Kerala High Court
Roopesh vs State Of Kerala on 17 March, 2022
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
CRL.REV.PET NO. 732 OF 2019
AGAINST THE ORDER in CMP No.2064/2018 IN SC 818/2018 OF DISTRICT COURT &
SESSIONS COURT,KOZHIKODE
REVISION PETITIONER:
ROOPESH,AGED 50 YEARS
S/O.RAMACHANDRAN, XVII/183, AMI, UNIVERSITY COLONY, COCHIN
UNIVERSITY P.O., KOCHI022 (R.P.NO.873, CENTRAL PRISON,
VIYYUR, THRISSUR).
BY ADVS.
K.S.MIZVER
K.S.MADHUSOODANAN
THUSHAR NIRMAL SARATHY
M.M.VINOD KUMAR
P.K.RAKESH KUMAR
RESPONDENTS:
1 STATE OF KERALA
TO BE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031.
2 DEPUTY SUPERINTENDENT OF POLICE,
NADAPURAM-673 504.
3 ADDL. R3 - THE ADDITIONAL CHIEF SECRETARY
HOME AND VIGILANCE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM
4 ADDL R4 - THE STATE POLICE CHIEF
POLICE HEAD QUARTERS,THIRUVANANTHAPURAM
ARE SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENTS R3 AND R4
AS PER ORDER DATED 15.07.2019 IN CRL.R.P. NO.732/2019
OTHER PRESENT:
SRIK.A.ANAS, GOVERNMENT PLEADER
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
09.03.2022, ALONG WITH Crl.Rev.Pet.734/2019, 733/2019, THE COURT ON
17.03.2022, DELIVERED THE FOLLOWING:
Crl.R.P Nos.732, 733, 734 of 2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
CRL.REV.PET NO. 734 OF 2019
AGAINST THE ORDER CMP 2065/2018 IN SC 819/2018 OF DISTRICT COURT &
SESSIONS COURT,KOZHIKODE
REVISION PETITIONER:
ROOPESH,AGED 50 YEARS
S/O.RAMACHANDRAN, XVII/183, AMI UNIVERSITY COLONY, COCHIN
UNIVERSITY P.O., KOCHI-22 (R.P.NO.873, CENTRAL PRISON,
VIYYUR, THRISSUR).
BY ADVS.
K.S.MIZVER
SRI.K.S.MADHUSOODANAN
SRI.THUSHAR NIRMAL SARATHY
SRI.M.M.VINOD KUMAR
SRI.P.K.RAKESH KUMAR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.
2 DEPUTY SUPERINTENDENT OF POLICE,
NADAPURAM-673504.
3 ADDL R3 - THE ADDITIONAL CHIEF SECRETARY
HOME AND VIGILANCE,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURA
4 ADDL R4 - THE STATE POLICE CHIEF
POLICE HEAD QUARTERS,THIRUVANANTHAPURAM
ARE SUO MOTU IMPLEADED AS ADDITIONAL R3 AND R4 AS PER ORDER
DATED 15.07.2019 IN CRL.R.P. NO.734/2019
OTHER PRESENT:
SRIK.A.ANAS, GOVERNMENT PLEADER
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
09.03.2022, ALONG WITH Crl.Rev.Pet.732/2019 AND CONNECTED CASES, THE
COURT ON 17.03.2022, DELIVERED THE FOLLOWING:
Crl.R.P Nos.732, 733, 734 of 2019
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
CRL.REV.PET NO. 733 OF 2019
AGAINST THE ORDER IN cmp 2063/2018 IN SC 817/2018 OF DISTRICT COURT &
SESSIONS COURT,KOZHIKODE
REVISION PETITIONER:
ROOPESH,AGED 50 YEARS
S/O.RAMACHANDRAN, XVII/183, AMI UNIVERSITY COLONY, COCHIN
UNIVERSITY P.O., KOCHI-22 (R.P.NO.873, CENTRAL PRISON,
VIYYUR, THRISSUR).
BY ADVS.
K.S.MADHUSOODANAN
SRI.THUSHAR NIRMAL SARATHY
SRI.M.M.VINOD KUMAR
SRI.P.K.RAKESH KUMAR
SRI.K.S.MIZVER
RESPONDENTS:
1 STATE OF KERALA,
TO BE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM- 682031.
2 DEPUTY SUPERINTENDENT OF POLICE,
NADAPURAM- 673504.
3 ADDL R3 - ADDITIONAL CHIEF SECRETARY
HOME AND VIGILANCE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM
4 ADDL. R4 - THE STATE POLICE CHIEF
POLICE HEADQUARTERS,THIRUVANANTHAPURAM
ARE SUO MOTU IMPLEADED AS ADDITONAL RESPONDENTS R3 AND R4
OTHER PRESENT:
SRIK.A.ANAS, GOVERNMENT PLEADER
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
09.03.2022 ALONG WITH Crl.Rev.Pet.732/2019 AND CONNECTED CASES, THE COURT
ON 17.03.2022, DELIVERED THE FOLLOWING:
Crl.R.P Nos.732, 733, 734 of 2019
4
CR
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
-------------------------------------------
Crl.R.P Nos.732, 733, 734 of 2019
-------------------------------------------
Dated, this 17th March, 2022
ORDER
K.Vinod Chandran, J.
Amidst the raging controversy as to the
retention of offence of sedition in the IPC; which the
naysayers categorise as a relic of the colonial past; a
symbol of British hegemony and the votaries support in
the wake of rising anti-national feelings under the cloak
of liberal thought, the Government sat over a sanction
for six months, violating the time frame prescribed in
the rules.
2. Shorn of the myriad facts regarding the
ingredients of the offences alleged, the revision
petitioner was charged under Ss. 143, 147, 148, 124A read
with 149 IPC and Ss. 20 & 38 of the Unlawful Activities
(Prevention) Act, 1967 [for short 'UA(P)A']. The revision
petitioner is alleged to be a member of the Communist
Party of India [Maoist] a proscribed organisation under
the UA(P)A. The three crimes registered are Crime No.861
of 2013 of the Kuttiadi Police Station and Crime Nos.11 &
Crl.R.P Nos.732, 733, 734 of 2019
15 of 2014 of the Valayam Police Station. The State
Police Chief wrote to the State Home Department, who took
it up with the Authority constituted under S.45 of the
UA(P)A. The statement dated 19.07.2018 filed by the 3 rd
respondent, Addl. Chief Secretary, Home & Vigilance,
indicates the same having been taken up with the Law
Secretary, who was the Chairperson of the Authority and
the latter having agreed to convene a meeting of the
Authority on 11.01.2018. This establishes the evidence
gathered in the investigation having been placed before
the Authority before 11.01.2018. Then it is stated that
there was a change in the constitution of the Authority
and a retired High Court Judge was appointed. The
Chairman newly appointed was engaged with the Puttingal
Enquiry Commission and related cases and hence could not
consider the proposal immediately. Eventually the
Authority took up the matter on 07.02.2018 and
recommended it on the same day. The sanction of the State
Government in the first two crimes were on 11.06.2018 and
in the other crime on 07.04.2018; both delayed.
3. The allegation now raised is of delay in
recommendation and sanction, thus violating the time
Crl.R.P Nos.732, 733, 734 of 2019
stipulated under the Unlawful Activities (Prevention)
(Recommendation and Sanction of Prosecution) Rules, 2008
(Rules of 2008); prescribed as empowered under the
UA(P)A. The sanctions, not being within time, are not
valid and vitiates the cognizance taken by the Special
Court. The Special Court, before which an application was
moved under S.227 of the Criminal Procedure Code, for
discharge, rejected the applications, wrongly assuming
that the time stipulated under the Rules commence from
the letter of the Director General of Police dated
03.06.2018. The Government does not press that contention
before us.
4. Sri.K.S.Madhusoodanan, appeared for the
revision petitioner, who is in judicial custody in
another case. Sri.K.A.Anas, learned Government Pleader
appeared for the State.
5. Sri.K.S.Madhusoodanan read the provisions
under the UA(P)A in juxtaposition with the provisions
under the Terrorist and Disruptive Activities
[Prevention] Act, 1987 [for brevity, 'TADA'] and the
Prevention of Terrorism Act, 2002 [for brevity, 'POTA'].
It was pointed out that the provision for sanction, as a
Crl.R.P Nos.732, 733, 734 of 2019
condition for taking cognizance, in all these enactments
were an important safeguard to the fundamental rights of
the citizen guaranteed under the Constitution; which
otherwise would be used to stifle every voice of dissent.
While the TADA & POTA, did not stipulate the specific
time within which the sanction has to be granted; in the
UA(P)A, in the Rules framed thereunder, a specific time
of seven days is provided, within which the Authority
constituted under S.45(2) has to make a recommendation,
after which the appropriate Government also has to issue
a sanction within another seven days from the receipt of
the recommendation. When the said stipulation is not
followed to the letter, it goes against the spirit of the
safeguard provided and the cognizance taken by the
Special Court is vitiated.
6. As far as the offence under S.124A IPC is
concerned, a similar provision without stipulation of
time is available under S.196 IPC. The sanctions granted,
as available in all the three crimes, speak of the
specific provisions charged under the UA(P)A and in a
cryptic manner speaks also of 'any provisions under the
IPC'. The invocation of power to grant sanction is under
Crl.R.P Nos.732, 733, 734 of 2019
the UA(P)A and hence the sanction accorded to the
offences charged under the IPC cannot be considered to be
a proper sanction. S.124A is not the only provision for
which sanction is required under S.196 and hence the
ingredients of the offence, as discernible from the
materials available and the documents produced before the
Authority, to arrive at a satisfaction have to be
discussed to show a proper application of mind. While
pointing out the mandatory requirement for a sanction
under S.45(1) UA(P)A and the requirement to scrupulously
follow the time limit under the Rules of 2008, specific
reference is made to the word 'shall' in Rules 3 & 4.
Owners and Parties Interested in M.V. "Vali Pero" v.
Fernadeo Lopez [(1989) 4 SCC 671], Rambhai Nathabhai
Gadhvi and Others v. State of Gujarat [(1997) 7 SCC 744],
Ashrafkhan @ Babu Munnekhan Pathan v. State of Gujarat
and Others [(2012) 11 SCC 606], CBI v. Ashok Kumar
Agarwal [(2014) 14 SCC 295], Seeni Nainar Mohammed v.
State rep. by Deputy Superintendent of Police [(2017) 13
SCC 685] and Shalibhadra Shah v. Swami Krishna Bharati
[1981 Crl.LJ 113], are relied on by the revision
petitioner.
Crl.R.P Nos.732, 733, 734 of 2019
7. Sri.Anas at the outset submits that the time
stipulated is directory and not mandatory. Even if the
time is considered to be mandatory, that does not save
the petitioner from being prosecuted under S.124A read
with S.149 IPC. It is argued that the invocation of the
power to grant sanction under S.45 of the UA(P)A would
not invalidate the further sanction under S.196, in the
same order, since the authority empowered to grant
sanction under the UA(P)A and Cr.P.C. are the same. Even
if there is an error caused in the issuance of the
sanction it does not vitiate the cognizance taken, by
virtue of S.460(e) of Cr.P.C. When even a finding or
sentence is reversible on grounds of error, omission or
irregularity; only when a failure of justice is
occasioned, as provided in S.465, there is no warrant to
find the cognizance taken to be vitiated for reason only
of the delay in issuance of a sanction.
8. The safeguard provided by the insistence of a
sanction, is to ensure that a citizen is not
unnecessarily proceeded against on a frivolous charge by
the investigating agency. The requirement of a sanction
by the Government based on a recommendation of the
Crl.R.P Nos.732, 733, 734 of 2019
Authority constituted is incorporated in the Statute and
the same is done. Time is of no essence and the delay
causes no prejudice to the accused, as long as the
sanction is obtained prior to the cognizance taken. In
any event, it is contended, cognizance taken is of the
offence and not of the offender and if at all, this Court
finds the time stipulated to be mandatory under the
UA(P)A; still the offence under S.124A read with S.145
IPC would survive and the petitioner has to be prosecuted
thereunder. Haradhan Shah v. State of W.B 1975 (3) SCC
198, Union Of India v. Saleena 2016 (3) SCC 437, State of
Karnataka v. Pastor P. Raju 2006 (6) SCC 728 Deepak
Khinchi v. State of Rajasthan [(2012) 5 SCC 284] Union of
India & Others v. Saleena [(2016) 3 SCC 437] State of
Mizoram v. Dr. C. Sangnghina 2019(13) SCC 335 Pradeep S.
Wodeyar v. State of Karnataka 2021(14) SCALE 203 and
Shantaben Bhurabhai Bhriya v. Anand Athabhai Chaudhari
[Crl.Appeal No.967 of 2021] are relied on.
9. S.45(1)(ii) of the UA(P)A prohibits,
unequivocally, any Court from taking cognizance of
offences under Chapters IV & VI without previous sanction
of the appropriate Government. Ss. 20 & 38 of the UA(P)A
Crl.R.P Nos.732, 733, 734 of 2019
charged against the petitioner herein, fall under Chapter
IV & Chapter VI respectively. Sub-section (2) of S.45
requires the sanction for prosecution, from the
appropriate Government, under sub-section (1), within
such time as prescribed, after considering the report of
such Authority appointed by the appropriate Government.
The Authority so appointed is also required to make an
independent review of the evidence gathered in the course
of investigation and make a recommendation within such
time as prescribed by the Central Government. The Rules
of 2008 is brought out specifically to prescribe the time
as mandated under sub-section (2) of S.45. The Rules of
2008, but for the short title and definition clauses have
only two Rules; Rule 3 & 4. Rule 3 prescribes the time
for making the report containing the recommendations, by
the Authority to the appropriate Government. Rule 4
prescribes the time limit for issuance of sanction of
prosecution, by the appropriate Government. Both these
rules prescribe seven working days as the time within
which the recommendation is to be made and the sanction
has to be issued; commencing respectively from the
receipt of evidence gathered by the investigating officer
Crl.R.P Nos.732, 733, 734 of 2019
and the receipt of recommendation of the Authority.
Admittedly, in the present case, both the recommendation
of the Authority and the sanction of the State Government
were after the prescribed seven days.
10. M.V. "Vali Pero" [supra] considered Rule 4
of the Calcutta High Court Rules applicable to
depositions taken on Commission. It inter alia provided
the depositions to be signed by the deponent; the
consequence of failure of which was not provided by the
rule. It was held that if the word 'shall', in the
specific rule, is construed as mandatory, then the non-
compliance would lead to a drastic consequence of
nullifying the deposition itself, which would result in
miscarriage of justice, even when the omission is by
inadvertence. The Court leaned in favour of treating the
expression as directory so as to avoid miscarriage of
justice, by permitting the Court to reject the deposition
without a signature, only if, on the available material
the correctness and authenticity is doubtful. In the
cited case, the evidence available by way of deposition
of defendant's witnesses were totally eschewed by the
High Court; accepting the objection raised by the
Crl.R.P Nos.732, 733, 734 of 2019
plaintiffs that the witness' signature were not available
on the deposition. The suit was also decreed, based on
the un-rebutted evidence of the plaintiffs. Pertinently,
it was not the defendants who objected to their
deposition, but the plaintiffs; who raised no objection
with regard to the genuineness or authenticity of the
deposition, but merely pointed out the technical defect
of absence of signature, occasioned only by inadvertence.
It was in the context of the ensuing miscarriage of
justice occasioned; if the requirement of affixing of
signature is construed as mandatory, that the more
liberal interpretation was given to the word 'shall'.
11. The word 'shall' in the context of the UA(P)A
& the Rules of 2008, cannot be said to be merely
directory. Sub-Section (2) of S.45 specifically speaks of
the recommendation of the authority and the sanction by
the appropriate Government 'shall' (sic) be within such
time as prescribed. The prescription made by the
Government is available in the Rules of 2008, which
subordinate legislation was brought out only to prescribe
the time limit, for both the Authority and the
appropriate Government, respectively to make the
Crl.R.P Nos.732, 733, 734 of 2019
recommendation and issue the sanction as provided under
S.45. It has been held by the Honourable Supreme Court in
RBI v. Peerless General Finance & Investment Co. Ltd.,
(1987) 1 SCC 424 :
33. Interpretation must depend on the text and
the context. They are the bases of interpretation.
One may well say if the text is the texture,
context is what gives the colour. Neither can be
ignored. Both are important. That interpretation is
best which makes the textual interpretation match
the contextual. A statute is best interpreted when
we know why it was enacted. With this knowledge,
the statute must be read, first as a whole and then
section by section, clause by clause, phrase by
phrase and word by word. If a statute is looked at,
in the context of its enactment, with the glasses
of the statute-maker, provided by such context, its
scheme, the sections, clauses, phrases and words
may take colour and appear different than when the
statute is looked at without the glasses provided
by the context. With these glasses we must look at
the Act as a whole and discover what each section,
each clause, each phrase and each word is meant and
designed to say as to fit into the scheme of the
entire Act. No part of a statute and no word of a
statute can be construed in isolation. Statutes
have to be construed so that every word has a place
and everything is in its place. ...
12. The word 'shall' used in the Rules of 2008
has a well defined texture as available from the
identical 'shall' employed in the text of sub-section (1)
& (2) of S.45 of the UA(P)A; and the power conferred on
the Central Government by S.52 to make rules for carrying
Crl.R.P Nos.732, 733, 734 of 2019
out the provisions of the Act. The Rules of 2008
prescribed the time of seven days; as spoken of in the
enactment. The Act itself is enacted, to prevent unlawful
activities of individuals and associations as also
dealing with terrorist activities, which terms are
specifically defined under the enactment itself. The
colour is perceivable from the context in which the
enactment is saved from the challenge of having infringed
the fundamental rights guaranteed under the Constitution,
only on the ground of a reasonable restriction; which has
to be construed very strictly. The Parliament, in
bringing out the enactment and the Government, in
promulgating the Rules had the prior experience of the
TADA and POTA as also S.196 Cr.P.C; none of which had a
time frame for issuance of sanction. UA(P)A as it was
originally enacted, in its Statements of Objects and
Reasons, declared it to be in the interest of the
sovereignty and integrity of India, intended to bring in
reasonable restrictions to (i) freedom of speech and
expression, (ii) right to assemble peaceably and without
arms ; and (iii) right to form associations or unions.
The original enactment by S.17 required a sanction from
Crl.R.P Nos.732, 733, 734 of 2019
the Central Government or the authorised officer to
initiate prosecution.
13. UA(P)A, 1967, as it was originally enacted
did not concern itself with terrorist activities. In the
wake of the rise in terrorist and disruptive activities,
TADA of 1985 was promulgated and then the TADA of 1987,
to deal with matters connected therewith or incidental
thereto. The TADA of 1987 was repealed by Act 30 of 2001,
after which POTA, 2002 was brought into force. POTA stood
repealed in the year 2004. Amendments were brought in the
UA(P)A by Act 29 of 2004, including in the Preamble the
words 'and for dealing in terrorist activities' and
resultant amendments to the text too. By Act 35 of 2008,
amendments were again brought in the UA(P)A; when sub-
section (2) of S.45 was incorporated. The TADA by
S.20A(1) required any information about the commission of
an offence under that Act to be recorded by the Police
only with prior approval of the District Superintendent
of Police. By sub-section (2), cognizance could be taken
by a Court only after previous sanction of the I.G. of
Police or the Commissioner of Police. POTA by S.50
prohibited any Court from taking cognizance of an offence
Crl.R.P Nos.732, 733, 734 of 2019
under that Act without the previous sanction of the
Central Government or the State Government. It is very
clear that the legislators learned from the experience
and worked on the information, about the actual working
of the enactments, which brought drastic consequences to
those accused of the offence of a terrorist or disruptive
act. The sanction required by the TADA from the higher
echelons of Police was found to be insufficient to curb
the evil of misuse and hence, by POTA the requirement was
upgraded to one from the Government itself. After repeal
of the POTA, the UA(P)A, strengthened with the amendments
in 2004, continued with S.45, which prohibited cognizance
by any Court; of offences under Chapter III, without a
sanction from the Central Government or the authorised
officer and under Chapters IV & VI without the sanction
of either the State Government or the Central Government,
as appropriately required. It was by Act 35 of 2008 that
sub-section (2) was incorporated in the UA(P)A.
14. The Parliament, in 2008, while enacting
Amending Act 35 of 2008 had consciously incorporated the
provision requiring a recommendation from an Authority
and retained the requirement of sanction from the
Crl.R.P Nos.732, 733, 734 of 2019
appropriate Government, as provided in sub-section (1).
It was by sub-section (2) that an Authority was
contemplated, to make recommendations after reviewing the
evidence gathered and a specific time was permitted to be
prescribed by rules. The Central Government having
brought out the Rules of 2008 specifying the time, within
which the recommendation and sanction has to be made, the
time is sacrosanct and according to us, mandatory. It
cannot at all be held that the stipulation of time is
directory, nor can it be waived as a mere irregularity
under S.460 (e) or under S.465 Cr.P.C. S.460 saves any
erroneous proceeding, inter-alia of taking cognizance; if
done in good faith. When sanction is statutorily mandated
for taking cognizance and if cognizance is taken without
a sanction or on the strength of an invalid one, it
cannot be said to be an erroneous proceeding taken in
good faith and the act of taking cognizance itself would
stand vitiated. The defect is in the sanction issued,
which cannot be saved under S.460(e). As for S.465, we
shall deal with it, a little later.
15. Shailabhadra Shah [supra] was a case in
which proceedings were taken under S.295-A IPC, based on
Crl.R.P Nos.732, 733, 734 of 2019
an article against a religious leader, which was alleged
to be scurrilous and defamatory. There was no prior
sanction obtained under S.196(1) Cr.P.C, which was held
to be sine qua non, without which a Magistrate cannot
take cognizance of the offence. The Division Bench of the
High Court of Gujarat explained the policy underlying the
requirement of a sanction under S.196(1) Cr.P.C., which
offences were held to be of a serious and exceptional
nature. The offences enumerated under Sec.196 Cr.P.C are
those punishable under Chapter 6 or under S.153-A, S.295-
A or S.505, as it was then. Looking at the offences
enumerated under S.196 it was held that the requirement
for a consent for the purpose of initiating a prosecution
had to be considered on the balancing considerations of
whether such a prosecution would augur well for public
peace or would on the contrary result in its
deterioration. It also had to be looked at, in the
context of whether actions complained of were in essence
reformative; intended to attack religious or social
dogmas and whether a prosecution would result in
throttling free discussion on a subject. The underlying
policy was held to be that, prior sanction is a must
Crl.R.P Nos.732, 733, 734 of 2019
before cognizance of the offence is taken.
16. Rambhai Nathabhai Gadhvi (supra) arose
under the TADA of 1985. The accused were alleged to be
actively engaged in smuggling of arms and ammunitions.
One of the two arguments addressed, was regarding the
validity of a sanction under S.20A. The sanction required
thereunder was for the prosecuting agency to approach the
jurisdictional Court to enable it to take cognizance of
the offence, which sanction was held to be a sine qua
non, without which the Court is forbidden from taking
cognizance. The sanction granted therein, by the DGP,
permitted addition of S.3,4 and 5 of TADA. The documents
made available to the DGP were the FIR and a letter sent
by the Superintendent with a narration of facts. It was
held that there is nothing to show that the sanctioning
authority applied its mind effectively and arrived at a
satisfaction that, it is necessary in public interest to
launch prosecution under the TADA. The provisions of the
TADA being more rigorous with stringent penalty and the
trial prescribed being compendious, the sanctioning
process had to be more serious and exhaustive than those
contemplated in other penal statutes was the finding.
Crl.R.P Nos.732, 733, 734 of 2019
Their Lordships also held that the mere permission
granted to add certain sections of TADA is not a sanction
to prosecute the appellant. Anirudh Singhji Karan Singhji
Jadeja v. State of Gujarat [1995(5) SCC 302] a three
Judge Bench was referred to. Therein, despite the DSP's
letter being exhaustive, it was held that the Government,
the sanctioning authority, ought to have verified, that
the facts stated are borne out from the records.
17. Ashok Kumar Agarwal [supra] arose under the
Prevention of Corruption Act, 1988 which held that grant
of sanction is not a mere formality. There is an
obligation cast on the sanctioning authority to discharge
its duty and grant or withhold sanction, only after
having full knowledge of the material facts of the case.
Sanction, it was declared is not an acrimonious exercise,
but a solemn and sacrosanct act, affording protection to
the government servant (in the context of that enactment)
against frivolous prosecution. This is equally applicable
in the case of prosecution launched either under the
UA(P)A or for offences as enumerated under S.196 Cr.PC.
Seeni Nainar Mohammed [supra] was yet another case under
the TADA of 1985 wherein, again the Hon'ble Supreme Court
Crl.R.P Nos.732, 733, 734 of 2019
reiterated that prior approval as contemplated under
S.20A to be mandatory.
18. Pastor P. Raju [supra] was a case in which an
FIR was registered under S.153-B IPC and the respondent
on production after arrest, was remanded by the
Magistrate. While holding that cognizance takes place at
the point when a Magistrate first takes judicial notice
of an offence, it was held that an order remanding an
accused to judicial custody does not amount to taking
cognizance of an offence. The order of the High Court
quashing the proceedings for absence of a sanction under
S.196(1) was reversed, finding that, for registration of
a crime or conducting investigation, a sanction is not
required. In the present case we are not at that stage
and the Special Court had already taken cognizance and
the challenge is against the cognizance taken, without a
valid sanction.
19. Deepak Khinchi [supra] was a case in which
there was a delay of 3 years in initiating prosecution
under the IPC and the Explosive Substances Act; the
latter enactment requiring a sanction. The delay was
occasioned due to the Sessions Court refusing to take
Crl.R.P Nos.732, 733, 734 of 2019
cognizance twice. On the first instance there was no
sanction but on the next instance despite a sanction
having been obtained, cognizance was refused on a
frivolous ground. In the third round cognizance was
taken, which was approved by the High Court against which
the accused approached the Hon'ble Supreme Court. It was
considering the gravity of the offences, the Hon'ble
Supreme Court refused to find any prejudice caused to the
accused. Therein the learned Judges referred to State Of
Goa v. Babu Thomas 2005 (8) SCC 130, a case in which the
Hon'ble Supreme Court allowed the competent authority to
issue a fresh sanction order despite finding the
prosecution already launched to be without a valid
consent. We are afraid, that stage has not yet reached in
the present case and it would be premature for us to
speak on a sanction, in future; which if we do could be
termed an obiter dicta.
20. Dr.C. Sangnghina [supra] permitted the
trial to be proceeded with on the second charge sheet;
which the Special Court refused to take cognizance of on
the ground of double jeopardy. The Hon'ble Supreme Court
held that there can be urged no ground of double jeopardy
Crl.R.P Nos.732, 733, 734 of 2019
since at the first instance cognizance was refused due to
absence of sanction; which in any event was produced
along with the second charge sheet. Reliance was placed
on Babu Thomas [supra] and Nanjappa v. State of Karnataka
2015 (14) SCC 186. It has to be noticed that the three
decisions, cited here, were under the Prevention of
Corruption Act, which required sanction under S.19 of
that Act. S.19 (3) of the Prevention of Corruption Act,
is the very same saving provision under S.465 Cr.P.C. It
interdicted reversals of judgments, on the only ground of
sanction orders suffering from an error, omission or
irregularity; unless the Court opines that it has
resulted in a failure of justice.
21. UA(P)A, does not contain a provision similar
to S.19(3) but definitely S.465 has application since
S.43-D deems every offence under UA(P)A to be a
cognizable offence under S.2(c) of the Code. As to the
application of S.465, to validate defective sanctions,
the Hon'ble Supreme Court held so, in Ashraf Khan @ Babu
Munne Khan Pathan(supra) which arose under the TADA 1985:
33. Now we proceed to consider the submission
advanced by the State that non-compliance with
Section 20-A(1) i.e. absence of approval of the
District Superintendent of Police, is a curable
Crl.R.P Nos.732, 733, 734 of 2019
defect under Section 465 of the Code. We do not have
the slightest hesitation in holding that Section 465
of the Code shall be attracted in the trial of an
offence by the Designated Court under TADA. This
would be evident from Section 14(3) of TADA which
reads as follows:
"14. Procedure and powers of Designated Courts.--
(1)-(2) * * *
(3) Subject to the other provisions of this
Act, a Designated Court shall, for the purpose of
trial of any offence, have all the powers of a
Court of Session and shall try such offence as if
it were a Court of Session so far as may be in
accordance with the procedure prescribed in the
Code for the trial before a Court of Session."
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 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.
[underlining by us for emphasis]
22. As we already noticed, UA(P)A was in force
from the year 1967 with the requirement of a sanction by
the appropriate Government without any stipulation of
time. The enactments which sought to prevent terrorist
activities brought out subsequently also had the very
Crl.R.P Nos.732, 733, 734 of 2019
same requirement of a consent without any stipulation of
time. From the wealth of experience gleaned over more
than half a century, when such enactments were in force;
the Parliament consciously in the year 2008 brought in a
provision where the requirement was not only a sanction
form the appropriate Government but a prior
recommendation from an Authority constituted under the
Act, which had to be perused by the appropriate
Government before sanctioning a prosecution. As has been
noticed in the various precedents the provisions under
the UA(P)A have an added rigour. The investigating agency
is given a wider latitude in so far as the time frame for
completing the investigation which in turn makes it more
rigorous for the accused, which is made further harsh by
the restrictions in granting bail as found in sub-
sections (5) & (6) of S.43-D, the presumption under S.43-
E and the overriding effect to the enactment as conferred
under S.48. This is the context in which S.45 (2) has
been incorporated, with provision, for an Authority to be
constituted for an independent review of the evidence
gathered, whose recommendation also has to be considered
before the sanction is granted. There is also provided a
Crl.R.P Nos.732, 733, 734 of 2019
time frame for the recommendation of the Authority to be
made and the sanction of the Government issued; hitherto
not included in identical penal statutes. The time frame,
as we noticed is unique and it brings in consequences
hitherto unavailable and the viability of a second
proceedings would be on a very sticky wicket; especially
when it could enable the investigating agency to move the
Authority and the Government repeatedly if an earlier
attempt is unsuccessful. We hasten to add that we are
only thinking aloud and that contention would have to be
left for another day, another proceeding, to be answered;
as we are not now on that aspect and we would resist the
temptation to make an obiter.
23. We are of the opinion that the provision for
sanction is mandatory and the stipulation of time also is
mandatory and sacrosanct. We have noticed the legislative
history of the enactments and the provision for sanction
incorporated thereunder, to take cognizance of charges
based on activities labelled and defined as unlawful,
terrorist and disruptive. It has to be found that the
sanction under the UA(P)A granted after six months from
the date of receipt of recommendation of the authority is
Crl.R.P Nos.732, 733, 734 of 2019
not a valid sanction. It also has to be stated that the
sanction orders merely speak of the Government, after
careful examination of the records of investigation in
detail, being fully satisfied of the accused having
committed an offence punishable under Ss.20 and 38 of the
UA(P)A. The sanction order merely referred to the records
of investigation in the respective crimes, the letter of
the State Police Chief and the recommendation of the
authority constituted under S.45 of the UA(P)A.
24. It is to be emphasized that S.45(2) of the
UA(P)A makes it mandatory for the Authority to make an
independent review of the evidence gathered in the course
of investigation and make a recommendation within such
time as prescribed, to the appropriate Government. This
does not absolve the appropriate Government from applying
its mind since otherwise there was no requirement for a
further sanction from the appropriate Government. We have
seen from the precedents that sanction for prosecution is
a solemn and sacrosanct act which requires the
sanctioning authority to look at the facts and arrive at
the satisfaction, of requirement of a prosecution. It
was held in Anirudh Singhji Karan Singhji Jadeja [supra]
Crl.R.P Nos.732, 733, 734 of 2019
that despite the letter of the DSP being exhaustive, the
Government ought to have verified that the allegations as
stated by the DSP were borne out from the records. In the
case of UA(P)A despite the independent review made by the
Authority constituted under S.45, the Government has to
arrive at a satisfaction without merely adopting the
recommendation of the Authority. The Government, it is to
be emphasized, has no obligation to act in accordance
with the recommendation of the Authority. The sanction is
of the Government and not the Authority and the
recommendation of the Authority only aids or assists the
Government in arriving at the satisfaction. In the
present case there is no such application of mind
discernible, but for the reference to the recommendation
of the Authority and the laconic statement of the
Government, that details have been verified, on which
satisfaction is recorded as to the offence having been
committed by the accused, for which prosecution has to be
initiated. We find the sanction order of the UA(P)A to be
not brought out in time, as statutorily mandated and
bereft of any application of mind; both vitiating the
cognizance taken by the Special Court.
Crl.R.P Nos.732, 733, 734 of 2019
25. The next contention raised by the State is
with respect to the prosecution for offences under S.124A
r/w S.149 IPC. At the outset we notice the finding in
Rambhai Nathabhai Gadhvi [supra] that the power of the
designated court to try the accused for any offence other
than the offences under the special statute can be
exercised only in a trial conducted for any offence under
the special statute. When the cognizance taken, of the
offences under the UA(P)A, is held to be without
jurisdiction, for want of valid sanction, then there is
no question of a valid trial being held by the Special
Court into any offence under the IPC. Further it has to
be noticed that there can be no sanction even under S.196
found, from the orders of sanction produced in the above
revision petitions. In that context we need not dwell
upon whether the Sessions Court competent to try the
offence under S.124A should be directed to take
cognizance and proceed with the trial of the offences
under IPC.
26. Haradhan Shah [supra] held that rejection of
representation by the Government and the Advisory Board
in Preventive Detention matters should be after real and
Crl.R.P Nos.732, 733, 734 of 2019
proper consideration; but it is not required that the
reasons be communicated to the detenu, by a speaking
order. It was held that :Elaborate rules of natural
justice are excluded either expressly or by necessary
implication where procedural provisions are made in the
statute or where disclosure of relevant information to an
interested party would be contrary to the public interest
(sic). Saleena [supra] relied on the above cited decision
and reiterated, in the context of the subjective
satisfaction that regulates the orders of preventive
detention, that there is no requirement that the order
rejecting representation by the detenu should be a
speaking one. It was also clarified that the
Constitutional Courts could at any time call for the
records and ensure that there was a proper consideration
of the representation. The dictum is applicable only in
preventive detention matters or where such requirement is
given a complete go by in the statute. The sanction as
mandated in the UA(P)A and the Cr.P.C has been held to be
not directory and the purpose itself would be defeated if
the above dictum of preventive detention, is imported in
the matter of sanctions for taking cognizance by Criminal
Crl.R.P Nos.732, 733, 734 of 2019
Courts, wherein the application of mind should be
demonstrated from the order itself.
27. All the sanction orders invoke the powers
under the UA(P)A. As rightly pointed out by the learned
Government Pleader, merely because the powers under the
UA(P)A alone was invoked; if the order discloses
consideration of the materials for the purpose of
granting sanction under S.196, definitely the sanction
orders can be upheld and the cognizance taken held to be
valid, especially when the authority to grant such
sanction under the UA(P)A and S.196 is the same
authority; here, the Government. In all the revision
petitions the sanction order after recording satisfaction
of the accused having committed offences under the UA(P)A
reads: 'besides offences punishable under relevant
sections of the IPC for which they should be prosecuted'
(sic). The satisfaction, as revealed form the orders,
does not refer to the precise provision under the IPC and
it is more laconic than the satisfaction under the
UA(P)A. S.196 refers to Chapter VI, Ss.153-A, 153-B, 295-
A and sub-sections (1) to (3) of S.505.S.124-A, which is
alleged in the present case, falls under Chapter V1. The
Crl.R.P Nos.732, 733, 734 of 2019
offences falling under Chapter VI are offences against
the State and the others are respectively (i) promoting
enmity between different groups on grounds enumerated
thereunder and doing acts prejudicial to maintenance of
harmony, (ii) imputations and assertions against national
integration, (iii) deliberate malicious acts intended to
outrage religious feelings or insulting religious beliefs
and (iv) those relating to public mischief as enumerated
under sub-sections (1) to (3) of S.505. The offences so
culled out for the purpose of mandating a requirement of
sanction from the appropriate Government are those which
could, by its very initiation result in allegations of
violation of fundamental rights. The varied offences
though engrafted in the IPC, whether the act complained
of falls under the provision is a matter of perception
regulated by individual experiences. It could also
result in drastic action and punitive measures being
taken against the alleged perpetrators which could later
be classified as malicious and ill-motivated. It is to
avoid such consequences on a well-meaning citizen or even
an unsuspecting one, that the Parliament very consciously
brought in the requirement of a sanction. The procedure
Crl.R.P Nos.732, 733, 734 of 2019
for a recommendation from an Authority constituted and a
further sanction from the appropriate Government ensures
and warrants an objective consideration of the
requirement to prosecute. The various offences vary in
content and essence and without even a mention of the act
complained of, the offence alleged or even the precise
provision, the Government has made a cryptic statement
which falls short of a satisfaction entered, with due
application of mind. The sanction orders under both the
UA(P)A and IPC have to be found invalid, not enabling the
Special Court to take cognizance.
28. The sanction accorded to prosecute the
petitioner for reason of the same having not been issued
within the time stipulated in the UA(P)A and the Rules of
2008 is vitiated. The statutory mandate of time having
not been complied with, the Special Court cannot take
cognizance of the offences under Ss.20 and 38 of the
UA(P)A Act. There is also a complete absence of
application of mind. Under S.196(1) of the Cr.P.C, again
there is no application of mind in the sanction as
evidenced from the orders impugned and hence the
cognizance taken of the offence under S.124-A of the IPC
Crl.R.P Nos.732, 733, 734 of 2019
also has to fail. The cognizance taken by the Sessions
Court under the IPC and UA(P)A are set aside and the
orders passed, impugned in the Criminal Revision
Petitions are set aside.
The Criminal Revision Petitions stand allowed.
Sd/-
K.VINOD CHANDRAN, Judge
Sd/-
C.JAYACHANDRAN, Judge
Sp/jma/lsn
Crl.R.P Nos.732, 733, 734 of 2019
APPENDIX OF CRL.REV.PET 732/2019
PETITIONER ANNEXURES
ANNEXURE I PHOTOCOPY OF THE ORDER IN C.M.P.558/2018
DATED 09.04.2018 OF COURT OF SESSIONS,
KOZHIKODE.
ANNEXURE II PHOTOCOPY OF THE SANCTION ORDER OF THE STATE
GOVERNMENT BEARING NO.G.O.(RT)
NO.1641/2018 /HOME DATED 11.06.2018.
ANNEXURE III COPY OF THE ORDER IN CMP 2064/2018 UNDER
SECTION 227 OF CR.PC OF COURT OF SESSIONS,
KOZHIKODE DATED 06.04.2019.
Crl.R.P Nos.732, 733, 734 of 2019
APPENDIX OF CRL.REV.PET 733/2019
PETITIONER ANNEXURES
ANNEXURE I PHOTOCOPY OF THE ORDER IN C.M.P 558/2018
DATED 09.04.2018 OF COURT OF SESSIONS,
KOZHIKODE.
ANNEXURE II PHOTOCOPY OF THE SANTION ORDER OF THE STATE
GOVERNMENT BEARING NO.G.O.
(RT)NO.1641/2018/HOME DATED 11.06.2018.
ANNEXURE III COPY OF THE ORDER IN CMP 2064/18 UNDER
SEC.227 OF CR.P.C. OF COURT OF SESSIONS,
KOZHIKODE DATED 06.04.2019.
Crl.R.P Nos.732, 733, 734 of 2019
APPENDIX OF CRL.REV.PET 734/2019
PETITIONER ANNEXURES
ANNEXURE I PHOTOCOPY OF THE ORDER IN C.M.P.558/2018
DATED 9.4.18 OF COURT OF SESSIONS, KOZHIKODE.
ANNEXURE II PHOTOCOPY OF THE SANCTION ORDER OF THE STATE
GOVERNMENT BEARING NO.G.O.(RT)1001/2018/HOME
DATED 7.4.2018.
ANNEXURE III COPY OF THE ORDER IN C.M.P.2065/18 UNDER
SEC.227 OF CR.P.C. IN S.C.819/18 DATED 6.4.19
OF COURT OF SESSIONS, KOZHIKODE.
