report but merely because the
time- limit is prescribed, it cannot be said that even a
slight delay would render the report void or inadmissible
in law. In this context it must be noted that Rule 7(3) is
only a procedural provision meant to speed up the process
of investigation on the basis of which the prosecution has
to be launched. No doubt, sub-section (2) of Section 13 of
the Act confers valuable right on the accused under which
provision the accused can make an application to the
court within a period of 10 days from the receipt of copy
of the report of Public Analyst to get the samples of food
analysed in the Central Food Laboratory and in case the
sample is found by the said Central Food Laboratory unfit
for analysis due to decomposition by passage of time or
for any other reason attributable to the lapses on the side
of prosecution, that valuable right would stand denied.
This would constitute prejudice to the accused entitling
him to acquittal but mere delay as such will not per se be
fatal to the prosecution case even in cases where the
apeal136 & 137.17.odt
sample continues to remain fit for analysis in spite of the
delay because the accused is in no way prejudiced on the
merits of the case in respect of such delay. Therefore it
must be shown that the delay has led to the denial of right
conferred under Section 13(2) and that depends on the
facts of each case and violation of the time limit given in
Sub-rule (3) of Rule 7 by itself cannot be a ground for the
prosecution case being thrown out."
151. The above decision conveys that the word "shall" ought to
be construed not according to the strict language, but in the context
in which it is used and particularly consequence or prejudice which
would be caused to the other side.
152. So far as the sanction qua accused nos. 1 to 5 dated
25.02.2014 [Exh.17] is concerned, there is no dispute that the dual
time rider has been complied. However, the order of sanction qua
the accused no.6 - G.N. Saibaba, has been challenged on account of
non-compliance of the mandatory time frame prescribed by the
Statute and Rules. On facts, a proposal for sanction qua accused
no.6 G.N.Saibaba was received by the Director of Prosectuion on
26.02.2015 whilst the report from the Director of Prosecution, was
received by the State Government on 04.03.2015. The sanction has
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been accorded by Sanctioning Authority P.W.18 - Bakshi on
06.04.2015. It is evident that the Director of Prosecution has
complied with the time limit by forwarding the report within 7 days
on 04.03.2015, however the real glitch is with respect to the grant of
sanction after 7 working days from 04.03.2015, which was infact
granted on 06.04.2015.
153. Though the word "shall" no doubt connotes the sense of
urgency, but the consequence of non-compliance in strict sense
which flows from the wordings in the rule, has not been spelt out
under the statute. Neither at an initial stage of the prosecution nor
even before us the defence has projected any prejudice from strict
non-compliance of time frame.
154. The very purport of the provision is to convey that the
process has to be complied with and completed in an expeditious
manner. Particularly, we have taken into account the contingency
which may occur, if the word "shall" in the context is held
mandatory. In that case, even if a single days delay would stifle the
prosecution intending to curb the act of terrorism. Certainly, the
legislative intent behind incorporating the term "shall" is not to stifle
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the prosecution on such insignificant technicality, but conveys that
the process ought to be completed in an expeditious manner. We are
unable to persuade ourselves to accept the contention that the term
"shall" is to be strictly treated as a mandatory provision and failure
to comply with the timeline strictly vitiates the process. Therefore,
we respectfully defer with the view taken by the Kerala High Court
in the case of Roopesh (supra) in that regard.
155. We are of the view that and accordingly hold that to
achieve legislative intent the dual mandate is to be complied with in
its true spirit. Though a minuscule delay would not thwart the
legislative intent, but delay if writ large from the record, which is
unexplained, would certainly have its own adverse impact on the
process of sanction. In the present case, the report of Director of
Prosecution (qua accused No.6 G.N. Saibaba) was received by the
Sanctioning Authority on 04.03.2015 whilst sanction was accorded
after a long period of one month, i.e. on 06.04.2015. In such
eventuality, it was obligatory on the prosecution to at least explain
the circumstances causing this delay. Evidence of PW-18 Bakshi is
totally silent on this count nor is any submission canvassed in that
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regard. In the circumstances, a long period of three weeks of unex-
plained delay would certainly work against the legislative spirit en-
grafted in Section 45(2) read with Rule 4 of the Rules 2008. For
aforesaid reason also, the sanction is vitiated and the act of the
Court taking cognizance without authorization is consequently
contrary to the mandate of law. The Trial Court could not take
cognizance of the case and has acted without jurisdiction.
156. In view of the conclusions reached hereinabove, we are of
the considered view that no cognizance could have been taken
against any of the accused in the absence of valid sanction/no
sanction. To sum up, the first sanction qua accused Nos. 1 to 5 was
not based upon the "independent review of evidence" carried by the
Director of Prosecution and sanction qua accused No.6 G.N. Saibaba
was not in-existence at the time of taking of cognizance by the
special Court despite a statutory bar. Therefore, the very foundation
for initiation of prosecution being not in consonance with law, the
order of taking of cognisance by the Special Court vitiates the entire
further proceedings.
apeal136 & 137.17.odt
157. At the end, Mr. Mandhyan, learned Counsel would submit
that Section 45 of the UAPA contemplates an independent review/
assessment of the evidence, meaning thereby assessment by an
independent authority. It is submitted that the Director of
Prosecution works under the Home Department which cannot be
treated as an independent authority. Undoubtedly, the Director of
Prosecution is an authority appointed by the State Government for
the purposes of Section 45(2) of the UAPA. The said appointment of
the Director of Prosecution cannot be questioned in incidental
proceedings which is the subject matter of a separate challenge. The
plea that the authority is not independent has not been raised by
proper pleadings nor is opportunity given to the respondent to meet
the challenge. The Supreme Court in E.I.D. Parry38 has expressed
that a Court may not decide a question not raised before it unless
the pleadings contain a contention that a particular rule/appoint-
ment is bad. The said exercise would be, of-course by appropriate
proceedings in a proper way. In that view of the matter, in absence
of specific challenge raised to the competence and independence of a
Director of Prosecution being appointed as the Independent
38.Union of India Vs. E.I.D. Parry (India) Ltd., (2000) 2 SCC 223
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Authority by way of pleadings and opportunity to other side, we are
not inclined to entertain this objection.
APPLICABILITY OF THE STATUTORY PRESUMPTION.
158. At the inception, Mr. Ponda would submit that UAPA is a
preventive statute introduced to cope up and tackle the acts of
terrorism. In order to achieve the object of the UAPA, the statute has
provided mandatory presumptions under Section 43-E of the UAPA
which shifts the burden on the accused to explain. He drew our
attention to the Section 4 of the Evidence Act, to contend that when
the statute provides the words "shall presume", the Court has no
choice than to presume a fact unless it is disproved. The burden
would shift on the accused to rebut the presumption, if some
definitive evidence suggesting his involvement in a terrorist act has
been proved.
159. Mr. Ponda would submit that the presumption under
Section 43-E of the UAPA is mandatory since the word "shall" has
been used in the section itself. He relied on the decisions of the
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Supreme Court in cases of Dhanvantrai39, Hiten40, K.N. Beena41,
Neeraj Dutta42, Ram Krishna43, Sanjay Dutt44, Seema Silk45,
Sailendra46 and A. Vaidyanatha Iyer47 to contend that when the
presumption is mandatory, the Court has no choice. It is a
presumption of law and therefore, it is obligatory on the Court to
raise this presumption.
160. In these decisions, the scope and mandate of presumptions
under different statutes namely PC Act, Negotiable Instruments Act,
Evidence Act and TADA has been explained. We have no doubt in
our mind of the principle stated therein that, if the case is brought
under Section 43-E of the UAPA then there is an obligation on the
Court to raise the statutory presumption. For ready reference, we
have extracted Section 43-E of the UAPA as under:-
"43-E. Presumption as to offences under section 15. -- In a
prosecution for an offence under section 15, if it is
proved --
39. Dhanvantrai Balwantrai Desai Vs. State of Maharashtra, 1962 SCC Online SC 7
40.Hiten P. Dalal Vs. Bratindranath Banerjee, (2001) 6 SCC 16
41.K.N. Beena Vs. Muniyappan and another, (2001) 8 SCC 458
42.Neeraj Dutta Vs. State (Government of NCT of Delhi), (2023) 4 SCC 731
43.Ram Krishna Bedu Rane Vs. State of Maharashtra, (1973) 1 SCC 366
44.Sanjay Dutt Vs. State through C.B.I. Bombay(II), (1994) 5 SCC 410
45.Seema Silk & Sarees and another Vs. Directorate of Enforcement and others, (2008) 5 SCC
46.Sailendra Nath Bose Vs. State of Bihar, AIR (1968) 3 SC 1292
47.State of Madras Vs. A. Vaidyanatha Iyer, 1957 SCC Online SC 3
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(a) that the arms or explosives or any other substances
specified in the said section were recovered from the pos-
session of the accused and there is reason to believe that
such arms or explosives or other substances of a similar
nature were used in the commission of such offence; or
(b) that by the evidence of the expert the finger-prints of
the accused or any other definitive evidence suggesting
the involvement of the accused in the offence were found
at the site of the offence or on anything including arms
and vehicles used in connection with the commission of
such offence, the Court shall presume, unless the contrary
is shown, that the accused has committed such offence."
161. It is submitted that though reading of Section 43-E of
the UAPA provides presumption for an offence under Section 15 of
the UAPA, however Section 15 merely defines the term "terrorist
act". It is submitted that statutory presumption is applicable to all
the Sections wherever the term "terrorist act" has been employed.
In this context, he took us through Section 18 (punishment for
conspiracy), Section 20 (punishment for member of terrorist gang or
organization), which refers to a terrorist act. According to him,
since those penal provisions pertains to "terrorist act" as defined
under Section 15, presumption would apply in those cases. In short,
he would submit that the presumption operates against the accused
apeal136 & 137.17.odt
and as they failed to discharge the burden, the offence is presumed
to be proved.
162. The learned defence Counsels strongly opposed the
applicability of statutory presumption under Section 43-E of the
UAPA. It is submitted that the presumption is restricted to an
offence under Section 15 of the UAPA only to those made punishable
under Section 16 of the UAPA. It is submitted that though Section
15 defines "terrorist act", however Section 16 particularly provides a
punishment for terrorist act and thus, presumption would apply to
Section 15 read with Section 16 of the UAPA only.
163. We are unable to accept the submission canvassed by
the Special Prosecutor that wherever the word "terrorist act" has
been employed in the statute, a presumption would follow. Had it
been the legislative intent to do so, then there was no necessity to
restrict the applicability of presumption in a prosecution for an
offence under Section 15 of the UAPA only. Statutory presumption
under Section 43-E being part of stringent legislation, requires strict
interpretation and any violation would frustrate the rights of
accused.
apeal136 & 137.17.odt
164. This apart, it is the contention of Mr. Ponda that in
terms of Sub-clause (b) to Section 43-E of the UAPA, if any kind of
definitive evidence suggesting the involvement of the accused in the
offence were found at the site of the offence, is sufficient to draw the
presumption. It is submitted that seizure of incriminating material
in the form of electronic data is a definitive evidence suggesting the
involvement, therefore, the presumption would apply with full force.
In that context, we have taken a note that accused are not charged
for the offence of 'Terrorist Act' punishable under Section 16 of the
UAPA.
165. Besides that, we have examined Section 43-E of the UAPA.
Sub-clause (a) which pertains to recovery of arms or explosives or
any other substances specified in Section 15 recovered from the
accused and used in the commission of terrorist act. Sub-clause (a)
is to be read with Section 15 which is clear from the language itself.
It provides that arms or explosive or other substances specified in
the said Section obviously means Section 15, if recovered from the
possession of the accused and there is reason to believe that it has
been used in the commission of such offence, means offence of
apeal136 & 137.17.odt
terrorist act, then only presumption can be invoked. In order to
apply Sub-clause (a), two things are essential, namely that there
shall be a recovery from the possession of accused of the articles
specified in Section 15 of the UAPA and that there shall be reason to
believe that these were used in the terrorist act.
166. Contextually, we have gone through Sub-clause (a) of
Section 15 of the UAPA which refers to the use of bombs, dynamite
or other explosive substances or inflammable substances, firearms or
substances of hazardous nature or by any other means to cause or
likely to cause the effect as stated under clauses (i) to (iv) of Sub-
clause (a) to Section 15 of the UAPA. Apparently, the seizure must
be of some articles used to create violence resulting in death, injury,
damage, destruction etc. Though it provides use of any other means
of whatever nature, however it necessarily must be connected to the
result as stated under Clauses (i) to (iv). The residuary provisions
are to be read in context with the bombs or explosive or any article
of hazardous nature and certainly not pamphlets or communication
which have no relevance with the cause or likelihood to cause the
result as stated in Sub-clauses (i) to (iv) of Section 15(a) of the
UAPA. Sub-clause (a) contemplates that the seizure must be of a
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physical article like bomb, explosive etc and not pamphlets. In
substance, Sub-clause (a) of Section 43-E of the UAPA has no
application at all.
167. The prosecution heavily relied on Sub-clause (b) of
Section 43-E of the UAPA with particular reference to finding of
definitive evidence suggesting the involvement of the accused in the
offence. According to the State, finding of incriminating electronic
data and pamphlets amounts to definitive evidence suggesting the
involvement of the accused in the offence. The submissions is
misconceived, wholly untenable and contrary to the provisions of
the Act. A reading of Sub-clause (b) suggests that the evidence
demonstrating the involvement of the accused in the offence shall be
the offence of a terrorist act and be connected with what is found at
the site of offence or shall have connection with the commission of
the terrorist act. The legislative intent is to cover up the evidence
which was found at the site of the offence of terrorist act. In case at
hand, the seizure of incriminating articles from accused Nos. 1 to 3
was from the Aheri Bus Stand, for accused Nos. 4 and 5 from
Chichgarh T-point and seizure from accused No.6 G.N. Saibaba from
his house. Certainly those places cannot be construed as a site of the
apeal136 & 137.17.odt
offence of a terrorist act. In order to apply Sub-clause (b) there
must be finding of definitive evidence at the site of offence which is
totally lacking. By no stretch of imagination, can the bus-stand or
house be termed a site of offence i.e. offence of Terrorist Act. The
word "anything" used in Sub-clause (b) should be in connection with
the offence of terrorist act. Morevoer, it is not the prosecution's case
that any Terrorist Act has been committed at any of these sites.
168. In that view, we have no hesitation to hold that mere
finding of some incriminating material in the form of pamphlets and
electronic data cannot be termed as a recovery of the articles in
terms of Sub-clauses (a) and (b) to Section 43-E of the UAPA and
thus, the presumption would not apply. Moreover, we may reiterate
that the statutory presumption would apply only in prosecution for
an offence under Section 15 punishable under Section 16 of the
UAPA of which the present accused have not been charged.
Stretching the presumptions to other Sections of the UAPA would be
reading something into the provisions which is not contemplated in
the statute. In the above view, we are totally in disagreement with
Mr. Ponda as to the applicability of statutory presumption under
apeal136 & 137.17.odt
Section 43-E of the UAPA to the facts of this case and we hold
accordingly.
Besides such inherent lacuna we undertake to examine
prosecution case on merits.
PROSECUTION CASE AND DEFENCE.
169. In a nutshell, the prosecution alleges that accused No.6
G.N. Saibaba sent some secret messages stored in the 16 GB memory
card relating to the banned terrorist organisation CPI (Maoist) and
its frontal organisation (RDF). The secret messenger was accused
No.3 Hem Mishra. One Naxalite lady named Narmadakka had sent
accused No.1 Mahesh Tirki and accused No. 2 Pandu Narote to
receive accused No.3 Hem Mishra at Aheri Bus-stand, however on
the basis of the intelligence inputs, all three were apprehended on
22.08.2013, followed by the seizure of incriminating material from
their possession.
170. It is also the prosecution case that accused No.4
Prashant Rahi and accused No.5 Vijay Tirki linked with the banned
terrorist organisation CPI (Maoist) and its frontal organisation
(RDF), were found in possession of literature belonging to CPI
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(Maoist) and RDF. It was followed by the seizure of incriminating
material from accused No.4 Prashant Rahi. The investigation reveals
that the accused No.6 G.N. Saibaba was an active member of CPI
(Maoist) and its frontal organisation (RDF) having close connection
with the arrested accused. Accused No.6 G.N. Saibaba sent secret
information which led the Police to seek his search warrant and
consequential seizure of incriminating material from his house.
171. The prosecution mainly alleges that the accused have
conspired or advocated or abetted the commission of terrorist act.
They were active members of a terrorist organization which was
involved in terrorist activities. Moreover, it is alleged that they were
associated with a terrorist organization with an intention to further
the activities of the terrorist organization. The accused have also
actively supported this terrorist organization with an intention to
facilitate the activities of the terrorist organization. The prosecution
case entirely hings around the seizure of incriminating material from
the accused. The arrest and seizure of incriminating material is the
backbone or foundation of the entire prosecution.
172. By and large, the prosecution case can be divided into
three parts leading to the arrest of different accused at different time
apeal136 & 137.17.odt
and places. The first set of arrest is of accused Nos. 1 to accused No.
3 on 22.08.2013, near Aheri Bus Stand around 06.15 p.m. This
arrest was on suspicion about their involvement in naxalite activities
relating to banned terrorist organisation CPI (Maoist) and its frontal
organization (RDF). Seizure of certain incriminating material
coupled with the information extracted during interrogation
revealed involvement of the accused No.4 Prashant Sanglikar and
accused No.5 Vijay Tirki involved in similar activities. In pursuance
of this information, accused No. 4 Prashant Sanglikar and accused
No.5 Vijay Tirki were arrested on 01.09.2013 at Chichgarh T-Point,
Deori around 06.00 p.m. Likewise, investigation further revealed
involvement of accused No.6 G.N. Saibaba with his leading role.
The police sleuth went to Delhi and took house search of accused
No.6 G.N. Saibaba on 12.09.2013 in the late afternoon. Voluminous
electronic devises have been seized during his house search. Later
on accused No.6 G.N. Saibaba came to be arrested on 09.05.2014.
173. It is the prosecution case that accused Nos.1 to 6 were part
of the larger criminal conspiracy with some other accused who were
not under arrest. They have planned to wage war against the
Government of India. The seizure effected from different sets of
apeal136 & 137.17.odt
accused disclose their involvement with terrorist organisation CPI
(Maoist) and its frontal organisation RDF. The prosecution claimed
that contents of seized material amounts to involvement of the
accused in the offences under the UAPA. It is the definitive evidence
suggesting their involvement in a terrorist organization and acts of
terrorism. The material suggest their involvement with CPI [Moist]
and its frontal organization [RDF]. This organization has been
placed in the first schedule the UAPA as a terrorist organization vide
entry No.34 in a notification issued in terms of Section 2[1][m] of
the UAPA. The Organization is deemed to have been involved in the
terrorism by committing, participating, preparing, promoting,
encouraging terrorism.
174. It is the prosecution case that naxal related documents,
various communications, reports of review meeting in the form of
electronic data disclose that the accused have conspired to commit a
terrorist act. According to the prosecution, the accused have
associated themselves with this terrorist organization with intent to
further the activities of the terrorist organization CPI (Maoist) and
its frontal organization RDF. The accused have also intentionally
supported the said terrorist organization. Seizure of incriminating
apeal136 & 137.17.odt
material in the form of literature and videos, disclose that accused
No.6 G.N. Saibaba rejected a parliamentary form of governance and
supported an armed struggle against the Government of India and
the State of Maharashtra.
175. The defence has strongly assailed the seizure itself by
making a variety of submissions. Apart from violation of various
statutory safeguard provided under the UAPA, it is canvassed that
the arrest of accused Nos. 1 to 5 itself is not free from doubt. It is
their defence that accused No.3 Hem Mishra was already
apprehended on 20.08.2013 from Ballarshah and subsequently a
scene was created that on 22.08.2013 accused Nos. 1 to 3 were
arrested from Aheri Bus-stand. Likewise, it is their defence that
accused No.4 Prashant Rahi was taken charge of from Raipur whilst
shown to be arrested from Chinchgarh T-point. It is the defence that
the FIR was antedated and arrest was fabricated. According to the
defence the entire process of arrest and seizure is suspicious. The
incriminating material has been planted to suit the purpose of
prosecution under the UAPA . Arrest as well as seizure panchnamas
were seriously in doubt, not credible and unreliable and a case of
fabrication.
apeal136 & 137.17.odt
[
176. It is submitted that no incident of violence occurred or
is even alleged to have occurred. There is no material to infer the
conspiracy since the prosecution has not spelt out as to what has
been conspired to be done by the accused, besides a vague allegation
of conspiracy to wage war against the Government.
177. In the light of above challenge to the process of arrest
and seizure, coupled with the factum of the prosecution solely
relying on the seizure of incriminating material, evidence needs
close examination. The prosecution, though examined 23 witnesses,
the prosecution evidence mainly consists of Police personnel and
panch witnesses. In order to have a bird's eye view of the entire
evidence, we have preferred to extract this material into a chart
prepared by the Trial Court containing the oral and documentary
evidence for the sake of convenience which is given below:-
P.W.No. Name of the Witness Exh.No.
1 Santosh Nanaji Bawne, the panch witness 136
to seizure panchnama and seizure of
articles from the possession of the accused
Nos. 1 to 3 (Exh.137)
2 Jagat Bhole, the panch witness on seizure 164
panchnama (Exh.,165) of electronic
gadgets and other articles from the house
search of accused No.6 Saibaba
apeal136 & 137.17.odt
witness on the point of personal search of
accused No.4 (Exh.179) and personal
search of accused No.5 (Exh.180)
4 Shrikant Pochreddy Gaddewar, the panch 198
witness on facebook activities of accused
no.3
5 Ravindra Manohar Kumbhare, the police 210
constable, who carried and deposited the
muddemal with CFSL, Mumbai
6 Atul Shantaram Avhad, Police Officer and 218
informant
Constable, who brought the muddemal
property from CFSL, Bombay to Aheri
Police Station
Constable, who brought the accused No.4
& 5 to Police Station, Aheri
earlier incident
10 Police Inspector Anil Digambar Badgujar 226
11 S.D.P.O Suhas Prakash Bawche, the 235
Investigating Officer
12 Nileshwar Gaurishankar Vyas, the J.M.F.C. 277
who recorded confessional statements of
accused No.1 Mahesh and No.2 Pandu
deposited the muddemal in Malkhana
14 Police Inspector Rajendrakumar 307
Parmanand Tiwari
15 Narendra Shitalprasad Dube, Station Diary 308
Duty Amaldar
apeal136 & 137.17.odt
17 Khumaji Devaji Korde, Court 339
Superintendent
18 Kalyaneshwar Prasad Bakshi, Addl. 345
Secretary
Secretary
BSNL
21 Bhavesh Neharu Nikam, Scientific Expert, 371
CFSL Mumbai
22 Manoj Manikrao Patil, Circle Nodal Officer, 411
Indian Airtel, Dadar, Mumbai
S.No. Documents Exh.No.
Rajan, Additional Chief Secretary to the
Government of Maharashtra Home
2 Seizure panchnama in respect of property 137
seized from the possession of accused No.
No.3 Hem Mishra
3 Seizure panchnama in respect of property 165
seized from the possession of accused
No.6 Saibaba
4 Seizure panchnama in respect of seizure 179
of property from the possession of accused
No.4 Prashant Rahi
5 Seizure panchnama in respect of seizure 180
of property from the possession of accused
No.5 Vijay Tirki.
apeal136 & 137.17.odt
S.No. Documents Exh.No.
6 Panchnama of proceedings in respect of 199
activities of facebook account of accused
No.3 Hem Mishra
taken out from the computer and it was
put back in the same condition and was
sealed
8 Panchnama to the effect that the memory 201
card was sealed with labels and signatures
of panchas taken
9 Panchnama to the effect that the packets 202
containing laptop, books and mobiles were
sealed with labels and signatures of
panchas taken
mobiles of accused No.6 G.N.Saibaba
11 Panchnama to the effect that hard-disk 204
was sealed with labels and signatures of
panchas taken
12 Panchnama to the effect that hard-disks 205
were sealed with labels and signatures of
panchas taken
13 A letter to Forensic Laboratory, Mumbai 211
for examination of memory-card and
report
14 Questionnaire with regard to the memory 211A
card for forensic science lab
15 A letter to Forensic Laboratory, Mumbai 212
for examination of electronic gadgets
seized from the house search of accused
No.6 Saibaba and report
16 Oral report lodged by the informant P.S.I 219
Atul Shantaram Awhad (P.W.6)
17 F.I.R. lodged by the informant P.S.I. Atul 220
Shantaram Awhad (P.W.6)
apeal136 & 137.17.odt
S.No. Documents Exh.No.
Mahesh Tirki, No.2 Pandu Narote and
No.3 Hem Mishra
19 Special Report of Police Station, Aheri 236
about registration of crime
20 Letter dated 25.8.2013 issued by P.W.11 237
Suhas Bawche for getting CDR
21 Arrest panchnama of accused No.4 and 5 239 & 240
22 Report addressed to P.I. Police Station 241
Devri dated 1.9.2013
23 Search warrant of house search of accused 244
No.6 Saibaba dated 7.9.2013
24 Letter to Mauricenagar Police Station at 252
Delhi for providing police staff, computer
expert and videographer by P.W.11 Suhas
Bawche
remain present for investigation by P.W.11
Suhas Bawche
26 Letter dated 17.9.2013 to S.P. Gadchiroli 257
for obtaining CDR
Suhas Bawche to mobile companies for
CDR
Nanakmatta Police Station against accused
No.4 Prashant Rahi
29 Scientific analysis report of CFSL, Mumbai 266
annexed with 15 pages in respect of 16 GB
memory-card seized from accused no.3
Hem Mishra
30 Scientific analysis report of CFSL, Mumbai 267
annexed with 247 pages in respect of
Exh.1 to 25 i.e. electronic gadgets seized
apeal136 & 137.17.odt
S.No. Documents Exh.No.
from the house search of accused No.6
Saibaba
Saibaba
32 Extracts of station diary entries 275A to
275J
33 Attested extract copies of muddemal re- 276A to
gister 276E
swers put to accused No.2 Pandu Narote
swers put to accused No.1 Mahesh Tirki
Mahesh Tirki
37 Certificates I, II and III affixed to confes- 281 to 283
sional statement of accused No.1 Mahesh
Tirki
Pandu Narote
39 Certificates I, II and III affixed to confes- 287 to 289
sional statement of accused No.2 Pandu
Narote
Tirki and No.2 Pandu Narote regarding re-
traction of confessional statement
41 The CDR of mobile phone numbers of ac- 330 to 332
cused no.3 Hem Mishra and No.4 Prashant
Rahi
card of accused No.4 Prashant Rahi
44 Customer application forms of mobile SIM 336 and
apeal136 & 137.17.odt
S.No. Documents Exh.No.
45 Certificate dated 15.2.2014 u/s 65B of the 338
Evidence Act.
46 Copy of the property register of Sessions 340
Court, Gadchiroli
47 Letter dated 26.2.2015 to Director of Pub- 346
lic Prosecutor issued by Desk Officer for
independent review
ector of Public Prosecutor
49 Sanction order dated 6.4.2015 for prosec- 349
ution of accused No.6 Saibaba
51 Letter dated 7.2.2014 to Director of Public 356
Prosecutor issued by Desk Officer for inde-
pendent review
ector of Public Prosecutor
memory-card of Sandisk company sent
along with letter dated 30.8.2013
54 Letters issued by P.W.23 Bhavesh Nikam to 373 & 374
SDPO Aheri along with mirror-images of
hard-disks
Department Assistant Director of Cyber
Crime
57 Hard-disks 377, 381
to 384
58 Pen-drives 378 to 380
59 DVDs 387 to 394
61 CDR details of mobile SIM card of accused 413
apeal136 & 137.17.odt
S.No. Documents Exh.No.
No.6 Saibaba
62 Customer application form for mobile SIM 418
card of accused No.6 Saibaba
No.6- Saibaba
Saibaba
178. Subject to the relevancy, we have gone through the
entire material adduced by the prosecution. For the sake of
convenience, we undertake to examine all three seizures along with
related evidence separately.
179. The prosecution mainly sought to take shelter of
statutory presumption under Section 43-E of the UAPA claiming that
the prosecution led evidence establishing foundational facts and
thus, it is for accused to rebut the presumption. According to the
prosecution, electronic evidence in the definitive form suggest the
involvement of accused. Notably, the accused have not been charged
for the offence of terrorist act defined under Section 15 and made
punishable under Section 16 of the UAPA. We have held above that
the presumption is restricted to the prosecution for Section 15 only.
apeal136 & 137.17.odt
Further more, we have analyzed Sub-clause (a) and in particular
Sub-clause (b) and arrived at a conclusion that definitive evidence
suggesting the involvement in the offence of a terrorist act must be
found at the site of the offence i.e. offence of terrorist act defined
under Section 15 of the UAPA and thus, the presumption would not
apply.
180. In view of the above conclusion, the onus which
generally lies on the prosecution continues to lie on the prosecution.
Needless to say that in criminal jurisprudence, it is a well-recognized
principle that the onus of proof lies on the prosecution and is higher
than the mere preponderance of probability. The prosecution is
under an obligation to establish the guilt of the accused beyond
reasonable doubt. We are certainly aware that the doubt need not
be a fanciful or imaginary one. Though the offences are against the
security and integrity of the nation, the law does not dilute the
standard of proof, except in cases, where statutory presumptions
would apply. The prosecution is thus bound to establish the guilt of
the accused with the standard of proof ordinarily required to prove
criminal offences. In view of this requirement of law, we have
apeal136 & 137.17.odt
analysed and scanned the evidence led by the prosecution to
establish the guilt of the accused.
181. At the inception, perceiving serious challenge to the
credibility of evidence, the learned special prosecutor would submit
that the defective investigation by itself cannot be made a ground for
discarding the prosecution case. The story of prosecution has to be
examined dehors the lapses on the part of the Investigating Officer.
To substantiate this contention, he relied on the various decisions of
the Supreme Court in cases of Allarakha K. Mansuri48, Amar Singh49,
C. Muniappan50 Chandan Khan51, Paramjit Singh52, Paras Yadav53,
Ram Bali54 Mast Ram55 and . K. Yarappa Reddy56. We have gone
through these decisions laying down propositions pertaining to rules
of appreciation of evidence.
182 In the above referred decisions, the Supreme Court has
emphasized that defective investigation ipso facto would not give a
48.Allarakha K. Mansuri Vs. State of Gujarat, (2002) 3 SCC 57,
49. Amar Singh Vs. Balwinder Singh and others, (2003) 2 SCC 518
50.C. Muniappan and others Vs. State of Tamil Nadu . (2010) 9 SCC 567
51.Chandan Khan and another Vs. State of U.P. (1995) 5 SCC 448
52.Paramjit Singh Alias Mithu Singh Vs. State of Punjab (2007) 13 SCC 530
53.Paras Yadav and others Vs. State of Bihar, (1999) 2 SCC 126
54. Ram Bali Vs. State of U.P. (2004) 10 SCC 598
55. State of H.P. Vs. Mast Ram, (2004) 8 SCC 660
56.State of Karnataka Vs. K. Yarappa Reddy, (1999) 8 SCC 715
apeal136 & 137.17.odt
right to accused to claim acquittal. In the case of defective
investigation, the Court has to be circumspect in evaluating the
evidence. There is a legal obligation on the Court to examine the
prosecution evidence carefully to find out whether the evidence is
reliable or not, and whether such lapses affect the object of finding
the truth. We are conscious that criminal justice should not be
made a casualty for the wrongs committed by the Investigating
Officer in the case. Certainly, unnecessary importance given to the
defects would tantamount of giving decisive role to the Investigating
Officer in the process of reaching the truth.
183. It is a general principle that defective investigation does
not vitiate a valid prosecution. However, it is a matter of fact and
depends on the facts of each case. To our mind, if the lapses or
irregularities are inconsequential or negligible then it has no impact
on the merits of the case. On the other hand, if the defect or lapses
on the part of the Investigating Officer raises an entertainable doubt
on the fabric of prosecution, it matters. In short, on the basis of
material adduced by the prosecution vis-a-vis the defect in
investigation, the worth of evidence is to be determined. Keeping in
apeal136 & 137.17.odt
mind this general principle that mere defect would not vitiate a valid
prosecution, we have examined the evidence adduced before the
Trial Court.
184. The line of challenge requires us to consider each
seizure separately and to assess the credibility thereof. For the sake
of convenience, we have considered the aspect of seizure in three
parts firstly, arrest and seizure of accused Nos. 1 to 3 dated
22.08.2013, secondly, arrest of seizure of accused No. 4 Prashant
Sanglikar and accused No.5 Vijay Tirki dated 01.09.2013 and
seizure from the house search of accused No.6 G.N. Saibaba dated
12.09.2013.
ARREST OF ACCUSED NOS.1 TO 3 AND SEIZURE.
185. The first limb pertains to the arrest of and seizure from
accused Nos. 1 to 3 dated 22.08.2013. For ready reference, we may
recapitulate that it is the case of prosecution that on the basis of
secret inputs about involvement of accused No.1 Mahesh Tirki and
accused No.2 Pandu Narote with the banned terrorist organisation
CPI (Maoist) and its frontal organisation (RDF), the Police were
keeping watch on their movements. According to secret
apeal136 & 137.17.odt
information, the Police traced them on 22.08.2013 around 06.00
p.m., standing at a secluded place near Aheri Bust-stand. At about
06.15 p.m. one person wearing a cap on his head came there and
started talking with each other in a suspicious manner. The Police
apprehended them and brought them to the Aheri Police Station.
From their personal search, several incriminating articles including
three Naxal pamphlets and a 16 GB memory card, were seized by
drawing Panchnama. It led the Police to register a crime and their
arrest was effected.
[
186. The defence has particularly doubted the process of
arrest as well as seizure on account of material irregularity, lack of
transparency, manipulation and a case of fabrication. In order to
demonstrate the improbabilities in the prosecution case, the defence
took us through the relevant documents coupled with several
admissions given by the relevant witnesses.
187. The evidence of PW-6, informant API Avhad, PW-1
Panch witness Santosh Bawne, PW-10, In-charge Police Inspector
Anil Badgujar and the evidence of PW-9 Atram is relevant for our
purpose. Besides that, certain documents bear relevance which are -
written FIR (Exh. 219), Printed FIR (Exh. 220), Carbon Copy of FIR
apeal136 & 137.17.odt
(Exh. 221), spot-cum-seizure panchnama (Exh. 137), arrest
panchnama of accused No.1 Mahesh Tirki (Exh.227), arrest
panchnama of accused No.2 Pandu Narote (Exh.228), and arrest
panchnama of accused No.3 Hem Mishra (Exh.229).
188. The episode unfolded through the evidence of PW-6
informant API Avhad. It is his evidence that in pursuance of secret
information, on 22.08.2013, at 06.00 p.m., he found accused No.1
Mahesh Tirki and accused No.2 Pandu Narote standing at a secluded
place near bus stand Aheri. Within a short time, one person wearing
a cap on his head came there and they started conversing with each
other. Finding their movements suspicious, PW-6 API Avhad took
them to Aheri Police Station and briefed the information to PW-10
Police Inspector Anil Badgujar. In turn, PW-10 Anil Badgujar made a
preliminary inquiry and on not being satisfied with their
explanation, called panch witnesses. In the presence of panch
witnesses, personal search of accused Nos. 1 to 3 was taken in which
various articles were seized.
189. During personal search of accused No. 1 Mahesh Tirki,
three naxal pamphlets regarding banned organization, one mobile,
apeal136 & 137.17.odt
one pocket purse containing Rs. 60/-, and a platform ticket were
found. On search of accused No.2 Pandu Narote, platform ticket,
one mobile, cash of Rs. 1400/-, election identity card, school leaving
and birth certificate were found. On personal search of accused
No.3 Hem Mishra, one memory card of 16 GB, railway ticket, cash
Rs. 7,500/-, one camera, his identity card of JNU University, election
identity card, one cloth bag, PAN card were found. All articles were
seized and taken into custody in presence of panch witnesses by
drawing panchnama (Exh.137) in between 06.30 p.m. to 07.55
p.m. on the very day. The said panchnama was carried out by PI
Anil Badgujar.
190. During interrogation, it was revealed that accused No.1
Mahesh Tirki and accused No.2 Pandu Narote were deputed by one
Naxalite lady Narmadakka to receive the messenger sent by an
activist from Delhi (accused No.6 G.N. Saibaba) with important
information, and to escort accused No. 3 Hem Mishra to Morewad
Forest. The Police concluded that all were activist of banned
terrorist organisation CPI (Maoist) and its frontal organisation
(RDF), hence PW-6 API Avhad has lodged a report (Exh.219) at
apeal136 & 137.17.odt
Aheri Police Station around 09.30 p.m. Duty in-charge PW-15
Narendra Dube has registered crime No. 3017/2013 for the offence
under the provisions of UAPA. This was followed by arrest of
accused Nos. 1 to 3 vide arrest panchnama exhibits 227, 228 and
229.
191. The prosecution has examined PW-10 PI Anil Badgujar
who was incharge of Aheri Police Station at the relevant time. He
stated that API Avhad has brought accused Nos. 1 to 3 to Aheri
Police Station on that day. He has also stated that in his presence
personal search of accused Nos. 1 to 3 was taken, wherein, articles
were seized under the panchnama (Exh. 137) in presence of two
panch witnesses. He deposed that the articles were sealed with wax
seals, which was followed by lodging of the report by PW 6 API
Avhad and registration of crime No. 3017/2013.
192. Since the process of arrest and seizure has been
seriously doubted, we turn to the evidence of panch witness PW-1
Santosh Bawne, in whose presence seizure and arrest was made. His
evidence is of great significance. PW-1 Santosh Bawne deposed that
on 22.08.2013, he went to Aheri Police Station around 06.00 p.m. to
apeal136 & 137.17.odt
06.30 p.m. having been called by the Police. In his presence,
personal search of accused Nos. 1 to 3 was taken, wherein various
articles including three naxal pamphlets and a 16 GB memory card
were seized under panchnama (Exh.137). He deposed that seized
articles were sealed with wax. He has identified his signature on
seizure panchnama (Exh.137).
193. In this regard, the defence has seriously assailed the
prosecution case right from the alleged arrest of accused Nos. 1 to 3
dated 22.08.2013 and consequent seizure vide panchnama (Exh.
137). It is their defence that accused No. 3 Hem Mishra was already
taken into custody by Police from Balarasha Railway Station on
20.08.2013. The Police have prepared a story that all three accused
were arrested on 22.08.2013 from the area of Aheri Bus-stand. It is
argued that after planting documents, conveniently they have been
shown to be arrested on 22.08.2013 which is a high handed act of
Police of false implication. To substantiate this stand, our attention
has been invited to various aspects relating to the arrest of accused
Nos. 1 to 3.
194. It is pointed out that various columns of FIR were
purposely kept blank which were filled in later to suit their purpose.
apeal136 & 137.17.odt
There are apparent mistakes and variance in the arrest panchnama
which shows its falsity. It is argued that PW-1 Santosh Bawne was a
stock panch of the Police who is wholly unreliable. Another panch
witness was not examined to support the first panch witness. Arrest
was made in the presence of a single panch Narendra Empalwar,
however he was not examined. The description of the title of three
Naxal pamphlets has not been incorporated in the panchnama with a
purpose. The seized pamphlets [articles Exh. 139 to 141] do not
bear signatures of panchas or Police to vouch their credibility. In fact,
they do not bear any signatures or identification marks.
195. Pursuing the line of objection, we have revisited the
prosecution evidence. Coming to the evidence of PW-1 Santosh
Bawne (panch) admittedly he was in the service of Home Guard
attached to Aheri Police Station from the year 2000. We note, in
particular that at the relevant time, he was serving as a home guard
with Aheri Police. Though initially, he denied the label of regular
panch, however he admits that in the past, he has acted as a panch
witness in another case. He admits that three pamphlets do not bear
the label containing signatures of panch witnesses. He did not
remember the heading of the pamphlets which were seized. He has
apeal136 & 137.17.odt
stated that another panch Umaji was present with him, which is
factually incorrect, since the other seizure panch was one Narendra
Empalwar. He has admitted that he does not know the difference
between card reader, pen-drive and memory card nor can identify
the storage capacity of different electronic applications.
196. There is variance in the evidence of Police personnel as
to who has summoned PW-1 Santosh Bawne for effecting
panchnama. During cross-examination of PW-1 Santosh Bawne,
stated that he was called by PW-15 Narendra Dube, but PW-15
Narendra Dube did not claim so. Rather PW-15 Narendra Dube says
that at the relevant time, he was on station diary duty from 06.00
p.m. to 10.00 p.m. PW-6 informant API Avhad says that panchas
were called by PW-10 PI Anil Badgujar, but, the latter is not specific
in that regard.
197. Be that as it may, it is not material as to who has called
the panch witnesses, however what is relevant is that within just 5 to
10 minutes, PW-1 Santosh Bawne arrived at Police Station,
admittedly since he was called from another place. Pertinent to note
that the Police have not ventured into examining another panch
apeal136 & 137.17.odt
witness to gain support in the process of seizure, which is an
important facet of the case. Though the fate of the prosecution
largely hinges around seizure from accused Nos. 1 to 3, prosecution
has not offered any plausible explanation for not examining another
panch witness. True, it is not necessary to examine a second panch,
however considering the peculiarity of the case, which is largely
dependent on the credential of seizure, the prosecution ought to
have examined him to remove the needle of suspicion. It appears
that only because PW-1 Santosh Bawne was a Home Guard attached
to the same Police Station since a long time, he has been chosen as a
panch as a man of the confidence of the police. Therefore, it is
difficult to treat him as an independent panch witness. Moreover,
he was an illiterate person, who does not know the difference
between different electronic gadgets, which was the material part of
the seizure. Pertinent to note that the alleged arrest was made from
Aheri Bus Stand, where admittedly there were pan stalls, tea stalls
and hotels, from where services of independent/natural panch
witnesses could easily have been secured.
[
198. A great deal of criticism has been made on account of
planting, fabrication and registration of antedated FIR and arrest.
apeal136 & 137.17.odt
We have gone through the printed FIR (Exh.220) coupled with its
carbon copy (Exh.221). It has come in the evidence of PW-15
Narendra Dube that on the basis of report lodged by PW-6 API
Avhad (Exh.219), he has registered crime No.3017/2013. He has
identified printed FIR (Exh.220) and its carbon copy (Exh.221). It is
strongly contended in defence that FIR was antedated, and was
prepared later. In that connection, we have examined printed FIR
(Exh.220). As per the prosecution case, accused No.3 Hem Mishra
was brought at Aheri Police Station on 22.08.2013 at 06.15 p.m.
After preliminary interrogation by PW-10 PI Anil Badgujar, seizure
was effected between 06.30 p.m. to 7.55 p.m followed by
registration of FIR at 09.30 p.m. In this context, the submission is
that it is practically impossible to complete all formalities in this
short duration. We have seen the chain of events that at 06.15 p.m.,
the accused were for first time accosted near Aheri Bus-stand. It
would certainly take a few minutes to interact and then, further,
some more time would be required to bring them to the Police
Station. According to the prosecution, PW-6 API Avhad has briefed
PW-10 PI Anil Badgujar who again interacted with the accused,
summoned two panch witnesses and thereafter seizure panchnama
apeal136 & 137.17.odt
was effected. In substance, from the first interaction with accused at
06.15 p.m., all preliminary steps were taken within just 15 minutes
and then seizure panchnama has commenced, which is improbable
and requires to be noted.
199. Our attention has been invited to the printed FIR
(Exh.220) which bears signature of informant, and signature of
Head constable, PW-15 Narendra Dube. In this regard, it is argued
that PW-10 PI Anil Badgujar was not present at the relevant time,
which resulted in signing of form 1-C of FIR by the Head Constable
instead of Officer in-charge of the Police Station. The prosecution
has not offered any explanation in that regard.
200. Besides that, it is argued that Column No. 3(b) and (c)
of printed FIR pertaining to the information about time of receipt of
information and general diary reference, there are discrepancies. In
this regard, we have been taken through the evidence of PW-6 API
Avhad who initially avoided to state that the entries in Column No.
3(b) and (c) are in different ink, however he has admitted that
entries in Column No. 3(b) and (c) are subsequently written.
apeal136 & 137.17.odt
Besides that, he admits that there is overwriting in entry at Column
No.3(c) of the carbon copy of printed FIR (Exh.221). Attention of
PW-6 API Avhad was particularly invited to the copy of printed FIR
(Exh.221) to which he admits that those three entries in Column
No.3(b) and (c) are in different ink. We may hasten to add that
copy of FIR (Exh. 221) is a carbon copy on which the time is
mentioned in blue ink, whilst the time and general diary reference is
in black ink. We do not find any explanation coming forth in this
regard from the prosecution to remove this doubt.
201. It is the case of defence of accused No.3 Hem Mishra
that the arrest as alleged by prosecution is fake. It is his stand that
he was taken into custody from Balarasha Railway Station two days
earlier i.e. on 20.08.2013 which was followed by implicating him in
the case after two days. In this regard, initially we have been taken
through the evidence of PW-9 Atram who has been examined in the
capacity of an independent witness. Evidence of this witness is
somewhat strange. As per the prosecution case itself, he was an
associate of the accused, however he has been examined as an
independent witness. PW-9 Atram deposed that on 20.08.2013, the
apeal136 & 137.17.odt
Police called him for interrogation. On that day, he went to the
Police Station in the afternoon around 02.00 to 2.15 p.m. He
deposed that during the interrogation, he was made to understand
that the Police have earlier interrogated some accused, on which
basis they came to know about his involvement (PW 9 Atram) in his
past acts of handing over cash at the instance of Naxalite lady
Narmadakka. In his evidence, he specifically deposed that he knew
accused No.1 Mahesh Tirki and accused No.2 Pandu Narote since
long. Both of them once took him to naxalite lady Narmadakka and
at her instance, he received cash of Rs. 5,00,000/- which was later
on handed over at Balarshah Railway Station by A1 and A2 to
someone else. This witness was examined to demonstrate the
involvement of accused No.1 Mahesh Tirki and accused No.2 Pandu
Narote in naxal activites.
202. Witness PW-9 Atram stated that on 20.08.2013 itself,
the Police came to know about his involvement in the earlier money
deal obviously, from the interrogation of A1 and A2 itself. Thus it
emerges a strong possibility of police interrogation A1 and A2 in this
crime on 20.08.2013 or prior to that. Moreover, this witness has
apeal136 & 137.17.odt
specifically stated that on 21.08.2013, his statement was recorded by
the Police to that effect. His evidence suggests that prior to alleged
arrest of accused Nos. 1 to 3 dated 22.08.2013, the Police had
already interrogated some accused from which the role of PW-9
Atram was revealed. Thus, a strong possibility emerges in support of
the defence that custody of accused No.3 Hem Mishra was actually
taken on 20.08.2013. We are not holding so only on the basis of
statement of PW-9 Atram, but, the possibility emerges from variety
of circumstances like not picking up an independent panch, choosing
a panch related to Police, discrepancies and overwriting at the time
of registration of crime etc. It is for the prosecution to remove all
these doubts. We are aware that there may be minor mistakes,
however, the overall effect of the evidence is to be considered on the
basis of variety of circumstances.
203. We have been taken through one more circumstance
which pertains to the time of arrest of accused Nos. 1 to 3. It is the
prosecution case that, after registration of crime accused Nos. 1 to 3
were arrested. We have gone through the evidence of PW-6 API
Avhad and PW-10 PI Anil Badgujar in particular, which does not
specify the exact time of arrest of accused Nos. 1 to 3. In the context
apeal136 & 137.17.odt
of the defence of antedated arrest, we have gone through the entire
related material. The arrest of A1 to A3 was effected by PW-10 PI
Anil Badgujar. He has merely deposed that he has arrested accused
by drawing arrest panchama (Exh. 227 to 229) without specifying
the time and date. Examination reveals that all three arrest
panchnamas are in different handwriting with the use of different
ink pertaining to the date and time of arrest. The defence has
specifically questioned to PW-10 PI Anil Badgujar, to which he has
admitted that, on arrest panchnamas (Exh. 227 to 229), FIR number,
date of arrest and time of arrest is in different handwriting and in
different ink. Moreover, a glaring discrepancy is pointed by defence
that the arrest panchnamas (Exh. 227 to 229) at its foot bears the
date of arrest as 23.08.2013, whilst on first page, the date and time
of arrest is mentioned as 22.08.2013 at 09.30 p.m. in a different ink.
204. Close examination of arrest panchnama Exh. 227
pertaining to accused No.1 Mahesh Tirki denotes that the entire
panchnama is written in black ink, whilst crime number, date of
registration of crime and date and time of arrest are in blue ink.
Panchnama (Exh. 228) pertaining to arrest of accused No.2 Pandu
Narote discloses that the entire portion is in blue ink, whilst date
apeal136 & 137.17.odt
and time of arrest is in black ink. Again we find material
discrepancy in the arrest panchnama (Exh.229) pertaining to
accused No.3 Hem Mishra, wherein the entire panchnama is written
in black ink, whilst crime number, date of registration of crime, date
of arrest, time of arrest and station diary entry number was written
in blue ink. Likewise on the first page of all panchnamas, the date of
arrest is mentioned as 22.08.2013 at 09.30 p.m. whilst the last entry
below the signature of PW-10 PI Anil Badgujar, the date of
panchnama is mentioned as 23.08.2013. When PW-10 PI Anil
Badgujar was confronted with these discrepancies, he gave a feeble
explanation that it may be a mistake. These discrepancies coupled
with the insertion of date and time of arrest raises further suspicion
about the date and time of arrest, in the background of defence
version. PW-10 PI Anil Badgujar stated that these three arrest
panchnamas were written by three different Police Officers. It is
surprising to note that three Police Officers have simultaneously
committed the same mistake of putting another date at the end of
panchnama as 23.08.2013 which again enhances the degree of
suspicion.
[
apeal136 & 137.17.odt
205. In the background of the above discrepancies, it was
incumbent on the prosecution to examine panch witnesses to the
arrest panchnama, to vouch the credibility of the date and time of
arrest. The Prosecution was alerted by the line of cross-examination,
that the defence of accused No. 3 Hem Mishra, was his illegal
custody for two days and registration of the antedated FIR. In the
circumstances, it was the duty of the prosecution to either explain
the said material discrepancy or to examine the sole panch witnesses
on arrest panchnama, but, they have avoided to examine him.
206. The defence has invited our attention to the cross-
examination of PW-11 SDPO Suhas Bawche, wherein he admits
(para No.19) that while replying to the bail application, in his say
dated 02.06.2014, he stated that accused No.1 Mahesh Tirki and
accused No.2 Pandu Narote had gone to Balarasha Railway Station.
Specific suggestion was put to him that on 20.08.2013 accused No.3
Hem Mishra had come to Balarasha Railway Station. In response,
PW-11 SDPO Suhas Bawche stated that he might have
communicated to the Court that accused No.3 Hem Mishra had
come to Balarsha Railway Station on 20.08.2013. These admissions
falsify the prosecution case that A3 came to Aheri bus stand on
apeal136 & 137.17.odt
22.08.2013, to whom A1 and A2 came to receive. The defence also
brought our attention to the answers given by accused No.3 Hem
Mishra in his statement under Section 313 of the Code (question
No.6), wherein he took a specific stand. Accused No.3 Hem Mishra
stated that on 20.08.2013 itself, he was taken into custody by the
Police from Balarasha Railway Station. His belongings were forcibly
taken into custody and he was illegally detained at Gadchiroli Police
Head Quarter.
207. The learned defence Counsel, strenuously argued that,
though CDR of the mobile SIM of accused No.1 Mahesh Tirki and
accused No.2 Pandu Narote were obtained by the Police, they have
been purposely suppressed. It is contended that the CDR of their
mobile phones would have exposed the foul play as the tower
locations of both of these accused would be of Gadchiroli Police
Head Quarter from 20.02.2013 to 22.02.2013. During cross-
examination, PW-11 SDPO Suhas Bawche admitted that he has
collected the CDR of the mobile SIM of accused No.1 Mahesh Tirki
and accused No.2 Pandu Narote, however, he has not filed the same
on record. We do not see any explanation from the side of the
prosecution as to why they have not filed these CDR's to demolish
apeal136 & 137.17.odt
the defence raised since the inception. True, it is not the duty of
prosecution to demolish the defence stand, however all
circumstances have to be taken together while drawing an inference.
The said circumstance denotes that more than a reasonable doubt is
created about the alleged arrest of accused Nos.1 to 3 on 22.08.2013
from the area of Aheri Bus-stand.
208. The above discussion leads us to hold that the
prosecution failed to establish by adducing reliable evidence that, on
22.08.2013, accused Nos. 1 to 3 were found in suspicious
circumstances moving near Aheri Bus-stand and the consequential
seizure of incriminating material from them. We are led to think so
on the basis of the quality of the evidence, admissions given by the
prosecution witnesses and particularly the above-noted discrepancies
highlighted by us in the process of registration of crime, seizure and
effecting arrest of accused. The defence has succeeded in creating a
reasonable doubt about the arrest of and seizure from accused Nos.
1 to 3, as alleged. In the result, the prosecution case regarding
arrest of A1 to A3 on 22.08.2013 and consequential seizure of
incriminating material is doubtful and cannot be relied upon.
apeal136 & 137.17.odt
SEIZURE FROM FACE BOOK ACCOUNT OF ACCUSED NO.3 HEM
MISHRA.
209. It is the prosecution case that screen shots and video
shooting of the Face Book account of accused No.3 Hem Mishra,
was taken on 26.08.2013 and 29.08.2013 in presence of PW-4
Shrikant Gaddewar (panch). According to the prosecution,
incriminating material was seized from the Face Book account of
accused No.3 Hem Mishra which shows his involvement with the
banned terrorist organisation CPI (Maoist) and its frontal
organisation (RDF). In order to establish the said seizure,
prosecution relied on the evidence of PW-4 Shrikant Gaddewar
and PW-11 SDPO Suhas Bawche. It has come in the evidence of
PW-11 SDPO Suhas Bawche that during interrogation on
26.08.2013, he came to know that accused No.3 Hem Mishra was
using a Face Book account. On instructions, accused No.3 Hem
Mishra has opened his Face Book account in the presence of PW-4
Shrikant Gaddewar. After opening the Face Book account, screen
shots have been taken and the entire process was video-graphed.
Related panchnama (Exh. 199) was drawn in presence of two
panch witnesses. He has clarified that in panchnama (Exh.199),
apeal136 & 137.17.odt
mistakenly the date of panchnama was mentioned as 26.09.2013
instead of 26.08.2023.
210. Further, it is his evidence that to verify the friends list
from the Face Book account of accused No.3 Hem Mishra, they have
again called panch witnesses. In the presence of accused No.1
Mahesh Tirki and accused No.2 Pandu Narote, video recording dated
26.08.2013 about the opening of the Face Book account of accused
No.3 Hem Mishra was played on 29.08.2013 and Panchnama
(Exh.200) was drawn of this process. The prosecution has examined
PW-4 Shrikant Gaddewar to that effect. He has stated that on
26.08.2013 in his presence, accused No.3 Hem Mishra, by entering
his password has opened his Face Book account. All the activities on
Face Book account including the friends list were verified by the PW-
11 SDPO Suhas Bawche and screen shots were taken. Panchnama
(Exh.199) to that effect was drawn in his presence. He deposed that
on 29.08.2013, again he was called by PW-11 SDPO Suhas Bawche
for identification of the video shooting taken during panchnama
dated 26.08.2013. CD of the video dated 26.08.2013 was played in
the presence of accused No.1 Mahesh Tirki and accused No.2 Pandu
Narote. Both of them have identified two persons from the friend
apeal136 & 137.17.odt
list of accused No.3 Hem Mishra namely Ajay Kumar and Dona
Willson. The Police have again drawn a panchnama (Exh.200) on
29.09.2013 during the identification by accused No.1 Mahesh Tirki
and accused No.2 Pandu Narote from the video shooting of the Face
Book account of accused No.3 Hem Mishra. The screen shots were
identified and marked as A/1 to A/16 for the purpose of
identification.
211. The defence has strongly criticized the said evidence by
stating that no such panchnama was drawn either on 26.08.2013 or
29.08.2013. The Police had already obtained printouts, but, made it
appear that accused No.3 Hem Mishra had opened his Facebook
account in presence of panchas and this video was seen in the
presence of accused No.1 Mahesh Tirki and accused No.2 Pandu
Narote. The learned Counsel appearing for the accused has drawn
our attention to the printouts of the screen shots article A/1 to A/16
to contend that those printouts had already been taken on
09.08.2013. We have gone through all the printouts of screen shots
and find that at the right side bottom corner, there is mention of the
time and date of taking of these screen shots. All these screen shorts
were taken on 09.08.2013 between 08.51 p.m. to 09.14 p.m. (prior
apeal136 & 137.17.odt
to arrest dated 22.08.2013) We find considerable force in the above
submissions to which there is no explanation from the prosecution.
212. Next, it is argued that in the Facebook account, if a
person is not in the friends list of the account holder then there
would be an option of "add friend" on the Facebook page. In this
regard, we have been taken through the printout as well as
admission given by PW-4 Shrikant Gaddewar who was a computer
expert. He has specifically admitted that if a person's name is not in
the friends list, then there would be an option as "add friend".
Particularly, he admits that in the screen shots, A/15 and A/16
option "add friend" appears and not the name of a friend. Perusal of
A/15 and A/16 discloses that in front of the name 'Ajay Kumar and
Dona Willson', there is a column "add friend". Thus, the said
admission falsifies the prosecution case that those two persons were
in the friends list of accused No.3 Hem Mishra. Moreover, it is not
clarified who were those two persons. This time also we could not
get any explanation from the prosecution.
213. The learned defence Counsel would submit that
according to the evidence of the prosecution, the first panchnama
apeal136 & 137.17.odt
(Exh.199) of the Facebook account was prepared on 26.08.2013,
whilst the second panchnama (Exh.200) of the viewing of the video
during opening of the account was dated 29.08.2013. These
panchnamas reveal that on the top and bottom of both panchnamas,
there is specific mention that these have been prepared on
29.09.2013. PW-11 SDPO Suhas Bawche has explained that due to
oversight, the date is wrongly mentioned. However, the said
explanation has to be tested on the above background.
214. The learned defence Counsel submitted that in the
charge sheet index at Serial No. 53 it is mentioned that Facebook
photos dated 09.08.2013 have been annexed. We have verified this
from the record which does exists. It is apparent that screen shots
were taken on 09.08.2013 (prior to arrest), however, both
panchnamas were shown to be carried out on 26.08.2013 and
29.08.2013. From these material discrepancies, we are unable to
accept the prosecution case regarding seizure of screen shots from
the Facebook account of accused No.3 Hem Mishra and panchnama
of the video shooting of the process. Though the prosecution alleges
that they have video-graphed the entire process of taking screen
shots of the Facebook account of accused No.3 Hem Mishra, the said
apeal136 & 137.17.odt
CD of video recording dated 26.09.2013 has not been brought on
record which adds to the suspicion.
SEIZURE FROM ACCUSED NO.4 PRASHANT RAHI, ACCUSED NO.5
VIJAY TIRKI AND THEIR ARREST.
215. It is the prosecution case that during interrogation of
accused No.3 Hem Mishra, it was revealed that accused No.4
Prashant Rahi was coming from Raipur and Deori to meet accused
No.5 Vijay Tirki, who under instructions of naxalite Ramdar was to
escort accused No.4 Prashant Rahi to Abuzmad forest area to meet
senior Moist Leaders. According to the prosecution, PW-11 SDPO
Suhas Bawche had passed this information to PW-14 API
Rajendrakumar Tiwari of Deori Police Station with the description
of the suspect. At the relevant time, PW-14 API Rajendrakumar
Tiwari along with driver PW-8 Yede were on patrolling duty at
Chinchgarh area, District Gondia in search of accused Pahad Singh.
On receipt of information, PW-14 API Rajendrakumar Tiwari went to
Raipur but, learn that the suspects have gone towards Deori. He
went to Deori and found that two persons (accused No.4 Prashant
Rahi and accused No.5 Vijay Tirki) were at Chichgarh T-point under
apeal136 & 137.17.odt
suspicious circumstances, so he took them into custody. PW-14 API
Rajendrakumar Tiwari brought them to Aheri Police Station and
handed them over to PW-11 SDPO Suhash Bawche. It was followed
by seizure of incriminating material and effecting arrest of both of
these accused. It is the prosecution case that from the possession of
accused No.4 Prashant Rahi, naxal documents have been seized.
216. In order to establish the arrest and seizure of accused
No.4 Prashant Rahi and accused No.5 Vijay Tirki, the prosecution
relied on the evidence of PW-8 Yede, PW-14 API Rajendrakumar
Tiwari, PW-11 SDPO Suhas Bawche and panch PW-3 Umaji
Chandankhede. Moreover, prosecution has relied on seizure
panchnama (Exh.179) of articles from accused No.4 Prashant Rahi
and seizure panchnama (Exh.180) of articles from the possession of
accused No.5 Vijay Tirki.
217. The learned Counsel for accused strongly assailed the
prosecution case on the point of arrest as well as seizure from the
possession of accused No.4 Prashant Rahi and accused No.5 Vijay
Tirki. It is the defence version that accused No.4 Prashant Rahi had
gone to Raipur in relation to Court proceeding from where he had
apeal136 & 137.17.odt
been illegally taken into custody. The defence has specifically denied
the alleged arrest at Chichgarh T-point and particularly seizure of
various articles including naxal documents. The learned defence
Counsel made a variety of submissions to discredit the entire process
of arrest followed by seizure.
218. It is the evidence of PW-14 API Rajendrakumar Tiwari
of Deori Police Station that, on 01.09.2013 he had been to
Chinchgarh in search of accused Pahad Singh relating to Crime No.
39/2011. He received a message on his mobile that suspects of
crime No. 3017/2013 registered with Aheri Police Station are in
Raipur area, so he should search and take them into custody.
Accordingly, he went to Raipur, but, learnt that the suspects had
proceeded towards Deori by a four-wheeler. PW-14 API
Rajendrakumar Tiwari came to Deori and found the suspects at
Chichgarh T-point as per description given to him. On their
examination, Maowadi and naxal literature was found in their
possession, hence, they have been taken into custody and handed
over on the following day in wee hours (02.09.2013) to Aheri Police
Station.
apeal136 & 137.17.odt
219. We have gone through the evidence of PW-11 SDPO
Suhas Bawche. It is his evidence that on 02.09.2013, PW-14 API
Rajendrakumar Tiwari brought accused No.4 Prashant Rahi and
accused No.5 Vijay Tirki at Aheri Police Station. He made
preliminary inquiry and took their personal search in the presence of
pancha witnesses. The articles seized from both of them were sealed
and handed over to the Muddemal Clerk and then arrested both
accused. His evidence is silent on what was seized from the
possession of accused No.4 Prashant Rahi and accused No.5 Vijay
Tirki. Personal search of accused No.4 Prashant Rahi and accused
No.5 Vijay Tirki was taken in the presence of panch PW-3 Umaji
Chandankhede.
220. It is the evidence of P.W.3 Umaji that on 02.09.2013,
around 05.45 p.m. he had been called by the PW-11 SDPO Suhas
Bawche. He went to the Police Station and in his presence, personal
search of accused No.4 Prashant Rahi and accused No.5 Vijay Tirki
was taken. Pertinently he has described the seized material as cash
amount of Rs. 8,800/-, visiting card, driving licence, Pan card, Yatri
Card news paper and some "other property". He has not stated
anything about the seizure of incriminating material such as naxal
apeal136 & 137.17.odt
documents. We cannot assume the term "other property" pertains to
naxal documents. As far as accused No.5 Vijay Tirki is concerned, it
is not even the prosecution case that any incriminating material has
been seized from his possession.
221. We have gone through the seizure panchnama
(Exh.179) pertaining to accused No.4 Prashant Rahi. The
panchnama bears description of the seized articles which include
papers relating to arrested naxalite Narayan Alias Vijay Alias
Prasad, so also, 8 naxal related papers stapled together. While
doubting the whole process of effecting seizure, it is primarily
argued that as to on which basis PW-14 API Rajendrakumar Tiwari
had arrested accused No.4 Prashant Rahi and accused No.5 Vijay
Tirki at Chichgarh T-point. According to the defence the
prosecution case is totally unbelievable of identifying the
passengers moving by four-wheeler to be suspects of a crime.
Moreover, none of the Police Officers including PW-14 API
Rajendrakumar Tiwari, PW-8 Yede stated the description of the
suspects received by them. It is argued that the entire process of
arrest is mysterious, hence it supports the defence version of
taking accused No.4 Prashant Rahi into custody from Raipur.
apeal136 & 137.17.odt
222. Though PW-14 API Rajendrakumar Tiwari submitted
that he received the message about the suspects to be
apprehended, however he did not say as to who has commanded
him to find the suspects. PW-11 SDPO Suhas Bawche does not
speak of passing of the message to PW-14 API Rajendrakumar
Tiwari regarding the suspects with their description. In this
scenario, the evidence of panch PW-3 Umaji Chandankhede
carries significance. He deposed that on 02.09.2013 at 5.45 p.m.
i.e. in the evening, he has been called at Aheri Police Station. In
that regard we have gone through both seizure panchnama (Exh.
179 and 180) which were drawn in between 06.15 to 06.30
O'Clock and 06.30 to 06.45 O'Clock. Pertinent to note that both
panchnamas do not state whether they were carried out in the
morning or in the evening, by mentioning "A.M." or "P.M." Arrest
panchnama discloses that both were arrested on 02.09.2013
around 07.10 O'Clock similarly without specifying A.M. or P.M.
223. The defence has produced a copy of remand order
dated 02.09.2013 showing that on that day around 03.45 p.m.,
both accused No.4 Prashant Rahi and accused No.5 Vijay Tirki
apeal136 & 137.17.odt
have been produced in the Court of Magistrate seeking Police
custody remand. Thus, it remains a mystery whether they were
actually arrested on 02.09.2013 in the early morning or in the
evening. Be that as it may, if they have been arrested in the
evening then it is difficult to believe that for 24 hours they were in
possession of the documents which were seized in the evening. If
arrest was made in the morning, then they would be in possession
of the documents overnight. PW-14 API Rajendrakumar Tiwari
states that at the time of taking them in custody on 01.09.2013,
they were in possession of Maowadi and Naxal literature, however,
PW-14 API Tiwari did not describe what documents were
possessed by them. We have noted earlier that PW-11 SDPO Suhas
Bawche has not deposed the nature of documents seized. Panch
PW-3 Umaji Chandankhede though stated the detailed description
of insignificant material i.e. cash, driving licence, Pan Card, Yatri
Card, has not deposed of seizure of Maowadi and naxal literature.
Seizure panchnama (Exh.179) merely bears a reference to papers
relating to arrested naxalite Narayan [8 pages related to naxal
movement]. Thus, neither oral evidence nor panchnama bears a
reference to the description of documents except papers relating to
apeal136 & 137.17.odt
arrested naxalite Narayan. It is argued that the prosecution has
not produced the Court paper relating to naxalite Narayan which
carries importance. The State has not responded in showing that
such papers were included in the charge-sheet.
224. Coming to the credentials of panch witness, it is in
defence that the documents have been planted by creating a scene
of effecting seizure panchnama by using regular panch i.e. panch
PW-3 Umaji Chandankhede. Panch PW-3 Umaji Chandankhede
admitted during cross-examination that he is illiterate, cannot read
or write Marathi and Hindi language. In such a scenario, it is
difficult to hold that panch was aware as to what was disclosed in
the seizure panchnama. He did not state that the contents of
panchnama were at least read over to him, and its contents were
accepted. It is noteworthy to see that this witness admitted that
he used to attend Aheri Police Station for cleaning the office
premises, as a sweeper. He has admitted that he had gone to the
Police Station on 22 to 25 occasions in the past. He admits that he
has acted as a panch of the Police on 4 to 5 occasions and more
particularly he stated that Aheri Police Station used to call him as
apeal136 & 137.17.odt
panch whenever there was a need. These admissions
unequivocally show that PW-3 Umaji Chandankhede was a stock
panch witness of the Police. He is an illiterate person and he does
not know Marathi language. Thus, it is difficult to believe that this
panch was aware of the recitals in panchnama specifying the
description of incriminating material. Besides that neither PW-3
Umaji Chandankhede nor PW-11 SDPO Suhas Bawche have stated
the description of the incriminating documents seized from the
possession of accused No.4 Prashant Rahi.
225. The defence would submit that this is a case of
planting of evidence and the Police have purposely not written a
specific time of arrest and seizure, by leaving its options open to
treat it as morning or evening. True, neither the arrest
panchnamas (Exh. 239 and 240) bears A.M. or P.M. nor both
seizure panchnamas (Exh. 179 and 180) bears such reference. In
this context, though the Police claimed to have effected seizure
and arrest in the morning on 02.09.2013, the sole panch PW-3
Umaji Chandankhede states that he went to the Police Station on
02.09.2013 in the evening. Therefore, possibility of preparing
apeal136 & 137.17.odt
these documents in the evening, after Police remand, cannot be
ruled out.
226. Strikingly, as per the prosecution case on 01.09.2013,
in the evening both were taken into custody from Chichgarh T-
point, however, the search and seizure was not effected at the said
place. Since panchnama was executed on the following day, it is
difficult to believe that both arrested accused kept the
incriminating material intact with them, which was seized later.
Though the Investigating Officer is not obliged to disclose the
source of information, however, PW-14 API Rajendrakumar Tiwari
ought to have said who has asked him to apprehend suspect and
what was the description. The suspicion is further raised since
PW-11 SDPO Suhas Bawche was silent about this aspect. Thus,
the entire process of arrest of and seizure from accused No.4
Prashant Rahi and accused No.5 Vijay Tirki is not free from doubt.
Hence, we are not inclined to rely on this evidence.
HOUSE SEARCH AND SEIZURE FROM A6- SAIBABA.
227. It is the prosecutions case that in pursuance of search
warrant issued by the Judicial Magistrate First Class, Aheri dated
apeal136 & 137.17.odt
07.09.2013, the Police carried out a house search of accused No.6
G.N. Saibaba on 12.09.2013. During the search, the Police have
seized incriminating material in the form of electronic gadgets
which were seized under a panchnama in presence of panch
witnesses. The defence has seriously challenged the entire process
of seizure claiming the same to be illegal and planted. Defence
alleges manipulation in the seizure of incriminating articles from
the house of accused No.6 G.N. Saibaba. Infact it is the primary
duty of the prosecution to establish the case of seizure.
228. The prosecution has relied on the evidence of PW-10
PI Anil Badgujar, PW-11 SDPO Suhas Bawche, PW-2 Jagat Bhole
(Panch) and related documents. It is the evidence of PW-10 PI
Anil Badgujar that after the complicity of accused No.6 G.N.
Saibaba was revealed, they had obtained search warrant from
Judicial Magistrate First Class, Aheri and with the help of Delhi
Police, seized incriminating material from the house of accused
No.6 G.N. Saibaba on 12.09.2013. He deposed that the seizure
was made in the presence of accused No.6 G.N. Saibaba and panch
apeal136 & 137.17.odt
witness. Seizure panchnama was drawn by PW-11 SDPO Suhas
Bawche.
229. Evidence of PW-11 SDPO Suhas Bawche carries
importance since he has conducted the entire process of the raid
and consequential seizure. It is his evidence that on receipt of the
search warrant, he went to Delhi on 09.09.2013 along with a
Police team. He has contacted Moris Nagar Police Station at
Delhi. He has issued a requisition letter to the Police of Moris
Nagar for providing Police staff, computer expert and videographer
for the process of search and seizure. In response, Moris Nagar
Police provided police staff, computer expert and videographer for
effecting search.
230. It is in the evidence of PW-11 SDPO Suhas Bawche
that on 12.09.2013 in the afternoon, they went to the house of
accused No.6 G.N. Saibaba, situated in the campus of Delhi
University. They have shown the search warrant to accused No.6
G.N. Saibaba and obtained his signature. The purpose of their
visit was explained, as well as the Police offered their personal
search, to which accused No.6 G.N. Saibaba declined. The Police
apeal136 & 137.17.odt
carried a thorough search of the house of accused No.6 G.N.
Saibaba. During the search, they have collected six CDs, 24 DVDs,
3 Pen-drives, 32 GB memory card, five hard disks, Lap-top, Blue-
tooth, three mobiles, 2 SIM cards, documents related to naxal
literature (book, magazines, printed material, photograph of lady
naxal) etc. The electronic devices were sealed in one plastic box.
Lap-top was sealed in a separate packet and printed material was
seized in 3 separate packets. All articles were sealed with a label
and signature of panchas. The copy of the panchnama was given
to accused No.6 G.N. Saibaba and his signature was obtained. PW-
11 SDPO Suhas Bawche deposed that the entire process of seizure
and drawing of panchnama was videographed through a
videographer provided by Moris Nagar Police Station. He stated
that during the process, memory capacity of the video camera
went full, hence the Police staff took further video recordings on
their mobile phone which was later on stored and then transferred
to a CD. Thereafter, the entire raiding party returned to Aheri
Police Station on the following day i.e. on 13.09.2013 and
deposited the entire seized property with the Muddemal Clerk of
Aheri Police Station as well as station diary entry was effected.
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231. It is evident from the line of cross-examination that
the process of seizure of incriminating material itself is doubtful,
fake and fabricated. The submission on the question of power of
search and seizure, as well as questions of chain and safe custody
of seized articles are dealt with separately. We have scrutinized
the entire material to see whether the prosecution evidence
regarding seizure of incriminating material is reliable. The said
aspect is of great significance, since the entire prosecution is based
only on seizure.
232. In order to vouch for the credibility of the seizure, the
prosecution relied on the evidence of panch witness PW-2 Jagat
Bhole. It is his evidence that on 12.09.2013, around 2.45 p.m.
while he was at his barber shop situated near Delhi University
campus, he was called by the Police to act as panch. Accordingly,
he has accompanied Delhi and Maharashtra Police to the house of
accused No.6 G.N. Saibaba situated at Delhi University campus.
The Police started recording the process of search and seizure on a
video camera. During the house search, 25 to 30 CDs, Laptop, 4 to
5 Pen-drives, 4 to 5 hard disk, 5 to 6 books were found in a drawer
of a wooden table. The Police sealed all this material in his
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presence and drew a panchnama to that effect. Panchnama
(Exh.165) was read over to him, on which he has signed. All
seized articles have been identified by PW-2 Jagat Bhole.
233. Since the process of search and seizure is under
challenge, we have carefully gone through the cross-examination
of these witnesses. Though PW-2 Jagat Bhole stated that all the
articles have been sealed, he admits that the labels affixed on the
articles do not bear his signature. It is not the prosecution case
that the articles have been sealed with wax. We have gone
through the seizure panchnama (Exh.165) drawn on the date of
seizure. The entire panchnama does not bear reference to the fact
that articles were sealed with wax seal or even with labels
containing signatures of the panch. We only find a reference that
the panchnama was carried out on 12.09.2013 between 03.00
p.m. to 05.45 p.m. and all articles were taken in custody by the
Police for the purpose of investigation. Thus, the first infirmity is
about securing the seized material by proper sealing and labelling.
234. The learned special prosecutor would submit that
accused No.6 G.N. Saibaba has signed on the seizure panchnama
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and the same has been shown to us. True, accused No.6 G.N.
Saibaba has not denied his signature. However, the entire process
shows that a huge batch of 25 to 50 Police barged in for the raid
and at that time his signature was obtained. Merely because he
has signed the panchnama, it does not mean that the seizure was
legal and valid as required under the law. At the most, it can only
be inferred that the copy of seizure panchnama was provided to
accused No.6 G.N. Saibaba and nothing beyond that.
236. The defence has seriously challenged the credibility of
panch witness. It is submitted that this witness was a poor
illiterate barber who has signed on the panchnama and deposed in
Court under pressure of the Police. According to the defence, he
was not present at the time of panchnama, but he was tutored by
the Police. It is interesting to go through the cross-examination of
panch PW-2 Jagat Bhole. He is running a barber shop situated
outside the campus of Delhi University. It has come in his
evidence that he cannot read or write any language except to sign
in the English language. He is an illiterate person. He has
requested the Police for taking another panch as he is illiterate,
however, the Police insisted him to act as a panch. It has come in
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his evidence that thousands of students and professors were
available in the vicinity to act as a panch. It is his evidence that
when they went to the house of the accused No.6 G.N. Saibaba,
several students and professors had gathered near the house of
accused No.6 G.N. Saibaba.
237. Panch PW2 Jagat Bhole admitted that at the relevant
time, accused No.6 G.N. Saibaba requested the police that the search
should be taken in the presence of professors or his Advocate.
Particularly, he admits that at the time of house search, he himself
and accused No.6 G.N. Saibaba were kept by locking the door within
and the Police carried out the process of search. He stated that the
Police did not allow anyone to enter into the house of accused No.6
G.N. Saibaba during the search. Though the prosecution argued that
this is a vague admission, in the context of nature of his evidence,
we are unable to overlook this vital admission by merely assuming it
to be an oversight admission. This witness has in so many words
stated that he is totally illiterate and he should not be taken as
panch on account of his illiteracy. Moreover, he stated that near
about 20 to 25 Delhi Police and equal number of Maharashtra Police
went inside the house of the accused No.6 G.N. Saibaba and by
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locking the door carried searches. He stated in particular that he
himself and accused No.6 G.N. Saibaba were kept out of the house.
These specific admissions speak volumes about the credibility of the
process of entire search and seizure.
238. It has come in the evidence of PW-2 Jagat Bhole that he
does not know the difference between CD and DVD, or difference
between Pen-drive and blue-tooth, or between a CD Drive and DVD
Drive. He also states that he does not know what is meant by hard
disk. In the context of these admissions, coupled with being
admittedly illiterate, his deposition as to identification of articles will
have to be assessed. All seized articles which are about 40 to 50 in
number, particularly, electronic gadgets have been shown to the
witness during his evidence. Most of the electronic gadgets were
shown to him by reference to the company specification, writing on
the CDs and DVDs in English language etc. which he claimed to
identify. Since this witness was totally illiterate, we deem the said
exercise in futility. It can be easily inferred that the prosecution has
shown articles one by one, read whatever is printed on the electronic
gadgets in English Language, on which the illiterate panch has
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merely nodded his acceptance of identification. In true sense, this
long exercise does not convince us to hold that the witness has
identified the seized material. He does not know how to read the
English language, but is also digitally illiterate and thus, it is difficult
to hold that this witness has identified the articles claimed to be
seized during the house search. In any event, details and
descriptions of these articles are not specified by colour, unique ID
number or container on the panchnama.
238. It is the prosecution case that before proceeding to the
targeted house of accused No.6 G.N. Saibaba, the Maharashtra
Police went to Maurice Nagar Police Station who had provided
additional Police force with technician, photographer etc. The high
ranking Police Officers including ACP Meena, SDPO Suhas Bawche,
PI Anil Badgujar, along with the officers of Delhi Police were on this
mission. The Police team was equipped with a computer expert and
videographer. It assumes significance that it was a pre-planned raid
with participation of high ranking Police Officers. Despite that,
surprisingly one illiterate witness, a barber by profession was chosen
as panch. This is not a case of the Police accidentally catching a
suspect, and then taking his search. In such a case, one can
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understand the propriety and paucity of time in choosing a panch
witness. We reiterate that it was a very well planned raid that too
under the stringent statute like UAPA, being a joint venture of two
police forces led by high ranking police officers. Despite this, they
chose an illiterate barber as panch over a large number of potential
witnesses available in the housing complex of the University campus
where the raid took place. Surely, several highly educated witnesses
would be available. The entire search is therefore not free from
suspicion. True, a panch can be any one, however considering the
propriety of the whole matter and involvement of high ranking
Police officers, it is difficult to accept that the choice of panch is
natural one, especially for a case as under UAPA which was so
sensitive.
239. Notably, PW-2 Panch Jagat Bhole requested the Police to
choose someone literate as a panch as he could neither read or
write. Still the wisdom of high ranking Police officers did not prevail,
strangely insisted only he should act as a panch which has created
grave doubt in our mind. It is not a case that panchas were not
available. It was in broad daylight, a pre-planned raid in Delhi
apeal136 & 137.17.odt
University campus, wherein thousand of people were available;
however, police acted as if this were a hobson's choice. The search
commenced in a planned manner under requisition, the Maharashtra
Police asked Maurice Nagar Police to provide a photographer,
computer expert and Police staff for the raid. In all fairness, they
could have also requested them to look for someone as an
independent panch witness, but, they did not. Having regard to
such colourable exercise coupled with the clear admission of the
panch that the seizure was a close door affair by keeping the panch
and accused No.6 G.N. Saibaba out of the premises, does not allow
us to accept the genuineness of seizure keeping all this material at
bay. The suspicion has been further aggravated because the seizure
panchnama (Exh.165) does not bear a reference to either the articles
which were sealed with wax or with label with pancha's signature.
The evidence of the panch also states that the label containing his
signature was not affixed on the articles. This circumstance further
raises a suspicion about the genuineness of the raid.
240. Strikingly, the raiding party, though was well equipped
with computer expert/technical expert still neither hash value of the
electronic gadgets was drawn nor the description of the devices was
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incorporated in seizure panchnama. Again, we say that it was a
planned raid conducted by high ranking Police Officers equipped
with computer expert, however, electronic devices have not been
secured at all. In order to secure the devices found, hash value
could have been easily drawn on the spot. Moreover, mirroring of
the contents would have been taken in panchnama, which was not
done. Apart from hash value, unique identification number of the
hard disk and electronic gadgets have not been recorded in
panchnama to vouch for its credibility. The description of the
electronic gadgets in the nature of outer appearance, cover, serial
number, or some other factors, which could have been easily
incorporated in the panchnama with the help of experts, have not
been done. The seizure was like an ordinary articles of crime.
241. Moreover, the defence has drawn our attention to the
evidence of PW-2 Jagat Bhole to establish that he was wholly under
the police influence even at the time of recording his evidence. We
have re-visited the evidence of PW-2 Jagat Bhole who stated that
on 03.01.2016, he came from Delhi to Gadchiroli for leading
evidence. The Trial Court has recorded his evidence on 06.01.2016
and 16.01.2016. He stated that after reaching Gadchiroli, he has
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halted at one place at Gadchiroli which he cannot remember.
However, he admits that it was a Police guest house. When the
learned APP has alerted the witness, he denied that it was a Police
guest house. It has also come in his evidence that the second panch
Umar also came with him from Delhi, but the prosecution did not
choose to examine him, which is a matter to be noted. During cross-
examination, it has amply come on record that PW-2 Jagat Bhole
was illiterate and during search he was kept away.
[ 242. It has come in the evidence of Investigating Officer PW-
11 SDPO Suhas Bawche that accused No.6 G.N. Saibaba gave in
writing that the search should be conducted in presence of
professors and his advocate, but, no heed was paid to this request.
The Investigating Officer has explained that said letter was given
after completion of the house search. However, it is evident that
before search such request was made, but, was neglected, hence
written application. No doubt, accused has no choice of panch
witness, but, his objection appears to be to the unreliable nature of
the panch who was illiterate.
243. It is the prosecution's case that the entire process of
seizure and search was video-graphed by officers from Maurice
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Nagar Police Station Delhi. PW-11 SDPO Suhas Bawche stated in his
evidence that the videography was done through a photographer
provided by Maurice Nagar Police Station. While carrying out the
panchnama, the memory of the card in the video camera became
full, hence the Police staff made video recording of the panchnama
on their mobile. He deposed that after returning, the video shooting
taken by Aheri Police on mobile was stored and saved on a computer
and a CD was prepared. PW-11 SDPO Suhas Bawche stated that
repeatedly they sent requisition to the Maurice Nagar Police Station
to provide the video recording done by their videographer, but, the
Police avoided their request. Admittedly, no such written requisition
was sent to the Maurice Nagar Police Station was produced in
evidence. Besides that video recording on mobile phone though
allegedly done, was not tendered in the course of trial. Moreover,
there is no mention in seizure panchnama (Exh.165), that the entire
process was video-graphed. In the context of the admission that
during the search, the panch and accused No.6 G.N. Sabiaba were
kept out of the house, absence of the video recording carries
importance, and creates doubt. During the course of the arguments,
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we sought a copy of this videography even though not produced in
evidence, but the same was not forthcoming.
244. It is the prosecution's case that on 04.09.2013, they
have applied to the Judicial Magistrate First Class, Aheri for issuance
of search warrant. In-turn, the learned Magistrate has issued search
warrant (Exh. 244) on 07.09.2013, on the basis of which, the search
was conducted. The defence has drawn our attracted to the extract
of the case diary (page 593) of Aheri Police Station dated
13.09.2013. The case diary bears a reference to the fact that the
Investigating Officer met the Additional Commissioner of Police on
11.09.2013 with a warrant, seeking his assistance, however the then
Police asked him to bring a specific search warrant under Section 93
of the Code. It is stated that thereafter, search warrant under
Section 93 of the Code was procured for that process. In that
context, there is no evidence of the Investigating Officer about
obtaining search warrant under Section 93 of the Code. Rather
letter dated 12.09.2013 issued by the Investigating Officer (Exh.252)
shows that while seeking assistance of the Police, a search warrant
issued by the Judicial Magistrate First Class, Aheri dated 07.09.2013
was produced. There is no record to indicate that a fresh search
apeal136 & 137.17.odt
warrant particularly under Section 93 of the Code was obtained. We
have gone through the search warrant (Exh.244) which was issued
by the Magistrate jointly under Sections 93 and 94 of the Code.
245. There is marked distinction between the search warrant
under Section 93 and under Section 94 of the Code. Warrant under
Section 93 of the Code pertains to the production of documents or
other things which are necessary for the purpose of investigation and
which the Court believes that a person despite summons would not
produce the same. However, warrant under Section 94 of the Code
relates to a search of a place suspected to contain stolen property or
forged documents. We have examined the search warrant (Exh.244)
though captioned as search warrant under Sections 93 and 94 of the
Code, however it is in the Form No.11 of the Second Schedule of the
Code under Section 94 relating to seizure of stolen property. The
prosecution has not explained whether warrant under Section 93 of
the Code was obtained, though it may not be essential, in view of
the specific powers of search and seizure provided under the UAPA.
246. It appears that the Police under assumption of necessity
to have a search warrant from a Magistrate have obtained the
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warrant which was issued with a specific rider (as per format), that
the property seized shall be forthwith brought before the Court on
return of warrant. In this regard, admittedly no such compliance
was done, but, only a report dated 13.09.2013 (Exh.258) was made
to the Magistrate along with the list of seized articles without its
production. Be that as it may, even according to the prosecution
case, they did not comply with the conditions of warrant which,
otherwise, according to us, is not required in the context of the
special provisions made under the UAPA in that regard.
247. In substance, the entire process of search and seizure
from the house of accused No.6 G.N. Saibaba is doubtful. We
reiterate the importance of the seizure because the whole
prosecution depends on the said search and seizure. Despite a pre-
planned raid by High Ranking Police Officers, an illiterate panch was
used, though he resisted. During the process of search, the panch
was kept out of the searched premises. Though the entire process
was videographed the said material is not proved nor was the other
panch examined. Panchnama does not bear reference to sealing and
labeling of seized articles. In that view of the matter and for these
reasons, we hold that prosecution has failed to prove seizure and
apeal136 & 137.17.odt
search of incriminating material from the house search of accused
No.6 Saibaba by leading credible evidence.
248. The learned special prosecutor relying on the decisions
in Anter Singh57, Mallikarjun58 and Rameshbhai Mohanbhai Koli59
submits that there is no difficulty in relying on the seizure by
accepting the evidence of the Investigating Officer dehors hostility of
panch witness. In the above quoted cases, principally it has been
ruled that if the evidence of the Investigating Officer regarding
seizure is convincing, that evidence cannot be rejected solely on the
ground that the panch witnesses did not support the prosecution
version.
249. It is fairly well settled that the evidence of the
Investigating Officer can be relied upon to prove the recovery even
if the panch witness turns hostile. In other words, the evidence of
the Investigating Officer about seizure, if it does not suffer from
any infirmity or doubt, the hostility of panch would be
inconsequential. It is an usual phenomenon that in criminal cases
often panchas resile from the facts in the signed panchnama for a
57.Anter Singh Vs. State of Rajasthan, (2004) 10 SCC 657,
58.Mallikarjun and others Vs. State of Karnataka, (2019) 8 SCC 359
59.Rameshbhai Mohanbhai Koli Vs. State of Gujarat, (2011) 11 SCC 111
apeal136 & 137.17.odt
variety of reasons. Certainly the hostile tendency of panchas
would not handicap the prosecution. Criminal law does not offer a
driving seat to the panch witness, though it depends upon the
credibility of the evidence of the Investigating Officer and if it
stands upto judicial scrutiny, it can be very well accepted.
250. This is a case having its own peculiarity. Generally in
criminal cases, the seizure of articles are mostly used as a piece of
corroborative evidence to substantiate the evidence led through
other sources. In the case at hand, the entire prosecution case is
based upon three different seizures and nothing beyond that. The
prosecution has built a case of commission of offence under the
UAPA only on the basis of seizures. Thus, the seizure being the very
foundation of prosecution, it must pass the test of reliability.
Pertinent to note that in the above referred decisions, the panch
witnesses have not supported the prosecution case which is not the
case in this matter. Three independent panch witnesses namely PW-
1 Santosh Bawne (Panch for the first seizure dated 22.08.2013 from
accused Nos. 1 to 3), PW-3 Umaji Chandankhede (panch for the
second seizure dated 02.09.2013 from accused No.4 Prashant Rahi
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and accused No.5 Vijay Tirki) and witness PW-2 Jagat Bhole (panch
for the third seizure dated 12.09.2013 from accused No.6 G.N.
Saibaba) have supported the prosecution case. None of the
witnesses was declared hostile to claim the exception. These
witnesses have supported the prosecution case, however several
admissions given by these witnesses has created substantial doubt
about the entire process of seizure. We cannot wash of vital
admissions and the character of those panchas with the aid of
certain general propositions which have been led in above referred
cases. Rather in criminal cases, cross-examination is the only
effective weapon in the armory of defence to impeach the credibility
of prosecution witnesses. Admissions given by these witnesses made
us to hold that they are not natural, responsible and reliable
witnesses. They are in fact regular stock witnesses of the Police and
that too illiterate used by the Police to prove the seizure which we
do not accept for the reasons stated earlier.
CORROBORATIVE EVIDENCE OF PW-9 ATRAM.
251. This takes us to the evidence of one more prosecution
witness PW-9 Atram. His evidence is led to impress that accused
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No.1 Mahesh Tirki and accused No.2 Pandu Narote were involved in
the terrorist activities. It is his evidence that he was acquainted with
both of them. In the year 2013, accused No.2 Pandu Narote came to
him informing that naxalite lady Narmadakka called him.
Accordingly, he went to the Todalgatta forest area with accused No.2
Pandu Narote to meet this naxalite lady Narmadakka. He was
accompanied with accused No.1 Mahesh Tirki and accused No.2
Pandu Narote. The naxalite lady Nambadakka gave him a sum of
Rs.5 lakhs and asked him to give it to A1- Mahesh and A2-Pandu at
Ballarsha Railway Station. On 27.05.2013, he has been asked by
accused No.1 Mahesh Tirki and accused No.2 Pandu Narote to come
to Balarsha Railway Station along with the money. Accordingly, on
29.05.2013, he reached Ballarsha Railway Station, where accused
No.1 Mahesh Tirki and accused No.2 Pandu Narote were present.
He deposed that two unknown persons came therewith whom
accused No.2 Pandu Narote talked and took money from him and
handed over the money to one of them.
252. This is the only evidence of this witness stating that at the
behest of naxalite lady Narmadakka, he has handed over money to
one unknown person at Ballarsha Railway Station through accused
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No.1 Mahesh Tirki and accused No.2 Pandu Narote. It is pertinent to
note that accused were not charged for the offence punishable under
Section 17 of the UAPA for raising or providing fund for terrorist act.
The endevour was to show the nexus of accused No.1 Mahesh Tirki,
accused No.2 Pandu Narote with the naxalite lady Narmadakka and
their activities of sending money.
253. The defence has strongly assailed the evidence of this
witness by stating that his evidence is that of an accomplice.
According to the defence, if he was involved in the act of facilitating
terrorism or he was associated with some terrorists, he ought to have
been made accused in the crime. It is argued that according to the
prosecution case, this witness has assisted the co-accused and
therefore, he is not an independent truthful witness worthy to be
believed. The evidence of this witness is very general and vague. It
is not the prosecution case that accused No.1 Mahesh Tirki and
accused No.2 Pandu Narote have provided finance to a particular
person that too for the purpose of terrorist activities. Besides his
evidence, there is no link evidence as to whom accused No.1 Mahesh
Tirki and accused No.2 Pandu Narote have paid the sum. It is not
made clear as to who is naxalite lady Narmadakka. Moreover, this
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witness has been stated to have assisted the accused of this crime
and therefore, it is not safe to rely on his version without
corroboration. Considering the nature of his vague statement, it is
of no assistance to the prosecution to prove any particular act.
JUDICIAL CONFESSION.
254. This takes us to considering another piece of evidence
pertaining to confessional statements allegedly given by A1-Mahesh
and A2 Pandu. It is the prosecution case that both of them have
voluntarily shown their willingness to give a confession. In turn,
they were produced before the Magistrate who after completing the
statutory formalities recorded their confessional statements,
supporting the prosecution case. The learned Special Prosecutor
would submit that the evidence of PW 12- Mr. Vyas [Magistrate]
coupled with confessional statements [Exhs.280 and 286] unerringly
points towards the active participation of both of them in the act of
terror. It is submitted that the confession of the accused recorded
by the Magistrate after ensuring the same to be voluntary can be
accepted as the best piece of evidence in support of the prosecution
case.
apeal136 & 137.17.odt
255. Section 164 of the Code makes a confession made before a
Magistrate admissible in evidence. The manner in which such
confession is to be recorded by the Magistrate is provided in the
section itself. The said provision inter alia seeks to protect the
accused from making a confession under influence, threat or
promise from a person in authority. Before we examine the legal
implication with regard to recording of judicial confession we may
turn to the factual aspect since on the basis of facts, a call has to be
taken as to whether the confession was truthful, voluntary and free
from doubt. PW 12- Mr. Vyas, Magistrate has been examined on the
point of recording of confession. It is his evidence, that on
02.09.2013, the investigating officer applied for recording
confessional statements of A1-Mahesh and A2 Pandu. On that day
though both were willing to make confessional statements, however,
the Magistrate gave them two days time for retraction and called on
04.09.2013. It is the evidence of Mr. Vyas, that again on
04.09.2013, both the accused were brought by the police for
recording confession. The Magistrate once again put several
questions with a bid to ascertain the voluntary nature of the
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confession and still thought it fit to give some more time for
retraction.
256. In turn on 06.09.2013 A1-Mahesh was again produced
before the Magistrate for recording confessional statement. The
learned Magistrate has put him several questions to ascertaining his
voluntariness, on satisfaction recorded his confessional statement
[Exh.280]. The Magistrate gave necessary certification [Exh.281 to
283], stating the voluntary nature of accused and his own
satisfaction about this aspect. Further it has come in the evidence of
PW 12 Mr. Vyas, that on 08.09.2013 A2 Pandu was brought for
recording confessional statement. The Magistrate has asked him
several questions and on satisfaction, recorded his statement
[Exh.286] and certified at Exh.287 to 289 it was voluntary,
truthfulness and to his satisfaction. Record indicates that the
Magistrate has complied with the legal requirement that disclosure
to the accused that his is a Magistrate, the accused is not bound to
give a statement, but, if given it will be used against him. The
Magistrate also enquired whether both accused were threatened,
allured or promised by the police or any one else. The Magistrate
also ensured that the accused were not brought from the police
apeal136 & 137.17.odt
custody and also explained that even if they refuse to give
statements, they would not be kept in police custody. The
Magistrate asked the reason for making the confession, to which
both stated that because they have committed wrong, they are giving
a statement.
257. A1-Mahesh has stated in his statement that he is resident
of Murewada, Taluq Etapalli, District Gadchiroli and was doing
painting work. He stated that generally naxalites used to visit
Murewada and compel the villagers to give help. One naxalite lady
named Narmadakka called him and stated that he should go to
Ballarsha Railway Station with A-2 Pandu and receive two persons.
He was also informed about the appearance of those persons along
with a sign for identification with a nickname. Accordingly on
27.05.2013 he went to Ballarsha railway station with A2- Pandu,
received a person as per description given to him and then the said
person left with A2 - Pandu towards Morewada. A1 Mahesh
remained at the railway station. On the following day i.e.
29.05.2013, one Raju Atram PW9, came to the railway station with
Rs.5 lakhs, which they handed over to a fellow who came from
Delhi.
apeal136 & 137.17.odt
258. A1- Mahesh stated that on 14.08.2013, he was asked by
the naxalite lady Narmadakka to receive one person at Ballarsha
railway station on 20 or 22 August, 2013 along with A-2 Pandu.
Similarly the sign language and specific marks have been informed.
Accordingly A1 Mahesh along with A2 Pandu went to Ballarsha
railway station in the morning. Around 9.45 a.m. The said person
came and on matching the identity mark and sign all three came to
Aheri by bus. After alighting from bus they were talking with each
other at the side of bus stand from where the police apprehended
them and took them to Aheri police station.
259. It is the evidence of PW 12 Vyas [Magistrate] that on
08.09.2013 A2-Pandu was produced for recording confession. He
has put all preliminary questions for ensuring the voluntary nature
of his statement and on satisfaction recorded the confessional
statement of A2-Pandu [Exh.286] on the very day. It is the
statement of A2- Pandu that he is also resident of Morewada, Taluq
Etapalli, District Gadchiroli. Once he was called by Narmadakka
along with A1-Mahesh. They were asked to receive a person coming
from Delhi on 28.05.2013. Accordingly after matching the sign, he
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escorted the said person. He stated that A1 - Mahesh stayed back at
Ballarsha station, as he was assigned the job of handing over Rs.5
lakhs to a person coming from Delhi. He stated that around
15.08.2013, A1-Mahesh came to him conveying that naxalite lady
Narmadakka has called him. Both of them went to the said lady, and
they were informed that one person is coming from Delhi on 20 or
22 August, and both shall receive him at Ballarsha railway station
and safely escort him. Accordingly on 22 nd August both of them
went to Ballarsha railway station. Around 10 a.m. one person met
them who was possessing articles like a cap, newspaper, spectacle
cover, which matched the description. After verifying the identity
through a code name, both of them brought him to Aheri bus stand
and while they were standing at the side of bus stand, the police
apprehended and brought them to police station Aheri.
260. A confession ordinarily is admissible in evidence if it is
relevant, subject to its voluntariness. Section 164 of the Code cast a
statutory duty on the Magistrate to ensure about voluntariness in
strict sense. Considering the guarantee enshrined under Article
20[3] of the Constitution of India, the evidence of confession needs
to be seen cautiously and even more cautiously if the confession is
apeal136 & 137.17.odt
retracted. Both the accused have filed a joint application [Exh.292]
on 27.09.2013 retracting the confessions recorded on 06.09.2013
and 08.09.2013 respectively. It is relevant to note the contents of
said application by which both the accused to retracting the
confession urged the Magistrate to discard the same.
261. In the said application [Exh.292], accused have stated that
on 23.08.2013 they have been produced before the Magistrate who
has remanded them to police custody for 10 days i.e. upto
02.09.2013. In the said application they have explained that they
had been kept in illegal custody for 2 days preceding 22.08.2013. It
is stated that during the period of police custody i.e. from
23.08.2013 to 02.09.2013, the police have beaten them mercilessly.
The police have also mentally tortured them due to which they were
in deep terror of police. It is stated that the police threatened that
they would also implicate relatives of the accused in the crime. The
police assured them if they give a confessional statement, they
would not be implicated and if tried, they would not be punished.
The police also threatened to cause destruction of their property
and family. It is stated that on 06.09.2013 and 08.09.2013 while
taking them to the Magistrate from jail, the police initially took them
apeal136 & 137.17.odt
to Aheri Police Station where they have been tutored for giving a
statement. They were threatened by the Aheri police and escort
party. Finally they stated that whatever statement they gave was
false and was given under police pressure, and it should not be acted
upon.
262. Generally confession can be acted upon if the Court is
satisfied that it is voluntary and true. The voluntary nature of the
confession depends upon whether there was any threat or
inducement. Trustworthiness is to be judged in the context of the
entire prosecution case, because the confession must fit into the
proved facts and shall not run contrary to them. Retracted
confession however, stands on a slightly different footing. There is
no embargo on the court to take into account the retracted
confession but, the Court must look for the reasons for making of
confession, as well as its retraction. The Court may act upon the
confession made voluntarily, but, in case of retraction the general
assurance about its voluntary nature has to be ascertained. The
value of retracted confession is well known. The Court must be
satisfied that the confession at the first instance is true and
apeal136 & 137.17.odt
voluntary. The stage of retraction also matters while appreciating
the voluntariness and truthfulness.
263. It is the prosecution case that both A-1 and A2 were
arrested on 22.08.2013 and remanded to police custody for 10 days
i.e. till 02.09.2013, on which they were sent to judicial custody.
Both were produced before the Magistrate for recording confession
on 04.09.2013 i.e. while in judicial custody, but, the Magistrate gave
time for retraction, which led the police to produce A1 Mahesh on
06.09.2013 and A2 Pandu on 08.09.2013 for recording confession.
It is revealed from the evidence of P.W.12 Mr. Vyas [Magistrate], that
the accused persons [A1 Mahesh and A2 Pandu] were produced on
02.09.2013 when they were remanded to Magisterial custody. It is
not in dispute that the Magistrate has remanded them to police
custody for 10 days on 23.08.2013, meaning thereby till 02.09.2013
they were in police custody and have been produced before the
Magistrate, who sent them to judicial custody.
264. The evidence of Magistrate [PW-12] discloses that on
02.09.2013 itself the investigating officer filed an application for
recording confessional statement of both the accused. The
apeal136 & 137.17.odt
Magistrate stated that immediately he informed both the accused
about such application, and inquired whether they desire to make a
confession. However, it emerges that when the application was
moved to the Magistrate, both the accused were continuously in
police custody and no sooner they were brought to the Court from
police custody on 02.09.2013, an application for recording
confession was moved. It is apparent that the accused were not in
judicial custody, but, they were in police custody when the
application was moved. It is further revealed that the Magistrate
had interacted with both of them in the Court which accentuates
that both had not yet been sent to judicial custody. At that time the
investigating officer has pressed for recording their confession.
Therefore, it can safely be said that the accused were in continuous
10 days police custody when they allegedly expressed their
willingness to make a confession, which is one of the factors for
consideration.
265. Both the accused in their retraction application [Exh.292]
dated 27.09.2013 stated the reasons for delayed retraction. It is
explained that after 08.09.2013 [date of confession of A2], the next
date for production was 24.09.2013, meaning thereby they had no
apeal136 & 137.17.odt
opportunity in the meantime to put their grievance. The accused
stated that in the meantime they decided to write an application for
retraction, however, they were threatened. We have gone through
the evidence of PW 12 Vyas [Magistrate], who admitted that on
24.09.2013 accused A1 Mahesh has disclosed to him that he was
threatened by the police to make a confession, but, the Magistrate
did nothing. It shows that even before filing of the retraction
application dated 27.09.2013 on first occasion when the accused got
a chance to come to the Court for remand. A-1 Mahesh has
disclosed to the Magistrate about threats given by the police for
giving a confessional statement. The entire chain of events discloses
that before expressing to give confession, for 10 days the accused
were continuously in police custody and even after confession as and
when they got the opportunity they have retracted the confession.
266. In the background that the accused were in long police
custody before expressing willingness and its retraction on the first
possible opportunity, the value of confession is to be assessed. The
issue of evidentiary standard is a very delicate one and has a great
bearing on the outcome of the case. The confession is one element
of consideration of all the facts proved in the case, as it can be put
apeal136 & 137.17.odt
into the scale and weighed with other evidence. If the confession is
retracted, the probe requires to be deeper to satisfy its truthfulness.
No doubt the Magistrate has complied with the legal requirement,
but, the question is whether confession is made under torture,
threat, promise, if so it is inadmissible.
267. It is the prosecution case that the accused [A1 and A2]
were arrested from Aheri bus stand on 22.08.2013 around 6.15 p.m.
It is the evidence of P.W.6-API Awhad, that they were keeping
surveillance on the movement of A1 Mahesh and A2 Pandu. On
22.08.2013 around 6 p.m. both of them were found standing at a
secluded place near Aheri bus stand. After 15 minutes, around 6.15
p.m. one person wearing a cap arrived, after which they started to
talk with each other. On suspicion API Awhad took them into
custody. We have gone through both the confessional statements
[Exhs.280 and 286]. Both of them stated a different story that on
that day in the morning they went to Ballarsha railway station from
where they received a person who had earlier been described to
them. All three returned by bus to Aheri bus stand, and no sooner
they alighted from the bus and were talking, they were apprehended
apeal136 & 137.17.odt
by the police. The said narration in the confessional statement
contradicts the prosecution case that A1 and A2 went to Aheri bus
stand to receive some one and after waiting for 15 minutes, a third
person came and thereafter they were arrested.
268. Both of them have stated a past incident of receiving some
one in the month of May at Ballarsha station and handing over a
sum of Rs.5 lakhs on the following day to someone else. These
instances are without specification. It is not the prosecution case as
to whom both of them had received at Ballarsha railway station and
as to whom they have handed over the cash amount. Thus, part of
the said statement lends no assistance to the prosecution. Besides a
general and vague statement, that they were acting on the
instructions of one naxalite lady Narmadakka, nothing can be culled
out from this part of their narration. Both have stated that either on
20.08.2013 or 22.08.2013, they went to Ballarsha and then followed
their arrest at Aheri bus stand. However, as we have mentioned
hereinabove, there is a strong possibility of both of them having
been taken into custody on 20.08.2013 itself. Moreover, in the
application for retraction dated 27.09.2013, itself it is stated that
apeal136 & 137.17.odt
they have been taken into custody on 20.08.2013. Thus, the
confessional statement given by them does not match with their own
stand.
269. Reading the confession as a whole besides past instances,
it is of no assistance. The accused were in police custody for
continuous 10 days and on the last date then expressed willingness
to give a confession. Moreover, on the first possible opportunity they
have disclosed about extracting a confession under threat, as well as
given written application within a couple of days to the Magistrate
for said purpose. Thus, there is immediate retraction of the
confessional statements. The accused gave detailed reasons in their
application as to what persuaded them to give a confession and
under which circumstances they did so. The reason for giving
confession is that they did wrong and nothing more. Taking an
overall view of the matter, in the context of the facts of this case, we
do not find it safe to rely on the retracted confession which is
uncorroborated. In the result, for the above reasons we are not in a
position to accept the retracted confession as a legally admissible
piece of evidence.
apeal136 & 137.17.odt
AUTHORIZATION FOR ARREST AND SEARCH
270. The learned Counsel appearing for accused would
submit that the officers effecting arrest and search were not
authorized in terms of provisions of the UAPA, hence search and
seizure was illegal. It was submitted that PW-11 SDPO Suhas
Bawche who has investigated the matter has no authority under the
special statute to effect arrest and search and thus, the whole
investigation is vitiated. It is submitted that in terms of Sub-clause
(2) of Section 43-B of the UAPA, the seized articles ought to have
been forwarded to the nearest Police Station at Delhi, but it was not
done. Moreover, it is submitted that the provisions of Section 25 of
the UAPA have not been complied with since the information
relating to seizure has not been forwarded to the Designated
Authority within 48 hours from the seizure. Per contra, the learned
special prosecutor would submit that PW-11 SDPO Suhas Bawche
was an officer competent to investigate in terms of Section 43(c) of
the UAPA. Moreover, Police have general powers of search and
seizure under the Code, which are not taken away by the special
statute. Besides that, Section 465 of the Code would cure the defect,
if any.
apeal136 & 137.17.odt
271. The first objection is about competency of the
Investigating Officer to arrest and conduct search of accused No.6
G.N. Saibaba. The defence heavily relied on the provisions of
Section 43-A of the UAPA to contend that the special requirement
incorporated in the Section has not been complied with. For the
sake of convenience, we have extracted Section 43-A of the UAPA
which reads as under:-
"43A. Power to arrest, search, etc.--Any
officer of the Designated Authority
empowered in this behalf, by general or
special order of the Central Government or
the State Government, as the case may be,
knowing of a design to commit any offence
under this Act or has reason to believe from
personal knowledge or information given by
any person and taken in writing that any
person has committed an offence punishable
under this Act or from any document, article
or any other thing which may furnish
evidence of the commission of such offence or
from any illegally acquired property or any
document or other article which may furnish
evidence of holding any illegally acquired
property which is liable for seizure or freezing
or forfeiture under this Chapter is kept
apeal136 & 137.17.odt
or concealed in any building, conveyance or
place, may authorise any officer subordinate
to him to arrest such a person or search such
building, conveyance or place whether by day
or by night or himself arrest such a person or
search a such building, conveyance or place."
273. Investigation was entrusted to PW-11 SDPO Suhas Bawche
who was of the rank of Deputy Superintendent of Police. Section 43
of the UAPA specifies who is competent to investigate the offence
under Chapter IV and VI of the UAPA. Sub-clause (a) and (b) of
Section 43 are not relevant for our purpose. Sub-clause (c) provides
that investigation shall be carried out by an Officer not below the
rank of the Deputy Superintendent of Police or a Police Officer of an
equivalent rank. There is no dispute that PW-11 SDPO Suhas
Bawche, Investigating Officer was holding the rank of Deputy
Superintendent of Police, and was competent to investigate in terms
of the provisions of the UAPA.
274. The dispute is about the competency of PW 11- Suhas
Bawche I.O. to arrest and take search of the house of A6- Saibaba.
Section 43-A of the UAPA has a specific provision requiring
apeal136 & 137.17.odt
authorization for effecting arrest and search relating to cases under
the UAPA. It provides that any officer (competent under Section 43
of the UAPA) of the Designated Authority empowered in this behalf,
by general or special order may authorize any officer sub-ordinate to
him to arrest or search a building. In other words, only the
competent officer in terms of Section 43 of the UAPA who has been
specially empowered by the Designated Authority to arrest or effect
search is competent to effect search and arrest or his sub-ordinate,
on his authorization. It is not enough that he is competent in terms
of Section 43, to investigate, but the additional requirement is that
he should be authorized by the Designated Authority and be
conferred the powers for effecting arrest or search.
275. The term "Designated Authority" has been defined under
Section 2(1)(e) of the UAPA which reads as below:-
"2( 1)....
(a)......
.......
(e) "Designated Authority" means such officer
of the Central Government not below the rank
of Joint Secretary to that Government, or such
officer of the State Government not below the
rank of Secretary to that Government, as the
apeal136 & 137.17.odt
case may be, as may be specified by the Central
Government or the State Government, by
notification published in the Official Gazette."
276. In short, a Designated Authority is an officer appointed by
the State Government not below the rank of the Secretary of the
Government appointment by a Notification published in the Official
Gazette. There is no dispute that the Home Department has issued a
Notification dated 18th March, 2005 in exercise of powers conferred
by Clause (e) of Sub-section (1) of Section 2 of the UAPA for
appointment of the Designated Authority. By the said notification,
the Government of Maharashtra has appointed Principal Secretary
(Appeals and Security), Home Department, Government of
Maharashtra to be the Designated Authority for the purposes of
UAPA. Though Section 43-A has been inserted by an amendment in
the year 2008, no fresh notification has been issued by the State,
thereafter. However, we need not consider this aspect in the light of
the following facts.
277. It is not the prosecution's case that PW-11 SDPO Suhas
Bawche is authorized by the Designated Authority i.e. the Principal
Secretary for the purpose of effecting arrest or search as required
apeal136 & 137.17.odt
under Section 43-A of the UAPA. The scheme of the UAPA, though
empowers a high ranking Police Officer at the level of Deputy
Superintendent of Police to be competent to investigate, the power
of arrest and search however were specifically kept under the control
of the Designated Authority i.e. the Principal Secretary who is a
Higher Ranked officer of the Government. The legislative intent was
therefore to confer powers of arrest and search on an officer
specifically authorized in that behalf by the Competent Authority
and such search and arrest can be conducted by only under the
supervision and control of this Higher Ranking Government Officer
(The Designated Authority) which is independent to Police Authority.
278. In the case of arrest and search, the statute has
incorporated the intervention of a High Ranking Officer of the State
Government in the process with a view to have an independent
check over the Police Officer to avoid abuse of the provisions of law.
Clearly, the Investigating Officer PW-11 SDPO Suhas Bawche was
not authorized by the Designated Authority to effect arrest and
search. Mr. Chitale, the learned prosecutor would submit that no
such permission, much less authorization of the Designated
apeal136 & 137.17.odt
Authority is required since PW-11 SDPO Suhas Bawche was holding
the rank as specified under Section 43 of the UAPA. As stated above,
the said submission is wholly untenable since a special provision has
been made under Section 43-A of the UAPA which we have dealt
with above.
279. Mr. Chitale would submit that Section 43 of the UAPA does
not bear a reference to the Designated Authority for the purposes of
investigation and thus, the authorization of the Designated Authority
is not essential. We may reiterate that for the purpose of
investigation, intervention of the Designated Authority is not
warranted in terms of Section 43 of the UAPA, of which we have no
doubt. However, the statute, though permits the competent officer
in terms of Section 43 of the UAPA to investigate the offence,
however, puts a restriction on his power of arrest and search which
is required to be authorized in terms of Section 43-A of the Act.
Therefore, the argument, that merely because PW-11 SDPO Suhas
Bawche was competent to investigate, he has also power to effect
arrest and search is wholly untenable.
280. Mr. Chitale further submits that the later part of Section
43-A of the UAPA provides for authorization of any subordinate
apeal136 & 137.17.odt
officer to effect arrest or search. We are not prepared to accept this
submission, which, if accepted, would amount to authorizing any
subordinate officer to effect arrest and search which would be
against the spirit of Section 43-A. Plain reading of Section 43-A
would postulate that the competent officer in terms of Section 43 of
the UAPA who has been specially authorized by the Designated
Authority for effecting arrest and search, may authorize his sub-
ordinate. The basic requirement is that the officer who assigns
authorization to his subordinate must be empowered conferred by
the Designated Authority, and then only then can he delegate the
authority to his subordinate. Therefore, the submission in this
regard being against the spirit of Section 43-A of the UAPA is not
worthy of acceptance.
281. Another argument put forth by the prosecution was that
the UAPA does not take away the general powers conferred by the
Code, on the Police. According to the prosecution, the Police have
general power of arrest and seizure under the Code and thus, even
otherwise they are competent to that extent. In this regard, our
attention has been invited to Section 43-C of the UAPA which reads
as below:-
apeal136 & 137.17.odt
"43-C. Application of provisions of Code.--The
provisions of the Code shall apply, insofar as
they are not inconsistent with the provisions
of this Act, to all arrests, searches and seizures
made under this Act."
282. It is submitted by the prosecution that the provisions of the
Code would clearly apply for the prosecution under the UAPA and
therefore, despite authorization by the Designated Authority under
the UAPA, the Police have power to effect arrest and search. We are
afraid we cannot subscribe to this submission because Section 43-C
of the UAPA though speaks of the applicability of the Code, qualifies
that the provisions of the Code are applicable in so far as they are
not inconsistent with the provisions of the UAPA relating to arrest,
search and seizure. Thus, if the special statute namely UAPA, makes
a specific arrangement as regards powers of arrest or seizure, the
special provision/regulation would prevail over the general
provisions of the Code. To that extent, the powers conferred by the
Code are inconsistent and in conflict with the provisions of Section
43C of the UAPA and must yield to the special statute.
283. Though the prosecution advanced an argument that
Section 465 of the Code saves such an irregularity, however we are
apeal136 & 137.17.odt
unable to accept the submission in view of the specific provision
contained under Section 43-A of the UAPA which is a stringent
statute. Having regard to the severity of punishment, the statute
itself has provided inbuilt safeguards. Section 43-A is a specific
safeguard incorporated with a view to require empowerment from a
High Ranking State Officer before arrest and seizure. Obviously, the
very purpose is to avoid false implication of a citizen. Having regard
to the aims and object of providing a special mechanism, the general
provisions would not cure the defect. We may hasten to add that
this is not a case where there was procedural irregularity or lapse
while obtaining authorization by the Designated Authority, but a
case of total absence of empowerment of the Investigating Officer by
the Designated Authority. Thus, the said material deficiencies
cannot be cured with the aid of Section 465 of the Code otherwise,
the statutory requirement under Section 43-A would become otious.
284. Apart from the general provisions of Section 465 of the
Code, the prosecution also canvassed that even if the seizure is
illegal, however, it can be used in evidence. For this purpose the
prosecution drew support from the decision of the Supreme Court in
apeal136 & 137.17.odt
case of Pooram Mal60. In the said decision which is under the
Income Tax Act, the search and seizure was challenged on account of
contravention of the requirement of Section 132 and Rule 112 of the
Income Tax Act. In that context, it was observed that where the test
of admissibility of evidence lies in relevancy, unless there is an
express or necessarily implied prohibition in the Constitution or
other law, evidence obtained as result of illegal search or seizure is
not liable to be shut out. We are afraid that, to borrow the said
proposition in the context of statute like UAPA, wherein a special
provision of Section 43-A prescribes a special mechanism for
authorization to effect arrest and search cannot be countenanced. In
other words, a general provision is curtailed/restricted by the special
statute and thus, observations made in that judgment are in a totally
different context and would not assist the prosecution in any
manner.
285. In order to escape from the clutches of Section 43-A of the
UAPA, Mr. Ponda made one another submission that the provisions
of Section 43-A would apply only when the Authority gets
information of its own accord. We do not see any distinction carved
60.Pooram Mal Vs. Director of Inspection (Investigation) of Income Tax, AIR 1974 SC 348
apeal136 & 137.17.odt
out under Section 43-A of the UAPA pertaining to source of
information. The Section plainly provides the requirement of
authorization/ empowerment by the Designated Authority, whatever
the source of information may be i.e. to his personal knowledge or
information received in writing. The distinction sought to be carved
out by Mr. Ponda is artificial which is not in consonance with the
statutory requirement. In short, we are unable to accept the
submission. We may reiterate that when the special statute has
provided a specific mechanism for authorization of search and arrest
by the Designated Authority, then that would have overriding effect
and exclude application of the general provisions of the Code.
286. The defence also argued that the non-compliance of the
provisions of Section 43-B of the UAPA which requires that the
person arrested be forwarded with the articles seized to the officer in
charge of the nearest Police Station would not be of any effect. The
said provision of Section 43-B reads as under:-
"43-B. Procedure of arrest, seizure, etc.--(1)
Any officer arresting a person under section 43-
A shall, as soon as may be, inform him of the
grounds for such arrest.
apeal136 & 137.17.odt
(2) Every person arrested and article seized un-
der section 43-A shall be forwarded without
unnecessary delay to the officer-in-charge of
the nearest Police Station.
(3) The authority or officer to whom any per-
son or article is forwarded under sub-section
(2) shall, with all convenient dispatch, take
such measures as may be necessary in accord-
ance with the provisions of the Code."
287. Sub-clause (2) of Section 43-B of the UAPA provides that
every person arrested and article seized under Section 43-A of the
UAPA has to be forwarded to the officer in-charge of the nearest
Police Station. In this regard, it is not the prosecution's case that
either after arrest accused No.6 G.N. Saibaba was forwarded to the
nearest Police Station i.e. Maurice Nagar Police Station, Delhi or that
articles which were seized were forwarded to the said Police Station.
Sub-clause [3] to Section 43-B casts a further duty on the said
incharge officer to take further necessary steps as provided under the
Code.
288. Apparently seized articles were not forwarded to the
officer in-charge of the nearest Police Station. After seizure, only
apeal136 & 137.17.odt
information was given vide letter (Exh. 254) to said Police Station
with copy of panchnama. Sub-clause (2) to Section 43-B of the
UAPA does not contemplate just the forwarding of information of
seizure but, requires that the articles seized be forwarded, hence
there is total non-compliance of statutory requirement of Section 43-
B of the UAPA. In view of that, we hold that the arrest and seizure
is not in accordance with the requirement of the Special Statute
namely UAPA.
289. The defence also assailed the seizure on account of non-
compliance of the provisions of Section 25 of the UAPA. It is argued
that the seized material i.e. electronic gadgets amount to "property"
within the meaning of Section 2(1)(h) of the UAPA. According to
the defence, the words electronic items are movable in nature,
having value and can be used for terrorist activity, hence, it falls
under the term "proceeds of terrorism". It is argued that the seizure
being 'proceeds of terrorism', the prosecution ought to have
complied with the mandate of Section 25 of the UAPA. For this
purpose, we were taken through Section 25 of the UAPA which
requires prior approval in writing of the Director General of the
apeal136 & 137.17.odt
Police to seize the 'proceeds of terrorism'. Sub-clause (2) to Section
25 of the UAPA further mandates the Investigating Officer to inform
about the seizure to the Designated Authority within 48 hours.
Moreover, it requires the Authority to confirm or to revoke the
seizure or attachment within 60 days which is made appealable to
the Court within the period of 30 days from the date of order. It is
also submitted that proviso to Sub-clasue (3) of Section 25 of the
UAPA gives an opportunity to a person whose property has been
seized or attached of making a representation. According to the
defence, no such procedure has been followed and therefore, seizure
vitiates.
290. The relevant part of Section 25 is reproduced herein
below for ready reference:-
"25. Powers of investigating officer and
Designated Authority and appeal against order
of Designated Authority.--(1) If an officer
investigating an offence committed under
Chapter IV or Chapter VI, has reason to believe
that any property in relation to which an
investigation is being conducted, represents
proceeds of terrorism, he shall, with the prior
apeal136 & 137.17.odt
approval in writing of the Director General of
the Police of the State in which such property is
situated, or where the investigation is conducted
by an officer of the National Investigation
Agency, make an order seizing such property
and where it is not practicable to seize such
property, make an order of attachment directing
that such property shall not be transferred or
otherwise dealt with except with the prior
permission of the officer making such order, or
of the Designated Authority before whom the
property seized or attached is produced and a
copy of such order shall be served on the person
concerned.
(2) The investigating officer shall duly inform
the Designated Authority within forty-eight
hours of the seizure or attachment of such
property.
(3) The Designated Authority before whom the
seized or attached property is produced shall
either confirm or revoke the order of seizure or
attachment so issued within a period of sixty
days from the date of such production:
Provided that an opportunity of making a
representation by the person whose property is
being seized or attached shall be given.
apeal136 & 137.17.odt
(4) ......
(5) .......
(6)......"
291. Section 25 of the UAPA is a complete scheme for dealing
with seizure or attachment of proceeds of terrorism. No doubt if
seized electronic gadgets are held to be 'proceeds of terrorism', the
mandate of Section 25 of the UAPA would come into play. Reading
of the whole of Section 25 of the UAPA conveys that the term
"proceeds of terrorism" is used in the sense of some valuable
movable or immovable, obviously acquired by the act of terrorism.
Exhaustive provisions are made for the seizure and attachment of
property, opportunity to make a representation, confirmation or
rejection of the order of seizure or attachment and the right of
appeal to the aggrieved person. The whole scheme conveys that it
relates a valuable movable or immovable property which was
acquired through the act of terrorism.
292. The UAPA has not defined the word "proceeds of
terrorism". The ordinary meaning of the word "proceeds" would
mean money or value that one gets by sale of something. In other
apeal136 & 137.17.odt
words, a profit or return derived from a transaction, herein an act of
terrorism. The term proceeds of terrorism cannot be equated with
the articles used or intended to be used for the act of terrorism.
Therefore, we are unable to accept the defence submission that the
seized incriminating electronic data amounts to "proceeds of
terrorism" within the meaning of Section 25 of the UAPA requiring
further mandatory compliance. For this reasons, we reject the
defence argument to that extent.
293. The learned special prosecutor would submit that
though under criminal jurisprudence the guilt of the accused must
be proved beyond all reasonable doubt, however the burden on the
prosecution is only to establish its case beyond reasonable doubt and
not from all doubt. The standard of proof under the criminal law is
of a high degree but, not of absolute nature. What degree of
probability amounts to "proof" is an exercise, particular to a case.
The principle of "beyond reasonable doubt" shall not be stretched to
the extent that would break down the credibility of the system. In
order to substantiate this contention, initially he relied on the
decision of the Supreme Court in case of Leela Ram61 laying special
61.Leela Ram (dead) through Duli Chand Vs. State of Haryana, (1999) 9 SCC 525
apeal136 & 137.17.odt
emphasis on the observations in para 12 thereof, which read as
under:-
"12. It is indeed necessary to note that hardly one
comes across a witness whose evidence does not con-
tain some exaggeration or embellishments - some-
times there could even be a deliberate attempt to of-
fer embellishment and sometimes in their over anxi-
ety they may give slightly exaggerated account. The
Court can sift the chaff from the corn and find out
the truth from the testimony of the witnesses. Total
repulsion of the evidence is unnecessary. The evid-
ence is to be considered from the point of view of
trustworthiness - If this element is satisfied, they
ought to inspire confidence in the mind of the Court
to accept the stated evidence though not however in
the absence of the same."
294. Though the prosecution further relied on the
decisions in cases of Bhaskar Ramappa Madar62, Shivaji Sahabrao
Bobade63, Jagir Singh Baljit Singh 64, Krishna Gopal65 and
Valson66, however, after considering those decisions in case of
62 Bhaskar Ramappa Madar and others Vs. State of Karnataka, (2009) 11 SCC 690
63.Shivaji Sahabrao Bobade and another Vs. State of Maharashtra, (1973) 2 SCC 793
64.The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh (1974) 3 SCC 277
65.State of U.P. Vs. Krishna Gopal and another, (1988) 4 SCC 302
66.Valson and another Vs. State of Kerala, (2008) 12 SCC 241,
apeal136 & 137.17.odt
Yogesh Singh67, the principles in this regard have been set out in
paras 15 to 18 which read thus:-
"15. It is a cardinal principle of criminal jurispru-
dence that the guilt of the accused must be proved
beyond all reasonable doubts. However, the burden
on the prosecution is only to establish its case bey-
ond all reasonable doubt and not all doubts. Here,
it is worthwhile to reproduce the observations
made by Venkatachaliah, J., in State of U.P. Vs.
Krishna Gopal and Anr (SCC pp.313-14 paras 25-
26)
25....Doubts would be called reasonable
if they are free from a zest for abstract
speculation. Law cannot afford any
favourite other than truth. To constitute
reasonable doubt, it must be free from
an overemotional response. Doubts
must be actual and substantial doubts as
to the guilt of the accused person arising
from the evidence, or from the lack of it,
as opposed to mere vague
apprehensions. A reasonable doubt is
not an imaginary, trivial or a merely
possible doubt; but a fair doubt based
upon reason and common sense. It
67.Yogesh Singh Vs. Mahabeer Singh and others, (2017) 11 SCC 195
apeal136 & 137.17.odt
must grow out of the evidence in the
case.
26. .....
16. Another golden thread which
runs through the web of the administration
of justice in criminal cases is that if two
views are possible on the evidence adduced
in the case, one pointing to the guilt of the
accused and the other to his innocence, the
view which is favourable to the accused
should be adopted. [Vide Kali Ram Vs. State
of Himachal Pradesh, State of Rajasthan Vs.
Raja Ram, (2003) 8 SCC 180; Chandrappa &
Ors. Vs. State of Karnataka, Upendra
Pradhan Vs. State of Orissa, and Golbar
Hussain Vs. State of Assam"].
17. However, the rule regarding
the benefit of doubt does not warrant
acquittal of the accused by resorting to
surmises, conjectures or fanciful
considerations, as has been held by this
Court in the case of State of Punjab Vs. Jagir
Singh, (SCC pp. 285-86, para 23).
"23. A criminal trial is not like a fairy tale
wherein one is free to give flight to one's
imagination and fantasy. It concerns itself
apeal136 & 137.17.odt
with the question as to whether the accused
arraigned at the trial is guilty of the offence
with which he is charged. Crime is an event
in real life and is the product of interplay of
different human emotions. In arriving at the
conclusion about the guilt of the accused
charged with the commission of a crime, the
court has to judge, the evidence by the yard-
stick of probabilities, its intrinsic worth and
the animus of witnesses. Every case in the fi-
nal analysis would have to depend upon its
own facts. Although the benefit of every
reasonable doubt should be given to the ac-
cused, the courts should not at the same time
reject evidence which is ex facie trustworthy,
on grounds which are fanciful or in the
nature of conjectures.
18. Similarly, in Shivaji Sahebrao Bobade & Anr. Vs.
State of Maharashtra, V.R. Krishna Iyer, J., stated
thus: (SCC p.799 para 6)
6. The cherished principles or golden thread
of proof beyond reasonable doubt which runs
through the web of our law should not be
stretched morbidly to embrace every hunch,
hesitancy and degree of doubt. The excessive
solicitude reflected in the attitude that a
apeal136 & 137.17.odt
thousand guilty men may go but one
innocent martyr shall not suffer is a false
dilemma. Only reasonable doubts belong to
the accused. Otherwise any practical system
of justice will then break down and lose
credibility with the community."
295. It is a consistent law that though the cardinal principles
of criminal jurisprudence are requirement of proof beyond
reasonable doubt, however they denote that standard of proof is
higher, but, not absolute. Certainly, doubts must be actual and
substantial doubt as to the guilt of the accused arising from the
evidence or from lack of evidence so as to oppose mere vague
apprehension. We are conscious of the fact that reasonable doubt is
not an imaginary, trivial or a mere possibility, but, a fair doubt which
would command judicial mind. The law does not expect the kind of
evidence which is impossible to prove, but the standard shall be to
the extent which excludes an entertainable doubt.
296. Similarly, we must keep in mind the golden rule of
criminal jurisprudence expressed by the Supreme Court in the case
of Leela Ram (supra), that if two views are possible, the view
favourable to the accused would take precedence. In the light of
apeal136 & 137.17.odt
above well cherished principles, we have scrutinized the prosecution
case while arriving at our conclusions.
CHAIN OF CUSTODY OF SEIZED ARTICLES.
297. During the course of investigation, from time to time,
incriminating material has been seized from different accused
persons. The same was deposited in the malkhana, and then from
time to time the same were sent for analysis to CFSL Mumbai.
Various panchnamas have been drawn to that effect.
298. The defence would urge that the chain of custody is not
properly established, meaning thereby chances of tampering cannot
be ruled out. The first seizure from A1 to A3 is dated 22.08.2013,
whilst the seized muddemal articles were deposited with the
malkhana clerk on the very day. The second seizure from A4 and A5
is of 02.09.2023, and on the same day it was deposited with the
malkhana clerk. The third seizure is from A6 - Saibaba dated
12.09.2023, which was deposited with the malkhana clerk on
13.09.2013.
299. The learned defence counsel drew our attention to some
discrepancies in establishing that from time to time muddemal was
apeal136 & 137.17.odt
taken out from the custody of the malkhana clerk without proper
verification, and it has changed hands without endorsement. It is
submitted that though the evidence of the investigating officer PW-
11 shows that on 12.09.2013 the seized electronic articles were
sealed in one plastic bag, the laptop in a separate packet and printed
material in three packets, however, the relevant malkhana register
entry dated 13.09.2013 discloses that only one plastic bag and two
paper envelopes have been deposited. It is argued that the labels
containing panchas signatures obtained on the date of seizure i.e.
12.09.2013 were never preserved nor produced to vouch for their
credibility. According to the defence, the said muddemal was taken
out on 14.09.2013 for forwarding to CFSL, however, the relevant
panchnama does not disclose that the plastic container was re-
sealed. Particularly, it is argued that the mirror images, though
stated to be received from time to time, however, the said evidence
is contradicted by PW 21 - Nikam, who is a Scientific Analyst. Our
attention has been invited to the muddemal entry dated 16.02.2014.
It does not bear specification as to what has been deposited by PW 7
- Constable Apeksha Ramteke, which she brought from the CFSL
Mumbai.
apeal136 & 137.17.odt
300. On the point of custody, the evidence of P.W.11- Suhas
Bawche, investigating officer, P.W.5- Constable Kamble [carrier],
P.W.7 Constable Apeksha Ramteke [carrier], P.W.13 Constable Rathod
[malkhana clerk] and P.W.21 Scientific Analyzer - Nikam is
important. With the assistance of both sides we have gone through
their evidence and relevant malkhana register entries which are at
Exhs.276-A to 276-E. We have also gone through the muddemal
challan at Exhs.299-A to 299-C, 300-A and 300-B, 301-A to 301-I.
So also invoice challan of muddemal deposited in Court Exh.302,
has been tendered on record. We find that from time to time entries
have been taken in the muddemal register, which supports the oral
evidence led by the prosecution witness, with little variance in the
description. We are not prepared to accept that the minor
discrepancies, affect the credibility of deposit of muddemal.
301. Particularly we have gone through the evidence pertaining
to receipt of mirror images by the investigating officer from CFSL
Mumbai. In this regard, P.W.11- Suhas Bawche, stated that on
31.08.2013 he received the mirror images of the memory card seized
from the possession of Hem Mishra, which is corroborated by the
apeal136 & 137.17.odt
evidence of P.W.21- Bhavesh Nikam. It is in the prosecution evidence
that on 20.09.2013, P.W.5 Constable Kumbhare received mirror
images regarding one hard disk, which he has deposited on
21.09.2013. However, the evidence of P.W.21 Analyst Nikam no
where supports the said contention, who states that he has issued
mirror images on 30.08.2013 and then on 05.10.2013. We have
gone through the evidence of these witnesses along with the time,
description and related panchnamas. Though there are certain
discrepancies about the description of the container namely plastic
box and packets, however, nothing has been brought on record to
create a doubt. Such minor discrepancies are bound to occur. The
oral evidence is supported by relevant muddemal entries and thus,
interference cannot be lightly drawn about the possibility of
tampering on conjectures and surmises.
ASSESSMENT OF ELECTRONIC EVIDENCE
302. The Prosecution case solely rests on the electronic
evidence seized from the possession of accused. Therefore, it
necessitates us to undertake the exercise whether the said evidence
is duly proved in accordance with the provisions of the Evidence Act,
Information Technology Act and Rules framed thereunder.
apeal136 & 137.17.odt
303. Under the Evidence Act, 1872, the contents of electronic
record may be proved in accordance with the provisions of Section
65-B of that Act. Section 65-B stipulates that any information
contained in an electronic record which is then printed on paper,
stored, recorded or copied in optical or magnetic media produced by
a computer shall also be deemed to be a document provided
conditions mentioned in Section 65-B are satisfied in relation to the
information and the computer in question. If the conditions are
satisfied, such "document" shall be admissible, without further proof
or production of the original, as evidence.
304. The conditions required to be fulfilled for such
"document" to be admissible in evidence are stipulated in Sub-
Section 2 of Section 65-B. In terms of Section 65-B, amongst the
various conditions stipulated in Sub-Section 2 and 3, if evidence is to
be given of the information contained in the electronic record in the
device, a certificate is required to be issued in terms of Sub-Section 4
of Section 65-B wherein the identity of the electronic record is to be
specified, the particulars of the device involved in production of the
apeal136 & 137.17.odt
electronic record are to be specified and this certificate is to be
issued by a person who has at the relevant time been familiar with
the operation of the device.
305. Section 85-B of the Evidence Act raises presumptions as
to electronic records in a proceeding involving a "Secure Electronic
Record"; The Court shall presume, unless the contrary is proved that
the Secure Electronic Record has not been altered since the specific
point of time to which the secure status relates.
"Section 85B. - Presumption as to electronic records
and electronic signatures. - (1) In any proceedings
involving a secure electronic record, the Court shall
presume unless contrary is proved, that the secure
electronic record has not been altered since the
specific point of time to which the secure status
relates.
(2) In any proceedings, involving secure digital
signature, the Court shall presume unless the contrary
is proved that--
(a) the secure electronic signature is affixed by
subscriber with the intention of signing or approving
the electronic record;
(b) except in the case of a secure electronic record or a
secure electronic signature, nothing in this section shall
create any presumption, relating to authenticity and
apeal136 & 137.17.odt
integrity of the electronic record or any electronic
signature.
306. In order to attach any presumption that the Secure
Electronic Record has not been altered, certain procedures have been
prescribed in terms of the Information Technology Act, 2000 in
which Section 14 defines a "Secure Electronic Record" and Section
16 prescribes the security procedure and practices to be adopted in
relation to such a record, in order to attract the presumption.
Section 14 and Section 16 read as under:-
"Section 14. - Secure electronic record.--Where any
security procedure has been applied to an electronic
record at a specific point of time, then such record
shall he deemed to be a secure electronic record from
such point of time to the time of verification.
Section 16. - Security procedures and practices.--The
Central Government may, for the purposes of sections
14 and 15, prescribe the security procedures and
practices:"
Provided that in prescribing such security procedures
and practices, the Central Government shall have regard to the
commercial circumstances, nature of transactions and such other
related factors as it may consider appropriate.]
apeal136 & 137.17.odt
307. The security procedure and practices have been
prescribed by the Central Government for the purpose of Section 14
and Section 16 in the Information Technology (Security Procedure)
Rules 2004 published on 29.10.2004. Under Rule 3 a "Secure
Electronic Record" shall be deemed to be a secure record for the
purpose of the Act if it has been authenticated by means of a Secure
Digital Signature. Rule 4 provides the manner in which the digital
signature is deemed secure for the purpose of the Act by providing a
procedure which is reproduced hereinbelow.
Rule 4. - Secure digital signature. - A digital signature
shall be deemed to be a secure digital signature for
the purposes of the Act if the following procedure has
been applied to it, namely:-
(a) that the smart card or hardware token, as the case
may be, with cryptographic module, in it, is used to
create the key pair;
(b) that the private key used to create the digital
signature always remains in the smart card or
hardware token as the case may be;
(c) that the hash of the content to be signed is taken
from the host system to the smart card or hardware
token and the private key is used to create the digital
signature and the signed hash is returned to the host
system;
apeal136 & 137.17.odt
(d) that the information contained in the smart card
or hardware token, as the case may be, is solely under
the control of the person who is purported to have
created the digital signature;
(e) that the digital signature can be verified by using
the public key listed in the Digital Signature
Certificate issued to that person;
(f) that the standards referred to in rule 6 of the
Information Technology (Certifying Authorities) Rules,
2000 have been complied with, in so far as they relate
to the creation, storage and transmission of the digital
signature; and
(g) that the digital signature is linked to the electronic
record in such a manner that if the electronic record
was altered the digital signature would be
invalidated."
308. From a combined reading of the above-quoted
provisions, the process of giving electronic evidence a status of
"Secure Electronic Record", to which the presumptions under
Section 85-B of the Evidence Act would be attracted is laid down. In
the present case, the burden was heavily upon the prosecution to
demonstrate how the various devices seized/attached, which include
the 16 GB pendrive seized from Accused No.4, and the hard disk and
other devices seized from the residence of Accused No.6 at New
apeal136 & 137.17.odt
Delhi, were "secured" by following the process referred to in the
above referred paragraphs.
309. The electronic data or record in the present case
concerning Accused No.6 was mainly contained in a hard disk at his
residence. In order that the contents of the electronic evidence
contained within this device attract the presumptions, two
procedures would have to be followed. The identity and description
of the device itself i.e. hard disk would have to be properly recorded,
which description would have to be deposed to and the device
identified by its external description, serial number, colour of its
casing or cover, the product number or other such specific
identification marks such as stickers or printing thereon. The seizure
panchanama would obviously have to have a fairly clear description
of the device, which would also include its photographs
countersigned by the witnesses to the seizure.
310. In the present case, apart from the panch witness who
was examined, who is alleged to have attended the search
operations at the residence of Accused No.6, no other witness has
been examined and deposed as to the description of the electronic
apeal136 & 137.17.odt
devices, which included the computer hard disk and the laptop
attached during the search. The panchanama, Exh. 165 does not
contain a description of the electronic devices by serial number,
colour of the outer cover or box, the product number or even the
colour of the device. Thus, there is no physical identification of the
device which contains the electronic record or in other words, there
is no co-relation established between the device which is not
physically identified in the seizure panchanama, to the electronic
record sought to be relied upon as evidence in Court. Having failed
to establish this co-relationship, the electronic record or content of
the hard disk could not have been referred to as a "Secure Electronic
Record".
312. Further, if one seeks to draw a presumption as to this
electronic record, the procedure that would have to be followed
would be, as set out in Rule 4; This procedure requires that the
forensic expert or computer expert who intends to ultimately use the
electronic evidence contained in the device in Court should first have
the device physically identified in a written record, by its description,
product number, serial number and any other identification marks
on the cover or box within which lies the electronic record. The
apeal136 & 137.17.odt
same person is required to then apply a private key which is issued
to him to the device which has his personal digital signature in it,
which process would take the hash value of the electronic content in
the device from the host system to the smart card or hardware
token, and the private key is used to create the digital signature and
signed hash is then returned to the host system. In this manner, at a
later stage, when the device is reopened, the digital signature of the
computer expert could be identified. The computer expert may also
create a mirror image or clone of the information contained in the
device on to another device, and if he undertakes this process, in
order that there is evidence that the hash value at the start of the
information and end point of the information on the original device
matches exactly with the hash value of the cloned information, the
procedure under Rule 4 would have to be complied by appropriately
applying the expert's digital signature on the cloned
information/data.
313. The computer expert would then record the hash value
at the starting point of the electronic data and the end point of this
data which could be later ascertained by the forensic expert who
would examine the data in the lab as well as re-ascertain before the
apeal136 & 137.17.odt
Court recording the evidence when the device or the evidence
contained therein is sought to be produced and admitted in
evidence. The presumptions under Section 85-B of the Evidence Act
would be attached to this evidence only if the hash values certified
by the computer expert who has first examined the device match
with those certified by the expert who examines the device at a
forensic lab and then again these would match when the device is
produced in Court. Of course, the presumptions would flow only if it
is established that the electronic record in question could be co-
related to the physical description of the device produced in Court.
314. Looking at the evidence produced in relation to Accused
No.6, the panchanama does not refer to the physical description of
the hard disk seized during the raid and strangely, even though a
computer expert accompanied the raiding team, he has not given a
detailed physical description of the device or even mentioned its
serial number. This same person has also not been examined to
ascertain the compliance of the afore-stated rules, to establish that
the content of this electronic record could truly be considered a
"Secure Electronic Record" to which any presumption could be
attached. This being the case, the prosecution has failed to prove
apeal136 & 137.17.odt
beyond any doubt that the computer hard disk or any of the other
devices attached during the search conducted at the residence of
Accused No.6 were Secure Electronic Record in terms of Section 85-
B of the Evidence Act. Even the investigating officer who was present
throughout the search has not recorded these details and has
miserably failed to follow the procedure laid down in Rule 4 of the
I.T. Rules. Thus, the contents of the hard disk could not be looked
into as evidence and would be wholly unreliable if relied upon, to
prove the offences alleged against Accused No.6.
315. Adverting to the compliance of issuance of a certificate
in relation to the electronic evidence contained and sought to be
produced in Exhibit 375 i.e. the hard disk seized from Accused No.6,
we are of the opinion that the requirements of Section 65-B of
Evidence Act have not been complied with. Section 65-B requires
five conditions stated in Sub-Section 2 thereof to be complied with.
A perusal of the certificate at Exhibit 375 would show that the same
does not identify the electronic record contained in the statement in
evidence nor does the certificate describe the manner in which the
electronic record sought to be produced in evidence was produced.
There is no description of the device with its serial numbers used in
apeal136 & 137.17.odt
the production of the electronic record or copy. There is thus no
compliance with the requirements of a valid certificate under Section
65-B. For that reason, we are of the opinion that the
evidence/information produced under the certificate at Exhibit 375
would not be admissible and could not be relied upon. With such
inherent lacuna, we proceed further.
316. Notwithstanding the fact that the prosecution has failed
to prove that the hard disk contained a Secure Electronic Record, we
would nevertheless also proceed to record our findings on the
content of this unproved record which is plainly in the form of
writings, video films of public speeches and what appears to be
propaganda material. The first question that we address is whether
merely being in possession of such material in one's computer, any
offence could be said to be made out in terms of the various sections
of the UAPA of which the Accused have been charged. Even
assuming that the content of the speeches or written literature
contained in the electronic material on the hard disk attached from
the residence of Accused No. 6 was inflammatory or denounced a
certain form of governance or expressed dissent with any
government, would the mere fact that a person was in
apeal136 & 137.17.odt
possession of such material fall within the ingredients of any offence
under the UAPA.
317. The Supreme Court in Thwaha Fasal68, was dealing with
a case where the allegation against the accused was that he was
found in possession of soft and hard copies of various materials
concerning the banned organization CPI (Maoist) and he was seen
present in a gathering which was part of the protest arranged by an
organization alleged to have links with the banned organization. The
material also contained minutes of meetings where the accused were
alleged to have been part of various committees of the banned
organization. Whilst dealing with the question as to whether mere
possession of such material attract offences under Sections 20, 38
and 39 of the UAPA, the Supreme Court has held as under:-
"32. FSL report shows that the cell phone of the accused
no.1 had a video clip with the title "Kashmir bleeding", as
well as portraits of various communist revolutionary
leaders, like Che Guvera and Mao Tse Tung, as also
portrait of Geelani, a Kashmiri leader. Copies of certain
posters were also found. Pdf files extracted showed that
it contained material regarding abrogation of Article 370
of the Constitution and various other items. The
photographs also showed that the accused no.1 attended
68.Thwaha Fasal Vs. Union of India reported in 2021 SCC Online SC 1000
apeal136 & 137.17.odt
protest gathering conducted in October 2019 by
Kurdistan Solidarity Network.
33. As regards the accused no.2, on his devices, images
[
of CPI (Maoist) flag, files relating to constitution of
central committee of CPI (Maoist), files relating to CPI
(Maoist) central committee programme, image of
hanging Prime Minister, various newspaper cuttings
relating to maoist incidents were found. A book was also
seized relating to encounter with PLGA (Maoist) at Agali.
35. Another piece of evidence against the accused no.2 is
that during the search of his residence, he shouted
slogans, such as inquilab zindabad and maoisim
zindabad. He also shouted slogans containing greetings
to the brave martyrs who died in an armed encounter
between Maoist members and police. Another material
forming a part of the charge sheet is that absconding
accused no.3 visited the place where the accused no.1
was staying as a paying guest. Material was found
regarding collection of membership fees and other
amounts by the accused for the benefit of the said
organization.
36. Taking the charge sheet as correct, at the highest, it
can be said that the material prima facie establishes
association of the accused with a terrorist organisation
CPI (Maoist) and their support to the organisation.
37. Thus, as far as the accused no.1 is concerned, it can
be said he was found in possession of soft and hard
copies of various materials concerning CPI (Maoist). He
was seen present in a gathering which was a part of the
protest arranged by an organisation which is allegedly
having link with CPI (Maoist). As regards the accused
apeal136 & 137.17.odt
no.2, minutes of the meeting of various committees of
CPI (Maoist) were found. Certain banners/posters were
found in the custody of the accused no.2 for which the
offence under Section 13 has been applied of indulging
in unlawful activities. As stated earlier, sub-section (5) of
Section 43D is not applicable to the offence under
Section 13.
38. Now the question is whether on the basis of the
materials forming part of the charge sheet, there are
reasonable grounds for believing that accusation of
commission of offences under Sections 38 and 39 against
the accused nos.1 and 2 is true. As held earlier, mere
association with a terrorist organisation is not sufficient
to attract Section 38 and mere support given to a
terrorist organisation is not sufficient to attract Section
39. The association and the support have to be with
intention of furthering the activities of a terrorist
organisation. In a given case, such intention can be
inferred from the overt acts or acts of active participation
of the accused in the activities of a terrorist organization
which are borne out from the materials forming a part of
charge sheet. At formative young age, the accused nos.1
and 2 might have been fascinated by what is propagated
by CPI (Maoist). Therefore, they may be in possession of
various documents/books concerning CPI (Maoist) in soft
or hard form. Apart from the allegation that certain
photographs showing that the accused participated in a
protest/gathering organised by an organisation allegedly
linked with CPI (Maoist), prima facie there is no material
in the charge sheet to project active participation of the
accused nos.1 and 2 in the activities of CPI (Maoist) from
which even an inference can be drawn that there was an
intention on their part of furthering the activities or
terrorist acts of the terrorist organisation. An allegation is
apeal136 & 137.17.odt
made that they were found in the company of the
accused no.3 on 30th November, 2019. That itself may
not be sufficient to infer the presence of intention. But
that is not sufficient at this stage to draw an inference of
presence of intention on their part which is an ingredient
of Sections 38 and 39 of the 1967 Act. Apart from the
fact that overt acts on their part for showing the presence
of the required intention or state of mind are not borne
out from the charge sheet, prima facie, their constant
association or support of the organization for a long
period of time is not borne out from the charge sheet.
(Emphasis supplied)
318. A Single Judge of this Court in Jyoti Babasaheb
Chorge Vs. State of Maharashtra reported in 2012 SCC OnLine
Bom 1460, had earlier considered the very same question as to
whether possession of certain literature containing a particular social
or political philosophy could be considered incriminatory to
implicate an accused under Section 20 of the UAPA and has held
thus:-
"12. Undoubtedly, from the material collected
during investigation, it does appear, prima facie, that the
applicants were in contact, or had some association with
some members or admirers of the Communist Party of
India (Maoists). The applicant Jyoti, it appears, was
found in possession of some literature of the Communist
apeal136 & 137.17.odt
Party of India (Maoists), including publicity and
propaganda material. She was in the company of the co-
accused Jenny @ Mayuri Bhagat when she was
apprehended by the police, and the said Mayuri @ Jenny
was also found in possession of certain articles, allegedly
incriminating, including some cash.
13. As regards applicant Sushma, she was staying in the
same room where the accused no.1 Angela was staying
and as aforesaid, in the said room, a number of articles
which are alleged to be the publicity materials or
literature of the Communist Party of India (Maoists),
were found. Further, it appears that she had 9/26 BA
1020 AND 1066-12 secured employment in a different
name - Shraddha Omprakash Gurav, and had also
opened bank account in the said assumed name, with
the object of hiding her identity.
18. Article 19 of the Constitution, inter alia, protects the
following rights of citizens:
(a) to freedom of Speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions.
19. Undoubtedly, Article 19(2) empowers the
Parliament to impose, by law, reasonable restrictions on
these rights in the interests of sovereignty and integrity
of India. Section 20 has been enacted as and by way of
reasonable restriction on the aforesaid freedoms and
rights, guaranteed by the Constitution. Inasmuch as the
said clause imposes restrictions on the aforesaid
freedoms and rights, the interpretation thereof has to be
in consonance with the constitutional values and
principles,and the concept of membership contemplated
apeal136 & 137.17.odt
by the said section, is required to be interpreted in the
light of the aforesaid freedoms and rights.
20. It follows that considering from this point of view,
the membership of a terrorist gang or organization as
contemplated by section 20, cannot be a passive
membership. It has to be treated as an active
membership which results in participation of the acts of
the terrorist gang or organization which are performed
for carrying out the aims and objects of such gang or
organization by means of violence or other unlawful
means. In her oral arguments, Ms.Rohini Salian, the
learned Special Public Prosecutor submitted that there
was a great danger to the whole nation from the said
Organization, and that the unity and integrity of the
nation was already in danger because of their activities.
She submitted that section 20 of the UAP Act has been
deliberately worded very widely by keeping these
aspects in mind. She submitted that mere association
with such type of people, and sharing their ideology
would make a person a member of their organization.
24. Their Lordships of the Supreme Court of India
expressed agreement with the aforesaid views, and
opined that the same would apply to India also, as the
fundamental rights in Indian Constitution are similar to
the bill of rights in the US Constitution. Their Lordships
ultimately concluded as follows:-
"In our opinion, Section 3(5) cannot be read
literally otherwise it will violate Articles 19 and 21
of the Constitution. It has to be read in the light of
our observations made above. Hence, mere
membership of a banned organization will not make
a person a criminal unless he resorts to violence or
apeal136 & 137.17.odt
incites people to violence or creates public disorder
by violence or incitement to violence."
25. Even prior to the aforesaid Judgment, the Supreme
Court of India had an occasion to consider a similar
question i.e. in State of Kerala Vs.Raneef, (2011)1 SCC
784. In that case,the Kerala High Court had granted
bail to one Dr.Raneef - respondent before the Supreme
Court, who was, inter alia, accused of having
committed offences punishable under various
provisions of IPC, the Explosive 16/26 BA 1020 AND
1066-12 Substances Act and the UAP Act. The
allegation was that the said respondent was a member
of the Popular Front of India (P.F.I), alleged to be a
terrorist organization. Their Lordships noted that there
was till then, no evidence to prove the P.F.I to be a
terrorist organization, but observed that even
assuming it to be so, whether all members of the said
organization can be automatically held to be guilty,
would need consideration. Their Lordships referred to
the observations made by the US Supreme Court in
Scales vs. United States, 367 U.S. 203, distinguishing
'active knowing membership and 'passive, merely
nominal membership' in a subversive organization.
The following observations of the US Supreme Court
were quoted with approval:-
The clause does not make criminal all association with
an organization which has been shown to engage in
illegal activity. A person may be foolish, deluded, or
perhaps mere optimistic, but he is not by this statute
made a criminal. There must be clear proof that the
Defendant specifically intends to accomplish the aims
of the organization by resort to violence. (Emphasis
supplied)
apeal136 & 137.17.odt
26. Again, the following observations of US Supreme
Court in Elfbrandt Vs. Russell, 384 US 17 19 (1966)
were also quoted:
Those who join an organization but do not share its
unlawful purpose and who do not participate in its
unlawful activities surely pose no threat, either as
citizens or as public employees. A law which applied to
membership without the 'specific intent' to further the
illegal aims of the organization infringes unnecessarily
on protected freedoms. It rests on the doctrine of 'guilt
by association' which has no place here.
28. The aforesaid discussion leaves no manner of
doubt that passive membership is not what is
contemplated by section 20 of the UAP Act. It is very
clear from the observations made by the Supreme
Court that if section 20 were to be interpreted in that
manner, it would at once be considered as violative of
the provisions of section 19 of the Constitution of
India, and would be struck down as ultra vires. In fact,
Their Lordships of the Supreme Court of India have
interpreted the concept of membership as an active
membership to save the relevant provision from being
declared as unconstitutional."
319. In Jyoti Chorge (supra), after considering the
specific material in electronic form found with the accused, this
Court observed that in the absence of any allegation or material
that the applicants had at any time agreed to do any illegal acts
or had handled arms, weapons or explosive substances to
commit a violent or unlawful act or some material to show that
apeal136 & 137.17.odt
the literature found with accused was banned under Section 95
of the Code, merely because the applicants were sympathisers of
Maoist philosophy, they cannot be brought within the umbrella
of the Act. Taking this principle further, this Court held:
"33. That the possession of certain literature having
a particular social or political philosophy would
amount to an offence, though such literature is not
expressly or specifically banned under any provision of
law, is a shocking proposition in a democratic country
like ours. A feeble attempt to put forth such a
proposition was made by the Learned SPP in the oral
arguments. Such a proposition runs counter to the
freedoms and rights guaranteed by Article 19 of the
Constitution. In this regard, a reference may also be
made to a decision of the Gujarat High Court, on which
reliance has been placed by Shri Mihir Desai. (Criminal
Miscellaneous Application Nos.12435 to 12437 and
other connected applications, decided on 18.11.2010).
The applicants therein had been alleged to be in
contact with a person involved in Naxal movement and
serious charges of offences punishable under Section
121-A, 124-A, 153-A, 120-B etc. of the IPC were
leveled against them along with offences punishable
under Sections 38, 39 and 40 of the UAP Act (as it
stood then). Certain documents such as agenda of a
meeting, in which one of the items was to pay homage
to a dead Naxalvadi who was killed in encounter and
some literature about revolution and lessons of
Communist Party of India (Maoists / Leninists)
containing, inter alia, features of Guerrilla 22/26 BA
1020 AND 1066-12 Warfare etc.was seized from the
applicants. While releasing the applicants on bail, the
apeal136 & 137.17.odt
High court observed that the seizure of the so called
incriminating material, by itself, cannot show
participation in an activity prohibited by law. It was
held that mere possession of such literature, without
actual execution of the ideas contained therein, would
not amount to any offence.
35. Since none of the applicants is said to have
indulged into any acts of violence or of being a party to
any conspiracy for committing any particular violent
act or crime, they cannot be held, prima facie, to have
committed the offences in question. Though it appears
that they had come in contact with the members of the
said organization, and were perhaps learning about the
philosophy and ideology of the said organization, they
cannot be prima facie held as offenders. Even if they
were impressed by the said philosophy and ideology,
still they cannot be said to be members - much less
such members as would attract the penal liability - of
the said organization. There does not seem to be a
prima facie case against the applicants even in respect
of an offence punishable under section 38 of the UAP
Act, which expands the scope of the criminal liability
attached to the membership of a terrorist organization,
inasmuch as, the mens rea in that regard, should
necessarily be with respect to such activities of the
organization as are contemplated in section 15, and
made punishable by sections 16 to 19 of the UAP Act."
320. The defence has relied on the decision of the Supreme
Court in the case of Vernon (supra), wherein the Court has
considered the different provisions of UAPA and about its
apeal136 & 137.17.odt
applicability under certain circumstances. The observations made in
the said decision are worthwhile to note which reads as below:-
"24. As it would be evident from the analysis of the
evidence cited by the NIA, the acts allegedly
committed by the appellants can be categorised
under three heads. The first is their association with
a terrorist organisation which the prosecution claims
from the letters and witness statements, particulars
of which we have given above. But what we must be
conscious of, while dealing with prima facie worth of
these statements and documents is that none of
them had been seized or recovered from the
appellants but these recoveries are alleged to have
been made from the co-accused. The second head of
alleged offensive acts of the appellants is keeping
literatures propagating violence and promoting
overthrowing of a democratically elected
government through armed struggle. But again, it is
not the NIA's case that either of the two appellants is
the author of the materials found from their
residences, as alleged. None of these literatures has
been specifically proscribed so as to constitute an
offence, just by keeping them. Thirdly, so far as AF is
concerned, some materials point to handling of
finances. But such finances, as per the materials
through which the dealings are sought to be
established, show that the transaction was mainly
for the purpose of litigation on behalf of, it appears
to us, detained party persons. The formation of or
association with a legal front of the banned terrorist
organisation has also been attributed to AF, in
addition. The High Court while analysing each of
these documents individually did not opine that
apeal136 & 137.17.odt
there were reasonable grounds for believing that the
accusations against such persons were not prima
facie true. Those offences which come within
Chapters IV and VI of the 1967 Act, charged against
the appellants, are Sections 16, 17, 18, 18B, 20, 38,
39 and 40. We have summarised the nature of
allegations reflected in the chargesheet as also the
affidavit of the NIA. Now we shall have to ascertain
if on the basis of these materials, the prosecution has
made out reasonable grounds to persuade the Court
to be satisfied that the accusations against the
appellants are prima facie true. There is charge
under Section 13 of the 1967 Act and certain
offences under the 1860 Code against the appellants
also. But we shall first deal with the appellants' case
in relation to charges made against them under the
aforesaid provisions.
26. In none of the materials which have been referred
to by the prosecution, the acts specified to in sub-
clause (a) of Section 15(1) of the 1967 Act can be
attributed to the appellants. Nor there is any allegation
against them which would attract sub- clause (c) of
Section 15(1) of the said statute. As regards the acts
specified in Section 15(1) (b) thereof, some of the
literature alleged to have been recovered from the
appellants, by themselves give hint of propagation of
such activities. But there is nothing against the
appellants to prima facie establish that they had
indulged in the activities which would constitute
overawing any public functionary by means of criminal
force or the show of criminal force or attempts by the
appellants to do so. Neither there is allegation against
them of causing death of any public functionary or
attempt to cause death of such functionary. Mere
apeal136 & 137.17.odt
holding of certain literatures through which violent
acts may be propagated would not ipso facto attract
the provisions of Section 15(1)(b) of the said Act.
Thus, prima facie, in our opinion, we cannot
reasonably come to a finding that any case against the
appellants under Section 15(1) (b) of 1967 Act can be
held to be true.
29. We have already observed that it is not possible for
us to form an opinion that there are reasonable
grounds for believing that the accusation against the
appellant of committing or conspiring to commit
terrorist act is prima facie true. The witness statements
do not refer to any terrorist act alleged to have been
committed by the appellants. The copies of the letters
in which the appellants or any one of them have been
referred, record only third-party response or reaction
of the appellants' activities contained in
communications among different individuals. These
have not been recovered from the appellants. Hence,
these communications or content thereof have weak
probative value or quality. That being the position,
neither the provisions of Section 18 nor 18B can be
invoked against the appellants, prima facie, at this
stage. The association of the appellants with the
activities of the designated terrorist organisation is
sought to be established through third party
communications. Moreover, actual involvement of the
appellants in any terrorist act has not surfaced from
any of these communications. Nor there is any credible
case of conspiracy to commit offences enumerated
under chapters IV and VI of the 1967 Act. Mere
participation in seminars by itself cannot constitute an
offence under the bail-restricting Sections of the 1967
Act, with which they have been charged.
apeal136 & 137.17.odt
31. This judgment has not been interfered with by
this Court and we also affirm this interpretation
given to Section 20 of the 1967 Act for testing as to
who would be a member of terrorist gang or
terrorist organisation. Moreover, no material has
been demonstrated by the NIA before us that the
appellants are members of the terrorist organisation.
AF's involvement with IAPL as a frontal organisation
of the Communist Party of India (Maoist) is sought
to be established, and that has been referred to in
the chargesheet as well. But the link between IAPL
and the CPI (Maoist) has not been clearly
demonstrated through any material. Reference to AF
and VG as members of the CPI (Maoist) appears
from the statement of protected witness, but that
link is made in relation to events between the years
2002-2007, before the organisation was included in
the First Schedule to the 1967 Act. No evidence of
continued membership after the party was classified
as a terrorist organisation has been brought to our
notice. Nor is there any reliable evidence to link
IAPL with CPI (Maoist) as its frontal organisation.
We have already dealt with the position of the
appellants vis-à-vis terrorist acts in earlier
paragraphs of this judgment and we prima facie do
not think that Section 20 can be made applicable
against the appellants at this stage of the
proceeding, on the basis of available materials.
34. Section 38 of the 1967 Act carries the heading or
title "offence relating to membership of a terrorist
organisation". As we have already observed, a terrorist
act would have to be construed having regard to the
meaning assigned to it in Section 15 thereof. We
have given our interpretation to this provision earlier.
apeal136 & 137.17.odt
"terrorist organisation" [as employed in Section
2(m)], in our opinion is not a mere nomenclature and
this expression would mean an organisation that
carries on or indulges in terrorist acts, as defined in
said Section 15. The term terrorism, in view of the
provisions of Section 2(k) of the said Act, ought to be
interpreted in tandem with what is meant by 'terrorist
Act' in Section 15 thereof. (Emphasis supplied.)
321. Keeping in mind above observations, we have examined
the worth of material adduced in support of the prosecution case. It
is the argument of the prosecution that broadly, the following
material contained in electronic form in the computer of Accused
No.6, would connect him with the banned organization CPI(Maoists)
and would demonstrate that he had knowledge about the activities
of this organization or was a member of RDF, a frontal organization
of CPI (Maoists):
Interview posted on 21.05.2011 (page 389 of the paper book),
Interview of September, 2009 speaking as Vice President of RDF
(page 376 of the paper book),
Review for RDF work of the year 2012 (page 352 of the paper book),
Pamphlet of CPI (Maoists) (page 453 of the paper book),
Letter by Prakash to SUCOMO (page 542 of the paper book),
apeal136 & 137.17.odt
Pamphlet from CPI (Maoists) dated 03.06.2011 (page 506 of the
paper book).
322. Perusing these and various other literature contained in
the hard disk, as claimed to have been seized from Accused No.6,
the contents of these documents read and understood by any person,
by themselves would not constitute an offence under Sections 13,
18, 20, 38 or 39. The documents relate to the period from the year
2006 to the year 2012, ranging for a period of 1 year to 7 years prior
to registering the FIR. The content of these documents if taken
cumulatively, would perhaps demonstrate that the accused were
sympathisers of a Maoist philosophy or sympathized with the cause
of certain tribal groups or certain people who were perceived to be
marginalized or disenfranchised, and mere possession of such
literature, having a particular political and social philosophy by itself
is not contemplated as an offence under the UAPA.
323. It is the argument of the prosecution that Vernon
(supra) and Thwaha Fasal (supra), the judgments rendered by the
Supreme Court at the stage of grant of bail and the considerations
therein are only to conclude whether there was (prima facie)
material against the accused. It is also argued that in the above
apeal136 & 137.17.odt
decision, the statutory presumption in terms of Section 43E of the
Act has not been considered, and therefore would not apply to the
present case. We are unable to accede to this argument since in both
these cases, the Supreme Court has examined the requirement to
bring home an offence under Section 18, 20, 38, 39 and 40 of the
UAPA; The discussion in both these judgments on the requirements
of bringing out the offence, and the balance to be struck whilst doing
so to uphold the fundamental rights of freedom of speech and liberty
of the accused enshrined in Article 19 would be, in our opinion,
binding precedent and must be followed by us.
324. The ratio laid down in Jyoti Babasaheb Chorge
(supra), Vernon (supra) and Thwaha Fasal (supra) would squarely
apply to the material content in all this literature; As held in these
judgments, passive membership, even if demonstrated from the
material is not contemplated as an offence under the above referred
provisions of UAPA. In any event, merely because a particular
philosophy is contained in the literature, which in any case has not
been proved is under the authorship of any of the accused, or
because a person chooses to read such literature which is otherwise
accessible from the internet from various websites containing
apeal136 & 137.17.odt
Communists or Maoists literature and philosophy, would to a certain
extent be violative of the fundamental rights of any citizen under
Article 19 of the Constitution of India. We take note of the
deposition of the investigating officer, PW-11 Suhas Pauche at para
31 thereof where he states that he is aware that there is a website
where "Naxal related banned thoughts" are available and this
website also contains "All information regarding CPI (Maoists) and
Naxal literature, meetings, resolutions and such material is available
on other websites on the internet. (Page 265 of paper book)
325. It is by now common knowledge that one can access a
huge amount of information from the website of Communist or
Naxal philosophy, their activities including videos and video footage
of even violent nature; Merely because a citizen downloads this
material or even sympathizes with the philosophy, would itself not
be an offence unless there is specific evidence led by the prosecution
to connect an active role shown by the accused with particular
incidents of violence and terrorism, which would be offences within
the purview of Sections 13, 20 and 39 of the UAPA. No evidence has
been led by the prosecution by any witness to any incident, attack,
act of violence or even evidence collected from some earlier scene of
apeal136 & 137.17.odt
offence where a terrorist act has taken place, in order to connect the
accused to such act, either by participating in its preparation or its
direction or in any manner providing support to its commission.
326. Similarly, we refer to videos played during the course of
the arguments wherein, it was submitted that the presence of A-6
and A-4 has been established. These videos are of a rally at
Hyderabad somewhere in the year 2012 in an open space, accessible
to any member of the public where certain speeches were made by
various persons. The content of the speeches may portray dissent or
criticism or even a streak of militancy, but by themselves, the content
of these videos do not in any manner portray any acts of "terrorism"
contained in the various provisions of the UAPA. In fact, there is no
evidence brought forth by the prosecution to connect the persons in
these videos with any actual act of terrorism which had taken place
in the past or to demonstrate how the persons in the video were
directly connected with and responsible for the commission of any
other act of terrorism.
327. The prosecution has not established that the speeches
made in these videos are in the nature of support to any banned
apeal136 & 137.17.odt
organization under the UAPA. We are of the opinion that the
prosecution ought to have connected the content of the speeches to
some past incident of terrorism or violence and the mere presence of
the Accused Nos.3, 4 and 6 in these videos by itself would not make
out any case for the prosecution. In fact, there is no deposition on
record identifying various accused in these videos or deposing to the
specific parts of the speech or actions in these videos which
constitute a terrorist act under the UAPA.
328. Though a great deal of electronic evidence is produced
in the form of printed/hard copies of the content stored in digital
form or in the nature of video footage, no evidence has been led by
any witness identifying the various persons in these videos, or
deposing as to the specific statements made by such persons and
quoting them, or how these statements or actions in videos
constitute material to make out an offence under the Act. Playing
several videos or requesting the Court to read through hundreds of
pages of literature does not constitute evidence. In our opinion,
there should have been specific evidence led through witnesses to
connect with the making out of an offence. In the absence of any
apeal136 & 137.17.odt
depositions to this effect, we are afraid we cannot consider all this
footage to be evidence.
329. For the above reasons, we reject the arguments of the
prosecution that the content of electronic evidence produced, though
not proved, by itself constitutes an offence under any of the
provisions of the UAPA of which the accused have been charged. We
reiterate that for the sake of this judgment we have done the above
exercise. Infact since the prosecution has failed to establish the
electronic evidence in accordance with law, the said material need
not be gone into as an evidence in this case.
INTENTION, PREPARATION AND CONSPIRACY.
330. The prosecution relied on the decisions in cases of
Aman Kumar69 and Malkiat Singh70 to contend the stages of crime
and in particular, the offence of preparation is complete if some of
the positive steps have been taken to achieve the intended act. In
these cases, the Court has considered that in every crime, there is
first intention to commit, secondly, preparation to commit it, and
thirdly, attempt to commit the crime. The culprit first intends to
commit offence, then makes preparation for committing it and then
69.Aman Kumar and Another Vs. State of Haryana, (2004) 4 SCC 379
70.Malkiat Singh and another Vs. State of Punjab, (1969) 1 SCC 157
apeal136 & 137.17.odt
attempts to commit the offence. It has been observed that the
preparation consists of devising or arranging the means or measures
necessary for the commission of the offence.
331. Certainly, in order to establish the offence of preparation to
commit crime, there must be some positive steps to achieve the
object. It is the prosecution case that accused undertook a
preparatory act for commission of a terrorist act punishable under
Section 18 of the UAPA. In order to attract the offence of conspiracy,
besides vague allegations that they have conspired to wage war
against the Government or advocated arms struggle, there is no
other material. The preparatory act must be for commission of a
terrorist act. The accused have not been charged of making
preparation to commit a particular terrorist act. CDR will only show
their acquaintance with each other, which factor without
corroboration will yield nothing. It is difficult to accept that have
conspired and made preparation to commit a terrorist act which is
not spelt out.
332. The defence has also criticized the mode and manner of
the investigation. Our attention has been invited to the evidence of
PW-11 SDPO Suhas Bawche who is an Investigating Officer. He
apeal136 & 137.17.odt
admits that the case diary is neither paginated nor in bound
condition, but, it is in loose condition, kept in the file. Since
inception, the learned defence counsel has blamed the Investigating
Officer for manipulating record and fabrication of incriminating
material. In the said context, it is submitted that the case diary was
purposely kept in loose paper form, so as to replace the same to suit
the purpose.
333. Section 172 of the Code mandates the Investigating Officer
to carry day to day entry in a case diary with particulars of time,
steps, places of visit and all other relevant circumstances. The
Criminal Court may use such diaries in a case in aid of the trial.
Amended Sub-clause (1-B) to Clause 1 of Section 172 of the Code
mandates that the case diary shall be a volume and duly paginated.
Admittedly, such procedural mandate was not followed in a serious
crime like this, which is not free from doubt.
334. It is a prosecution case that on 12.09.2013, house of
accused No.6 G.N. Saibaba was searched, in which voluminous
electronic gadgets containing incriminating material have been
seized. It is in the evidence of the Investigating Officer that on
apeal136 & 137.17.odt
15.02.2014, the Police tried to arrest accused No.6 G.N. Saibaba,
however, his party members created a law and order problems,
hence they did not arrest him. PW-11 SDPO Suhas Bawche deposed
that on 26.02.2014, he has applied to the Magistrate (Exh.268)
seeking an arrest warrant. Despite filing of the charge-sheet, the
Police did not think it appropriate to arrest accused No.6 G.N.
Saibaba, which was ultimately done on 09.05.2014 almost eight
months later. It does not stand to reason because of law and order
problem, the Police did not arrest him. The reason for not arresting
accused No.6 G.N. Saibaba for considerable period despite knowing
his alleged complexity and his place of abode has not been explained
to our satisfaction.
CONCLUSION
(A) In conclusion, we observe that the objection pertaining to
the validity of sanction has been raised before the Trial Court, right
from the stage of bail application till final arguments. Therefore,
non-filing of a separate objection, does not make any difference and
the question of validity of the sanction can be gone into in this
appeal. The conviction rendered by the Trial Court would always be
subject to the appeal. After analysing the evidence, we hold that the
apeal136 & 137.17.odt
conviction is not sustainable in the eyes of law, and therefore it
would not come in our way in this appeal to entertain objections to
the validity of the sanction.
(B) In our view, there is total non-compliance of various
provisions of UAPA. The sanction accorded to prosecute Accused
Nos.1 to 5 is invalid. Taking of cognizance by the Trial Court without
valid sanction or no sanction to prosecute accused No.6 G.N.
Saibaba goes to the root of the case, which renders the entire
proceedings null and void. There is non-compliance of the
provisions of Sections 43-A and 43-B of the UAPA pertaining to
arrest, search and seizure. Statutory presumption under section 43-
E of the UAPA would not apply for the offences charged. We hold
that the trial held despite violation of mandatory provisions of law
itself amounts to failure of justice.
(C) We summarize that, the entire prosecution is vitiated on account
of invalid sanction to prosecute accused Nos.1 to 5 and against
accused No.6, for want of valid sanction in terms of Section 45(1) of
the UAPA. The prosecution has failed to establish legal arrest and
seizure from accused Nos.1 to 5, and failed to establish the seizure
of incriminating material from the house search of accused No.6
apeal136 & 137.17.odt
G.N. Saibaba. The prosecution has also failed to prove the electronic
evidence in terms of the provisions of the Indian Evidence Act, and
the Information Technology Act.
(D) In view of the above conclusion, the common judgment
rendered by the Trial Court in Sessions Case No. 13/2014 and
130/2015 is not sustainable in the eyes of law. We therefore, allow
both the appeals by setting aside the impugned common judgment
and order of conviction dated 07.03.2017.
(E) Accused No.1 Mahesh Kariman Tirki, accused No.2 Pandu
Pora Narote, accused No.3 Hem Keshavdatta Mishra, accused No.4
Prashant Rahi Narayan Sanglikar, accused No.5 Vijay Nan Tirki and
accused No.6 G.N. Saibaba stand acquitted for the offence
punishable under Sections 10, 13, 20, 38, 39 read with Section 18 of
the UAPA and under Section 120-B of the IPC.
(F) Bail bond of accused No.5 Vijay Nana Tirki stands
cancelled. Accused No.1 Mahesh Kariman Tirki, accused No.3 Hem
Keshavdatta Mishra, accused No.4 Prashant Rahi Narayan Sanglikar,
apeal136 & 137.17.odt
and accused No.6 G.N. Saibaba be released forthwith, if not required
in any other offence.
(G) The accused shall execute bond of Rs.50,000/- each with
surety in the like amount to the satisfaction of the Trial Court in
terms of provisions of Section 437-A of the Code.
(H) Muddemal property be dealt with in accordance with law.
(I) The appeals stand disposed of in the aforesaid terms.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 05/03/2024 19:48:33
